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

Filing 22

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

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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

SUPPLEMENTAL BRIEF IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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The Government fundamentally misapplies the First Amendment in this case because it
misapprehends how FOSTA regulates speech. See Tr. 21:13-19 (“Section 2421A … speaks
about owning and managing or operating an interactive computer service … [s]o it’s not directed
at speech at all”); 29:23-24 (“this is not a statute directed at speech itself”); 30:4-6 (“[Section
2421A] is directed at the management, operation, ownership of an interactive website. It’s not
speech itself.”); 30:15-16 (“the terms of the statute itself are not directed at speech”). Contrary
to the Government’s mistaken assumption, the only activity of an interactive computer service is
communication, and FOSTA’s amendments to Section 230 provide that the operator of such a
service “shall be treated as the publisher or speaker of … information provided by another” on
topics specified by the law. If FOSTA had been enacted pre-Internet and imposed penalties on
anyone who “owns, manages, or operates [a printing press] or conspires or attempts to do so,
with the intent to promote or facilitate the prostitution of another person,” no one would doubt it
was a regulation of the press and subject to strict First Amendment limits. The same standard
applies to operation of an “interactive computer service,” as the case law uniformly holds. See
Opp. to MTD, Dkt. 19 at 29-31 (collecting cases); PI Mot., Dkt. 5 at 2-5, 33-37; PI Reply, Dkt.
17 at 21-22. This basic misunderstanding undermines the Government’s overall defense of
FOSTA, including its analyses of whether the law reaches Plaintiffs’ activities, whether there is a
realistic threat of prosecution or civil liability, and how those risks affect the Plaintiffs.
1. FOSTA Is Broad Enough to Reach Plaintiffs’ Activities
a. The Government is wrong not just about the nature of FOSTA but its scope as well
when it asserts that “the conduct [Plaintiffs] say [] they’re going to undertake would not be a
violation of the statute.” Tr. 20:9-11. Unlike the Travel Act, Section 2421A does not require

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violation of state prostitution laws as a predicate act. 1 Yet even if FOSTA did require intent to
“promote” or “facilitate” violation of a specific law, liability for aiding and abetting such a
violation could attach to “all assistance rendered by words, acts, encouragement, support, or
presence,” even if that aid “relates to only one (or some) of a crime’s phases or elements.”
Rosemond v. United States, 134 S. Ct. 1240, 1246-47 (2014) (quoting Reves v. Ernst & Young,
507 U.S. 170, 178 (1993)). 2 The federal aiding and abetting statute, 18 U.S.C. § 2, reaches any
person who, among other things, “counsels” another in the commission of a crime. Id. at 124546. “All that is necessary is to show some affirmative participation which at least encourages the
principal offender to commit the offense.” Congressional Research Service, Sex Trafficking: An
Overview of Federal Criminal Law, June 25, 2015, at 11 (quoting United States v. Ali, 718 F.3d
929, 936 (D.C. Cir. 2013) (“CRS Report”).
FOSTA’s broad reach is not limited by the principles articulated in McDonnell v. United
States, 136 S. Ct. 2355 (2016). See Tr. 37:13-23. In McDonnell, the Supreme Court narrowly
defined the term “official act” in the federal bribery statute, 18 U.S.C. § 201, so as not to handicap the everyday business of government. 136 S. Ct. at 2369-72. But such reasoning cannot
narrow FOSTA, which does not define the underlying offense (“prostitution of another person”)
as the violation of a specific law. Yet even if the principle in McDonnell applied and required a
tighter definition of “prostitution” (such as importing the Travel Act’s requirement of violation
of a state law), FOSTA would still criminalize online speech that merely “promotes” or

1

Compare 18 U.S.C. § 1952(b) (defining “unlawful activity” as a violation of specific state
laws), with 18 U.S.C. § 2421A (prohibiting owning, managing or operating “an interactive
computer service … with the intent to promote or facilitate the prostitution of another”).
2

DOJ cites Rosemond, Tr. 31:5-11, but it does not support the Government’s argument
because that case dealt with charges under a law that required proof of intent to violate two
separate elements of a specific underlying statute, unlike Section 2421A. See 134 S. Ct. at 1245.

2

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“facilitates” the offense. The Government posits that this language should be interpreted in line
with United States v. Bennett, 1996 WL 477048 (9th Cir. 1996), which would apply FOSTA to
“any act that would cause the unlawful activity to be accomplished or to assist in the unlawful
activity in any way.” Id. at *5. See Tr. 30:19-31:4; Mot. to Dismiss, Dkt. 15 at 11 (quoting
Bennett, 1996 WL 477048, at *5). In this regard, Plaintiffs have alleged sufficient facts showing
that their speech in support of sex workers falls within FOSTA’s capacious terms. 3
b. The Government’s claim that the law would not reach Plaintiffs’ activities because of
strict mens rea requirements is also wrong. E.g., Tr. 26:6-8. Even under an intent standard (as in
Section 2421A), Plaintiffs Woodhull, HRW, and Andrews all use and operate interactive
computer services with the intent to advocate for, and to provide assistance to sex workers—
including those involved in prostitution. That suffices to support a prosecution under Bennett.
In particular, those who advocate decriminalization have reason for concern, as such advocacy
may be considered evidence of intent to facilitate a violation of the law. See Eugene Volokh,
Crime-Facilitating Speech, 57 STAN. L. REV. 1095, 1187-90 (March 2005) (“an intent test will
tend to deter ideological advocacy, and not just intentionally crime-facilitating speech”).
Additionally, the anti-trafficking provision of Section 1591 does not require intent to
promote trafficking, but only “knowing” participation “in a venture” in “reckless disregard” that

3

See Opp. to MTD, Dkt. 19 at 21-26 (describing various forms of advice and support for sex
workers); PI Reply, Dkt. 17 at 3-5 (describing activities of Woodhull, HRW and Andrews, and
how they have been chilled); PI Mot., Dkt. 5 at 12-15 & Declarations (same). Woodhull’s
annual Sexual Freedom Summit, now in its ninth year, hosted some 400 attendees including
human rights activists, sexuality educators and researchers, professionals from the legal
and medical fields, authors, leaders of the sexual freedom movement, and organizational
partners, and included an instructional series of workshops for sex workers.
See
https://www.woodhullfoundation.org/our-work/sexual-freedom-summit;
https://www.guidestar.org/profile/11-3681116.

3

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trafficking may have occurred. 18 U.S.C. § 1591(a). This liability sweeps broadly. The term
“knowingly” means only that an act was performed voluntarily and intentionally, and only
requires proof of the facts that constitute the offense, not knowledge of the lawfulness of the
action.

Bryan v. United States, 524 U.S. 186, 193 (1998).

Section 1591(a)(2) prohibits

benefitting financially from a venture “or … receiving anything of value,” which may include
“intangibles.” CRS Report at 8. See United States v. Marmolejo, 89 F.3d 1185, 1191-93 (5th
Cir. 1996) (collecting cases interpreting criminal laws to show that “anything of value” includes
“intangibles,” including “information”); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262,
1281 (W.D. Wash. 2012) (“the undefined term ‘something of value’ means anything that can be
traded on a free market”). 4 Previously, Section 1591 defined “venture” as “any group of two or
more individuals associated in fact, whether or not a legal entity,” but FOSTA changed the
definition of participating in a venture to encompass “knowingly assisting, supporting, or
facilitating a violation of subsection (a)(1).” FOSTA § 5.
The Government errs in suggesting Section 1591 employs a higher mens rea standard,
pointing to Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96 (D.D.C. 2016). See Tr. 24:1725:11. 5 That holding interpreted the law before FOSTA. Congress amended Section 1591 to
broaden “participation in a venture” to undo the mens rea standard articulated in Lynch. It also
adopted the “aggravated” offense of Section 2421A(b). The House Report on FOSTA explained

4

Woodhull, HRW, and Andrews all receive information from sex workers that they utilize
through interactive computer systems to provide online materials to advocate on behalf of sex
workers and to provide information and online tools to assist with harm reduction, personal
safety, strategies for use of emergency services, avoidance of legal jeopardy, and other issues.
5

The district court decision in Lynch was not appealed because the plaintiff in that case
achieved its objective: judicial clarification that an ambiguous mens rea provision relating to
“advertising” required proof of specific knowledge of specific ads. But that clarification is why
FOSTA expressly adopted a laxer standard for all other “participation.”

4

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the reason for these changes: proving specific knowledge was too difficult, so Congress had to
adopt a new statute that “targets promotion and facilitation of prostitution” based on the premise
that “[p]rostitution and sex trafficking are inextricably linked.” H.R. Rep. No. 115-572 at 5. The
Government confirmed this point (albeit inadvertently) when it described the “signing statement”
as “the best guidance as to what [DOJ] sees as the law and how it interprets it.” Tr. 27:21-28:4.
That statement explains that FOSTA was adopted because, under prior law, prosecutors were
“limited by the high evidentiary standard needed to bring federal criminal charges.” 6 No more.
These changes create a particular threat of liability for online platforms that host thirdparty speech. The Government claims organizations like Plaintiff Internet Archive need not
worry about prosecution because there is no possibility of proving mens rea. Tr. 31:23-32:16.
But under the reckless disregard standard FOSTA applies to both Section 1591(a) and Section
2421A(b), and even under an intent standard, online platforms have no clear way to avoid
liability without monitoring and over-censoring users’ posts. 7 Platforms that lack the resources
to monitor user-generated content, such as those represented by Plaintiffs here, face enormous
risks if they continue to operate. This burden led the Supreme Court to find standing for book
stores in Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392 (1988) (having to take
“significant and costly compliance measures or risk criminal prosecution”). See also McKenna,
6

See Letter from Prim F. Escalona to Mick Mulvaney, Director, Office of Management and
Budget, Dkt. 15-1 (explaining that FOSTA “provides for an aggravated felony if the defendant
recklessly disregards that the crime contributed to sex trafficking as prohibited by 18 U.S.C.
§ 1591(a),” and that Section 1591’s definition of “participation in a venture” was amended to
“ensure federal liability” and “is not intended to be limiting”).
7

H.R. Rep. No. 115-572 at 9 (unlawful intent will not be present “where the material
appears despite the operator’s good faith efforts to moderate, remove, or restrict such material
from appearing on or through the facility”). Civil liability creates even greater pressure to
actively police users’ speech, as a defendant may be liable under a reckless disregard standard if
it does not “seek out the facts that would be reasonable and prudent under the circumstances.”
CRS Report at 6.

5

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881 F. Supp. 2d at 1270 (Internet Archive has standing to challenge anti-trafficking law). Law
enforcement officials have used such liability risks as a de facto “notice and takedown” regime
for online intermediaries. See Opp. to MTD, Dkt. 19 at 14-18 (collecting cases). Plaintiffs
Woodhull, HRW, Internet Archive, and Andrews face these risks from hosting third-party content. Separately, Plaintiff Eric Koszyk has standing because FOSTA’s resulting over-censorship
deprived him of an advertising platform.
c. Contrary to the Government’s claim at oral argument, U.S. attorneys are not the only
ones empowered to pursue charges under FOSTA. Tr. 22:8-9. FOSTA permits state and local
prosecutors to bring charges under state laws that mirror Sections 2421A and 1591 and removes
Section 230 immunity that previously would have barred them. 8 All 50 states have laws that
correspond to Section 1591. See CRS Report at 1 n.1 (listing state statutes). Almost all states
ban prostitution as well through various laws.

In particular, Virginia prohibits “aiding”

prostitution by various means, including “giv[ing] any information or direction to any person
with intent to enable such person to commit an act of prostitution.” Va. Code § 18.2-348. 9 This
kind of state “facilitating prostitution” claim is what Cook County Sheriff Thomas Dart leveled
against Craigslist in 2009, see Dart v. Craigslist, 665 F. Supp. 2d 961, 961 (N.D. Ill. 2009), and
“human trafficking” was among the grounds on which Mississippi Attorney General James Hood
pursued Google in 2014. See Google v. Hood, 822 F.3d 212, 218-19, 227 (5th Cir. 2016). See

8

DOJ admitted this point later in the argument. Tr. 28:9-15. State Attorneys General also
are empowered to bring civil parens patriae actions pursuant to 18 U.S.C. § 1595. FOSTA § 6.
Importantly, FOSTA purports to impose liability for conduct occurring even before the law was
signed. FOSTA § 4(b).
9

The Court asked about the potential for prosecution in the Eastern District of Virginia
where Woodhull’s Sexual Freedom Summit is physically located. Because Section 2421A
applies to the operation of an online service, Woodhull faces potential prosecution in any district
within which Woodhull’s online content from the Summit is available.

6

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Opp. to MTD, Dkt. 19 at 6-13 (describing multiple pathways for potential liability under
FOSTA).
2. Plaintiffs Face a Credible Threat Under FOSTA
The Government’s subtle shift from arguing it could not prosecute Plaintiffs under
FOSTA, to claiming it would not do so, does not change the analysis. DOJ’s promise that it has
“no intent of prosecuting anyone from Woodhull [] for their summit,” Tr. 23:17-19, is gratifying,
but legally meaningless. First, it is not the standard for determining standing. Sandvig v.
Sessions, --- F. Supp. 3d ---, 2018 WL 1568881, at *6, *9 (D.D.C. Mar. 30, 2018). See Opp. to
MTD, Dkt. 19 at 3-6. Second, it says nothing about threats posed by possible actions by state
and local prosecutors and private litigants. See id. at 6-12.
The Government’s analogizing to needle-exchange programs to assert that Plaintiffs’
advocacy and harm reduction speech will never be subject to prosecution undermines its
argument. The Government stated that Plaintiffs faced no reasonable fear of prosecution for
their advocacy, even if they facilitated the prostitution of another person, because no one “in
their right mind” would “prosecut[e] a health-services group for handing out needles to heroin
users and argu[e] that that was somehow promoting heroin use.” Tr. at 23:20-24:1. But the DOJ
provides no criminal law exemption for harm reduction efforts. In December, the U.S. Attorney
for the District of Vermont announced that “safe injection facilities,” although motivated by a
desire to save lives, “would encourage and normalize heroin use” and “would violate federal
law.” 10 DOJ has issued similar threats in other jurisdictions. 11 Likewise, local prosecutors have
10

Statement of the U.S. Attorney’s Office Concerning Proposed Injection Sites, United
States Attorney’s Office, District of Vermont (Dec. 13, 2017) (https://www.justice.gov/usaovt/pr/statement-us-attorney-s-office-concerning-proposed-injection-sites).
11

See, e.g., Dominic Holden, The Trump Administration Says Proposed Heroin Injection
Sites Could Face “Legal Action,” BUZZFEED NEWS, Feb. 14, 2018 (https://www.buzz7

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convicted needle exchange providers on the theory that distributing clean needles promotes or
facilitates illegal drug use. 12 Plaintiff HRW has documented the legal risks faced by health
workers providing needle exchange programs to combat HIV. 13
Plaintiffs Woodhull, HRW and Andrews thus reasonably fear prosecution based on their
efforts to assist sex workers. Police and prosecutors often view efforts to increase sex worker
safety as facilitating prostitution. For example, HRW has documented how police departments
in New York City, Washington, D.C., Los Angeles, and San Francisco treat condom possession
as evidence of prostitution, and have threatened or harassed outreach workers seeking to prevent
HIV infection by distributing condoms to sex workers. 14 Plaintiffs’ credible fear of prosecution
is also based on the Government’s official opposition to advocacy that would legitimize sex
work, including its efforts to muzzle organizations committed to reducing the spread of diseases
such as HIV/AIDS. See Agency for Int’l Dev. v. Alliance for Open Soc’y, Inc., 133 S. Ct. 2321
(2013). Congress followed a similar path in passing FOSTA, stating in its findings that, sex

feednews.com/article/dominicholden/the-trump-administration-says-proposed-heroin-injection);
Matier & Ross, Plan for Safe Injection Site Gets Dose of Reality Over Federal Drug Laws, SAN
FRAN. CHRON., July 16, 2018 (https://www.sfchronicle.com/bayarea/matier-ross/article/Federaldrug-laws-could-stand-in-the-way-of-safe-13074350.php).
12

State v. Sorge, 591 A.2d 1382 (N.J. Super. 1991) (finding needle-exchange providers,
“albeit for the highest motives, were engaged in facilitating illegal drug use”) (emphasis added);
see also State v. McCague, 714 A.2d 937 (N.J. Super. App. Div. 1998) (convicting needle exchange provider for violating drug paraphernalia law); Commonwealth v. Leno, 616 N.E.2d 453
(Mass. 1993) (same).
13

HRW, Injecting Reason: Human Rights and HIV Prevention for Injection Drug Users
California: A Case Study, Ch. V-VI (Sept. 2003) (https://www.hrw.org/reports/2003/usa0903/
7.htm#_Toc49918389).
14

HRW, Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities (July
19, 2012) (https://www.hrw.org/report/2012/07/19/sex-workers-risk/condoms-evidence-prostitution-four-us-cities).

8

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work and sex trafficking are “inextricably linked,” suggesting that advocacy on behalf of sex
workers is one and the same as advocacy on behalf of sex trafficking. Compl. ¶¶ 112, 130.
The recent history of Internet litigation supports these concerns.

Law enforcement

officials have repeatedly threatened online intermediaries with prosecution, and civil litigants
have long sought to impose liability on them based on content they find objectionable. See Opp.
to MTD, Dkt. 19 at 13-19. In various cases, law enforcement authorities have used their own
allegations regarding the presence of illegal material on platforms as a proxy for “knowledge” by
the service providers, and have leveraged such allegations to accomplish off-the-books
censorship. See id. at 14-18. Under these circumstances, FOSTA’s passage understandably had
widespread chilling effects. Compl. ¶¶ 52-125.
3. Sources of Possible Legal Action Under FOSTA
Argument on the Motion frequently turned to who may be likely to enforce FOSTA
against Plaintiffs. Tr. 9:10-21, 11:5-25, 16:17-17:2, 22:3-5, 23:13-15, 38:22-39:3. But in preenforcement First Amendment challenges, the issue is not whether officials will apply the law to
a plaintiff’s speech, it is whether they could do so, regardless of the likelihood of that occurring.
If a content-based law “can” impose liability under its broad terms, courts find standing even for
scenarios the Government deems “hyperbolic.” See PI Reply, Dkt. 17 at 11 & n.15; Opp. to
MTD, Dkt. 19 at 8 & n.4 (each quoting ACLU v. Reno, 929 F. Supp. 824, 870-72 (E.D. Pa. 1996)
(Dalzell, J.), aff’d, 521 U.S. 844 (1997)). Here, FOSTA creates multiple avenues to impose
liability for federal and state prosecutors, and private litigants as well. In this regard, the history
of enforcement actions against online speakers and intermediaries, including actions targeting
speech relating to prostitution or alleging “trafficking,” strongly indicates Plaintiffs have reason
to be concerned. See Opp. to MTD, Dkt. 19 at 13-19.

9

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Federal prosecutors may charge directly under Section 2421A, which provides new
offenses with which to pursue interactive computer services. They may prosecute under Section
1591 as well, which was amended by FOSTA to expand its reach to include “participation in a
venture” based on “reckless disregard” of activities that may “promote” trafficking. See Opp. to
MTD, Dkt. 19 at 6-7 (quoting 18 U.S.C. § 1591(a), (c), (e)(4), § 2421A(a)-(b)). While state
attorneys general or local prosecutors admittedly cannot bring “prosecutions” directly under
FOSTA, the Act empowers them to enforce corresponding state laws. By amending Section 230
to eliminate federal immunity for such charges, FOSTA § 4 (adding 47 U.S.C. § 230(e)(5)(B)(C)), FOSTA now allows state prosecutions that were formerly preempted. 15 Additionally,
FOSTA allows state AGs to bring parens patriae actions on behalf of state residents anytime an
AG has “reason to believe that [their] interest … has been or is threated or adversely affected by
any person who violates Section 1591.” FOSTA § 6(a) (adding 18 U.S.C. § 1591(d)). Private
litigants also can “enforce” FOSTA because it removes Section 230 immunity for suits brought
under Section 1595, which authorizes civil actions for damages and attorney fees for violations
of Section 1591. See FOSTA § 4 (enacting 47 U.S.C. § 230(e)(5)(A)).
CONCLUSION
Questions at the hearing focused predominantly on three issues: Can FOSTA be interpreted to reach Plaintiffs’ activities, do Plaintiffs face a credible threat of prosecution, and are
Plaintiffs likely to be adversely affected by the law?

The answer to each of these is an

unequivocal “yes.” This Court should hold that Plaintiffs have standing and issue the requested
preliminary injunctive relief.
15

See Opp. to MTD, Dkt. 19 at 9, 19. See also People v. Ferrer, 2016 WL 7237305 (Cal.
Super. Ct. Dec. 9, 2016); People v. Ferrer, No. 16FE024013 (Cal. Super. Ct. Aug. 23, 2017)
(each dismissing state charges against website operators on Section 230 and First Amendment
grounds); Dart v. Craigslist, 665 F. Supp. 2d at 961.

10

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DATED: August 6, 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]

11

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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

12