WOODHULL FREEDOM FOUNDATION et al v. UNITED STATES OF AMERICA et al

Filing 17

REPLY to opposition to motion re 5 MOTION for Preliminary Injunction filed by HUMAN RIGHTS WATCH, INTERNET ARCHIVE, ERIC KOSZYK, JESSE MALEY, WOODHULL FREEDOM FOUNDATION. (Corn-Revere, Robert)

Case 1:18-cv-01552-RJL Document 17 Filed 07/17/18 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WOODHULL FREEDOM FOUNDATION,
HUMAN RIGHTS WATCH, ERIC KOSZYK,
JESSE MALEY, a/k/a ALEX ANDREWS, and
THE INTERNET ARCHIVE,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA
and JEFFERSON B. SESSIONS, in his
official capacity as ATTORNEY GENERAL
OF THE UNITED STATES,
Defendants.

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Case No. 1:18-cv-1552-RJL

PLAINTIFFS’ REPLY TO OPPOSITION TO
MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
I.

PLAINTIFFS HAVE STANDING TO CHALLENGE FOSTA ........................................ 2
A.
B.

II.

Plaintiffs Have Alleged Sufficient Facts to Demonstrate a Credible Threat
of Prosecution and Other Harms to Their First Amendment Rights ...................... 3
The Government Misreads the Law Governing Standing ...................................... 7

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ................................... 12
A.
B.

FOSTA Fails Strict Scrutiny ................................................................................. 15

C.

FOSTA is Unconstitutionally Vague .................................................................... 17

D.

FOSTA Applies a Relaxed Scienter Standard Based on Diffuse Terms .............. 20

E.

Modification of Section 230 Immunity................................................................. 21

F.
III.

FOSTA is Overbroad ............................................................................................ 12

Ex Post Facto Law ................................................................................................ 23

PLAINTIFFS’ LIKELIHOOD OF PREVAILING ON THE MERITS MEANS THE
REMAINING FACTORS FAVOR GRANT OF A PRELIMINARY INJUNCTION .... 23

CONCLUSION ............................................................................................................................. 25

i

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TABLE OF AUTHORITIES
Page(s)
Federal Cases
ACLU v. Johnson,
194 F.3d 1149 (10th Cir. 1999) .................................................................................................2
ACLU v. Reno,
31 F. Supp. 2d 473 (E.D. Pa. 1999) ................................................................................. passim
ACLU v. Reno,
929 F. Supp. 824 (E.D. Pa. 1996) ..............................................................................2, 8, 11, 23
Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc.,
570 U.S. 205 (2013) .................................................................................................................22
American Booksellers Found. for Free Expression v. Dean,
342 F.3d 96 (2d Cir. 2003).........................................................................................................2
American Library Association v. Barr,
956 F.2d 1178 (D.C. Cir. 1992) .................................................................................................9
Amusement Devices Ass’n v. Ohio,
443 F. Supp. 1040 (S.D. Ohio 1977) .......................................................................................18
Ashcroft v. ACLU,
542 U.S. 656 (2004) .............................................................................................................9, 17
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) ...........................................................................................................11, 12
Babbitt v. United Farm Workers,
442 U.S. 289 (1979) ...................................................................................................................8
Backpage.com, LLC v. Cooper,
939 F. Supp. 2d 805 (M.D. Tenn. 2013) ......................................................................10, 14, 22
Backpage.com, LLC v. Dart,
807 F.3d 229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2017) ............................................10
Backpage.com, LLC v. Hoffman,
2013 WL 4502097 (D.N.J. Aug. 20, 2013) .................................................................10, 14, 22
Backpage.com, LLC v. Lynch,
216 F. Supp. 3d 96 (D.D.C. 2016) .............................................................................................9

ii

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Backpage.com, LLC v. McKenna,
881 F. Supp. 2d 1262 (W.D. Wash. 2012)...................................................................10, 14, 22
Baggett v. Bullitt,
377 U.S. 360 (1964) ...................................................................................................................1
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) .................................................................................................21
Bays v. City of Fairborn,
668 F.3d 814 (6th Cir. 2012) ...................................................................................................25
Big Mama Rag, Inc. v. United States,
631 F.2d 1030 (D.C. Cir. 1980) .................................................................................................1
Bookfriends, Inc. v. Taft,
223 F. Supp. 2d 932 (S.D. Ohio 2002) ......................................................................................2
Brandenburg v. Ohio,
395 U.S. 444 (1969) .................................................................................................................13
Brown v. Entertainment Merchs. Ass’n,
564 U.S. 786 (2011) .................................................................................................................16
CDT v. Pappert,
337 F. Supp. 2d 606 (E.D. Pa. 2004) .......................................................................................10
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .................................................................................................24
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ...................................................................................................................7
Cyberspace Commc’ns, Inc. v. Engler,
55 F. Supp. 2d 737 (E.D. Mich. 1999).......................................................................................2
Dart v. Craigslist, Inc.,
665 F. Supp. 2d 961 (N.D. Ill. 2009) .......................................................................................10
De Jonge v. Oregon,
299 U.S. 353 (1937) .................................................................................................................12
Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty.,
274 F.3d 377 (6th Cir. 2001) ...................................................................................................25
Doe v. Bolton,
410 U.S. 179 (1973) ...............................................................................................................2, 3

iii

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Doe v. MySpace, Inc.,
474 F. Supp. 2d 843 (W.D. Tex. 2007), aff’d, 528 F.3d 413 (5th Cir. 2008) ..........................10
Doe v. SexSearch.com,
502 F. Supp. 2d 719, 727 (N.D. Ohio 2007), aff’d on other grounds,
551 F.3d 42 (6th Cir. 2008) ....................................................................................................10
Elrod v. Burns,
427 U.S. 347 (1976) ...........................................................................................................24, 25
e-ventures Worldwide, LLC v. Google, Inc.,
2017 WL 2210029 (M.D. Fla. Feb. 8, 2017) ...........................................................................22
Fabulous Assocs. v. Pennsylvania Pub. Util. Comm’n,
896 F.2d 780 (3d Cir. 1990).......................................................................................................9
Google, Inc. v. Hood,
96 F. Supp. 3d 584 (S.D. Miss. 2015), rev’d on procedural grounds,
822 F.3d 212 (5th Cir. 2016) .............................................................................................10, 21
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .....................................................................................................................18
In re Navy Chaplaincy,
534 F.3d 756 (D.C. Cir. 2008) .................................................................................................24
Jian Zhang v. Baidu.com Inc.,
10 F. Supp. 3d 433 (S.D.N.Y. 2014)........................................................................................22
La’Tiejira v. Facebook, Inc.,
272 F. Supp. 3d 981 (S.D. Tex. 2017) .....................................................................................22
Matal v. Tam,
137 S. Ct. 1744 (2017) .............................................................................................................22
Mills v. D.C.,
571 F.3d 1304 (D.C. Cir. 2009) .........................................................................................24, 25
NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982) .................................................................................................................13
Nat’l Inst. of Family & Life Advocates v. Becerra,
138 S. Ct. 2361 (2018) .............................................................................................................15
New Hampshire Right to Life Political Action Comm. v. Gardner,
99 F.3d 8 (1st Cir. 1996) ............................................................................................................8

iv

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New York State Club Ass’n. v. City of New York,
487 U.S. 1 (1998) .....................................................................................................................12
Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................................25
Pacific Gas & Elec. Co. v. Public Utils. Comm’n of Cal.,
475 U.S. 1 (1986) .......................................................................................................................6
Pursuing America’s Greatness v. FEC,
831 F.3d 500 (D.C. Cir. 2016) ...........................................................................................24, 25
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) .................................................................................................................15
R.J. Reynolds Co. v. FDA,
823 F. Supp. 2d 36, 52 (D.D.C. 2011), aff’d, 696 F.3d 1205 (D.C. Cir. 2012),
overruled on other grounds, American Meat Inst. v. USDA, 760 F.3d 18 (D.C.
Cir. 2014) (en banc) .................................................................................................................25
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) .............................................................................................................15
Reno v. ACLU,
521 U.S. 844 (1997) .............................................................................................8, 9, 17, 19, 21
Saponaro v. Grindr, LLC,
93 F. Supp. 3d 319 (D.N.J. 2015) ............................................................................................10
Seeger v. DOD,
306 F. Supp. 3d 265 (D.D.C. 2018) .........................................................................................24
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,
502 U.S. 105 (1991) .................................................................................................................11
Smith v. California,
361 U.S. 147 (1959) .................................................................................................................22
Southeast Booksellers Ass’n v. McMaster,
371 F. Supp. 2d 773 (D.S.C. 2005)............................................................................................2
Steffel v. Thompson,
415 U.S. 452 (1974) ...............................................................................................................2, 8
Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334 (2014) ...........................................................................................................8, 9

v

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United States v. Bennett,
1996 WL 477048 (9th Cir. 1996) ............................................................................................19
United States v. Hurant,
No. CR 16-45 (E.D.N.Y.) ........................................................................................................19
United States v. Lacey, et al.,
18-CR-422 (D. Ariz.) ...............................................................................................................19
United States v. Omuro,
No. CR-14-CR-336 (N.D. Cal.) ...............................................................................................19
United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803 (2000) .....................................................................................................15, 16, 17
United States v. Stevens,
559 U.S. 460 (2010) .....................................................................................................12, 13, 23
United States v. Williams,
553 U.S. 285 (2008) ...........................................................................................................14, 17
Universal Commc’n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413 (1st Cir. 2007) ....................................................................................................21
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) ...................................................................................................................6
Virginia v. American Booksellers Ass’n,
484 U.S. 383 (1988) ...................................................................................................................2
Watt v. Energy Action Educ. Found.,
454 U.S. 151 (1981) ...................................................................................................................2
Zeran v. Am. Online, Inc.,
129 F.3d 327 (4th Cir. 1997) .............................................................................................21, 22
State Cases
Delfino v. Agilent Techs., Inc.,
145 Cal. App. 4th 790 (2006) ..................................................................................................21
People v. Ferrer,
2016 WL 7237305 (Cal. Super. Ct. Dec. 9, 2016)...................................................................21
People v. Ferrer,
No. 16FE024013, slip op. (Cal. Super. Ct. Aug. 23, 2017) .....................................................21

vi

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Constitutional Provisions
U.S. Const. amend. I .............................................................................................................. passim
Federal Statutes
Allow States and Victims to Fight Online Sex Trafficking Act of 2017,
Pub. L. No. 115-164, 132 Stat. 1253 (2018) .................................................................... passim
18 U.S.C.
§ 1591...................................................................................................................................7, 20
§ 1591(a) ..............................................................................................................................1, 20
§ 1591(a)(1)-(2) .......................................................................................................................20
§ 1591(e)(4) ...................................................................................................................1, 14, 20
§ 1952.......................................................................................................................................19
§ 2252A(a)(3)(B) .....................................................................................................................14
§ 2421A(a) .......................................................................................................................1, 3, 14
§ 2421A(b) .......................................................................................................................1, 3, 20
§ 2421A(b)(2) ....................................................................................................................14, 20
47 U.S.C.
§ 230................................................................................................................................. passim
§ 230(e) ....................................................................................................................................21
Legislative Material
H.R. Rep. No. 115-572 (Feb. 20, 2018) .....................................................................................7, 21
Rules
Local R. 7.1(b) .................................................................................................................................1
Other Authorities
Eric Goldman, Indianapolis Police Have Been “Blinded Lately Because
They Shut Backpage Down,” Tech. & Mktg. L. Blog, July 11, 2018,
https://blog.ericgoldman.org/archives/2018/ 07/indianapolis-police-havebeen-blinded-lately-because-they-shut-backpage-down.htm ..................................................16
U.S. DEPT. OF JUSTICE OFFICE OF LEGISLATIVE AFFAIRS, Memorandum to Hon. Robert
Goodlatte, Chairman, U.S. House of Representatives Committee of the Judiciary
(Feb. 27, 2018) .........................................................................................................................23

vii

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INTRODUCTION
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. Pub. L. No. 115-164, 132 Stat. 1253 (2018) (“FOSTA” or “the Act”). 1
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, Opp. 14, 15, 16, 18, 22, 25, 27, 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.
18 U.S.C. §§ 1591(a), (e)(4); § 2421A(a)-(b). It is small wonder Plaintiffs and many others have
been deterred from posting anything close to “the unlawful zone.” E.g., Big Mama Rag, Inc. v.
United States, 631 F.2d 1030, 1035 (D.C. Cir. 1980) (quoting Baggett v. Bullitt, 377 U.S. 360,
372 (1964)). FOSTA has had an entirely predictable chilling effect, and as such it causes both
injury-in-fact that gives Plaintiffs standing to challenge it, and First Amendment violations that
constitute irreparable harm. The Act must therefore be preliminarily enjoined.

1

The Government has styled its Opposition to the Motion for a Preliminary Injunction
(Opp.) as also constituting its Motion to Dismiss the Complaint. The Court’s rules allow more
time for an opposition to a motion to dismiss than has been allowed for briefing and hearing the
preliminary injunction motion. See Local R. 7.1(b). Plaintiffs will oppose the Motion to Dismiss in due course, if necessary, in the wake of the Court’s ruling on the preliminary injunction.

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ARGUMENT
I.

PLAINTIFFS HAVE STANDING TO CHALLENGE FOSTA
Plaintiffs have standing to challenge FOSTA because the law proscribes online speech in

ways that directly threaten Plaintiffs’ expressive activities. 2 All this is set forth in Plaintiffs’
declarations, which describe myriad ways in which their speech has already been dampened by
the law, and which have gone unchallenged by the Government. 3 It is well established that a
credible threat of present or future criminal prosecution will confer standing. See, e.g., Virginia
v. American Booksellers Ass’n, 484 U.S. 383, 392-93 (1988) (noting Court was “not troubled by
the pre-enforcement nature of th[e] suit” and holding the injury-in-fact requirement was met, in
part because “plaintiffs [] alleged an actual and well-founded fear that the law will be enforced
against them”); Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“It is not necessary that [a party]
first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights.”); Doe v. Bolton, 410 U.S. 179, 188-89
2

In a facial challenge with multiple parties, only one plaintiff need demonstrate standing.
Once a plaintiff has done so, the District Court need not consider whether the others also have
standing. See, e.g., Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981); Bookfriends,
Inc. v. Taft, 223 F. Supp. 2d 932, 939 n.6 (S.D. Ohio 2002).
3

This is similar to the previous regulations of Internet speech, all of which resulted in preenforcement injunctions barring enforcement. See, e.g., ACLU v. Reno, 929 F. Supp. 824 (E.D.
Pa. 1996) (“Reno I”) (subsequent history omitted); ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa.
1999) (“Reno II”) (subsequent history omitted). See also ACLU v. Johnson, 194 F.3d 1149, 1154
(10th Cir. 1999) (“No one should have to go through being arrested for a felony, public[ly]
shamed, and pay for a defense only to have a court find [a] newly enacted statute is unconstitutional.”) (citation omitted); Cyberspace Commc’ns, Inc. v. Engler, 55 F. Supp. 2d 737, 745-46
(E.D. Mich. 1999) (“[P]laintiffs have standing, because an alleged injury is ‘certainly impending’, if the statute takes effect and the material they disseminate is deemed ‘sexually explicit.’”),
aff’d, 238 F.3d 420 (6th Cir. 2000); American Booksellers Found. for Free Expression v. Dean,
342 F.3d 96, 100-01 (2d Cir. 2003) (law “presents plaintiffs with the choice of risking prosecution or censoring the content of their sites”); Bookfriends, 223 F. Supp. 2d at 941 (plaintiffs had
standing to challenge internet censorship law where government “did not present ‘compelling
contrary evidence’ which could cause this Court to conclude that a credible threat of prosecution
does not exist”); Southeast Booksellers Ass’n v. McMaster, 371 F. Supp. 2d 773 (D.S.C. 2005).
2

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(1973).

The rationale underlying this rule is that a credible threat of present or future

prosecution is itself an injury that suffices to confer standing, even if there is no history of past
enforcement. Bolton, 410 U.S. at 188. This recognizes that a speaker who fears prosecution
may engage in self-censorship, which is itself an injury.
A.

Plaintiffs Have Alleged Sufficient Facts to Demonstrate a Credible Threat
of Prosecution and Other Harms to Their First Amendment Rights

FOSTA reaches anyone who owns, manages, or operates an interactive computer service
so as to “promote” or “facilitate” the prostitution of another person,” 18 U.S.C. § 2421A(a), and
exposes to even greater liability one who “acts in reckless disregard” of the fact that his conduct
“contributed to sex trafficking.” Id. § 2421A(b). The Government acknowledges these terms are
undefined (and unrestricted) in the Act and that their “sweep is vast.” Opp. 16, 23. FOSTA can
easily be read to encompass Plaintiffs’ advocacy for sex workers, provision of health-related
information, and harm reduction activities; as a result, it is at best uncertain whether they have
the requisite intent to “facilitate” prostitution. Plaintiffs cite numerous examples where speech
has been driven from the Internet, and show by declaration how their own speech has already
been dampened or silenced and how they are uncertain how to proceed in the immediate future.
Woodhull Freedom Foundation: Woodhull has a credible fear it may be prosecuted for
“promoting” or “facilitating” prostitution given the broad, vague, and undefined prohibitions
contained in FOSTA and Woodhull’s intention to make sex work safer and thus easier. Decl. of
Ricci Levy, Dkt. 5-2 (“Levy Decl.”), ¶¶ 17, 42. Woodhull’s Sexual Freedom Summit (“Summit”) workshops have included information and advice for sex workers that goes beyond advocacy for “harm reductions, disability, age, health and personal safety.” Opp. 9 (quoting Compl.
¶¶ 66-67).

For example, past workshops have included advice on client screening for sex

workers, human rights to engage in prostitution, and efforts to legitimize the sex work industry.
3

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Levy Decl. ¶¶ 19-20. 4 Woodhull needs to know if FOSTA can be enforced against online
services such as a Facebook Live feed and live tweets on Twitter, where sex workers identify
themselves as such and may provide contact information. It is unclear whether, by giving
specific sex workers this online platform, Woodhull will be seen as “promoting the prostitution
of another person.” It is also uncertain whether its promotion of the upcoming sex worker
workshops on its own website and social media violate FOSTA for the same reason.
Alex Andrews: Ms. Andrews has alleged a credible fear of legal penalties for both the
creation and maintenance of Rate that Rescue, and also put on hold her acquisition of an indevelopment reporting application. Andrews intends that both the website and the app will make
sex work safer and thus easier. The website, Rate that Rescue, exists to “share information about
all types of organizations that provide services that sex workers use.” Decl. of Jesse Maley, Dkt.
5-5 (“Maley Decl.”), ¶¶ 12, 23. The organizations listed on Rate That Rescue provide services
including “housing, childcare, counseling, education, and outreach.” Id. ¶ 21. Providing housing
services to sex workers makes sex work easier by giving sex workers a place to live and safely
engage in sex work. Providing childcare to sex workers makes sex work easier during the time
that sex workers’ children would not be otherwise cared for. Evaluating “rescue services” that
identify organizations that move a sex worker out of trafficking and into consensual sex work,
rather than out of sex work altogether, also makes sex work safer and easier. 5
4

The 2018 Summit will include workshops that provide information on “better practices for
sex workers,” how to engage in supportive relationships with sex workers, how to balance sex
work with personal time, how to safely write online profiles, and how to reduce the risk of
prosecution when seeking aid from the police by calling 911. Dkt. 11, pp.5-7. Woodhull publishes contact information for sex workers on its own website, and promotes this information on
various third party social media platforms. Levy Decl. ¶¶ 23-24.
5

Likewise, the in-development mobile application Andrews decided not to purchase
because of FOSTA was designed to make sex work easier by reducing the dangers that sex
workers face from their clients and lessening the precautions that sex workers must take before
4

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Given that both the website and app were comprised mostly of user-generated content,
Andrews relied on immunity under 47 U.S.C. § 230 (“Section 230”) to reduce her risk of liability
should a user supply offending content. But with passage of FOSTA, she can no longer do so.
Andrews reasonably fears that she will be seen as recklessly disregarding the risk that by making
sex work easier, she can be accused of “contributing to sex trafficking,” because of the way
Congress has conflated trafficking with sex work. And as long as her own or user-generated
content is not advertising, and she does not intend that it will be, she need not have the intent to
be assisting sex trafficking, or even specific knowledge that she is doing so.
Human Rights Watch: FOSTA reasonably could be interpreted to apply to HRW’s
human rights advocacy because HRW seeks to make sex work safer and thus easier. Opp. 10.
HRW makes sex work easier by advocating on behalf of sex workers’ rights and safety in the
U.S. and internationally, and by documenting “abuses against sex workers in the United States,
Lebanon, and South Africa.” Decl. of Dinah Pokempner, Dkt. 5-3 (“Pokempner Decl.”), ¶ 5.
Documenting abuse suffered in connection with sex work has the goal of ending such abuse and
making sex work less dangerous.

Also, HRW reports on “police searches of women for

condoms as evidence of prostitution in four US cities.” Id. These reports forewarn sex workers
about methods police use to discover and shut down sex work, thus making it easier for sex
workers to avoid detection by law enforcement.
Internet Archive: The Internet Archive reasonably fears prosecution not only for its preservation of web pages, but also for material it hosts that third parties upload. The Government’s

engaging in sex work. The application in question “would allow sex workers to use the app to
report violence, harassment, and other harmful behavior against them,” Maley Decl. ¶ 33, and
would “maintain a database of these reports so that other sex workers could query to avoid bad
actors and to decrease violence against them.” Id. This function, like other “bad date lists,” are
designed to help sex workers safely be sex workers, thus making sex work easier.
5

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claim that the Archive “does not allege an intention to engage in a course of conduct proscribed
by the statute at issue or for which there exists a credible threat of prosecution,” Opp. 10, is not
supported by the facts. 6 Although the Archive does not intend to promote sex trafficking or
prostitution, it intentionally stores and displays a vast amount of both historical website data and
third-party content that is has “no practical ability to evaluate the legality of.” Decl. of Brewster
Kahle, Dkt. 5-6 (“Kahle Decl.”), ¶ 14. And given the ambiguity of FOSTA, it is unclear whether
the Internet Archive will be required to have specific knowledge that hosted content somehow
“supports or assists sex trafficking or promotes or facilitates prostitution.” Kahle Decl. ¶¶ 14,
21. Prior to FOSTA, the Archive relied on the immunity granted by Section 230 to operate
without fear of liability. It can no longer do so. Id. ¶¶ 15, 21. Even if the Internet Archive had
the resources and ability to screen for content made illegal by FOSTA, the law’s ambiguity as to
what is actually illegal would make this an impossible task.
Eric Koszyk:

Mr. Koszyk was injured when Craigslist eliminated its Therapeutic

Services section as a direct response to FOSTA. That Koszyk’s actions “do not fall within those
proscribed by the Act,” is irrelevant. Opp. at 10. As Craigslist is critical to Koszyk’s ability to
conduct his business, its removal of his ads due to its fear of prosecution or litigation under
FOSTA causes him injury. Decl. of Eric Koszyk, Dkt. 5-4 (“Koszyk Decl.”), ¶¶ 25, 27. Mr.
Koszyk’s injury can thus be redressed by the Court voiding FOSTA, by eliminating Craigslist’s

6

Even if the Archive did not fear potential prosecution, it would have standing based on
FOSTA’s impact in dampening Internet speech that affects its mission of preserving access to
online information for the general public. See Reno II, 31 F. Supp. 2d at 480-81 n.2. This is
because the First Amendment protects the right to “receive information and ideas.” Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976)
(citation omitted); see also Pacific Gas & Elec. Co. v. Public Utils. Comm’n of Cal., 475 U.S.
1, 7 (1986) (noting First Amendment protects public’s interest in receiving information).
6

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credible fear of prosecution, and leading them to re-open their platform to his ads. See Compl.
¶ 101; Decl. of Kate D’Adamo, Dkt. 5-1 (“D’Adamo Decl.”), ¶ 13.
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.” 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.
The credible threat of prosecution is manifest in FOSTA’s purpose to facilitate prosecution by broadening existing law in both scope and number of enforcers. FOSTA followed active
campaigns by state officials and local law enforcement to police the Internet, numerous civil
claims, and exhortations to action by federal officials. Its stated purpose is to allow enforcement
in cases that previously were barred by law, and it went even further to create a new federal
offense. As the House Report put it, “H.R. 1865 will allow vigorous criminal enforcement
against all bad-actor websites, not just Backpage.com, through the creation of a new federal law
and by explicitly permitting states to enforce criminal laws that mirror this new federal law and
current federal sex trafficking law.” H.R. Rep. No. 115-572, at 6 (Feb. 20, 2018).
B.

The Government Misreads the Law Governing Standing

The Government not only ignores these facts, it misreads the law. Its claim that the
standing inquiry must be “especially rigorous” fails to recognize the First Amendment context of
this case. Opp. 7 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)). The
inquiry is different where the government adopts a law, the very existence of which inhibits
7

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speech, because the “risk of criminal sanctions ‘hovers over each content provider, like the
proverbial sword of Damocles.’” Reno v. ACLU, 521 U.S. 844, 882 (1997) (quoting Reno I, 929
F. Supp. at 855-56).

As the U.S. District Court for the Eastern District of Pennsylvania

explained when it enjoined the Child Online Protection Act (“COPA”), the standard
encapsulated in the phrase “‘credible threat of prosecution’ is quite forgiving.” Reno II, 31 F.
Supp. 2d at 479-80 (quoting New Hampshire Right to Life Political Action Comm. v. Gardner,
99 F.3d 8, 14 (1st Cir. 1996)). When dealing with pre-enforcement challenges “to recently
enacted (or, at least non-moribund) statutes that facially restrict expressive activity by the class
to which the plaintiff belongs, the court will assume a credible threat of prosecution in the
absence of compelling contrary evidence.” Id. at 480 (quoting Gardner, 99 F.3d at 15).
The Government obscures the central holdings of Susan B. Anthony List v. Driehaus, 134
S. Ct. 2334 (2014) (“SBA List”), Opp. 7-8, which held that (1) “it is not necessary that [a person]
first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights,” SBA List, 134 S. Ct. at 2342 (quoting
Steffel, 415 U.S. at 459); (2) a plaintiff can bring a pre-enforcement suit when he “has alleged an
intention to engage in a course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecution thereunder,” id. (quoting
Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979)); and (3) a plaintiff who wishes to
challenge the constitutionality of a law regulating speech is not required “to confess that he will
in fact violate that law” in order to have standing. Id. at 2344-45. See also Babbitt, 442 U.S. at
301 (case was justiciable even though plaintiffs disavowed any intent to “propagate untruths”). 7

7

One factor that strongly supported standing in SBA List was that the Ohio false statement
statute allowed “any person” with knowledge of the purported violation to file a complaint. 134
S. Ct. at 2345. FOSTA is even more threatening in this regard because anyone may target online
8

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Applying these principles, the Court rejected an argument like the Government’s claim here, that
Plaintiffs need not fear prosecution or civil suits because of a supposed lack of intent. Id. at
2344-45 (holding credible threat of enforcement exists even where a law prohibits only
“knowingly false” statements and the plaintiff has not expressed any intention to lie). 8
There is no authority for the Government’s proposition that Plaintiffs’ speech has not
been chilled because they have not gone completely silent. Opp. 9 (“By its own admission,
Woodhull is proceeding with its Summit, including online advertising.”). The law is clear that
“[a] statute which has the effect of deterring speech, even if not totally suppressing speech, is a
restraint on free expression.”

Reno II, 31 F. Supp. 2d at 493.

See Fabulous Assocs. v.

Pennsylvania Pub. Util. Comm’n, 896 F.2d 780, 785 (3d Cir. 1990).
The Government suggests Plaintiffs need not fear FOSTA’s use of open-ended terms like
“promote” or “facilitate” could lead to overzealous application based on “enforcement history.”
Opp. 10-12. But Plaintiffs’ fear is based on a more pertinent historical context—repeated
attempts to regulate the Internet. These have included overly broad and unconstitutional efforts
to regulate speech, 9 charging websites with aiding and abetting prostitution for merely providing

speech by purporting to notify a hosting service (like Plaintiff Internet Archive) that a given post
facilitates prostitution or trafficking.
8

There can be no well-founded argument that American Library Association v. Barr, 956
F.2d 1178 (D.C. Cir. 1992), or Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96 (D.D.C. 2016),
are controlling or support finding lack of standing here. Opp. 13-15. In both cases, plaintiffs not
only disavowed engaging in speech falling within the statutes at issue, see Opp. 13 (citing ALA,
956 F.2d at 1193-94); id. 15 (citing Lynch, 216 F. Supp. 3d at 103, 108-09), but attested to taking
steps to avoid doing so. E.g., Lynch, 216 F. Supp. 3d at 104, 107 (citing “numerous steps” taken
to eliminate illegal content). Here, conversely, Plaintiffs have averred they knowingly engage in
speech—and wish to continue to do so—that could easily fall within FOSTA’s broad, undefined
prohibitions against, e.g., “promoting” or “facilitating” prostitution. See infra 12-14, 17-20.
9

Reno, 521 U.S. at 882 (Communications Decency Act (“CDA”) “threatens to torch a large
segment of the Internet community”); Ashcroft v. ACLU, 542 U.S. 656, 674 (2004) (“even full
compliance with COPA cannot guarantee freedom from prosecution”) (Stevens, J., concurring).
9

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a neutral platform for advertising, 10 subjecting such sites to informal prior restraints, 11 engaging
in abusive investigations of search engines, 12 targeting websites with unconstitutional legislation, 13 and peppering online sites with contrived civil suits. 14 FOSTA’s raison d'être is to make
such claims and enforcement actions viable, and it is absurd to think its expansive terms will not
be used by politically ambitious prosecutors to target speech they dislike, or by avaricious plaintiffs’ lawyers (particularly given FOSTA’s fee-shifting and mandatory reparations provisions).
The Government in this case advances the same argument it made in opposing
preliminary injunctions of both the CDA and COPA—that concerns about potential liability

10

E.g., Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 968 (N.D. Ill. 2009) (“We disagree … that the ‘adult services’ section is a special case. The phrase ‘adult,’ even in conjunction with ‘services,’ is not unlawful in itself nor does it necessarily call for unlawful content.”).
11

Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015) (“not all advertisements
for sex are advertisements for illegal sex”), cert. denied, 137 S. Ct. 46 (2017); CDT v. Pappert,
337 F. Supp. 2d 606 (E.D. Pa. 2004).
12

Google, Inc. v. Hood, 96 F. Supp. 3d 584, 598 (S.D. Miss. 2015) (overbroad subpoena to
Google violated First Amendment), rev’d on procedural grounds, 822 F.3d 212 (5th Cir. 2016).
13

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1282 (W.D. Wash. 2012) (escort
ads have long been permitted and escort services are licensed and regulated in many states);
Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 833-34 (M.D. Tenn. 2013) (ads for escorts
and adult services are protected speech under the First Amendment); Backpage.com, LLC v.
Hoffman, 2013 WL 4502097, at *9-11 (D.N.J. Aug. 20, 2013) (rejecting argument that escort ads
are unprotected speech).
14

See, e.g., Saponaro v. Grindr, LLC, 93 F. Supp. 3d 319, 323 (D.N.J. 2015) (claim that
service provider “fail[ed] to properly supervise its site,” such that “a thirteen-year-old was
allowed to use its services and [] hold himself out as an adult, which … led to Plaintiff's arrest,”
treated Grindr as publisher of others’ content); Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 849
(W.D. Tex. 2007) (“No matter how artfully Plaintiffs seek to plead th[em], the Court views
Plaintiff’s claims [that the service provider failed to implement sufficient safeguards to protect
minors from sexual assault] as directed toward MySpace in its publishing, editorial, and/or
screening capacities.”), aff’d, 528 F.3d 413 (5th Cir. 2008); Doe v. SexSearch.com, 502
F. Supp. 2d 719, 727 (N.D. Ohio 2007) (“Plaintiff attempts to do the same [] as the plaintiffs in
Doe v. MySpace and, in fact, comes right out and tells the Court his Complaint is artfully pled to
avoid the CDA.”), aff’d on other grounds, 551 F.3d 412 (6th Cir. 2008).
10

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under Internet censorship laws are overblown. Reviewing courts emphatically rejected those
arguments, finding “plaintiffs’ fear of prosecution … legitimate, even though they are not the
pornographers Congress had in mind when it passed the CDA.” Reno I, 929 F. Supp. at 872
(Dalzell, J.).

Where laws that regulate speech threaten heavy criminal penalties or civil

sanctions, courts typically find standing for a facial challenge rather than trusting prosecutors to
show good sense or exercise restraint. Id. at 857. See Ashcroft v. Free Speech Coalition, 535
U.S. 234, 244 (2002) (“this case [is] a textbook example of why we permit facial challenges to
statutes that burden expression”).
The Reno I court said it must consider whether “a content-based law ‘can produce such
an outcome’” regardless whether the Government considers plaintiffs’ concerns “hyperbolic.”
929 F. Supp. at 870 (Dalzell, J.) (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 123 (1991)). 15 The court rejected the government’s identical argument and denied its motion to dismiss the pre-enforcement challenge to COPA despite the claim
that plaintiffs’ concerns were “wholly speculative” because they were “not ‘engaged in the
business’ of distributing harmful to minors materials.” Reno II, 31 F. Supp. 2d at 480. But the

15

The CDA plaintiffs demonstrated a “likelihood” of prosecution even though the court
considered it “unlikely that the Carnegie Library will ever stand in the dock for putting its card
catalogue online, or that the Government will hale the ACLU into court for its online quiz of the
seven dirty words.” Reno I, 929 F. Supp. at 871 (Dalzell, J.) The court observed “we cannot
ignore that the Act could reach these activities,” or others, such as the Critical Path AIDS
Project’s Web site, “which includes safer sex instructions written in street language for easy
comprehension” as well as descriptions of “the risk of HIV transmission for particular sexual
practices.” Id. (emphasis added). It also found that Stop Prisoner Rape, Inc. had shown a
likelihood of prosecution because it had created chat rooms “in which members can discuss their
experiences,” and it pointed to other websites “dedicated to survivors of rape, incest, and other
sexual abuse” that similarly were at risk. Id. at 872. Notwithstanding the clear merit of such
speech, the court found “[t]he operators of these sites, and their participants, could legitimately
fear prosecution under the CDA.” Id.
11

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court found “nothing in the text of the COPA … limits its applicability to so-called commercial
pornographers only.” Id. The same considerations apply here.
II.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
A.

FOSTA is Overbroad

The Government misstates the First Amendment standard for constitutional overbreadth
and then misapplies the law to the facts of this case. Contrary to the claim that overbreadth
applies only if a law “could never be applied in a valid manner” or may “inhibit constitutionallyprotected speech of third parties,” Opp. 16 (citing New York State Club Ass’n. v. City of New
York, 487 U.S. 1, 11 (1998)), more recent precedent provides the correct test for overbreadth:
whether the law would restrict or chill a substantial amount of speech relative to the law’s
legitimate sweep. United States v. Stevens, 559 U.S. 460, 473 (2010). The Government’s
statement that the overbreadth claim fails unless Plaintiffs can show “FOSTA reaches more
protected speech than unprotected speech,” Opp. 17, finds no support in the law.
Citing cases to suggest that advertisements for illegal acts (including prostitution) are not
protected by the First Amendment, Opp. 15, the Government erroneously extrapolates this to
mean that any speech or advocacy with any connection to illegal conduct is per se unprotected
speech. Id. 15-19. But the Supreme Court has explained that “[t]he prospect of crime … by
itself does not justify laws suppressing protected speech,” and that “[e]ven where there is an
underlying crime … the Court has not allowed suppression of speech in all cases.” Free Speech
Coalition, 535 U.S. at 245, 254. This principle emerged from some of the Court’s earliest First
Amendment cases. De Jonge v. Oregon, 299 U.S. 353, 362-63 (1937) (invalidating Oregon antisyndicalism statute because it went beyond criminalizing incitement to include advocacy “to
effect revolutionary changes in government” and other peaceful political activity). It has been

12

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reaffirmed in various contexts ever since. 16 Specifically with respect to statutory overbreadth,
the Court has held that a law must satisfy First Amendment scrutiny even when the speech
relates to conduct that violates state and federal laws. Stevens, 559 U.S. at 466 (“The acts
depicted in crush videos are typically prohibited by the animal cruelty laws enacted by all 50
states and the District of Columbia.”).
Starting with the erroneous premise that the First Amendment permits prohibiting any
speech that may be linked to criminal activity, the Government then incorrectly concludes that
FOSTA’s “plainly legitimate sweep” is “vast” because it assumes the state can broadly prohibit
online speech relating to “sex work” because it “by definition, is a commercial activity, and for
the most part in the United States is an illegal activity.” Opp. 18. This, in a nutshell, is
FOSTA’s overbreadth problem: FOSTA’s sweep is indeed “vast,” but the government’s
constitutional latitude for imposing restrictions on speech is far more constrained. As Plaintiffs
showed in their Motion, this simplistic conclusion has been rejected by every court that has
considered it, yet the Government does not mention this body of law. Mot. 21-22 & n.7
(collecting cases). FOSTA reaches beyond solicitation of prostitution to potentially criminalize
any online speech that may help make sex workers’ lives easier or “promote” sex work by
advocating for its decriminalization or publicly identifying a person as a sex worker. 17
16

E.g., Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (invalidating Ohio’s antisyndicalism law on its face and making clear a speaker may liable for inciting illegal activity
only if the speech is “directed to inciting or producing imminent lawless action and is likely to
incite or produce such action”); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928-29
(1982) (holding the First Amendment does not permit a state to impose civil liability on expressive activity without distinguishing between advocacy and the conduct of the illegal action).
17

The Government’s opposition is largely founded on the erroneous belief that FOSTA only
restricts online advertising for prostitution. Opp. 3, 9, 14, 18-20. This is an obvious misreading
of the law, which contains no such limitation. But even if the Government were correct, and
FOSTA could be read to apply only to online advertising, it would not free the government from
First Amendment scrutiny. Three states adopted statutes to prohibit the knowing publication,
13

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The Government cannot salvage FOSTA’s overly broad reach through its heavy reliance
on United States v. Williams, 553 U.S. 285 (2008). Opp. 15. In Williams, the Court read the
multiple verbs in 18 U.S.C. § 2252A(a)(3)(B)—advertises, promotes, presents, distributes, or
solicits—as prohibiting “offers to provide and requests to obtain child pornography.” Id. at 293.
It reasoned that three of the operative verbs—advertises, distributes, and solicits—have welldefined meanings and clearly prohibited transactions of child pornography that would not be protected by the First Amendment. Id. at 294. The Court recognized the statute’s two other verbs—
promotes and presents—“are susceptible of multiple and wide-ranging meanings” but found that
their inclusion with other terms narrowed their reach to include only unprotected speech. Id.
FOSTA, by contrast, contains no such limiting language. The operative verbs in Section
2421A(a)—“promotes” and “facilitates”—are, as the Court found in Williams, susceptible to
“multiple and wide-ranging meanings.” Unlike the statute at issue in Williams, however, they
are not linked to other well-defined verbs that might cabin them to only proscribe unprotected
speech. Williams, 553 U.S. at 294; see Mot. 19-22. Section 1591(e)(4)’s operative verbs—
assisting, supporting, and facilitating—also are not presented in a context that narrows their
meanings to avoid broad application to speech protected by the First Amendment. Section
2421A(b)(2)’s “contribute to sex trafficking” is likewise not defined or cabined in at all.

display, or dissemination of advertisements for commercial sex acts that include depictions of
minors, and in each case, courts enjoined enforcement in pre-enforcement challenges and held
the laws were facially invalid. McKenna, 881 F. Supp. 2d 1282; Cooper, 939 F. Supp. 2d 805;
Hoffman, 2013 WL 4502097, all supra note 13. The laws were struck down on several First
Amendment bases, but of pertinence here, the courts held they were overbroad because, like
FOSTA, the law “encompasse[d] more than offers to engage in illegal transactions” and
“pertain[ed] to both commercial and non-commercial speech.” McKenna, 881 F. Supp. 2d at
1280-81. See Cooper, 939 F. Supp. 2d at 831-32; Hoffman, 2013 WL 4502097, at *8-10.
14

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B.

FOSTA Fails Strict Scrutiny

Because FOSTA clearly defines the speech it targets and criminalizes by its content—
online speech related to prostitution or sex trafficking—it is subject to strict scrutiny, which it
cannot satisfy. Despite the Government’s unexplained contention that “the various provisions of
FOSTA are a far cry from the content-based signage restrictions at issue in Reed v. Town of
Gilbert, 135 S. Ct. 2218, 2227 (2015), or the posted notice requirement at issue in Nat’l Inst. of
Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018)),” the statute easily satisfies
the definitions of “content-based” laws set out in Reed: “those that target speech based on its
communicative content,” 135 S. Ct. at 2226; laws that apply “to particular speech because of the
topic discussed or the idea or message expressed,” id. at 2227; and “laws that cannot be justified
without reference to the content of the regulated speech.” Id.
Any contention that the law is not content-based because it regulates speech “only with
respect to illegal activity” is wrong. Opp. 20. But even if FOSTA restricted only a subset of
unprotected speech, it would still fail strict scrutiny. As the Supreme Court held in R.A.V. v. City
of St. Paul, 505 U.S. 377, 384 (1992): “Our cases surely do not establish the proposition that the
First Amendment imposes no obstacle whatsoever to regulation of particular instances of such
proscribable expression, so that the government ‘may regulate [them] freely.’ * * * * Such a
simplistic, all-or-nothing … approach to First Amendment protection is at odds with common
sense and with our jurisprudence[.]” See also id. at 387 (holding that First Amendment imposes
a “‘content discrimination’ limitation upon a State’s prohibition of proscribable speech”).
The Government does not seriously attempt to fulfill its burden to show FOSTA actually
serves a compelling interest and is the least restrictive means of doing so. See United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 818 (2000) (“When First Amendment compliance is
the point to be proved, the risk of nonpersuasion … must rest with the Government, not with the
15

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citizen.”). First, the Government cannot prove FOSTA directly advances an asserted interest.
See Brown v. Entertainment Merchs. Ass’n, 564 U.S. 786, 799 (2011). Instead, it merely asserts
that “[c]ontrary to Plaintiffs’ allegations, FOSTA advances an important government interest,”
Opp. 19, without identifying the specific interest to be served or responding to Plaintiffs’ expert
declarations stating that FOSTA will not serve the objectives of law enforcement and instead will
be counterproductive. 18 Overlooking these declarations and its burden of proof, DOJ incorrectly
claims that Plaintiffs “cite to a single article written prior to the passage of FOSTA.” Opp. 17.
The Government’s reference to a study indicating that “almost 85% of federal sex trafficking
prosecutions in FY 2016 and 2017 involved online advertising,” id. 18, says nothing about the
need for FOSTA, or its efficacy. 19
Second, FOSTA does not employ the least restrictive means of addressing the government’s asserted interest. DOJ proves this point when it states “before FOSTA was enacted,
websites could have been prosecuted in federal court for those same or substantially similar
crimes.” Opp. 19. This is analogous to the situation in Playboy Entertainment Group, where the
Supreme Court, applying strict scrutiny, struck down a provision of the Telecommunications Act
that was substantially duplicative (and more restrictive) than another provision directed at the
18

See Decl. of Alexandra Frell Levy, Dkt. 5-8 (“Dr. Levy Decl.”) ¶ 7 (“If FOSTA succeeds
in shutting down high-traffic, high-visibility websites, it will suppress a key means of detecting
and reporting sex trafficking, thus decreasing trafficking victims’ chances of being recovered.”);
Decl. of Dr. Kimberly Mehlman-Orozco, Dkt. 5-9 (“Mehlman-Orozco Decl.”), ¶¶ 21-31 (“There
is absolutely no rigorous quantitative data to suggest that FOSTA has had or will have any
significant impact in reducing the prevalence of sex trafficking,” and “FOSTA has made the
already clandestine crime of sex trafficking even more hidden from law enforcement.”). See also
Eric Goldman, Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage
Down,” Tech. & Mktg. L. Blog, July 11, 2018, https://blog.ericgoldman.org/archives/2018/
07/indianapolis-police-have-been-blinded-lately-because-they-shut-backpage-down.htm.
19

If anything, this statistic undercuts the Government. In suggesting it is already bringing
prosecutions against “advertising,” DOJ indicated—at best—that FOSTA was unnecessary. And
it entirely undermines the need for legislation with FOSTA’s more expansive terms.
16

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same problem because the government failed to prove the necessity of the more restrictive
provision. 529 U.S. at 817-27. See Ashcroft v. ACLU, 542 U.S. at 660-61. The same analysis
applies here, and the Court should enjoin FOSTA on this basis alone.
C.

FOSTA is Unconstitutionally Vague

FOSTA’s vague terms violate the First Amendment. 20 Specifically, the undefined terms
“promote,” facilitate,” “assist,” “support,” and “contribute to sex trafficking” “fail[] to provide a
person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforcement.” Williams, 553 U.S. at 304. 21 A
vague law that affects speech is subject to heightened scrutiny, Reno, 521 U.S. at 871-72, 874,
but the Government erroneously asserts it does not apply when the speech is related to illegal
activities.

In Williams, for example, the Supreme Court engaged in a First Amendment

vagueness analysis even though the statute at issue prohibited speech related to illegal activity,
the distribution of child pornography. 553 U.S. at 304. Vagueness voids a statute when there is
an “indeterminacy of precisely what” the incriminating fact is, such as when criminal culpability
is tied to wholly subjective judgments without statutory definitions, narrowing context, or settled
legal meaning. Id. at 306.
FOSTA suffers from such indeterminacy. This problem is perhaps best demonstrated by
comparing the Government’s own mistaken belief that FOSTA applies only to online advertising
and to no other speech, to the vast censorial effects FOSTA is having on Internet platforms in
general, and sex work advocacy in particular. See Plaintiffs’ Declarations and D’Adamo and

20

To answer the question posed by the Government in its Opposition, see Opp. 24, for
purposes of the Preliminary Injunction, Plaintiffs’ challenge FOSTA as being vague on its face.
21

The Government’s assertion that Plaintiff’s vagueness challenge is confined to the terms
“facilitate” and “promote” is incorrect. See Opp. 24.
17

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Lutnick Declarations.

Although the Government asserts the likelihood that anyone would

misunderstand these words is “remote,” Opp. 25, the factual record before this Court shows
actual considerable confusion. See Mot. 10-17, 39-42.
Most tellingly, the Government never explains what it thinks the statutory terms mean in
the context of FOSTA, but instead simply asserts summarily that they do not apply to Plaintiffs’
speech. Opp. 10-25. The closest it gets to defining any term is to assert that “promote” broadly
means “to do any act that would cause the unlawful activity to be accomplished or to assist in the
unlawful activity in any way” and that it is bound by a specific intent requirement rather than
mere causation. Opp. 12-13. But adding an intent requirement to a vague law begs the question:
intent to do what? See Amusement Devices Ass’n v. Ohio, 443 F. Supp. 1040, 1051 (S.D. Ohio
1977) (“[T]the Supreme Court has never to our knowledge held that the imposition of a scienter
element upon a statute necessarily renders the statute’s prohibitions sufficiently precise to
withstand a vagueness challenge.”). The Government makes no attempt to explain how the
terms “facilitate,” “assist,” “support,” or “contribute to sex trafficking” are to be defined or
applied in the context of FOSTA.
None of the circumstances present in Holder v. Humanitarian Law Project, 561 U.S. 1
(2010), relied on by the Government, apply to FOSTA. Opp. 24. The law at issue there was not
focused just on speech, applied only to “material support” for a limited number groups that had
been specifically designated by the government as terrorist organizations, had been expressly
narrowed by Congress to exclude medical and religious materials, and had been subject to a
narrowing construction of its key terms. Humanitarian Law Project, 561 U.S. at 35-36. In
contrast, FOSTA was expressly adopted to broaden the existing law’s reach over online speech.

18

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Nor can the Government rely on a few examples of prosecutions under the Travel Act, 18
U.S.C. § 1952, to cure FOSTA’s vagueness. First, the Travel Act includes only one of the terms
used vaguely in FOSTA, “promote.” Though it uses the term “facilitate,” it does so only as integrally connected to promotion, “facilitate the promotion of.” Id. The Travel Act also does not
use the accumulation of other verbs, “assist,” “support,” or “contribute to,” which manifest
FOSTA’s intended far broader application. 22

If anything, the Government’s discussion of

enforcement of the Travel Act and of the federal money laundering statute only illustrates how
the terms “promote” and “facilitate” are boundless, and can be applied to anything that may
“assist in the unlawful activity in any way.” Opp. 11 (quoting United States v. Bennett, 1996
WL 477048, at *5-6 (9th Cir. 1996)). 23
Finally, the threats that ordinarily accompany vagueness are exponentially greater here,
because FOSTA vastly multiplies the number of the law’s enforcers. State attorneys general and
private civil litigants each will likely have their own definition of the terms “promote,”
“facilitate,” “assist,” “support” and “contribute to sex trafficking,” and may not be as studied in
the supposedly limited applications of the Travel Act as the Department of Justice. Even the
prospect of defending a meritless lawsuit brought by a state attorney general or private litigant

22

Moreover, the Supreme Court has recognized that in the First Amendment context, simply
borrowing language from one law does not necessarily cure vagueness created when the terms
are planted into a new statute. Reno, 521 U.S. at 873-74 (rejecting government’s argument to the
contrary both factually and in its reasoning).
23

The Government’s references to more recent Travel Act prosecutions involving websites
are not to the contrary. See Opp. 11-12. None involve court decisions resolving constitutional
issues but are only references to two plea agreements and an ongoing case. See United States v.
Omuro, No. CR-14-CR-336 (N.D. Cal.); United States v. Hurant, No. CR 16-45 (E.D.N.Y.).
The Government cites the ongoing prosecution in United States v. Lacey, et al., 18-CR-422 (D.
Ariz.) that has not yet resulted in a ruling. Opp. 12. For purposes of this case, however, it is
uncertain how that indictment should be taken as reassuring, as the prosecutor does not allege the
level of scienter for each illegal ad that DOJ says here is a prerequisite to charges.
19

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creates a powerful disincentive to speak anywhere close to FOSTA’s blurry lines. Even if a
Plaintiff were confident that DOJ would not find that its speech “facilitates” prostitution, the
undefined term “contribute to sex trafficking” raises the possibility of suits by other actors, and
the condition that the speaker facilitate the prostitution of five or more persons interposes no
significant barrier when one disseminates information broadly, as do most online platforms.
D.

FOSTA Applies a Relaxed Scienter Standard Based on Diffuse Terms

The Government’s defense of FOSTA’s scienter standards fails because 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. Opp. 20. DOJ claims
“FOSTA changed nothing about Section 1591’s scienter standard,” while admitting it newly
“defined a term” of operative import. Id. 19. Where Section 1591 pre-FOSTA made it unlawful
to benefit financially or receive anything of value “from participation in a venture” of sex
trafficking, either of children or by force, fraud, or coercion, 18 U.S.C. § 1591(a)(1)-(2), FOSTA
makes now such “participation” not just “knowing,” active involvement, it expands the crime to
“assisting, supporting or facilitating” any violation. Id. § 1591(e)(4). The lack of clarity discussed above, on when one “assists” or “supports” or “facilitates” trafficking, undercuts the need
to do so “knowingly.” The aggravated offense in Section 2421A(b) heightens penalties for “reckless disregard” that conduct “contributed to sex trafficking.” DOJ attempts to excuse this as
“relevant only to the [] maximum sentence, not … criminal liability.” Opp. 20-21 (discussing
18 U.S.C. § 2421A(b)(2)). But this merely layers multiple scienter failings on top of each other.
As set forth in Plaintiffs’ opening memorandum, the legislative history illustrates that this
loosening of the mens rea in the pre-FOSTA Section 1591 is exactly what FOSTA intended. The
House Report explains that Congress enacted FOSTA because “prosecutors usually cannot
demonstrate beyond a reasonable doubt that the website operators knew that the advertisements
20

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involved sex trafficking,” and “general knowledge that sex trafficking occurs on a website will
not suffice” under the prior “knowledge element.” H.R. Rep. No. 115-572, pt. 1, at 5. The
loosening of scienter standards outlined by Plaintiffs is far from imagined, or “misstated.”
E.

Modification of Section 230 Immunity

The Government mischaracterizes Plaintiffs’ Section 230 arguments as a simple contention that the First Amendment prohibits Congress from making any exceptions to Section 230.
Opp. 24-26. Contrary to this characterization, Plaintiffs agree that Congress may amend Section
230, but must do so consistently with the First Amendment. As the Motion explained, FOSTA’s
carve-out to Section 230 creates a content-based exception that promotes over-censorship, and
creates incentives for a heckler’s veto. Mot. 20-22, 24. The Government’s unremarkable observation that Section 230(e) already provided certain exceptions to statutory immunity, Opp. 25,
does not support its assumption that Congress can make any changes it likes without running
afoul of the First Amendment. Particularly in the wake of Reno, it is the government’s burden to
justify changes in Section 230 that strip away any statutory immunities grounded in First
Amendment principles. See, e.g., Batzel v. Smith, 333 F.3d 1018, 1027-29 (9th Cir. 2003)
(Section 230 was added to Exon’s original bill “to further First Amendment and e-commerce
interests on the Internet while also promoting the protection of minors”). Numerous courts have
acknowledged this First Amendment predicate for Section 230. 24
24

E.g., Google, Inc. v. Hood, 822 F.3d at 220 (“First Amendment values [] drive the CDA”);
Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Universal Commc’n Sys., Inc. v.
Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007); Delfino v. Agilent Techs., Inc., 145 Cal. App.
4th 790, 802-03 (2006) (Section 230 was intended to “avoid the chilling effect upon Internet free
speech” that would arise from imposing liability on intermediaries); People v. Ferrer, 2016 WL
7237305, at *3 (Cal. Super. Ct. Dec. 9, 2016) (“the relevant question in this case is whether, and
to what extent, Defendants’ activities entitle them to protection of their First Amendment rights
through the immunity provision of the CDA”); People v. Ferrer, No. 16FE024013, slip op. 11
(Cal. Super. Ct. Aug. 23, 2017) (“[T]he protections afforded by the First Amendment were the
motivating factors behind … the CDA.”).
21

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Well-established First Amendment jurisprudence precludes imposing either criminal or
civil liability on purveyors of third-party content where it is not feasible to review all of the
content disseminated. See, e.g., Smith v. California, 361 U.S. 147 (1959) (holding that imposing
liability on a bookseller without a knowledge requirement violates the First Amendment). Such
principles take on added urgency in the online world, where “[i]t would be impossible for service
providers to screen each of their millions of postings for possible problems.” Zeran, 129 F.3d at
330-31. The amount of information communicated via interactive computer services is “staggering,” and “[t]he specter of tort liability in an area of such prolific speech would have an obvious
chilling effect.” Id. Because of First Amendment considerations, some courts have applied
constitutional protections even where statutory immunity was denied. 25 Similarly, courts have
invalidated state efforts to restrict online classified ad sites under both the First Amendment and
Section 230. McKenna, 881 F. Supp. 2d at 1275-84; Hoffman, 2013 WL 4502097, at *7-10;
Cooper, 939 F. Supp. 2d at 828-40. These same principles apply here. 26

25

See, e.g., e-ventures Worldwide, LLC v. Google, Inc., 2017 WL 2210029, at *4 (M.D. Fla.
Feb. 8, 2017) (even where Section 230 protection is not available “[t]he First Amendment
protects these decisions, whether they are fair or unfair, or motivated by profit or altruism”). See
also La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 991-922 (S.D. Tex. 2017) (“online
publishers have a First Amendment right to distribute others’ speech and exercise editorial control
on their platforms”); Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 438-39 (S.D.N.Y. 2014)
(when online platforms “select and arrange others’ materials, and add the all-important ordering
that causes some materials to be displayed first and others last, they are engaging in fully
protected First Amendment expression—‘[t]he presentation of an edited compilation of speech
generated by other persons.’”).
26

For purposes of this case it is not necessary to decide how much latitude Congress may
have to withdraw Section 230 immunity as a general proposition. In FOSTA, Congress adopted
a selective, content-based exclusion from liability. Because of that, it is no answer to
characterize Section 230 immunity as a “benefit” Congress can modify at will. The government
may not deny a benefit to a person on a basis that infringes freedom of speech “even if he has no
entitlement to that benefit.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S.
205, 214 (2013). See Matal v. Tam, 137 S. Ct. 1744, 1760-61 (2017) (federal law cannot be
shielded from constitutional review by describing it as conferring a benefit).
22

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F.

Ex Post Facto Law

Before FOSTA’s passage DOJ warned Congress that the provision authorizing ex post
facto enforcement “is unconstitutional.” U.S. DEPT. OF JUSTICE OFFICE OF LEGISLATIVE AFFAIRS,
Memorandum to Hon. Robert Goodlatte, Chairman, U.S. House of Representatives Committee of
the Judiciary (Feb. 27, 2018). Congress adopted the provision unchanged, a fact the Government now declines even to acknowledge. Instead, it notes that DOJ sent a letter to the Office of
Management and Budget suggesting that “prosecutors can avoid any ex post facto problems by
pursuing only newly prosecutable criminal conduct that takes place after the bill was enacted.”
Opp. 21. In short, the Government’s response is, “trust us.”
Just such an argument was rejected in Reno I, 929 F. Supp. at 857 (Sloviter, J.) (asking to
“trust the Department of Justice to limit the CDA’s application in a reasonable fashion … would
require a broad trust indeed from a generation of judges not far removed from the attacks on
James Joyce’s Ulysses as obscene”). The Supreme Court likewise has rejected such appeals to
rely on prosecutorial discretion, observing that “[w]e would not uphold an unconstitutional
statute merely because the Government promised to use it responsibly.” Stevens, 559 U.S. at 480
(“[T]he First Amendment protects against the Government; it does not leave us at the mercy of
noblesse oblige.”).

But even if DOJ could be held to its promise, FOSTA authorizes

enforcement by local prosecutors as well as private litigants. It offers Plaintiffs no protection at
all if DOJ follows constitutional principles while others are set loose to penalize speech that
occurred before the law was changed.
III.

PLAINTIFFS’ LIKELIHOOD OF PREVAILING ON THE MERITS MEANS THE
REMAINING FACTORS FAVOR GRANT OF A PRELIMINARY INJUNCTION
Regarding the remaining preliminary injunction factors, the Government wrongly argues

Plaintiffs must meet a “high standard” to demonstrate irreparable harm, Opp. 26 (quoting In re
23

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Navy Chaplaincy, 534 F.3d 756, 766 (D.C. Cir. 2008)), because, it claims, “[t]his is not a case
where FOSTA, by its own terms, prohibits Plaintiffs’ constitutionally-protected speech.” Id. 27.
But there is no heightened requirement for irreparable injury, particularly where First Amendment rights are involved. The Government’s reliance on Navy Chaplaincy is misplaced because
the citation it relies on comes from the dissenting opinion in that case, id. 26 (citing 534 F.3d at
766 (Rogers, J., dissenting)), and the underlying case to which the dissent cites, see id. (citing
534 F.3d at 766 (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297
(D.C. Cir. 2006)), was abrogated. See Seeger v. DOD, 306 F. Supp. 3d 265, 278 (D.D.C. 2018).
The Government denigrates Plaintiffs’ reliance on Elrod v. Burns, 427 U.S. 347, 353
(1976) (quoted Mot. 18, 39), for the rule that loss of First Amendment freedoms, even for
minimal periods, unquestionably constitutes irreparable harm. See Opp. 27. But as the D.C.
Circuit has held in, e.g., Mills v. D.C., 571 F.3d 1304, 1312 (D.C. Cir. 2009), this rule from
Elrod “has long been established.” See also Pursuing America’s Greatness v. FEC, 831 F.3d
500, 511 (D.C. Cir. 2016) (citing same). In fact, Elrod v. Burns has been cited for this proposition in cases seeking injunctive relief from constitutional injury hundreds of times. And as
discussed supra 3-7, the Government ignores the fact that Plaintiffs actually delayed speaking,
refrained from speaking, or lost access to platforms for speech (as it does the similar reactions to
FOSTA of non-parties to this case). See also, e.g., Mot. 10-18, 39-42 (citing declarations).
The Government is similarly incorrect in suggesting the remaining factors, involving the
balance of interests and the public interest, “merge” to favor denial of a preliminary injunction.
Opp. 27. The case cited for this “merger” proposition, Nken v. Holder, 556 U.S. 418 (2009), see
Opp. 27, did not involve any constitutional rights. In cases that do involve constitutional rights,
conversely, such as here, if there is any “merger,” it lies in the extent to which the remaining

24

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preliminary injunction factors collapse once a likelihood of constitutional injury is shown. See
Mot. 19, 39 (citing Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012)). See also
Pursuing America’s Greatness, 831 F.3d at 511 (cited Opp. 27) (“In First Amendment cases, the
likelihood of success will often be the determinative factor in the preliminary injunction
analysis.”) (internal quotation marks omitted); cf. id. (citing Mills, Elrod). 27 Moreover, the
Government argues that anything reached by FOSTA could be prosecuted under existing law,
thus admitting there is no public interest downside to granting injunctive relief. See Opp. 18-19.
In any event, “the public’s interest in preserving its constitutional protections—and, indeed, the
Government’s concomitant interest in not violating the constitutional rights of its citizens” must
be paramount. R.J. Reynolds Co. v. FDA, 823 F. Supp. 2d 36, 52 (D.D.C. 2011), aff’d, 696 F.3d
1205 (D.C. Cir. 2012), overruled on other grounds, American Meat Inst. v. USDA, 760 F.3d 18
(D.C. Cir. 2014) (en banc). See also, e.g., Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville
& Davidson Cty., 274 F.3d 377, 400 (6th Cir. 2001).
CONCLUSION
For the reasons above, Plaintiffs respectfully request that this Court grant a preliminary
injunction against enforcement of FOSTA pending resolution of the constitutional challenges.

27

The Opposition cites Pursuing America’s Greatness to argue “the government’s interest is
the public interest.” Opp. 27 (quoting 831 F.3d at 511). But as the D.C. Circuit held in that case,
“there is always a strong public interest in the exercise of free speech rights otherwise abridged
by an unconstitutional regulation.” Pursuing America’s Greatness, 831 F.3d at 511. In such
cases, “the public’s interest in protecting First Amendment rights and [the] ability [of movants]
to exercise those rights outweigh any interest in the continued enforcement” of rules that are
shown to be likely unconstitutional. Id. at 512.
25

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DATED:

July 17, 2018

Respectfully submitted,

/s/ Robert Corn-Revere
ROBERT CORN-REVERE
D.C. Bar No. 375415
RONALD G. LONDON
D.C. Bar No. 456284
Davis Wright Tremaine LLP
1919 Pennsylvania Ave. NW, Suite 800
Washington, D.C. 20006
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
LAWRENCE G. WALTERS
Florida Bar No.: 0776599
Pro Hac Vice
Walters Law Group
195 W. Pine Ave.
Longwood, FL 32750-4104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
AARON MACKEY
D.C. Bar No. 1017004
DAVID GREENE
(admitted in California)
Pro Hac Vice
CORYNNE MCSHERRY
(admitted in California)
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
[phone]
Email: [e-mail]
[e-mail]

26

Case 1:18-cv-01552-RJL Document 17 Filed 07/17/18 Page 35 of 35

DAPHNE KELLER
Cal. Bar No. 226614
Stanford Law School Center
for Internet and Society
559 Nathan Abbott Way
Stanford, CA 94305-8610
[phone]
Email: [e-mail]
Attorneys for Plaintiffs

27