WASHINGTON, D.C.—In a decision released this morning, the U.S. Court of Appeals for the District of Columbia Circuit has reinstated the lawsuit filed by the Woodhull Freedom Foundation and several co-plaintiffs to overturn the FOSTA law.
The original complaint was dismissed by U.S. District Judge Richard J. Leon in mid-2018 for alleged lack of standing by the plaintiffs, which include, besides Woodhull, the Internet Archive, Human Rights Watch, and individuals Alex Andrews and Eric Koszyk.
The plaintiffs argue FOSTA violates the U.S. Constitution in several ways, most specifically the speech and the due process clauses of the First and Fifth Amendments, as well as Section 230 of the Communications Decency Act, and the lawsuit seeks a preliminary injunction to keep the law from taking effect. A rundown of the complaint's main points may be found here.
While the lawsuit is formally against the United States of America and Attorney General William Barr, 26 U.S. Attorneys and Attorneys General of nearly half the states in the Union filed an amicus brief opposing getting rid of FOSTA.
The appeal was argued on September 20, 2019, before federal appeals court judges Judith W. Rogers, Thomas B. Griffith and Gregory G. Katsas, with Rogers delivering the opinion of the court, finding that "at least two of the plaintiffs" in the case in fact do have standing to contest the law.
Judge Rogers' opinion recites some of the history of FOSTA and the origin of Section 230, as well as how both related to the Trafficking Victims Protection Act of 2000, which allowed trafficking victims to bring civil suits against internet service providers despite the protections given such providers by Section 230. The judge then recites the "sense of Congress" that FOSTA was "never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims," that no such exception can be found anywhere in the original law. She then recites some of the devastating effects FOSTA has had on sexually oriented websites, most of which had nothing to do with putting potential clients in contact with sex work providers.
Judge Rogers then delved into the allegations of the Woodhull lawsuit, noting that, in sum, it argued that "(1) FOSTA’s content-based restrictions are overbroad and fail to satisfy strict scrutiny; and (2) FOSTA’s restrictions on speech are impermissibly vague, as well as that "FOSTA contains an unconstitutional ex post facto provision." The judge also gives a rundown of how each plaintiff's activities may come under FOSTA scrutiny.
"The district court ruled that plaintiffs Woodhull, Human Rights Watch, Andrews, and the Internet Archive lacked standing to bring a pre-enforcement challenge to FOSTA, interpreting FOSTA not to apply to their described conduct and finding that they lacked a credible threat of prosecution," Judge Rogers writes, and that, "Additionally, the district court ruled that Koszyk failed to establish redressability because his injury was the result of Craigslist’s decision to remove his advertisements—a discretionary decision by a third party not before the court."
But the panel found that Andrews and Koszyk did indeed have standing, based on the government's agreement that a "plaintiff’s non-frivolous contention regarding the meaning of a statute must be taken as correct for purposes of standing." In Andrews' case, that included a violation of her right to discuss sexual issues on the internet, including hosting a "ratings and review website," Rate That Rescue, which provided services to the sex work community.
"Because Andrews’ website allows sex workers to share information about online payment processors like PayPal, Andrews has alleged 'some desired conduct ... that might trigger an enforcement action'," the opinion states, adding, "On this record, there is also ample reason to conclude that the threat of future enforcement against Andrews is substantial."
The panel concluded that Koszyk also has standing since, in his case, "Where 'a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation ... of someone else, ... causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party.'" That "someone else" was Craigslist, which ditched its Personals section, where Koszyk advertised his services, for fear of the feds coming after Craigslist for allegedly facilitating prostitution. Moreover, the panel held that if FOSTA were overturned, Craigslist could again allow Personal ads and Koszyk would be back in business.
"Accordingly," the opinion's main section concludes, "because Andrews and Koszyk have established their Article III standing to bring a pre-enforcement challenge to FOSTA—Andrews has alleged intended conduct that is arguably proscribed by FOSTA and the threat of future enforcement is substantial, while Koszyk has demonstrated that a favorable decision would create a significant increase in likelihood that he would obtain relief—we reverse the order dismissing the complaint for lack of subject-matter jurisdiction and remand the case to the district court for further proceedings."
Judge Katsas also filed a concurring opinion, taking issue with the majority's reading of "all [of FOSTA's] key statutory terms, including "prostitution of another person," and "promote," which he feels the majority has defined in a way other than the dictionary definition.
"Properly construed, FOSTA does not arguably cover the advocacy, education, assistance, or archiving done by plaintiffs Woodhull Freedom Foundation, Human Rights Watch, and Internet Archive," Judge Katsas claims. "Nor does it arguably cover Andrews’s website insofar as it provides information about 'support and rescue' organizations that either discourage prostitution altogether or seek to mitigate its harmfulness." Nevertheless, he concurred in the panel's final judgment on the question of standing.
“We are thrilled with the victory in this incredibly important case,” said Ricci Levy, President and CEO of Woodhull Freedom Foundation. “We are committed to fighting this unconstitutional and dangerous law to the end.”
The panel, however, remanded the entire lawsuit back to the district court—presumably Judge Leon—who might conceivably, despite his prior ruling, find that more plaintiffs than Andrews and Koszyk may continue to contest FOSTA, since the appeals panel did say "at least two of the plaintiffs" have standing, meaning that possibly all of them do. What is clear, however, is that all plaintiffs will be party to that hearing, and the adult industry can only wait to see what will happen then.
The plaintiffs' case was argued by prominent First Amendment attorney Robert L. Corn-Revere, and was joined on the briefs by well-known industry advocate Lawrence G. Walters, as well as Ronald G. London, Daphne Keller, David Greene, Aaron Mackey, and Corynne McSherry.
“The entire legal team worked tirelessly in this appeal, and we are happy to see that the constitutional challenge is moving forward,” said Walters, General Counsel to Woodhull. "We look forward to finally addressing the merits of our constitutional challenge to FOSTA in the district court, and remain optimistic that the law will be struck down."
The full text of the decision may be found here.
