WASHINGTON, D.C.—It's been about three weeks since the Woodhull Freedom Foundation, two other organizations and two individuals filed a lawsuit to challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), under the First and Fifth Amendments of the United States Constitution—and the U.S. Department Of Justice (DOJ) has wasted no time in attempting to get the suit thrown out.
The case has been assigned to Judge Richard J. Leon of the U.S. District Court for the District of Columbia—some may recall that it was this same judge who dismissed the DOJ's obscenity case against Evil Angel—and it took the DOJ just one week to register its objections to the Temporary Restraining Order (TRO) against FOSTA that is being sought by the plaintiffs, and last Thursday, it filed its formal objection to both the suit and the TRO.
The basis for the government's objection? The plaintiffs "lack standing to bring this pre-enforcement challenge," and on top of that, that the District Court lacks jurisdiction over the matter. As to the first claim, the DOJ attorneys argue in their motion that none of the plaintiffs will suffer any cognizable harm if the TRO is not issued, noting that neither Woodhull nor the other two organizations, Human Rights Watch and the Internet Archive, typically post content that is likely to run afoul of the material that would trigger government action under FOSTA (known as an "injury-in-fact").
"Only actions taken with the intent to promote or facilitate the prostitution of another person in a jurisdiction where prostitution is illegal, per Section 2421A and Section 4(a) of FOSTA, or knowing sex trafficking under Section 1591, fall within the specifications of the Act," the government argues, claiming that nothing the organizations publish online would "realistically" fall under either category.
As to the two individual plaintiffs, massage therapist Eric Koszyk and sex worker activist Jesse Maley (aka Alex Andrews), the government argues that nothing the pair have stated in the complaint indicate that they have any intention to post material that would violate the act—even though Andrews is affiliated with the Sex Work Outreach Project (SWOP), which frequently writes about legalizing prostitution.
"Plaintiffs’ argument that the terms 'promote' and 'facilitate' [in the law] are overbroad and likely to encompass their advocacy for the legalization of prostitution or the health and safety of sex workers is unavailing and contrary to the enforcement history of substantially similar crimes," the DOJ filing argues, even though the vagueness of those terms is a primary constitutional issue—if the plaintiffs have standing to present it.
In short, the DOJ "memorandum" spends nearly 30 pages attempting to nitpick apart the plaintiffs' claims to deny them the standing ot bring both the TRO and the lawsuit it self—and the plaintiffs spend nearly as many pages justifying their position, as their reply to the government's objections, which was filed this afternoon, reveals.
"The Government urges the Court to deny a preliminary injunction (and to dismiss the Complaint) based on a narrow reading of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017," the plaintiffs' reply begins. "But DOJ’s assertions that Plaintiffs need not fear application of FOSTA’s open-ended terms and draconian penalties utterly ignores a history of Internet regulation that includes overly broad and unconstitutional efforts to regulate speech. FOSTA is even more extreme, imposing more severe criminal penalties than ever, and piling on redundant layers of potential civil liability while simultaneously stripping away immunities. Although the Government suggests (repeatedly) that FOSTA reaches only speech that advertises illegal activity… the Act by its plain terms extends far more broadly to any online speech that may be said to 'promote' or 'facilitate' prostitution, or to 'assist,' 'support' or 'facilitate' sex trafficking. It is small wonder Plaintiffs and many others have been deterred from posting anything close to 'the unlawful zone.'" [Citations removed here and below]
As to the government's claim that the plaintiffs lack standing, the reply dismisses that with a single sentence: "It is well established that a credible threat of present or future criminal prosecution will confer standing," and considering that the government has already closed down Backpage.com and convinced Craigslist to abandon its adult contact ads, the "credible threat" is pretty obvious—and is the bulk of the plaintiffs' argument here.
However, the reply goes into detail as to how each plaintiff may credibly be affected by the law, noting that past workships at Woodhull's Sexual Freedom Summit have "included advice on client screening for sex workers, human rights to engage in prostitution, and efforts to legitimize the sex work industry," and it worries that if it gives online advice to sex workers, or posts excerpts from its workshops online, it could be liable under FOSTA.
As for Andrews, she's planning to acquire an app to supplement the website Rate that Rescue, which "share[s] information about all types of organizations that provide services that sex workers use," and that provision of information could easily run afoul of FOSTA.
Similar arguments are made for the other plaintiffs, most notably the Internet Archive, which has already archived all of the pages for Backpage, Craigslist and the like that the government has already either seized or forced to shut down under FOSTA—such as Eric Koszyk online ads for his massage business.
"The Government does not address these specific claims, but merely asserts that Plaintiffs’ fears are ill-founded because it believes Plaintiffs lack the requisite intent 'to promote or facilitate prostitution.'" The reply continues. "But this disregards the pleaded facts that Plaintiffs Woodhull, HRW, and Andrews intend to make sex work safer, and thus easier, raising the legitimate concern they will be found to have intended to 'facilitate' prostitution as that term is used in FOSTA. The Government ignores the fact that Section 1591 requires no such intent, creating the fear of liability for Andrews, the Internet Archive, and non-party Craigslist, which has resulted in injury to plaintiff Koszyk; all previously relied on Section 230 immunity."
In short, plaintiffs argue that their lawsuit will succeed based on the fact that FOSTA is, among other flaws, overbroad; that it would fail the "strict scrutiny" requirement that the Third Circuit ruled in the 2257 case must apply to attempts to stifle sexual speech; that its terms are unconstitutionally vague; and that it "applies a relaxed scienter standard based on diffuse terms," meaning that "simply putting the word 'knowingly' or 'intent' before a list of indefinite verbs that do not make clear when one has transgressed cannot satisfy constitutional mens rea requirements."
So the battlelines have been drawn, and it will be up to Judge Leon to sort them out—which he will do at 4 p.m. on Thursday, July 19, at a scheduled hearing on the TRO. But even if the judge refuses to issue the TRO, if Woodhull and the other plaintiffs survive the hearing on the standing issue, the case will eventually go to trial—unless the government has some other legal tricks, er, arguments up its sleeve.
