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

Filing 21

REPLY to opposition to motion re 16 MOTION to Dismiss (Duplicate filing of ECF No. 15) filed by JEFFERSON B. SESSIONS, UNITED STATES OF AMERICA. (Cohen, Jason)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WOODHULL FREEDOM FOUNDATION,
et al.,

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)
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Plaintiffs,
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vs.
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UNITED STATES OF AMERICA and
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JEFFERSON B. SESSIONS, in his official
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capacity as ATTORNEY GENERAL OF THE
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UNITED STATES,
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Defendants.
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_________________________________________ )

Civil Action No. 18-01552 (RJL)

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS AND
SUPPLEMENTAL MOTION HEARING BRIEF
Defendants, by and through undersigned counsel, respectfully submit the following
combined Reply in support of Defendants’ Motion to Dismiss and, in accordance with the Court’s
July 19 and August 3, 2018, Minute Orders, supplemental motion hearing brief.
Plaintiffs fail to establish that they have standing to bring this pre-enforcement challenge
to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA” or “Act”).
Further, even if Plaintiffs could clear the standing hurdle, their Complaint fails to state claims upon
which relief can be granted.
ARGUMENT
I.

Plaintiffs Have Not Established Standing to Bring This Action.
Plaintiffs attempt to mount a wholesale facial attack on FOSTA. However, Plaintiffs fail

to establish their standing to do so. As explained in Defendants’ opening memorandum, FOSTA
consists of three separate statutory enactments or amendments. First, FOSTA section 3 added 18
U.S.C. § 2421A, a new federal criminal prohibition that mirrors an existing law, 18 U.S.C. § 1952,

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but is specifically focused on prostitution. Second, FOSTA section 4 amended 47 U.S.C. § 230 by
adding subsection (e)(5)(A), which removes the immunity that section 230 previously had
provided from federal civil actions brought by individuals who are victims of the sex trafficking
crimes set forth in 18 U.S.C. § 1591 against those who commit such crimes (and in conjunction
with FOSTA section 6, also allows states acting as parens patriae to bring federal civil actions
against those who commit such crimes). Third, FOSTA section 4 also amended 47 U.S.C. § 230
by adding subsections (e)(5)(B) and (C), which removes the immunity that section 230 previously
had provided from state court prosecutions under state sex trafficking laws. FOSTA section 5 also
added to 18 U.S.C. § 1591(e) a definition of “participation in a venture,” a phrase that already
appeared in 18 U.S.C. § 1591(b).
In opposing dismissal, Plaintiffs attempt to lump these different aspects of FOSTA
together, alleging “at least seven different paths” by which they might face liability, allegedly in
violation of the First Amendment (as if the number of challenged provisions raises their odds of
being injured sufficiently to support standing). Pls.’ Opp. at 6. However, in order to establish
standing, Plaintiffs must show injury in fact, causation, and redressability for each specific claim
or form of relief set forth in the Complaint. Rumsfeld v. Forum for Acad. & Institutional Rights,
Inc., 547 U.S. 47, 53 n.2 (2006); see also Del. Dep’t of Nat. Res. & Envtl. Control v. EPA, 785
F.3d 1, 10 (D.C. Cir. 2015), as amended (July 21, 2015) (A plaintiff “‘must demonstrate standing
for each claim he seeks to press.’”) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006)). As discussed below, they have failed to do so.

2

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A.

Plaintiffs Do Not Face a Credible Threat of Prosecution Under 18 U.S.C.
§ 2421A
1.

The Court May Consider the Plain Language of the Statute When
Determining Whether It Prohibits Plaintiffs’ Conduct

In order to establish standing to assert a pre-enforcement challenge to 18 U.S.C. § 2421A,
a criminal statute, Plaintiffs must “‘allege[] an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there [must] exist[] a credible
threat of prosecution thereunder.’” Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96, 102 (D.D.C.
2016) (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014)). But, as explained
in Defendants’ opening brief, none of the Plaintiffs has identified an intended course of conduct
that is proscribed by section 2421A. Moreover, the plain language of section 2421A makes clear
that it does not prohibit conduct protected by the First Amendment.
Plaintiffs’ argument that the Court must accept Plaintiffs’ interpretation of section 2421A
for purposes of determining Plaintiffs’ standing is flawed and not supported by the applicable case
law. As this Court has noted, “plaintiffs’ reading of the statute to cover their conduct does not
control” because “the Court does not accept plaintiffs’ legal conclusions as true for purposes of a
motion to dismiss.” Sandvig v. Sessions, __ F. Supp. 3d __, Civ. A. No. 16-1368 (JDB), 2018 WL
1568881, *12 (D.D.C. Mar. 30, 2018) (citing Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir.
2012)). 1
The Court in Sandvig also recognized that a court need not accept a “frivolous”
interpretation of a statute. See id. When determining if a plaintiff has standing, the Court can, and
should, consider whether a statute’s meaning is plainly contrary to a plaintiff’s interpretation.
1

Contrary to Plaintiffs’ arguments, Pl. Opp. at 5, this case is different from Sandvig because in
Sandvig the Government did not meaningfully contest that the plaintiffs’ intended conduct
generally fell within the scope of the challenged statute’s prohibition. See Sandvig, 2018 WL
1568881 at *9 (noting the Government disputed that conclusion “in only one instance”).
3

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Otherwise, the requirement that a plaintiff establish that its intended conduct is “proscribed by [the
challenged] statute,” Susan B. Anthony List, 134 S. Ct. at 2342, would be meaningless. Thus, in
Backpage.com, the Court held that the plaintiff lacked standing because its stated intention to host
“legal third party advertisements” on its website was “not arguably proscribed by” 18 U.S.C.
§ 1591, which only prohibited knowingly hosting advertisements for illegal sex trafficking.
Backpage.com, LLC, 216 F. Supp. 3d at 103-04 (internal quotation omitted). Similarly here, as
explained in Defendant’s opening brief, see Dfts.’ Mem. (ECF No. 15) at 9-13, and in further detail
below, none of Plaintiffs’ intended conduct, as they have described it, is arguably proscribed by
section 2421A. 2
Plaintiffs also cite the Supreme Court’s statement in Virginia v. American Booksellers
Association, Inc., 484 U.S. 383, 392 (1988), that the plaintiffs there had identified a cognizable
injury because, “if their interpretation of the statute is correct, [they] will have to take significant
and costly compliance measures or risk criminal prosecution.” Pls.’ Opp. at 4. However, Virginia
involved a statute that imposed affirmative duties on booksellers, requiring that they create an
“adults only” section, keep certain materials inaccessible, or bar juveniles from the store. See
Virginia, 484 U.S at 389. In analyzing the statute, the Court cited Craig v. Boren, 429 U.S. 190,
194 (1976), which similarly involved a statute imposing “legal duties” that would cause a “direct
economic injury.” See Virginia, 484 U.S. at 392. In that situation, the plaintiffs would sustain a

2

Two Second Circuit cases cited by Plaintiffs, Pl. Opp. at 10-11 n.7, are not to the contrary. In
those cases the court did not simply accept the plaintiff’s asserted understanding of the challenged
statute; rather, the court examined the statute at issue and determined that the plaintiff had plausibly
alleged it was subject to an enforcement action by the defendant. See Vt. Right to Life Comm., Inc.
v. Sorrell, 221 F.3d 376, 382–83 (2d Cir. 2000) (concluding plaintiff’s intended conduct was
covered under “literal” interpretation of challenged statute); Nat’l Org. for Marriage, Inc. v.
Walsh, 714 F.3d 682, 690 (2d Cir. 2013) (concluding plaintiff plausibly qualified as “political
committee” covered by plain text of challenged statute).
4

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concrete injury, beyond a mere “chill” on speech, based on their statutory interpretation. Here, on
the other hand, section 2421A imposes no such affirmative duties. Moreover, the plain language
of the statute does not cover Plaintiffs’ intended conduct. Rather, Plaintiffs’ assertions with respect
to section 2421A amount to nothing but a self-inflicted chill based on their misinterpretation of
the statute.
2.

The Plain Language of Section 2421A Does Not Prohibit Plaintiffs’
Activities

As previously explained, see Dfts.’ Mem. at 2, in order to violate either section 2421A(a)
or (b), someone would have to “own[], manage[], or operate[] an interactive computer service,” or
conspire or attempt to do so, “with the intent to promote or facilitate the prostitution of another
person.” 18 U.S.C. § 2421A(a), (b). Moreover, only those with the intent to engage in conduct that
is already illegal can be convicted because anyone who intends to promote or facilitate prostitution
in a jurisdiction where the intended act of promotion or facilitation is legal would be able to invoke
the affirmative defense set forth in section 2421A(e).
The language of section 2421A cannot plausibly be read to criminalize any of the intended
conduct that Plaintiffs have identified because none of the Plaintiffs alleges an intent to promote
or facilitate the prostitution of another person; nor does any Plaintiff allege that its intended
conduct is illegal in the jurisdiction where it would occur. Plaintiff Woodhull Freedom Foundation
(“Woodhull”) alleges that it “uses its website to advocate for the right to sexual freedom,”
including “the right to engage in consensual sexual activity” even where payment is involved.
Compl. ¶ 62. Woodhull does not allege that it has advocated with the intent to promote or facilitate

5

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acts of prostitution. Nor has it identified any jurisdiction where the advocacy that it describes is
illegal. 3
Plaintiff Human Rights Watch (“HRW”) alleges that it publishes “hundreds of reports,
press releases, videos, podcasts and other online documents on its website and social media
accounts” and that some of those materials “include research and advocacy on behalf of the rights
of sex workers,” including advocacy favoring decriminalization of sex work. Compl. ¶ 88. HRW
does not allege that its publications target acts of prostitution. Nor has it identified any jurisdiction
where the publication of such materials is illegal.
Plaintiff Eric Koszyk alleges that he owns a personal massage business and has posted
online classified ads on Craigslist but that, following FOSTA’s enactment, Craigslist shut down
the section of its platform that focused on Therapeutic Services and blocked his attempts to post
ads. Compl. ¶¶ 93-101. Koszyk does not allege that Craigslist intended to promote or facilitate acts
of prostitution when it previously allowed him to post his ads. Nor does he allege that he intends
to promote or facilitate acts of prostitution when publishing the ads. Koszyk also has not identified
3

Plaintiffs’ Motion for Preliminary Injunction cited Woodhull’s annual Sexual Freedom Summit,
scheduled to take place in Virginia on August 2-5, 2018, as the primary basis for the requested
emergency relief. The Court already indicated that it was not prepared to rule on Plaintiffs’ Motion
prior to the Summit, and its scheduled dates have now passed. It appears from its website that
Woodhull’s ninth-annual Sexual Freedom Summit was held in Alexandria, VA, as planned and
included several live-streamed workshops, with titles such as “Criminalization of Sex Work is a
Human Rights Violation and a Labor Rights Concern,” “FOSTA! How Congress Broke the
Internet,” and “Sexual Freedom in the Age of Trump.” https://www.sexualfreedomsummit.org/.
In any event, however, Woodhull failed to identify any intended conduct in connection with the
Summit that was prohibited by section 2421A. Woodhull does not assert that the activities of
organizing, scheduling, and planning the Summit; exchanging emails regarding the Summit;
promoting workshops scheduled to take place at the Summit, including Sex as Work Track
workshops focused on employment and safety issues for sex workers; publishing information
about workshop presenters; or streaming its “Sex as Work” Track are illegal in Virginia. See
Compl. ¶¶ 66-81. Woodhull also does not assert that, by promoting its Sex as Work Track
workshops or publishing biographies and contact information for sex workers participating in
those workshops, it intends to promote or facilitate those sex workers’ acts of prostitution. See id.
¶ 74.
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any jurisdiction where posting personal massage advertisements, much less allowing a third party
to do so, is illegal.
Plaintiff Jesse Maley a/k/a Alex Andrews alleges that she and organizations she has
founded operate a website “dedicated to advocating for sex workers’ health, safety and human
rights,” a “support line” that “connects sex workers with national and local resources,” and a
website that shares information about and provides ratings of purported rescue organizations, the
latter of which has also been used to provide sex workers’ reviews of other products or services
that they use, such as Twitter, Wix, or PayPal. Compl. ¶¶ 102-110. Maley does not allege that she
targeted acts of prostitution in the course of operating those platforms. Nor has she identified any
jurisdiction where the publication or transmission of the content that she describes is illegal.
Plaintiff The Internet Archive (the “Archive”) alleges that it automatically archives “about
80 million web pages per day” that are authored by third parties, that others also add around 20,000
items per day to its collection, and that its collection contains over 330 billion web pages, as well
as over 17 million texts, 5 million audio files, and 4 million video files. Compl. ¶¶ 122-23. The
Archive also asserts that it “has no practical ability to evaluate the legality of any significant
portion of the third-party content that it archives.” Id. ¶ 124. The Archive does not allege that it
has ever intended its archive to promote or facilitate acts of prostitution. Nor has it identified any
jurisdiction where such archiving of online content is illegal. 4

4

The Archive cannot credibly fear criminal or civil liability because it has no specific knowledge
about the content of any of the material it obtains, much less about websites that advertise sex
trafficking or are intended to facilitate prostitution. Compl. ¶¶ 122-124. This underscores the
important work done by the mens rea element. For example, through its work, the Archive
necessarily captures websites containing child pornography, which is categorically illegal.
Ferber v. New York, 458 U.S. 747 (1982); see also https://www.cybertip.ca/app/en/projectsarachnid (last visited on August 6, 2018, indicating that in a six week period Project Arachnid
detected 5.1 million unique web pages containing child pornography). The Archive cannot be
prosecuted for receiving, possessing, or distributing child pornography for the same reason it
7

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Plaintiffs nevertheless insist that they are at risk of being prosecuted under section 2421A
because the words “promote” and “facilitate” are not expressly defined in the statute and thus cover
their intended activities. Pls.’ Opp. at 12. However, when viewed within the statute as a whole,
those terms clearly refer to illegal conduct that is connected to acts of prostitution. For one thing,
the phrase “the prostitution of another person” indicates that section 2421A is not focused on
prostitution in general or as an abstract concept; rather, the intent must relate to the prostitution of
another person. For another, the affirmative defense set forth in section 2421A(e) indicates that
only acts of promoting or facilitating prostitution that are already illegal in the jurisdiction where
they occur could conceivably be covered. 5 Thus, even if the activities that Plaintiffs identify—
such as mere advocacy on behalf of decriminalization or the provision of information about safety
or resources—could be viewed in some abstract sense as promoting or facilitating the general
concept or existence of prostitution, the language of section 2421A plainly does not encompass

cannot be criminally or civilly liable under FOSTA: it has no knowledge about any individual
webpage nor criminal intent.
5

Plaintiffs therefore are entirely wrong in suggesting that the prohibitions set forth in FOSTA’s
section 2421A are “far more expansive” than those set forth in the Travel Act, 18 U.S.C. § 1952.
See Pls.’ Opp. at 11. To the contrary, the two laws are directly parallel when it comes to their
prohibition on using the Internet with the intent to promote or facilitate illegal prostitution. The
Travel Act prohibits the use of “any facility in interstate or foreign commerce” (such as the
Internet) with the intent to “promote, manage, establish, carry on, or facilitate the promotion,
management, establishing, or carrying on, of any unlawful activity,” including “prostitution
offenses in violation of the laws of the State in which they are committed or of the United States.”
18 U.S.C. § 1952(a)(3), (b)(1). Section 2421 similarly prohibits certain types of Internet use
(confined to owning, managing, or operating an interactive computer service) with the intent to
promote or facilitate the prostitution of another person, and only promotion or facilitation that is
illegal in the jurisdiction where it occurs is covered. See 18 U.S.C. § 2421A(a), (b), (e). Contrary
to Plaintiffs, see Pls.’ Opp. at 27, there is no meaningful distinction between facilitating
prostitution, as prohibited by section 2421A, and facilitating the carrying on of prostitution in
section 1952. Further, section 2421A is more narrowly drawn even than the Travel Act because
the latter requires only that prostitution generally be illegal in the relevant jurisdiction, but the
former also mandates that the specific acts of promotion or facilitation of prostitution be illegal in
order to avoid the affirmative defense of section 2421A(e).
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such a broad reading. Plaintiffs cannot credibly claim a threat of prosecution when the affirmative
defense in section 2421A(e) would so obviously apply.
3.

The Conduct Prohibited Under Section 2421A Is Not Protected by the
First Amendment

For the same reason, any course of conduct proscribed by section 2421A would not be
“arguably affected with a constitutional interest.” Susan B. Anthony List, 134 S. Ct. at 2342.
Plaintiffs rely on the notion that owning, managing, or operating an interactive computer service
is inherently speech-related and thus automatically implicates the First Amendment. Pls.’ Opp. at
29. However, the Supreme Court has already recognized that speech (including noncommercial
speech) that “is intended to induce or commence illegal activities” is not entitled to First
Amendment protection. United States v. Williams, 553 U.S. 285, 297 (2008); see also Pittsburgh
Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 388-89 (1973) (“We have no
doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale
of narcotics or soliciting prostitutes.”). The Court in Williams thus upheld a criminal prohibition
on knowingly “advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]” child
pornography. Williams, 553 U.S. at 289-90. Applying that holding here, the acts of promoting or
facilitating the prostitution of another person that are at issue in section 2421A do not qualify as
speech protected by the First Amendment. Instead, the only intended acts that could trigger
section 2421A are those that are already illegal; the affirmative defense set forth in subsection (e)
clearly indicates that Congress did not intend the provision to cover any otherwise-legal conduct.
See 18 U.S.C. § 2421A(e). 6
6

Indeed, the affirmative defense incorporated into section 2421A serves as a fail-safe guarantee
that section 2421A could not be used to convict someone based on First Amendment-protected
activity. Because the intended acts of promotion or facilitation of the prostitution of another
person must already be illegal under the laws of the relevant jurisdiction, any First Amendment
claims with respect to such prohibitions could be addressed to those underlying laws, in the first
9

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Plaintiffs try to distinguish Williams by again invoking the notion that the terms
“promotion” and “facilitation” in FOSTA are “susceptible to ‘multiple and wide-ranging
meanings.’” Pls.’ Opp. at 36. But in doing so they ignore the Court’s instruction in Williams that
a term used in a statute cannot be read in isolation. Williams, 553 U.S. at 294. In addition to the
rule specifically applied in Williams, whereby a term in a list is understood in relation to the other
terms in the list, another well-established rule requires that a statute’s plain meaning be understood
not only by the specific language used but also in light of “the specific context in which that
language is used, and the broader context of the statute as a whole.” Nat’l Veterans Legal Servs.
Program v. United States, 291 F. Supp. 3d 123, 138-39 (D.D.C. 2018) (quoting United States v.
Wilson, 290 F.3d 347, 352-53 (D.C. Cir. 2002)). And here, as discussed above, the terms
“promote” and “facilitate” in section 2421A must be understood in light of the entire phrase “to
promote or facilitate the prostitution of another person,” indicating that an act of prostitution must
be involved. They must also be understood in the context of the statute as a whole, including the
affirmative defense set forth in subsection (e), which makes clear that the statute covers only acts
of promotion or facilitation that are already illegal—and therefore does not cover the more abstract
sense of the terms that Plaintiffs attempt to invoke.
This is not a situation like that in United States v. Stevens, 559 U.S. 460 (2010), where the
Supreme Court refused to credit the Executive Branch’s stated intention to interpret a criminal
statute in a particular way. See id. at 480 (declining to “uphold an unconstitutional statute merely
because the Government promised to use it responsibly”). The statute at issue in Stevens, 18 U.S.C.
§ 48, at the time prohibited the creation, sale, or possession of “a depiction of animal cruelty with

instance. If such a law were held to violate the First Amendment, the First Amendment-protected
activities covered by that law would no longer be illegal in the relevant jurisdiction, and the
affirmative defense of subsection (e) would apply.
10

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the intention of placing that depiction in interstate or foreign commerce for commercial gain.”
Stevens, 559 U.S. at 467. 7 The Court first held that the statute implicated the First Amendment
because depictions of animal cruelty did not fall within an established category of unprotected
speech. Id. at 471. The Court then held that that the statute was facially invalid under the First
Amendment’s overbreadth doctrine because the plain language of the statute “nowhere require[d]
that the depicted conduct be cruel,” and it could therefore be applied to a broad array of activity in
which animals were killed. Id. at 474. Moreover, the statute’s requirement that the conduct be
illegal was not sufficient to save it because there are “myriad federal and state laws concerning the
proper treatment of animals, but many of them are not designed to guard against animal cruelty,”
such as hunting and licensing requirements. Id. at 475. The Court thus observed that, under the
plain language of the statute, a depiction of “the humane slaughter of a stolen cow” could be subject
to prosecution. See id.
The situation here is different because Defendants are not relying on prosecutorial
discretion. Rather, Defendants have pointed out that Plaintiffs’ intended conduct simply is not
covered by the plain language of section 2421A. In other words, the Government’s argument is
not that the Government would not prosecute Plaintiffs, it is that the Government cannot because
the statute on its plain terms does not reach the conduct described by the Plaintiffs. See Dfts.’
Mem. at 13. In addition, whereas the Court in Stevens recognized that the depictions at issue there
were entitled to First Amendment protection, here in order to be subject to prosecution under

7

Plaintiffs misleadingly described the Respondent in Stevens as “someone who did documentaries
about training pit bulls and wrote treatises on training pit bulls.” P.I. Hrg. Trans. at 16. The actual
decision, however, notes that that the Respondent “ran a business, ‘Dogs of Velvet and Steel,’ and
an associated Web site, through which he sold videos of pit bulls engaging in dogfights and
attacking other animals,” and that these videos included “gruesome” scenes. Stevens, 559 U.S. at
466. Unlike this case, therefore, the Respondent’s conduct was clearly covered by the statute at
issue.
11

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section 2421A, a website operator or owner would have to intend to engage in conduct that, under
Williams, is categorically excluded from First Amendment protection—conduct that is intended to
illegally promote or facilitate an illegal act of prostitution.
Plaintiffs thus have not alleged an intention to engage in a course of conduct that is
prohibited by section 2421A, and no conduct that is prohibited by section 2421A is arguably
affected with a constitutional interest. Accordingly, Plaintiffs face no credible threat of prosecution
under section 2421A, and they therefore lack standing to pursue their pre-enforcement claims
against it. 8
B.

Plaintiffs Have Note Established Their Standing to Challenge 47 U.S.C.
§ 230(e)(5)(A) or 47 U.S.C. § 230(e)(5)(B) and (C) Because the Possibility that
Third Parties Might Sue Them Based on a Misinterpretation of Those
Provisions is Speculative and Not Fairly Traceable to Any Action of
Defendants

Apart from the criminal prohibition in section 2421A, Plaintiffs also seek to challenge the
provisions of FOSTA that remove certain aspects of the statutory immunity that Congress had
previously granted to interactive computer services in 47 U.S.C. § 230. 9 Cf. Bennett v. Google,
LLC, 882 F.3d 1163, 1165-66 (D.C. Cir. 2018). Because these provisions remove immunity with
8

With respect to who would prosecute offenses under section 2421A, the cases would be handled
by the U.S. Attorney’s Offices (“USAO”), potentially in partnership with one of two headquarters
units at the U.S. Department of Justice (“DOJ”). The Child Exploitation and Obscenity Section
(“CEOS”) is part of the Criminal Division and serves as DOJ’s subject matter expert on child
sexual exploitation. The Human Trafficking Prosecution Unit (“HTPU”) sits in DOJ’s Civil
Rights Division in its role as the subject matter expert on labor trafficking and adult sex trafficking.
Both CEOS and HTPU partner with USAOs as needed and appropriate on the prosecution of cases
within their expertise. CEOS partnered with the USAO in United States v. Omuro, Crim. No. 14336 (N.D. Cal.) (involving myredbook.com), and is working with two USAOs in United States v.
Lacey, Crim. No. 18-422 (D. Ariz.) (involving backpage.com). The training CEOS has provided
on FOSTA has focused on those two prosecutions. DOJ has not issued formal written guidance to
federal prosecutors on the implementation of FOSTA.
9

These challenges also encompass FOSTA’s amendment of 18 U.S.C. §§ 1591 and 1595 as well
as its inclusion of a civil recovery provision in section 2421A(c).
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respect to private and state civil actions and state criminal actions, rather than setting forth federal
criminal prohibitions enforceable by Defendants, Plaintiffs’ claims against Defendants with
respect to those provisions is one step removed from a typical “pre-enforcement” challenge, which
is brought against the authority that has the power to enforce the provision. Plaintiffs’ standing to
challenge those provisions thus is best analyzed under the framework of Clapper v. Amnesty Int’l,
USA, 568 U.S. 398 (2013), which requires that a plaintiff identify “certainly impending” injuries,
fairly traceable to the challenged provisions and redressable by this Court, in order to seek
prospective relief. Id. at 409. 10 As the Court recognized, “allegations of possible future injury are
not sufficient.” Id. Moreover, a future injury that requires a “highly attenuated chain of
possibilities” cannot be deemed “certainly impending,” nor would such an injury be “fairly
traceable” to the challenged statute. Id. at 410; see also Arpaio v. Obama, 797 F.3d 11, 19 (D.C.
Cir. 2015) (“The causal connection between the injury and the conduct complained of must be
fairly traceable to the challenged action of the defendant, and not the result of the independent
action of some third party not before the court.” (internal quotation omitted)).
Plaintiffs here have not identified a certainly impending injury that will be caused by the
U.S. Department of Justice and that is fairly traceable to FOSTA’s section 230 amendments.
Indeed, Plaintiffs acknowledge that “[t]he extent to which FOSTA will be applied” by state
attorneys general and private civil litigants “simply is beyond DOJ’s control.” Pls.’ Opp. at 9. 11
10

To the extent Plaintiffs’ challenges to these provisions are analyzed under the same preenforcement framework addressed above with respect to section 2421A, they lack standing for
the same reasons set forth above. Under either framework, Plaintiffs’ asserted injury is purely
speculative and relies on a misinterpretation of the applicable law. However, applying the
Clapper framework usefully highlights Plaintiffs’ failure to satisfy the causation prong of
standing.
11

In a similar vein, a body of case law cited by Plaintiffs has no bearing here. Pls.’ Opp. at 10-11.
Those cases were brought against defendants who could actually bring the legal action being
challenged. See, e.g., Bland v. Fessler, 88 F.3d 729, 738 (9th Cir. 1996) (acknowledging that
13

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At the same time, Plaintiffs are incorrect in asserting that their own activities, as described
in the Complaint, are likely to be targeted by individuals or state or local prosecutors because of
FOSTA. Again, they misinterpret the statutory provisions at issue. Under section 230(e)(5)(A),
any conduct subject to a civil action under 18 U.S.C. § 1595 must be illegal under 18 U.S.C.
§ 1591, and specifically, must involve the knowing advertisement of sex trafficking. Similarly,
under sections 230(e)(5)(B) and (C), any conduct subject to a state criminal prosecution either
must be illegal under 18 U.S.C. § 1591, or it must be illegal under 18 U.S.C. § 2421A and
“promotion or facilitation of prostitution must be illegal in the jurisdiction where the defendant’s
promotion or facilitation of prostitution was targeted.” 47 U.S.C. § 230(e)(5)(B)-(C). Thus,
FOSTA removes statutory immunity only with respect to prostitution- or sex-trafficking-related
conduct that is already illegal under both state and federal law. 12 As already discussed above,
Plaintiffs’ activities do not fall in this category.
private parties would remain able to sue plaintiff if plaintiff prevailed in suit against state attorney
general, but concluding that the attorney general “has far and away the greatest resources, both
economic and political,” to enforce the civil statute at issue against the plaintiff); Medimmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 130 (2007) (allowing patent licensee to seek a declaratory
judgment against the defendant licensor to prevent the licensor from bringing a breach of contract
claim against the licensee); Abbott Labs. v. Gardner, 387 U.S. 136, 152–53 (1967) (allowing drug
companies to sue federal agencies based on potential for agencies to enforce regulations against
the drug companies); Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir.
1996) (allowing lobbyist organization to sue state attorney based on potential for state attorney’s
enforcement of state disclosure requirements for lobbyists). These cases suggest, at most, that
Plaintiffs may be able to establish standing if they similarly brought claims against those, such as
state attorney generals, who they claim can now bring civil actions against them, provided that
their conduct was covered under the terms of the relevant laws. However, these provide no support
for Plaintiffs’ effort to sue the federal Government based on Congress’s removal of certain aspects
of section 230 immunity.
12

Plaintiffs misquote Congress when they suggest that FOSTA “loosened” the applicable mens
rea requirement in 18 U.S.C. § 1591. Pls.’ Opp. at 7. Contrary to Plaintiffs’ characterization, the
House Report they cite does not say anything about “loosening” the mens rea element. Rather, it
explains why Congress removed section 230 immunity for offenses involving prostitution as well
as sex trafficking (which requires proof that a commercial sex act was caused by force, fraud, or
coercion or involved a minor. See 18 U.S.C. § 1591), and carved out such offenses, already
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Plaintiffs’ primary argument in opposition to this point is that states or individuals might
not agree with Defendants’ interpretation of FOSTA and might therefore invoke FOSTA to bring
civil or criminal actions against Plaintiffs regardless. However, Plaintiffs’ assertions in this regard
are mere speculation that do not identify a certainly impending injury. Cf. Elec. Privacy Info. Ctr.
v. FAA, 892 F.3d 1249, 1254–55 (D.C. Cir. 2018) (injury that depends on a “highly attenuated []
chain of possibilities” is “too speculative to support standing”). 13 As explained above, the proper
prohibited by 18 U.S.C. § 1952, in a separate federal criminal statute, section 2421A. As Congress
said, “online advertisements rarely, if ever, indicate that sex trafficking is involved. The
advertisements neither directly nor implicitly state that force, fraud, or coercion was used against
the victim, nor do they say that the person depicted being prostituted is actually under the age of
18. Because these indicia of knowledge of criminality are typically lacking in the advertisements,
federal prosecutors usually cannot demonstrate beyond a reasonable doubt that the website
operators knew that the advertisements involved sex trafficking. Further, general knowledge that
sex trafficking occurs on a website will not suffice as the knowledge element must be proven as to
a specific victim. A new statute that instead targets promotion and facilitation of prostitution is far
more useful to prosecutors.” H.R. Rep. No. 115-572, pt. 1, at 5 (Feb. 20, 2018) (emphasis added).
It is beyond dispute that section 2421A as created by FOSTA requires proof of intent, and it is
beyond dispute that intent is a higher level of mens rea than knowledge. United States v. Bailey,
444 U.S. 394, 403-408 (1980). Plaintiffs’ claim to the contrary has no merit.
13

Plaintiffs’ attempt to compare civil actions brought by private parties to the “heckler’s veto”
mentioned by the Supreme Court in Reno v. ACLU, 521 U.S. 844, 880 (1997), Pls.’ Opp. at 29,
should be disregarded. The Court in Reno held that certain provisions of the Communications
Decency Act of 1996 (“CDA”)—which prohibited the knowing transmission of “indecent” or
“patently offensive” material to minors over the Internet—violated the First Amendment under a
strict scrutiny analysis because less restrictive means of protecting minors from harmful Internet
content were available. Id. at 879. The Court used the term “heckler’s veto” in dicta when
addressing a specific factual situation not present here. See id. at 880. The Reno court noted that
most internet forums are open to everyone, so that if one participant in a public discussion
claimed to be under the age of 18, then the adults could no longer share indecent material with
each other in that forum. Id. In contrast, here Plaintiffs worry that they will face liability if any
one person claims their website contains illegal content, thus triggering their “knowledge.” But
unlike the situation in Reno, where someone could essentially create the requisite knowledge
single-handedly (and thus rendered the website operator helpless against a claim should it
proceed with the discussion), here an individual bringing a lawsuit would have to prove an actual
violation in order to prevail. Any speech properly subject to such a suit would necessarily
involve criminal conduct, which has no First Amendment protections. A speculative possibility
of frivolous lawsuits cannot create standing to challenge FOSTA’s substantive provisions nor its
amendments to the CDA, which merely removes federal immunity from such actions.
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scope of section 2421A is based on the plain language of the statute. Similarly, Plaintiffs have not
established any likelihood that their conduct could be seen as violating 18 U.S.C. § 1591, which
prohibits knowingly engaging in conduct, including advertising, related to the sex trafficking of a
person. 14
Moreover, to the extent Plaintiffs speculate that private or state actions might be brought
against them regardless of the plain meaning of the relevant FOSTA or other federal criminal
provisions, any injury caused by such “rogue” lawsuits would not be fairly traceable to FOSTA
but would instead be “the result of the independent action of [a] third party not before the court.’”
Cierco v. Mnuchin, 857 F.3d 407, 415 (D.C. Cir. 2017) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992)). Plaintiffs’ theory essentially relies on the notion that because
Congress lifted section 230 immunity for certain types of actions, where an interactive computer
service has engaged in conduct that violates section 2421A or section 1591, states or private
litigants are more likely to assert claims against them even though their conduct violates neither
statute. However, where, as here, the “asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else, much more is needed” to demonstrate
standing. Lujan, 504 U.S. at 562; see also Chesapeake Climate Action Network v. Exp.-Imp. Bank,
78 F. Supp. 3d 208, 216 (D.D.C. 2015) (“[I]n those cases where plaintiff was not the subject of
government action or inaction, and where the harm to the plaintiff comes instead from the

14

Plaintiff Koszyk’s asserted injury is even more attenuated than those of the other Plaintiffs
because it depends on the independent actions not only of states and private parties but also of
Craigslist. Koszyk’s theory of injury appears to be that Craigslist has prevented him from posting
massage service advertisements, allegedly because of FOSTA. However, nothing in FOSTA could
conceivably be interpreted to prohibit websites from allowing third parties to post advertisements
for massage services. Any self-inflicted chill that Craigslist has imposed on itself is not fairly
traceable to FOSTA, and Koszyk’s asserted injury appears to be caused by Craigslist, not by
FOSTA.
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agency’s regulation of an independent third party not before the court, standing is ordinarily
substantially more difficult to establish.” (citation omitted)). Plaintiffs have not met this threshold.
To the contrary, Plaintiffs’ litany of state efforts to combat certain online activity, Pls.’ Opp. at 1418, only makes clear that such matters, including any First Amendment issues, can be and are
appropriately resolved through litigation with the states themselves. 15 In any event the Court cannot
assume that any actions brought by states or private litigants will violate the First Amendment,
particularly in light of the plain meanings of sections 2421A and 1591 explained above. Nor have
Plaintiffs plausibly alleged that any such actions will be brought against them. Plaintiffs therefore
have not established a certainly impending injury fairly traceable to the FOSTA provisions that
remove section 230 immunity, and their challenges to those provisions should also be dismissed for
lack of standing.
II.

The Complaint Fails to State a Claim Upon Which Relief Can Be Granted.
The First Amendment and vagueness claims set forth in Plaintiffs’ Complaint are all

premised on a construction of the various FOSTA provisions that is contradicted by their plain
language as addressed above and in Defendants’ opening brief. Because Plaintiffs’ interpretation
of FOSTA is incorrect, they also fail to state a claim upon which relief can be granted. Plaintiffs’
opposition brief fails to overcome this fatal defect.
As explained above, none of FOSTA’s provisions extends to speech protected by the First
Amendment. Section 2421A prohibits owning, managing, or operating an interactive computer
15

By seeking to challenge FOSTA as the cause of their asserted First Amendment injuries, Plaintiffs
essentially assert that the section 230 immunity that FOSTA removed is itself required under the
First Amendment. That is wrong, first of all, because the conduct for which immunity was removed
is not protected by the First Amendment. But even if it were, the First Amendment confers no right
to federal immunity from allegedly unconstitutional state and private actions. Rather, the Fourteenth
Amendment allows private parties to enforce the First Amendment against states directly. If a state
were to bring an action against Plaintiffs based on the activities that they have described in their
Complaint, they could assert their First Amendment claims directly against the state.
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service with the intent to promote or facilitate the prostitution of another person. 18 U.S.C.
§ 2421A(a), (b). The only acts of promoting or facilitating that are covered by this language are
acts that are already illegal. See 18 U.S.C. § 2421A(e). Similarly, any conduct that could be the
subject of a suit brought by a state or private party either must be illegal under 18 U.S.C. § 1591,
or it must be illegal under 18 U.S.C. § 2421A and “promotion or facilitation of prostitution must
be illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was
targeted.” 47 U.S.C. § 230(e)(5). And the Supreme Court has recognized that speech “intended to
induce or commence illegal activities” is not entitled to First Amendment protection. Williams,
553 U.S. at 297; see also Pittsburgh Press Co., 413 U.S. at 388-89.
Plaintiffs argue that speech “related to or adjacent to illegal activity” can be protected in
some circumstances. Pls.’ Opp. at 31. However, those circumstances do not apply here because,
to the extent speech or expressive conduct is involved, it would be intended to illegally promote
or facilitate prostitution. The statutes at issue here thus are distinguishable from others discussed
by Plaintiffs, in De Jonge v. Oregon, 299 U.S. 353 (1937) (where the Supreme Court reversed the
defendant’s conviction under a statute prohibiting “criminal syndicalism” for presiding at and
conducting a lawful public meeting), or in Stevens (that did encompass protected speech within
their prohibitions).
This is also not a situation like that discussed in R.A.V. v. City of St. Paul, 505 U.S. 377
(1992), where the Government has prohibited otherwise-unprotected speech based on its
viewpoint. See id. at 389. Invalidating a statute that prohibited cross-burning that “arouses anger,
alarm or resentment in others,” the Court in R.A.V. explained that “[w]hen the basis for the content
discrimination consists entirely of the very reason the entire class of speech at issue is proscribable,
no significant danger of idea or viewpoint discrimination exists.” Id. at 388. Thus, child

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pornography can be prohibited without implicating the First Amendment because the fact that the
image contains child pornography is what removes it from First Amendment protection. Here,
similarly, the fact that a website owner intends to promote or facilitate the prostitution of another
person is the very reason its conduct is not protected. The same is true for advertising a person,
knowing that the person is a minor or will be subject to force, fraud, or coercion and will be caused
to engage in a commercial sex act. See 18 U.S.C. § 1591(a); Backpage.com, LLC, 216 F. Supp. 3d
at 104 (“even if Backpage.com did start hosting advertisements of sex trafficking, it could not
contend that its speech would be arguably affected with a constitutional interest” (internal
quotation and alterations omitted)). The conditional protection that the Court in R.A.V. discussed,
which only applies to the extent necessary to ensure the absence of viewpoint discrimination, thus
is not implicated here. 16 As set forth below, none of the causes of action set forth in Plaintiffs’
Complaint sets forth a plausible claim.
A.

Facial Overbreadth

Count I of the Complaint reads as a facial overbreadth challenge to FOSTA, with particular
emphasis on the terms “promote” and “facilitate” as used in section 2421A. Compl. ¶¶ 126-34.
In a typical facial challenge, plaintiffs must show “‘that no set of circumstances exists
under which [FOSTA] would be valid,’ . . . or that the statute lacks any ‘plainly legitimate sweep.’”
Stevens, 559 U.S. at 472. First Amendment cases allow for “‘a second type of facial challenge,’
whereby a law may be invalidated as overbroad if ‘a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Id. at 473 (citation
16

Plaintiffs are incorrect in suggesting that a court must apply strict scrutiny to determine whether
a regulation implicating otherwise-unprotected speech engages in prohibited viewpoint
discrimination. See Pls.’ Opp. at 33. The Court explained in R.A.V. that this prohibition “applies
differently in the context of proscribable speech than in the area of fully protected speech.” R.A.V.,
505 U.S. at 387. Where, as here, it is clear no viewpoint discrimination is involved, there is no
basis to subject a statute to further First Amendment scrutiny. See id.
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omitted). Here, Plaintiffs have failed to state a valid overbreadth claim regardless of which
standard is applied.
FOSTA on its face does not regulate speech. Rather, as set forth above, by its terms
section 2421A targets owning, managing, or operating an interactive computer service, or
conspiring or attempting to do so, with the intent to promote or facilitate illegal prostitution.
“Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not
specifically addressed to speech or to conduct necessarily associated with speech (such as
picketing or demonstrating).” Virginia v. Hicks, 539 U.S. 113, 124 (2003).
As noted above, and in contrast to Plaintiffs’ statements at the July 19, 2018, motion
hearing (see, e.g., P.I. Hrg. Trans. at 34: “There’s no connection to an actual crime.”), FOSTA is
quite plainly limited to illegal prostitution, as it only authorizes charges “in a criminal prosecution
brought under State law if the conduct underlying the charge would constitute a violation of section
2421A of title 18, United States Code, and promotion or facilitation of prostitution is illegal in the
jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.”
Section 4(a) (emphasis added). Moreover, conviction under section 2421A is precluded if “the
promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or
facilitation was targeted.” 18 U.S.C. 2421A(e).
Targeting activities that promote or facilitate illegal prostitution of another person is a
legitimate government goal. To be overbroad, a statute’s unconstitutional scope (if there is any)
must be “substantial, not only in an absolute sense, but also relative to the statute’s plainly
legitimate sweep.” Williams, 553 U.S. at 292. Here, Plaintiffs have not alleged any legal activities
to which the statute might plausibly be applied. Even if they had, Plaintiffs have not shown that
potentially unconstitutional applications of FOSTA are substantial relative to its legitimate ones.

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As such, Plaintiffs’ overbreadth challenge should be dismissed. See Sandvig, 2018 WL 1568881,
at *17.
B.

Strict Scrutiny

Count II alleges that “FOSTA as a whole targets online speech,” Compl. ¶ 136, and, as a
“content-based restriction of speech,” id. ¶ 141, it fails strict scrutiny.
Strict scrutiny does not apply when the challenged law on its face does not regulate speech
based on its content. Cf. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (where the law at
issue was a restriction on posting signs that set forth different restrictions based on the message
conveyed). Here, the challenged law on its face does not regulate speech at all, so there is no
question of a content-based or viewpoint-based restriction. See, e.g., Act Now to Stop War & End
Racism Coal. & Muslim Am. Soc’y Freedom Found. v. Dist. of Columbia, 846 F.3d 391, 403–04
(D.C. Cir.), cert. denied sub nom. Muslim Am. Soc’y Freedom Found. v. Dist. of Columbia, 138 S.
Ct. 334 (2017) (noting the fact that it was necessary to look at sign to see if it was “event-related”
did not make a sign posting regulation content-based).
The law at issue here, 18 U.S.C. § 2421A, regulates conduct (i.e., owning, managing, or
operating an interactive computer service with the intent to promote or facilitate the prostitution
of another person), not speech. While speech-related activity such as advertising might be involved
in assessing a potential violator’s “intent to promote or facilitate,” the intent, not the content, of
such activity would be determinative.
C.

Vagueness

Count III alleges that FOSTA is unconstitutionally vague. In order to assert a facial
vagueness challenge, a plaintiff must “demonstrate that the [challenged] law is impermissibly

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vague in all of its applications.” Village of Hoffman Estates v. Flipside, 455 U.S. 489, 497 (1982).
Plaintiffs fail to meet this heavy burden.
Section 2421A does not extend to online speech that somehow makes sex work easier or
safer. In fact, on its face, section 2421A does not prohibit communication or speech, and it certainly
does not prohibit communication or speech by individuals or organizations that is not intended to
encourage or facilitate an act of prostitution. Rather, it prohibits owning, managing, or operating
an interactive computer service, or conspiring or attempting to do so, “with the intent to promote
or facilitate the prostitution of another person.”
Further, as previously noted, the terms “promote” and “facilitate” are not vague when
viewed in context. They expressly refer to conduct tied to an act of prostitution. And these same
terms are already used to describe the necessary mens rea for violations of section 1952(a)
(prohibiting using any facility in interstate commerce “with intent to . . . otherwise promote,
manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying
on, of any unlawful activity,” where “unlawful activity” expressly includes illegal acts of
prostitution). Courts have understood that “promote” and “facilitate” in section 1952 means to do
something “that would cause the unlawful activity to be accomplished or that [would] assist[] in
the unlawful activity in any way”—in other words, they refer to providing assistance to a specific
legal act. United States v. Bennett, 95 F.3d 1158 (9th Cir. 1996); see also Aid and Abet, Black’s
Law Dictionary (10th ed. 2014) (defining “aid and abet” as “to assist or facilitate the commission
of a crime, or to promote its accomplishment”); cf. Rosemond v. United States, 572 U.S. 65, 134
S. Ct. 1240, 1245 (2014) (an accomplice is liable as a principal when he gives “assistance or
encouragement . . . with the intent thereby to promote or facilitate commission of the crime”)
(citing 2 W. LaFave, Substantive Criminal Law § 13.2, p. 337 (2003)). In sum, “[t]he likelihood

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that anyone would not understand any of those common words seems quite remote.” Hill v.
Colorado, 530 U.S. 703, 732 (2000).
Moreover, this Circuit recognizes that a “scienter requirement may mitigate a law’s
vagueness especially with respect to the adequacy of notice to the complainant that his conduct is
proscribed,’” Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 27-28 (D.C. Cir. 2009) (quoting Village
of Hoffman Estates, 455 U.S. at 499), and that “the Supreme Court has found a ‘knowing’
requirement sufficient to ameliorate vagueness concerns,” id. (citing Hill, 530 U.S. at 732). See
also Little Arm Inc. v. Adams, 13 F. Supp. 3d 914, 924 (S.D. Ind. 2014) (explaining that a scienter
requirement that “envisage[s] not only a knowing what is done but a knowing that what is done is
unlawful, or, at least, so ‘wrong’ that it is probably unlawful” may mitigate a law’s vagueness).
Lastly, Plaintiffs rely on alleged responses of third parties to FOSTA’s enactment, but third
parties’ voluntary decisions were not required by FOSTA and are not fairly traceable to FOSTA.
The possibility that third parties have misinterpreted the law does not mean the law is vague when
the plain reading of the statute does not support their interpretation.
D.

Removal of Statutory Immunity

Count IV alleges a first amendment violation based on FOSTA’s removal of statutory
immunity via amendments to 47 U.S.C. § 230.
As noted in Defendants’ motion, the Communications Decency Act is a policy choice made
by Congress to provide more protection than that offered in the First Amendment. Klayman v.
Zuckerberg, 753 F.3d 1354, 1355-56 (D.C. Cir. 2014) (“Congress . . . made it the ‘policy of the
United States’ to ‘promote the continued development of the internet”) (quoting 47 U.S.C.
§ 230(b)); cf. Nixon v. United States, 938 F.2d 239, 255 (acknowledging that “the courts may well
be barred from second-guessing Congress’ fact-finding and policy judgments within the zones of

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discretion assigned it by the Constitution”). Just as “Congress sets the policy in the statutes it
enacts,” Center for Biological Diversity v. EPA, 722 F.3d 401, 413 (D.C. Cir. 2013), so may it also
amend that policy as it sees fit, within constitutional bounds.
E.

Scienter Standard

Count V alleges a defective scienter standard with respect to 18 U.S.C. § 1591 and 18
U.S.C. § 2421A(b)(2). Compl. ¶¶ 165-67. Plaintiffs’ attempts to create a constitutional issue with
respect to the scienter standards fail because their interpretation of the statutory provisions at issue
is unreasonable and not supported by the plan meaning of the terms.
With respect to section 1591, FOSTA simply defined a term in the statute (“participation
in a venture”) but changed nothing about section 1591’s underlying mens rea (and the definition
added by FOSTA includes an express mens rea element: “knowingly assisting, supporting, or
facilitating[.]” (emphasis added). Both before and after the passage of FOSTA a violation of
section 1591 requires specific knowledge of sex trafficking.
Moreover, section 2421A(b)(2) does not “further dispense[] with scienter.” Compl. ¶ 167.
This provision applies only to the penalty for an aggravated offense under section 2421A and the
civil remedy in section 2421A, allowing sex trafficking victims to seek a civil recovery for such
reckless conduct. In order to even be relevant, the Government must still establish the underlying
liability, which requires specific intent to promote or facilitate the prostitution of another person.
F.

Ex Post Facto Provisions

Count VI alleges that section 4(b) of FOSTA violates the Constitution’s prohibition against
ex post facto laws.

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As noted in the motion to dismiss, Plaintiffs lack standing because they cannot demonstrate
injury-in-fact with respect to Count VI. Dfts.’ Motion at 21. Nowhere in Plaintiffs’ opposition do
they attempt to address this issue, and the Court may treat it as conceded.
Furthermore, it is not the case, as the Complaint alleges, that DOJ conceded there were
constitutional issues. Compl. ¶ 174. In March 2018, DOJ expressed its support for the law because
state prosecutors could avoid the ex post facto problem by not bringing suit for conduct occurring
for the date of enactment. ECF No. 15-1. State prosecutors, of course, are not parties to this lawsuit
(nor are potential civil litigants). section 4(b) of FOSTA, by its plain terms, only applies to changes
to section 230(e), which was amended to permit civil claims under section 1595 in certain
circumstances and state and local prosecutions for crimes that would constitute a violation of 18
U.S.C. §§ 1591 or 2421A, in certain prescribed circumstances. Simply put, the ex post facto
provision does not apply to the federal defendants and should be dismissed.
CONCLUSION
For the reasons set forth above and in Defendants’ Motion to Dismiss, the Court should
dismiss this action with prejudice.
Dated: August 6, 2018

Respectfully submitted,
JESSIE K. LIU, D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN, D.C. Bar #924092
Chief, Civil Division
By:

/s/ Jason T. Cohen
JASON T. COHEN, ME Bar #004465
Assistant United States Attorney
555 Fourth St., N.W.
Washington, D.C. 20530
Phone: [phone]
Fax: [phone]
Email: [e-mail]
25