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

Filing 5

MOTION for Preliminary Injunction by HUMAN RIGHTS WATCH, ERIC KOSZYK, JESSE MALEY, THE INTERNET ARCHIVE, WOODHULL FREEDOM FOUNDATION (Attachments: #1 Declaration of K. D'Adamo, #2 Declaration of R. Levy, #3 Declaration of D. Pokempner, #4 Declaration of E. Koszyk, #5 Declaration of J. Maley, #6 Declaration of B. Kahle, #7 Declaration of A. Lutnick, #8 Declaration of A. Levy, #9 Declaration of K. Mehlman-Orozco, #10 Text of Proposed Order)(Corn-Revere, Robert)

Case 1:18-cv-01552-RJL Document 5 Filed 06/28/18 Page 1 of 61

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

MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs Woodhull Foundation, Human Rights Watch, Eric Koszyk, Jesse Maley a/k/a
Alex Andrews, and The Internet Archive, by and through counsel, and pursuant to Rule 65(a) of
the Federal Rules of Civil Procedure, hereby respectfully move this Court for a preliminary
injunction that enjoins the enforcement of the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, Pub. L. No. 115-164 (“FOSTA” or “the Act”), as codified at 18 U.S.C.
§ 2421A, 18 U.S.C. § 1591(e)(4), and 47 U.S.C. § 230(e)(5), during the pendency of this case. A
Memorandum of Law Supporting Plaintiffs’ Motion for Preliminary Injunction is filed
concurrently herewith, and a draft order preliminarily enjoining FOSTA is attached. Plaintiff
requests oral hearing of this Motion, and action is respectfully requested by August 1, 2018,
given the threat FOSTA poses to Plaintiff Woodhull Foundation’s ability to engage in
protected online speech in connection with its annual Sexual Freedom Summit on
August 2-5, 2018, as outlined in the supporting memorandum.

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In support of this Motion, Plaintiffs submit a supporting memorandum of points and
authorities and declarations, and state as follows:
1.

Plaintiffs are advocacy and human rights organizations, two individuals and the

leading archival collection of Internet content. Each either operates online services like websites, social media accounts, and applications as part of speech and advocacy in support of sex
workers; otherwise provides resources and information to sex workers; hosts the speech of others
who provide such information; or relies on platforms in order to seek information or share their
own speech. FOSTA’s direct prohibitions on speech “facilitating the prostitution of another
person” and other vague, ambiguous and overbroad provisions conflating sex work with sex
trafficking cast serious doubt on the legality of Plaintiffs’ speech, or, in the case of Plaintiff
Koszyk, have left him without a platform to advertise his non-sexual services.
2.

The Court should grant preliminary injunctive relief in this case “to maintain the

status quo pending a final determination of the merits” of Plaintiffs’ constitutional challenge to
FOSTA, Smoking Everywhere, Inc. v. FDA, 680 F. Supp. 2d 62, 78 (D.D.C. 2010) (citation
omitted) because “loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
3.

A preliminary injunction will be granted when the plaintiff demonstrates likely

success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of
the equities in its favor, and accord with the public interest. Pursuing America’s Greatness v.
FEC, 831 F.3d 500, 505 (D.C. Cir. 2016) (citing Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008)).
4.

Plaintiffs are likely to succeed on the merits of their First and Fifth Amendment

claims because FOSTA as a whole is both overbroad and fails to satisfy First Amendment strict

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scrutiny, its individual provisions are vague, and it contains an unconstitutional ex post facto
provision. FOSTA targets online speech by (1) creating a new federal offense for anyone who
“owns, manages, or operates an interactive computer service” with the intent to “promote” or
“facilitate” prostitution, (2) expanding potential liability for federal sex trafficking offenses
based on speech, and (3) diluting the speech-protective immunity provision provided for online
platforms that host third party speech in the Communications Decency Act of 1996, 47 U.S.C.
§ 230. FOSTA §§ 3(a), 4(a) & 5; 18 U.S.C. § 2421A(a); 47 U.S.C. § 230(e)(5). These new,
entirely content-based prohibitions impose harsh criminal penalties and authorize heavy civil
liability for online publishers based on expansive but undefined terms regarding “promotion” or
“facilitation” of “prostitution” and/or “reckless disregard” of conduct that “contributes to sex
trafficking.” FOSTA’s provisions are subject to but cannot satisfy strict scrutiny, see United
States v. Stevens, 559 U.S. 460, 468 (2010); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227
(2015); are overbroad insofar as a substantial number of its applications are unconstitutional
judged in relation to its plainly legitimate sweep, Stevens, 559 U.S. at 473; are unconstitutionally
vague in their failure to give people of ordinary intelligence fair warning of what conduct is
prohibited, Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); unconstitutionally impose
liability for distributing expressive materials absent proof of scienter; Smith v. California, 361
U.S. 147 (1959); and turn Section 230’s online intermediary immunity into a tool for censorship.
See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,
1174 (9th Cir. 2008). Plaintiffs will also succeed on their claim that the law violates the Ex Post
Facto Clause. U.S. Const. art. I, §§ 9-10; Landgraf v. USI Film Prods., 511 U.S. 244, 265
(1994).

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5.

Plaintiffs have already suffered irreparable harm, and will continue to do so,

absent a preliminary injunction because they face unlawful restrictions on their ability to engage
in constitutionally protected speech. Pearson v. Shalala, 130 F. Supp. 2d 105, 119 (D.D.C.
2001) (citing Elrod, 427 U.S. at 373; New York Times Co. v. United States, 403 U.S. 713 (1971);
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 758 (1988)).
6.

Moreover, the balance of the equities tips strongly in Plaintiffs’ favor. See, e.g.,

Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012) (when First Amendment rights are
implicated, factors for granting preliminary injunction essentially collapse). The government
will experience minimal harm, or none at all, from an order temporarily preserving the status quo
of laws that only recently took effect, particularly given preexisting criminal laws that remain in
effect, and because “no substantial harm to others can be said to inhere” in allowing violations of
constitutional rights to continue. Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville &
Davidson Cty., 274 F.3d 377, 400 (6th Cir. 2001). If anything, in view of the adverse impact
FOSTA is having in preventing sex trafficking and endangering sex workers, a preliminary injunction would, in fact, serve that particular public interest as well – and in any case, the public
interest is served, as always, by safeguarding constitutional rights and preserving laws that have
fostered a free and open Internet. PHE, Inc. v. U.S. Dep’t of Justice, 743 F. Supp. 15, 26 (D.D.C.
1990); Pursuing America’s Greatness v. FEC, 831 F.3d at 511-12; Google v. Hood, 96 F. Supp.
3d 584, 601 (S.D. Miss. 2015), rev’d on other grounds, 822 F.3d 212 (5th Cir. 2016).
WHEREFORE, Plaintiffs respectfully request that this Court enter an order preliminarily
enjoining the enforcement of FOSTA.

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DATED: June 28, 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 Admission Pending
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 Admission Pending
CORYNNE MCSHERRY
(admitted in California)
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
[phone]
Email: [e-mail]
[e-mail]
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

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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

MEMORANDUM IN SUPPORT OF PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1 
BACKGROUND ............................................................................................................................ 2 
A.  Internet Regulation, the Courts and the First Amendment .................................................. 2 
B.  FOSTA’s Legislative History .............................................................................................. 5 
C.  FOSTA’s Specific Provisions .............................................................................................. 8 
D.  FOSTA’s Immediate Impact .............................................................................................. 10 
E.  Impact on Plaintiffs ............................................................................................................ 12 
ARGUMENT ................................................................................................................................ 18 
I. 

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS BECAUSE FOSTA
VIOLATES THE FIRST AMENDMENT AND DUE PROCESS, AND IMPOSES
EX POST FACTO PENALTIES ............................................................................................ 19 
A.  FOSTA Violates the First Amendment Because it is a Vague and Overly Broad
Content-Based Regulation of Internet Speech ................................................................... 19 
1.  FOSTA’s Prohibitions are Unconstitutionally Overbroad ......................................... 19 
2.  FOSTA Fails Strict Scrutiny ...................................................................................... 22 
3.  FOSTA’s Prohibitions are Unconstitutionally Vague ................................................ 28 
4.  FOSTA Lacks the Necessary Scienter to Satisfy First Amendment
Requirements .............................................................................................................. 31 
B.  FOSTA’s Selective Modification of Section 230’s Immunity for Online
Intermediaries Violates the First Amendment and Promotes Widespread
Censorship of Internet Speech ........................................................................................... 33 
C.  FOSTA is an Unconstitutional Ex Post Facto Law ........................................................... 37 

II.  PLAINTIFFS AND ALL OTHER INTERNET PUBLISHERS AND USERS
HAVE SUFFERED AND WILL CONTINUE TO SUFFER IRREPARABLE HARM
ABSENT PRELIMINARY RELIEF ..................................................................................... 39 
III.  THE BALANCE OF EQUITIES FAVORS INJUNCTIVE RELIEF ................................... 42 
IV.  PRELIMINARY RELIEF WOULD SERVE THE PUBLIC INTEREST ............................ 44 
CONCLUSION ............................................................................................................................. 45 

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TABLE OF AUTHORITIES
Page(s)
Federal Cases
ACLU v. Mukasey,
534 F.3d 181 (3d Cir. 2008).......................................................................................................4
ACLU v. Reno,
929 F. Supp. 824 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997) ............................................3, 29
American Libraries Ass’n v. Pataki,
969 F. Supp. 160 (S.D.N.Y. 1997).............................................................................................4
Amusement Devices Ass’n v. Ohio,
443 F. Supp. 1040 (S.D. Ohio 1977) .......................................................................................29
Armstrong v. D.C. Public Library,
154 F. Supp. 2d 67 (D.D.C. 2001) ...........................................................................................28
Ashcroft v. ACLU,
542 U.S. 656 (2004) .......................................................................................................4, 25, 27
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) .....................................................................................................19, 25, 26
Backpage.com, LLC v. Lynch,
216 F. Supp. 3d 96 (D.D.C. 2016) ...........................................................................................27
Backpage.com v. Cooper,
939 F. Supp. 2d 805 (M.D. Tenn. 2013) ......................................................................22, 27, 32
Backpage.com v. Dart,
807 F.3d 229 (7th Cir. 2015) .............................................................................................21, 27
Backpage.com v. Hoffman,
2013 WL 4502097 (D.N.J. Aug. 20, 2013) .............................................................................22
Backpage.com v. McKenna,
881 F. Supp. 2d 1262 (W.D. Wash. 2012) ...............................................................................22
Baggett v. Bullitt,
377 U.S. 360 (1964) ...........................................................................................................28, 30
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ...................................................................................3, 4, 33, 34

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Bays v. City of Fairborn,
668 F.3d 814 (6th Cir. 2012) .............................................................................................19, 39
Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc.,
482 U.S. 569 (1987) .................................................................................................................28
Beazell v. Ohio,
269 U.S. 167 (1925) .............................................................................................................8, 38
Big Mama Rag, Inc. v. United States,
631 F.2d 1030 (D.C. Cir. 1980) ...............................................................................................28
Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786 (2011) ...........................................................................................................25, 28
Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc.,
519 F.3d 666 (7th Cir. 2008) ...................................................................................................34
Consolidated Edison Co. of N.Y. v. Public Serv. Comm’n of N.Y.,
447 U.S. 530 (1980) .................................................................................................................23
Cramp v. Board of Pub. Instruction,
368 U.S. 278 (1961) .................................................................................................................31
Cummings v. Missouri,
71 U.S. (4 Wall.) 277 (1867) ...............................................................................................8, 38
Dart v. Craigslist,
665 F. Supp. 2d 961 (N.D. Ill. 2009) ...........................................................................20, 22, 36
Doe v. Backpage.com LLC,
104 F. Supp. 3d 149 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 2016),
cert. denied, 137 S. Ct. 622 (2017) .................................................................................... 21-22
Doe v. GTE Corp.,
347 F.3d 655 (7th Cir. 2003) ...................................................................................................20
Elonis v. United States,
135 S. Ct. 2001 (2015) .............................................................................................................32
Elrod v. Burns,
427 U.S. 347 (1976) ...........................................................................................................18, 39
Fire Fighters Ass’n, D.C. v. Barry,
742 F. Supp. 1182 (D.D.C. 1990) ............................................................................................28
Google v. Hood,
822 F.3d 212 (5th Cir. 2016) ...............................................................................................1, 34

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Google v. Hood,
96 F. Supp. 3d 584 (S.D. Miss. 2015), vacated on other grounds,
822 F.3d 212 (5th Cir. 2016) .............................................................................................19, 44
Gordon v. Holder,
721 F.3d 638 (D.C. Cir. 2013) .................................................................................................44
Grayned v. City of Rockford,
408 U.S. 104 (1972) ...........................................................................................................28, 31
Griswold v. Connecticut,
381 U.S. 479 (1965) .................................................................................................................42
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .....................................................................................................................24
In re Aimster Copyright Litig.,
334 F.3d 643 (7th Cir. 2003) ...................................................................................................21
Jian Zhang v. Baidu.com Inc.,
10 F. Supp. 3d 433 (S.D.N.Y. 2014)........................................................................................34
Jones v. Dirty World Entm’t Recordings LLC,
755 F.3d 398 (6th Cir. 2014) ...............................................................................................4, 36
King v. Fed. Bureau of Prisons,
415 F.3d 634 (7th Cir. 2005) ...................................................................................................42
Kingsley Int’l Pictures Corp. v. Regents of Univ. of N.Y.,
360 U.S. 684 (1959) .................................................................................................................26
Koger v. Dart,
114 F. Supp. 3d 572 (N.D. Ill. 2015) .......................................................................................42
La’Tiejira v. Facebook, Inc.,
272 F. Supp. 3d 981 (S.D. Tex. 2017) .....................................................................................34
Landgraf v. USI Film Prods.,
511 U.S. 244 (1994) .................................................................................................................37
Langdon v. Google, Inc.,
474 F. Supp. 2d 622 (D. Del. 2007) .........................................................................................35
M.A. v. Village Voice Media Holdings, LLC,
809 F. Supp. 2d 1041 (E.D. Mo. 2011)....................................................................................22
Members of City Council v. Taxpayers for Vincent,
466 U.S. 789 (1984) .................................................................................................................20

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Meredith Corp. v. FCC,
809 F.2d 863 (D.C. Cir. 1987) .................................................................................................39
Mishkin v. New York,
383 U.S. 502 (1966) ...........................................................................................................31, 33
NAACP v. Button,
371 U.S. 415 (1963) ...........................................................................................................20, 29
Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty.,
274 F.3d 377 (6th Cir. 2001) ...................................................................................................44
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .................................................................................................................26
Ogden v. Sanders,
25 U.S. (12 Wheat.) 213 (1827) ...............................................................................................37
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ...............................................................................................4, 5, 33, 41
Pearson v. Shalala,
130 F. Supp. 2d 105 (D.D.C. 2001) .........................................................................................44
PHE, Inc. v. U.S. Dep’t of Justice,
743 F. Supp. 15 (D.D.C. 1990) ................................................................................................44
Pursuing America’s Greatness v. FEC,
831 F.3d 500 (D.C. Cir. 2016) ...............................................................................18, 19, 24, 44
Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1967) .................................................................................................................41
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) .................................................................................................22, 23, 25
Reno v. ACLU,
521 U.S. 844 (1997) ......................................................................................................... passim
Fair Housing Council of San Fernando Valley v. Roommates.com,
521 F.3d 1157 (9th Cir. 2008) ...........................................................................................22, 37
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995) .................................................................................................................23
Roth v. United States,
354 U.S. 476 (1957) ...................................................................................................................3

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Sable Commc’ns of Cal., Inc. v. FCC,
492 U.S. 115 (1989) .................................................................................................................12
Sanger v. Reno,
966 F. Supp. 151 (E.D.N.Y. 1997) ..........................................................................................38
Search King, Inc. v. Google Tech., Inc.,
2003 WL 21464568 (W.D. Okla. 2003) ..................................................................................35
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,
502 U.S. 105 (1991) .................................................................................................................23
Smith v. California,
361 U.S. 147 (1959) .................................................................................................................28
Smith v. Goguen,
415 U.S. 566 (1974) .................................................................................................................29
Smoking Everywhere, Inc. v. FDA,
680 F. Supp. 2d 62 (D.D.C. 2010) ...........................................................................................18
Snyder v. Phelps,
580 F.3d 206 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011) .......................................................26
Speiser v. Randall,
357 U.S. 513 (1958) .................................................................................................................33
Thompson v. W. States Med. Ctr.,
535 U.S. 357 (2002) .................................................................................................................20
True the Vote, Inc. v. IRS,
831 F.3d 551 (D.C. Cir. 2016) .................................................................................................23
United States v. Miller,
379 F.2d 483 (7th Cir. 1967) ...................................................................................................30
United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803 (2000) .....................................................................................................23, 25, 27
United States v. Rivera,
775 F.2d 1559 (11th Cir. 1985) ...............................................................................................24
United States v. Stevens,
559 U.S. 460 (2010) ...........................................................................................................19, 22
United States v. X-Citement Video, Inc.,
513 U.S. 64 (1994) ...................................................................................................................32

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Universal Commc’n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413 (1st Cir. 2007) ....................................................................................4, 33, 34, 35
Video Software Dealers Ass’n v. Webster,
968 F.2d 684 (8th Cir. 1992) ...................................................................................................32
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) .................................................................................................................42
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) ...............................................................................................................18, 44
Zango, Inc. v. Kaspersky Lab, Inc.,
568 F.3d 1169 (9th Cir. 2009) .................................................................................................34
Zeran v. America Online, Inc.,
129 F.3d 327 (4th Cir. 1997) .........................................................................................4, 34, 35
State Cases
Barrett v. Rosenthal,
40 Cal. 4th 33 (2006) ...............................................................................................................34
Cohen v. Bd. of Supervisors,
707 P.2d 840 (Cal. 1985) .........................................................................................................22
Delfino v. Agilent Techs., Inc.
145 Cal. App. 4th 790 (2006) ..................................................................................................34
Constitutional Provisions
U.S. Const.
amend. I............................................................................................................................ passim
amend. V ....................................................................................................................................2
art. I, § 9 ...................................................................................................................................37
art. I, § 9, cl. 3 ......................................................................................................................8, 38
art. I, § 10 .................................................................................................................................37
art. VI, cl. 3 ..............................................................................................................................38

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Federal Statutes
18 U.S.C.
§ 1591............................................................................................................................... passim
§ 1591(a)(1) .............................................................................................................................27
§ 1591(a)(2) .............................................................................................................................27
§ 1591(e)(4) .............................................................................................................................10
§ 1595.........................................................................................................................6, 9, 10, 35
§ 1595(d) ............................................................................................................................10, 26
§ 2421A ............................................................................................................................ passim
§ 2421A(a) ...........................................................................................................................9, 26
§ 2421A(b) ...........................................................................................................................9, 26
§ 2421A(b)(2) ....................................................................................................................29, 32
§ 2421A(c) ...........................................................................................................................9, 26
§ 2421A(d) ...........................................................................................................................9, 26
47 U.S.C.
§ 223...........................................................................................................................................1
§ 230................................................................................................................................. passim
§ 230(c)(2) ...................................................................................................................34, 35, 36
§ 230(e) ................................................................................................................................9, 37
§ 230(e)(5) .........................................................................................................................10, 26
§ 230(e)(5)(C) ..........................................................................................................................24
§ 507.........................................................................................................................................38
Public Law
No. 96-132, 93 Stat. 1040 (1979) ............................................................................................39
No. 115-164, 132 Stat. 1253 (2018) ................................................................................ passim
Rules
Federal Rules of Civil Procedure 11(b)(2).....................................................................................39
Legislative Material
163 Congressional Record
H1248 (daily ed. Feb. 26, 2018) ................................................................................................8
H2629 (daily ed. Apr. 3, 2017) ..................................................................................................5
S4670 (daily ed. Aug. 1, 2017) ..................................................................................................5
164 Congressional Record
H1297 (daily ed. Feb. 27, 2018) ................................................................................................8
S1293 (daily ed. Feb. 28, 2018) .................................................................................................8
S1849 (daily ed. Mar. 21, 2018) ................................................................................................8
S1869 (daily ed. Mar. 21, 2018) ................................................................................................6
H.R. 1865, Allow States and Victims to Fight Online Sex Trafficking Act of
2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) .......................................................... passim
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H.R. Rep. No. 115-572, pt. 1 (2018)......................................................................................5, 7, 32
HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE, Goodlatte Floor Speech
in Support of FOSTA (Feb. 27, 2018), available at
https://judiciary.house.gov/press-release/69685/ .....................................................................38
Internet Freedom and Family Empowerment Act, H.R. 1978, 104th Cong. (1995) .......................3
Latest Developments in Combating Online Sex Trafficking: Hearing before
the Subcomm. on Commc’ns and Tech. of the H. Comm. on Energy
and Commerce, 115th Cong. 4 (2017) (statement of Russ Winkler,
Special Agent in Charge, Tennessee Bureau of Investigation),
http://docs.house.gov/meetings/IF/IF16/20171130/106657/HHRG-115-IF16Wstate-WinklerR-20171130-U41.pdf .................................................................................7, 26
S. Rep. No. 115-199 (2018) ...........................................................................................................35
Stop Enabling Sex Traffickers Act ..............................................................................................5, 8
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) ...................................................................................................38
Other Authorities
About FOSTA, CRAIGSLIST, https://www.craigslist.org/about/FOSTA (last visited
June 12, 2018) ..........................................................................................................................11
Black’s Law Dictionary (10th ed. 2014) ........................................................................................24
Eric Goldman, ‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing
Section 230’s Evisceration, Tech. & Mktg. Law Blog, April 11, 2018
(https://blog.ericgoldman.org/archives/ 2018/04/worst-of-both-worldsfosta-signed-into-law-completing-section-230s-evisceration.htm) ...........................................5
http://desireealliance.org/conference .............................................................................................12
https://freedomnetworkusa.org/app/uploads/2017/10/FNUSAUrgesCautionCDAR
eform.pdf ....................................................................................................................................7
Oxford English Dictionary (3d ed. 2007) ......................................................................................24
“Women’s Rights Organizations Call on Congress to Protect Sex Workers
Rights in Fight to End Trafficking of Persons,” https://iwhc.org/pressreleases/congress-protect-sex-workers-rights-end-trafficking ...................................................7

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INTRODUCTION
This is a constitutional challenge to 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”),
the furthest-reaching attempt to censor online speech since Congress first attempted to regulate
the Internet through anti-indecency provisions in the Communications Decency Act of 1996,
47 U.S.C. § 223 (“CDA”). FOSTA targets online speech by (1) creating a new federal offense
for anyone who “owns, manages, or operates an interactive computer service” with the intent to
“promote” or “facilitate” prostitution, (2) vaguely expanding potential liability for federal sex
trafficking offenses, and (3) diluting the CDA’s only pro-free speech provision – Section 230 –
by limiting federal immunity provided online platforms that host third party speech. These new,
entirely content-based prohibitions provide for harsh criminal penalties and heavy civil liability
for online publishers based on expansive but undefined terms regarding “promotion” or “facilitation” of prostitution and/or “reckless disregard” of conduct that “contributes to sex trafficking.”
Attempts to regulate the Internet are not new, nor is this the first time Congress has
looked past “the importance of preserving free speech on the internet, even though [it] serves as
a conduit for much that is distasteful or unlawful.” Google v. Hood, 822 F.3d 212, 220 (5th Cir.
2016). But starting with the Supreme Court’s landmark ruling in Reno v. ACLU, 521 U.S. 844
(1997), courts consistently have held the First Amendment prohibits content-based, overly broad,
and vague regulations that threaten online speech. FOSTA is the latest in this line of censorial
efforts. Both through direct restrictions and broad chilling effects on protected speech, FOSTA,
like the CDA before, “threatens to torch a large segment of the Internet community.” Id. at 882.
FOSTA casts into doubt the legality of constitutionally protected, commercial and noncommercial speech that “promotes,” “assists” or “facilitates” sex work, including advocacy for
decriminalization, the provision of health and safety resources to sex workers such as bad date

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lists, and provision of other information that helps sex workers. It has already had widespread
effects across the Internet generally, and has limited speech by the Plaintiffs, which include
organizations and individuals who engage in constitutionally protected online speech. As a
consequence, Plaintiffs seek to have the Act held unconstitutional under the First and Fifth
Amendments both on its face and as applied. While Plaintiffs strongly oppose all forms of
coerced sexual activity and support appropriately targeted and effective measures to end sex
trafficking, FOSTA will not reduce such practices, and only makes matters worse.
FOSTA erroneously conflates online communications relating to sex work with prostitution, and treats prostitution as synonymous with trafficking. By employing expansive and
undefined terms to regulate online speech, backed by threat of severe criminal penalties and
massive civil liability, Congress adopted a measure that instantly cast a pall over any online
communication with even remote connections to sexual relations. FOSTA has impeded efforts
to prevent trafficking and rescue victims, hindered harm-reduction activity, and made all forms
of sex work more dangerous – all while undermining protection for free online expression, contrary to the near unanimity of judicial decisions over the past two decades.
To allow due consideration of their claims, while avoiding the harm to free speech that
FOSTA has had and will continue to have, Plaintiffs ask that the Court preliminarily enjoin the
government from enforcing it. Plaintiffs therefore urge this Court to preserve the status quo ante
because they are likely to prevail in having FOSTA declared unconstitutional and because the
public interest supports barring enforcement of a counterproductive law.
BACKGROUND
A.

Internet Regulation, the Courts and the First Amendment

As the Supreme Court recognized, the Internet gives individuals the ability to access and
share information as “diverse as human thought,” on topics ranging from “the music of Wagner
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to Balkan politics to AIDS prevention to the Chicago Bulls.” Reno, 521 U.S. at 849-52. The
first courts to consider the implications of this new medium quickly realized the Internet is “the
most participatory form of mass speech yet developed” that makes possible for the first time “a
never-ending worldwide conversation.” ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996)
(Dalzel, J.), aff’d, 521 U.S. 844. This naturally enabled people to communicate about sex, which
the Court has long acknowledged as “a great and mysterious motive force in human life” that
“indisputably [has] been a subject of absorbing interest … through the ages,” as “one of the vital
problems of human interest and [] concern.” Roth v. United States, 354 U.S. 476, 487 (1957).
The initial impulse of Congress in reaction to the emergence of the publicly available
Internet was to censor it. Senator James Exon proposed the CDA to prohibit “indecent” speech
online as part of a comprehensive rewrite of the Communications Act. At the time, Congress
believed it could freely regulate the Internet under relaxed First Amendment scrutiny just as it
regulates broadcasting, expression directed to minors, or certain “secondary effects.” Reno, 521
U.S. at 867. However, another provision of the CDA, Section 230, was added to Senator Exon’s
proposal as something of a First Amendment “savings clause.” Internet Freedom and Family
Empowerment Act, H.R. 1978, 104th Cong. (1995). It recognized that free expression on the
Internet would depend greatly on online publishers’ ability to host third-party speech without
risking liability, and to make editorial judgments about expression they decided to permit. See,
e.g., Batzel v. Smith, 333 F.3d 1018, 1027-29 (9th Cir. 2003).
The Supreme Court rejected not just the specific censorial provisions of the CDA but also
the very premise on which they were based, finding “our cases provide no basis for qualifying
the level of First Amendment scrutiny that should be applied to this medium.” Reno, 521 U.S. at
870. It raised alarms about any approach to Internet regulation that would cast doubt among

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speakers about whether they might risk liability if they communicated about such things as birth
control, homosexuality, sexually oriented topics, or prison rape (among many other matters). Id.
at 871. Yet even after the Court invalidated the CDA’s indecency regulations, Congress adopted
and the government defended the Child Online Protection Act, ultimately to no avail. See
Ashcroft v. ACLU, 542 U.S. 656 (2004); ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008).
Meanwhile, the CDA’s speech-protective federal immunity provisions remained intact,
providing essential support for online freedom of expression. E.g., Jones v. Dirty World Entm’t
Recordings LLC, 755 F.3d 398, 408-09 (6th Cir. 2014); Universal Commc’n Sys., Inc. v. Lycos,
Inc., 478 F.3d 413, 418-19 (1st Cir. 2007); Batzel, 333 F.3d at 1027-29. The twin pillars of
online free expression – strict scrutiny of any regulation of online expression, coupled with freedom to transmit third-party speech without risk of civil or criminal sanctions – have helped
maintain the Internet as “the premier technological innovation of the present age.” American
Libraries Ass’n v. Pataki, 969 F. Supp. 160, 161 (S.D.N.Y. 1997). Without such protection,
online communication would have been far less robust, diverse, and free. Zeran v. America
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).
The need to protect the online ecosystem has become even more vital in the two decades
since these initial decisions, as ways to access the Internet have multiplied and social media have
become a part of daily life. Yet precisely because the Internet is the most democratized forum
for communication in human history, and facilitates speech both good and bad, efforts to impose
various restrictions have not ceased. As the Supreme Court observed just last year, the Internet
has become an indispensable place to exchange ideas, because it “offers ‘relatively unlimited,
low-cost capacity for communication of all kinds.’” Packingham v. North Carolina, 137 S. Ct.
1730, 1735-36 (2017) (quoting Reno, 521 U.S. at 870). Affirming the strong constitutional value

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of that exchange, the Court urged “extreme caution before suggesting that the First Amendment
provides scant protection for access to vast networks in that medium.” Id. at 1736.
B.

FOSTA’s Legislative History

As enacted, FOSTA combined provisions of a bill passed by the House, the Allow States
and Victims to Fight Online Sex Trafficking Act, and a bill the Senate passed, the Stop Enabling
Sex Traffickers Act (“SESTA”), to create what experts have called “the worst of both worlds.”1
Through various combinations, amendments, and reconciliations, FOSTA ultimately erroneously
conflated a vast range of sex work with illegal sex trafficking, by widening the scope of the law
to include websites related to sex work.
The first step toward this outcome was Representative Ann Wagner’s April 3, 2017, introduction of FOSTA, H.R. 1865, with a stated purpose of “clarify[ing] that Section 230 … does
not prohibit the enforcement … of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking[.]” 163 Cong. Rec. H2629 (daily ed. Apr. 3, 2017). As
later explained in the House Report on the bill, it was “designed to combat online sex trafficking
by providing new tools to law enforcement through a new federal criminal statute and by making
it easier for states to prosecute criminal actor websites by amending section 230.” H.R. Rep. No.
115-572, pt. 1, at 3 (2018). However, the bill also proposed to amend 18 U.S.C. § 1591 to define
“participation in a venture” relating to trafficking, and to impose liability on interactive computer
services in connection with “publish[ing] information” in furtherance of trafficking offenses.
On August 1, 2017, Senator Rob Portman introduced S.1693, the first version of SESTA,
the purpose of which was said to be the same as FOSTA. See 163 Cong. Rec. S4670-71 (daily
1

Eric Goldman, ‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s
Evisceration, Tech. & Mktg. Law Blog, April 11, 2018 (https://blog.ericgoldman.org/archives/
2018/04/worst-of-both-worlds-fosta-signed-into-law-completing-section-230s-evisceration.htm).

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ed. Aug. 1, 2017). It proposed amending CDA Section 230 to eliminate immunity for “any State
criminal prosecution or civil enforcement action targeting conduct” that violates federal criminal
law prohibiting certain forms of sex trafficking, and to remove immunity for federal civil suits by
victims of sex trafficking under 18 U.S.C. § 1595. Id. It also proposed its own definition of
“participation in a venture,” to make knowingly “assist[ing], support[ing], or facilitat[ing]” sex
trafficking a violation of federal law. Id.
As Congress weighed the legislation, experts warned it would broadly censor online
speech, fail to reduce trafficking, and make sex work more dangerous. Senator Ron Wyden
warned that the bill “punches a hole in the legal framework of the open internet.” 164 Cong.
Rec. S1869 (daily ed. Mar. 21, 2018). Groups as diverse as the ACLU and the Cato Institute
opposed the measure.

Cato cautioned that “[a] combined FOSTA/SESTA would benefit

established social media platforms and trial lawyers at the expense of an open internet while
doing little to prevent sex trafficking.” Id. S1867. The ACLU predicted “the bill’s language will
encompass the actions of sex workers who have no connection to trafficking whatsoever …,
including effective harm reduction and anti-violence tactics.” Id.
Congress also was warned that despite its stated intention to assist law enforcement and
anti-trafficking efforts, the proposed law would actually hinder such efforts, and pose grave risks
to sex workers. The Freedom Network, an anti-trafficking organization, urged caution in making
changes to Section 230 immunity, explaining that:
It is important to note that responsible website administration can make trafficking more visible - - which can lead to increased identification. There are
many cases of victims being identified online - and little doubt that without this
platform, they would have not been identified. Internet sites provide a digital
footprint that law enforcement can use to investigate trafficking into the sex
trade, and to locate trafficking victims. When websites are shut down, the sex
trade is pushed underground and sex trafficking victims are forced into even
more dangerous circumstances. Street-based sex workers report significantly

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higher levels of victimization, including physical and sexual violence. This
means that trafficking victims face even more violence, are less likely to be
identified, with less evidence of their victimization.
https://freedomnetworkusa.org/app/uploads/2017/10/FNUSAUrgesCautionCDAReform.pdf.
Russ Winkler, a Special Agent with the Tennessee Bureau of Investigation who oversees trafficking investigations, explained the investigative value of above-ground online advertising sites,
and urged Congress “to consider this as yet another example of the need for legal structure that
ensures that law enforcement can access the digital evidence we need to keep the public safe.”2
A coalition of women’s rights organizations similarly cautioned Congress that the law would
harm rather than help sex workers:
By removing online platforms for sex workers, the legislation eliminates an
important tool to screen clients and negotiate safe working conditions,
exposing sex workers to violence and putting their lives at risk. The legislation
not only harms sex workers, it will also undermine the US government’s own
goal of ending trafficking.
“Women’s Rights Organizations Call on Congress to Protect Sex Workers Rights in Fight to End
Trafficking of Persons,” https://iwhc.org/press-releases/congress-protect-sex-workers-rights-endtrafficking.
On February 20, 2018, the House Judiciary Committee reported out FOSTA with an
amendment that expanded it by adding a new provision to the federal criminal code, 18 U.S.C.
§ 2421A, governing interactive computer services. It sought to prohibit reckless disregard of
trafficking, and promotion or facilitation of prostitution. The provision reflected Congress’s belief that “[p]rostitution and sex trafficking are inextricably linked.” H.R. Rep. No. 115-572, pt. 1

2

Latest Developments in Combating Online Sex Trafficking: Hearing before the Subcomm.
on Commc’ns and Tech. of the H. Comm. on Energy and Commerce, 115th Cong. 4 (2017)
(statement of Russ Winkler, Special Agent in Charge, Tennessee Bureau of Investigation) at p.4.
http://docs.house.gov/meetings/IF/IF16/20171130/106657/HHRG-115-IF16-Wstate-WinklerR20171130-U41.pdf

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at 5. Less than a week later, the House Committee on Rules approved FOSTA with an amendment by Representative Walters to add SESTA, turning H.R. 1865 into a combined FOSTASESTA bill. 163 Cong. Rec. H1248 (daily ed. Feb. 26, 2018). The House then passed H.R.
1865, and referred it to the Senate the next day, 164 Cong. Rec. S1293 (daily ed. Feb. 28, 2018).
As the combined H.R. 1865 was proceeding toward enactment, the Department of Justice
(“DOJ”) wrote one of the bill’s sponsors, Representative Robert Goodlatte, to voice serious
concerns. See 164 Cong. Rec. H1297 (daily ed. Feb. 27, 2018). DOJ wrote that “Section 2421A
as originally drafted is broader than necessary because it would extend to situations where there
is a minimal federal interest, such as to instances [where] an individual uses a cell phone to
manage local commercial sex transactions involving consenting adults.” Id. DOJ also criticized
the changes to Section 1591 as “unnecessary,” and shared a “serious constitutional concern” with
the retroactive removal of Section 230 immunity. Id. DOJ wrote that “[i]nsofar as this [] would
‘impose[] a punishment for an act which was not punishable at the time it was committed’ or
‘impose[] additional punishment to that then prescribed,’ it would violate the Constitution’s Ex
post facto Clause.” Id. (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867),
and citing Beazell v. Ohio, 269 U.S. 167, 169-70 (1925); U.S. Const. art. I, § 9, cl. 3).
Despite this warning, the House made no changes to the bill’s revisions to Section 1591
or to its retroactivity for the new carve-out from Section 230 immunity. On March 21, 2018, the
Senate passed the legislation without amendment. 164 Cong. Rec. S1849 (daily ed. Mar. 21,
2018). The President signed H.R. 1865 into law on April 11, 2018, and FOSTA took effect.
C.

FOSTA’s Specific Provisions

As enacted, FOSTA effects three major changes in the law: (1) Section 3 creates a new
federal crime and civil claim, codified at 18 U.S.C. § 2421A, prohibiting use or attempted use of
any facility of interstate commerce, including interactive computer services, to promote or facili8

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tate prostitution; (2) Section 4 amends CDA Section 230 to allow state authorities to prosecute
interactive computer services if the underlying conduct would violate 18 U.S.C. § 2421A or
§ 1591, and to permit civil causes of action based on violations of Section 1591; and (3) Section
5 expands Section 1591’s prohibition on “participation in a venture” involving sex trafficking to
include any action “knowingly assisting, supporting, or facilitating” a violation thereof.
Section 2421A makes it a felony for anyone to own, manage, or operate an interactive
computer service – as defined in Section 230 – using any facility or means of interstate commerce “with the intent to promote or facilitate the prostitution of another person.” 18 U.S.C.
§ 2421A(a). It also creates an “aggravated violation” when the underlying conduct “promotes or
facilitates the prostitution of 5 or more persons” or one “acts in reckless disregard” of the fact
that his conduct “contributed to sex trafficking.”

Id. § 2421A(b).3

Anyone convicted of

violating Section 2421A(a) can be fined, imprisoned for up to 10 years, or both; for “aggravated
violations” under Section 2421A(b) imprisonment may be for up to 25 years. Id. § 2421A(a)-(b).
Operators of interactive computer services can also face civil suits for violations of 2421A(b).
Id. § 2421A(c). The law does not define what it means to “promote” or “facilitate” prostitution,
nor even what constitutes “prostitution,” which is undefined in federal law; nor are “promote,”
“facilitate,” or “contribute to sex trafficking” defined for purposes of Section 2421A(b).
As to preexisting CDA immunity from civil claims and from state law, FOSTA amended
Section 230(e) to eliminate immunity for: “(A) any claim in a civil action [] under section 1595
of title 18 … if the conduct underlying the claim constitutes a violation of section 1591 … ;”
“(B) any charge in a criminal prosecution [] under State law if the conduct underlying … would
constitute a violation of section 1591 … ;” or “(C) any charge in a criminal prosecution [] under
3

Sections 2421A(c) and (d) allow for, respectively, civil recovery damages and attorneys’
fees, and mandatory restitution for victims of the crime.

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State law if the conduct underlying … would constitute a violation of section 2421A.” See
47 U.S.C. § 230(e)(5). The amendments to Section 230, like all of FOSTA, became effective
upon the date of enactment. However, these changes to the CDA’s statutory immunities are
retroactive in that they apply “regardless of whether the conduct alleged occurred, or is alleged
to have occurred, before, on, or after … enactment.” See FOSTA, Pub. L. No. 115-164, § 4(b).
FOSTA also expands the federal criminal trafficking law in 18 U.S.C. § 1591 by newly
defining “participation in a venture” (in the prohibition in Section 1591(a)(2) against benefitting
financially or receiving anything of value from sex trafficking) to mean “knowingly assisting or
supporting, or facilitating a violation of” the sex trafficking law. See 18 U.S.C. § 1591(e)(4).4
The law does not specify what mens rea “participation in a venture” requires. It does not, however, appear to require that a participant realize, or even suspect, that a crime has occurred or will
occur. Violations of Section 1591 are punishable by mandatory minimum sentences of ten or
fifteen years (depending on the victim’s age and use of coercion), and fines of $250,000 for
individuals, $500,000 for organizations. Additionally, FOSTA amends Section 1595 to provide
that state attorneys general may bring civil actions parens patriae if there is reason to believe “an
interest of the residents of that State has been or is threatened or adversely affected by any
person who violates section 1591.” See 18 U.S.C. § 1595(d).
D.

FOSTA’s Immediate Impact

Creation of new federal offenses for “promotion or facilitating prostitution” and “reckless
disregard of a contribution to sex trafficking” with broad, undefined terms, expansion of federal
sex trafficking law via a similarly unclear “participation in a venture” definition, and related
retrenchments of Section 230 immunity had precisely the censorial effect predicted during consi4

As noted, the newly expanded “participation in a venture” offense no longer falls within
the immunity for civil claims and state prosecution provided by Section 230. See supra 6, 9.

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deration of FOSTA. Numerous online service providers that enable interpersonal contact by
users – including many lacking a connection to sexual content – immediately removed content,
eliminated entire sections of websites, or were shuttered altogether out of fear of state or federal
prosecution, or ruinous civil liability. See Declaration of Kate D’Adamo ¶¶ 9-13 (“D’Adamo
Decl.”). These include websites that host personal ads, facilitate dating, or are community
forums devoted to lawful adult sexual relationships, as well as online platforms that hosted
speech about non-sexual massage therapy and other non-sexual services. Id. ¶ 13. Some online
service providers took these actions simply because they could not afford to monitor the
activities of third parties on their sites as the new law effectively requires.
Just two days after the Senate passed H.R. 1865, online classified ad service Craigslist
eliminated all personals ads, including non-sexual categories such as “Missed Connections” and
“Strictly Platonic.” It released a statement explaining it censored these sections due to FOSTA:
“Any tool or service can be misused. We can’t take such risk without jeopardizing all our other
services, so we are regretfully taking [the] personals offline.”5 D’Adamo Decl. ¶ 10. Reddit, a
site where users post content, including news articles, photos or links, and participate in comment threads discussing the posts, began removing “subreddits” relating to sex. Id. ¶ 11. It also
warned the moderator of the r/sexworkers subreddit, a “community forum for sex workers,
clients, and even those unaffiliated with the industry to … ask questions and share resources,”
that the forum could be shut down if administrators felt it infringed Reddit’s post-FOSTA policy.
Id. Google changed enforcement of its Google Play policy to forbid publishing of “sexually
explicit or pornographic images or videos,” id. ¶ 13, even though any “[s]exual expression which
5

See About FOSTA, CRAIGSLIST, https://www.craigslist.org/about/FOSTA (last visited
June 12, 2018). Users now receive “404 Errors” if they try to access URLs where Craigslist’s
personal formerly appeared.

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is indecent but not obscene is protected by the First Amendment,” and cannot be criminalized
under FOSTA. See Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
In the same vein, the Desiree Alliance, a national coalition of current and former sex
workers, health professionals, social scientists, sex educators, and their supporting networks,
cancelled its July 2019 conference, scuttling what would have been the largest U.S. gathering to
address human, labor, and civil rights for sex workers. In an online post, its Director announced
that because of FOSTA, “our leadership made the decision that we cannot put our organization
and our attendees at risk.” See http://desireealliance.org/conference.
Websites adjacent to sex-related services, even if not directly connected to them, also
were affected. VerifyHim.com, a tool that helped sex workers avoid abusive clients, announced
it would “change the direction of the site.’” D’Adamo Decl. ¶ 12. The “adult-ad forum”
CityVibe.com disappeared two days after the President signed FOSTA. Id. ¶ 13. And TheEroticReview.com, a site where users post reviews about services of adult entertainers and escorts,
blocked all U.S. users given potential FOSTA enforcement. Id. Similar impacts occurred at
adult websites www.myscarlettbook.com, www.escortdesign.com, and www.getluckyhere.com,
among others. Id.
E.

Impact on Plaintiffs

Plaintiffs have likewise been forced to refrain from speaking or had their ability to speak
cast into great uncertainty by FOSTA’s enactment. Woodhull, a tax-exempt education, advocacy
and lobbying organization, is the only national human rights group working full-time toward
affirming and protecting the fundamental human right to sexual freedom. Declaration of Ricci
Levy (“Levy Decl.”) ¶¶ 2-3. Its mission focuses on supporting the health, safety, and protection
of those under the broad umbrella of “sex workers,” including adult film performers, live webcam models, sexual wellness instructors, escorts, and prostitutes. Id. ¶ 5. Woodhull strongly
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opposes sex trafficking or sexual assault in any form, while supporting the right to engage in
consensual sexual activity, including through advocacy and other efforts at its website. Id.
As Woodhull’s pursuit of its mission involves using the Internet and other means of interstate commerce, immediately in the wake of FOSTA it censored its publication of information on
its site that could assist sex workers negatively impacted by the law. Id. ¶¶ 31-32. It also was
inhibited from posting other resources for sex workers on its site, from voicing on its blog and in
social media opposition to FOSTA’s enforcement against marginalized sex workers, and from
allowing third parties to post similar material on Woodhull’s Sex and Politics blog. Id. ¶ 28.
FOSTA also has affected speech associated with Woodhull’s signature event, its annual
multi-day Sexual Freedom Summit, scheduled this year for August 2-5 in Alexandria, Virginia,
to bring together hundreds of educators, therapists, legal and medical professionals, and leaders
of advocacy groups to strategize, share information, and work collaboratively to protect members
of their diverse communities. Id. ¶ 16. The Summit has long consisted of various workshops
organized into tracks focused on different aspects of sexual freedom, which in recent years has
included a “sex worker” track with sessions, among others, devoted to, e.g., harm reduction,
disability, age, health, and personal safety. Id. ¶ 17. Woodhull utilizes a wide variety of interactive computer services to organize, facilitate, and promote the Summit. Id. ¶¶ 10-15. This
includes online databases and cloud storage for planning and scheduling, emailing participants
and other members of the Summit constituency, and promoting workshops on the Summit
website and on social media such as Facebook and Twitter, all of which historically has featured
biographies and contact information for presenters. Id. ¶¶ 10, 23, 24. Woodhull also intends to
livestream the sex work track on Facebook Live, and live tweet the event on Twitter, so that
those who cannot attend can benefit from the information and commentary. Id. ¶¶ 25-26.

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But this year, with enactment of FOSTA, Woodhull became concerned over promotion of
the Summit’s sex worker track, and publication of presenters’ contact information, and thus in
April 2018 ceased all online promotion of the sex work track. Id. ¶¶ 33-34. Given Woodhull’s
mission, this quickly led to social media backlash and threats to boycott the Summit. Id. ¶ 35. In
June, Woodhull decided to publish and promote information about the sex worker track online
after all, including presenters’ contact and biographical information, and to promote workshops
on Facebook and Twitter, despite uncertainty whether this risks violating FOSTA. Id. at 36.
Even so, although it considered offering the Desiree Alliance the opportunity to conduct its
cancelled July 2019 institute during the 2018 Summit, Woodhull concluded it would be too risky
under FOSTA to promote the institute in conjunction with the Summit. Id. ¶ 40. And Woodhull
remains uncertain whether it would be committing a crime or exposing itself to civil liability to
livestream and live tweet the sex work track.
Plaintiff Human Rights Watch, one of the major international human rights monitoring
organizations, sees its mission as exposing violations of international human rights law to public
scrutiny around the world and generating momentum for change. Among those violations are
exploitation and violence directed at women and girls, including those who are sex workers.
Declaration of Dinah PoKempner (“PoKempner Decl.”) ¶ 3. Every year, HRW produces and
publishes many hundreds of reports, press releases, videos, podcasts and other online documents
on its website and social media accounts. Some of these include research and advocacy on
behalf of the rights of sex workers, including our advocacy that sex work be decriminalized.6

6

For example, in 2010, HRW reported on the unlawful arrests and detention of sex workers
in Cambodia; in 2012, it reported on police searches of women for condoms as evidence of
prostitution in four US cities; in 2013, it documented torture, beatings and other assaults by
police officials against sex workers, and similar abuses against sex workers in Tanzania; and in
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Human Rights Watch’s policy, adopted in 2013, opposes criminalization of consensual
adult sex work and states that criminalization of voluntary, consensual sexual relations among
adults is incompatible with respect for a number of internationally recognized human rights,
including the rights to personal autonomy and privacy. The policy further states that “[f]orced
prostitution and trafficking in human beings are among the most serious violations of human
rights” and that “[a]ll states have an obligation to take necessary measures to prevent and combat
such criminal activities.” However, HRW believes “those engaged in sex work are more likely
to be capable of seeking protection from the law if they and their work are not treated as
criminal” and it advocates accordingly. Id. ¶¶ 6-7.
Despite these clear distinctions in its policy, HRW is concerned that its global advocacy
against criminalization of sex work and arrest of sex workers could be seen by U.S. litigants as
“facilitating” “prostitution” or in some way assisting sex trafficking, thus violating FOSTA.
Moreover, because HRW relies heavily on individuals spreading its reporting and advocacy
through social media, it is concerned that social media platforms and websites that host, disseminate, or allow users to spread its reports and advocacy materials may be inhibited from doing so
due to the substantial additional penalties of Section 2421A for “reckless disregard” of a connection to sex trafficking activities. Id. ¶¶ 8-9.
Plaintiff Eric Koszyk, a licensed massage therapist living in Portland, Oregon, and sole
proprietor of Soothing Spirit Massage – a business he has run for over a decade – has also felt
the effects of FOSTA. Mr. Koszyk had used the online classified ad platform Craigslist.org, the
largest such U.S. site, as the primary way to find clients for Soothing Spirit, with approximately
90 percent of its clientele coming through Craigslist ads. Declaration of Eric Koszyk (“Koszyk
2014, it advocated against a Canadian anti-prostitution bill. PoKempner Decl. ¶ 5. HRW has
also documented abuses against sex workers in Ukraine, Greece, Lebanon and South Africa. Id.

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Decl.”) ¶ 6. The ads typically posted in the website’s Therapeutic Services section, specified Mr.
Koszyk’s gender and that his massage therapy is professional, licensed, and therapeutic, and
have largely remained unchanged during the entire time Mr. Koszyk used Craigslist. Id. ¶ 7.
After FOSTA was signed into law on April 11, 2018, Mr. Koszyk discovered Craigslist
had removed his most recent ad for Soothing Spirit, and learned it had shut down its Therapeutic
Services section in response to FOSTA’s passage. Id. ¶¶ 21-23. Though Mr. Koszyk tried to repost the same long-running ad in Craigslist’s Skilled Services section, the site blocked the
posting, and Mr. Koszyk has since been unable to post on any part of Craigslist, and thus since
April 11, 2018, has been unable to advertise his therapeutic massage service. Id. ¶¶ 23-24.
FOSTA also has cast great doubt on the legality and actionability of the advocacy work
by Plaintiff Jesse Maley, a long-time advocate for sex worker rights (under the name “Alex
Andrews”), and co-founder and organizer of both a number of advocacy groups for sex worker
health, safety, and human rights, and of the website Rate That Rescue (www.ratethatrescue.org),
a free sex worker-led, community effort to share information. Declaration of Jesse Maley
(“Maley Decl.”) ¶¶ 1-10, 12-13. Rate That Rescue is a ratings and review site created in
response to the rapid growth of organizations that claim to assist or rescue sex workers, because
some such groups offer services and support that may not match the needs of sex workers who
do not view themselves as victims. Id. ¶¶ 14-16. Rate That Rescue also has expanded to share
information about all types of entities that provide services sex workers use – be they public,
private, non-profit, or commercial – including those that do not focus on sex workers but have
products or services they use, like Twitter, Wix, or PayPal. Id. ¶¶ 18-23.
As the Rate That Rescue website hosts content created by both organizations and the sex
worker community, it relied heavily on CDA immunity under Section 230, especially insofar as

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users can post anonymously. Id. ¶¶ 19-21, 24-25. Without Section 230’s protections, Rate That
Rescue will be unable to function and faces potentially ruinous liability for the content of users’
speech, as the site produces no revenue, is volunteer-operated, and cannot actively or comprehensively review, edit, or moderate user-generated content. Id. ¶¶ 27-29. There is also concern
that Rate That Rescue could face claims of direct liability under FOSTA’s new Section 2421A
ban on owning, managing, or operating a website with the intent to promote or facilitate prostitution, especially given that listing organizations that provide free services to sex workers –
including healthcare, housing, and childcare – could be seen as helping or assisting them. Id.
¶¶ 30-31. The fact that Rate That Rescue was established by sex workers and their advocates to
improve their lives, health, safety, and wellbeing raises the same concerns. Id. Additionally,
FOSTA has delayed Ms. Maley’s decision about whether to purchase an in-development smartphone application and website designed to increase sex worker safety by allowing them to report
violence, harassment and other harmful behavior, and by maintaining a database of reports so
other sex workers could avoid violence and bad actors. Id. ¶¶ 32-39.
Plaintiff The Internet Archive (“the Archive”) is a 501(c)(3) organization located in San
Francisco, California, that works to prevent the Internet and other “born-digital” materials from
disappearing into the past, by offering permanent access for researchers, historians, scholars,
people with disabilities, and the general public to historical collections that exist in digital
format. The vast majority of the material in the Archive’s collection is authored by third parties
and includes over 330 billion web pages spanning 1996 to the present, over 17 million texts (including over 2 million scanned public-domain works), 5 million audio files, and 4 million video
files. Declaration of Brewster Kahle (“Kahle Decl.”) ¶¶ 2, 4, 5, 8, 12. The Archive “crawls” and
archives about 80 million web pages per day, and over 20,000 items are added to the collection

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by third parties daily. Files are downloaded by tens of millions of users each month. Id. ¶¶ 7,
12, 13. The Archive does at times remove content, but has no practical ability to evaluate the
legality of any significant portion of the third-party content it archives and makes available. The
Archive relies upon immunity granted by 47 U.S.C. § 230 for third-party content. Id. ¶¶ 14-15.
The Archive is concerned the changes to 18 U.S.C. §1591 and § 2421A will subject it to
federal criminal, state criminal, and civil liability. This is because some third-party content the
Archive hosts, such as particular websites, information about books, and books themselves, may
be construed as promoting or facilitating prostitution, or assisting, supporting, or facilitating sex
trafficking. The Archive also fears that after FOSTA it can no longer rely on Section 230 to bar
liability for content created by third parties and hosted by the Archive. Id. ¶¶ 21-22.
ARGUMENT
The Court should grant preliminary injunctive relief in this case “to maintain the status
quo pending a final determination of the merits” of Plaintiffs’ constitutional challenge to
FOSTA, Smoking Everywhere, Inc. v. FDA, 680 F. Supp. 2d 62, 78 (D.D.C. 2010), because “loss
of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). As demonstrated below, Plaintiffs are likely to succeed on the merits of their challenge to FOSTA, irreparable harm is likely
absent preliminary relief, the equities balance in their favor, and preliminary relief accords with
the public interest. Pursuing America’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)
(citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
FOSTA creates immediate threats of criminal prosecution and civil liability and violates
the constitutional rights to publish, post to, and access websites for Plaintiffs, other websites, and
all Internet users and service providers. Because FOSTA changes existing law and creates new
criminal penalties in ways that violate well-established First Amendment principles, and stands
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as an unconstitutional ex post facto law, Plaintiffs are likely to prevail on the merits, and have
shown irreparable harm. See, e.g., Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012)
(when First Amendment rights are implicated, preliminary injunction factors essentially collapse). The government will experience minimal harm, or none at all, from an order preserving
the status quo of laws that took effect only recently, particularly given preexisting criminal laws
that remain in effect. If anything, in view of the harm resulting from FOSTA’s hindrance of sex
trafficking prevention efforts, and harms being suffered by sex workers, a preliminary injunction
would, in fact, serve that particular public interest as well. And the public interest also will be
served, as always, by safeguarding constitutional rights and preserving laws that have fostered a
free and open internet. See Pursuing America’s Greatness, 831 F.3d at 511-12; Google v. Hood,
96 F. Supp. 3d 584, 601 (S.D. Miss. 2015), vacated on other grounds, 822 F.3d 212.
I.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS BECAUSE
FOSTA VIOLATES THE FIRST AMENDMENT AND DUE PROCESS, AND
IMPOSES EX POST FACTO PENALTIES
A.

FOSTA Violates the First Amendment Because it is a Vague and Overly
Broad Content-Based Regulation of Internet Speech
1.

FOSTA’s Prohibitions are Unconstitutionally Overbroad

The Constitution “gives significant protection from overbroad laws that chill speech
within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coalition,
535 U.S. 234, 244 (2002). A law thus “may be invalidated as overbroad if ‘a substantial number
of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010). See Free Speech Coalition, 535
U.S. at 244 (a law is “unconstitutional on its face if it prohibits a substantial amount of protected
expression”). Likewise, a law that targets speech is facially unconstitutional if there is a “likelihood that the statute’s very existence will inhibit free expression” by “inhibiting the speech of

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third parties who are not before the Court.” Members of City Council v. Taxpayers for Vincent,
466 U.S. 789, 799 (1984).

“Because First Amendment freedoms need breathing space to

survive, government may regulate in the area only with narrow specificity.” NAACP v. Button,
371 U.S. 415, 433 (1963). For that reason, “if the Government could achieve its interests in a
manner that does not restrict speech, or that restricts less speech, [it] must do so.” Thompson v.
W. States Med. Ctr., 535 U.S. 357, 371 (2002).
There can be no doubt FOSTA “prohibits a substantial amount of protected expression.”
It creates a new federal crime targeting anyone who “owns, manages, or operates an interactive
computer service” with the intent to “promote” or “facilitate” prostitution or who recklessly
disregard that they are “contributing to sex trafficking” and it authorizes state prosecutions and
civil actions for such activity. The law provides no definitions, nor does it suggest discernable
limits for what might constitute promotion or facilitation of prostitution or trafficking. By
asserting that sex trafficking and prostitution are “inextricably linked,” Congress indicated its
intent to combat sex trafficking by imposing liability on a broad range of non-trafficking speech,
thus threatening sex worker advocates with potential liability for trafficking.
FOSTA’s new restrictions on speech and its changes to Section 230 immunity for hosting
third-party speech are overly broad. The U.S. District Court for the Northern District of Illinois
explained that “‘[f]acilitating’ and ‘assisting’ encompass a broader range of conduct, so broad in
fact that they include … intermediaries like phone companies, ISPs, and computer manufacturers.” Dart v. Craigslist, 665 F. Supp. 2d 961, 967 (N.D. Ill. 2009). To suggest that providing
a platform for speech of someone who might commit illegal acts “promotes” or “facilitates”
those acts “does not satisfy the ordinary understanding of culpable assistance to a wrongdoer.”
Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) (“Just as the telephone company is not

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liable … for [video]tapes or narcotics sold by phone, … a web host cannot be classified as an
aider and abettor of criminal activities conducted through access to the Internet.”). See also In re
Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003) (“A retailer of slinky dresses is not
guilty of aiding and abetting [] even if he knows that some of his customers are prostitutes ....”).
Under FOSTA’s plain terms, anything on an online platform, commercial or noncommercial alike, that can be said to “promote” or “facilitate” prostitution or trafficking is at risk
of criminal prosecution or ruinous civil liability. Websites that support sex workers by providing
health-related information or safety tips could be liable for promoting or facilitating prostitution,
see Maley Decl. ¶¶ 30-31, while those that make prostitution easier – i.e., “facilitate” it – by advocating for decriminalization are now uncertain of their own legality. PoKempner Decl. ¶¶ 8-9.
Merely indicating online without negativity that a person is a sex worker – thus “promoting
the[ir] prostitution” – could trigger similar ruinous liability. Additionally, websites that enable
interpersonal or intimate connections, such as “personals” or “dating” information, face obvious
risks. That is why an unprecedented array of sites closed down or severely restricted access to
constitutionally protected material immediately after FOSTA passed. D’Adamo Decl. ¶¶ 10-13.
FOSTA is also unconstitutionally overbroad because it intends to rehabilitate claims filed
to suppress constitutionally protected speech, and its terms chill that expression. Those who previously brought actions to close down online classified ad services, but were blocked by Section
230, advocated for FOSTA based on claims that ad sections for “adult” services or “escorts”
were synonymous with prostitution. See supra 7-8. Yet such arguments have been rejected as
unconstitutional by every court that considered them.7 FOSTA seeks to overturn this settled law.

7

See, e.g., Backpage.com v. Dart, 807 F.3d 229, 234 (7th Cir. 2015) (“[N]ot all advertisements for sex are advertisements for illegal sex.”); Doe v. Backpage.com LLC, 104 F. Supp.
3d 149, 156-57 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 2016) (“The existence of an escorts
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The result is widespread confusion about what online speech is safe from prosecution or
civil liability. A similar uncertainty underlay the Supreme Court’s concern about the CDA’s
indecency prohibition. It asked: “Could a speaker confidently assume that a serious discussion
about birth control [], homosexuality, the First Amendment issues raised by the Appendix to our
Pacifica opinion, or … prison rape would not violate the CDA?” Reno, 521 U.S. at 871. The
answer, of course, was “no.” But FOSTA is even worse because it empowers 50 state attorneys
general, local prosecutors, and enterprising plaintiffs’ lawyers across America to concoct arguments for what might constitute promoting of facilitating prostitution or trafficking.8
2.

FOSTA Fails Strict Scrutiny

Strict scrutiny applies to FOSTA because it imposes content-based restrictions on speech.
As a general mater, “the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.” Stevens, 559 U.S.
at 468. “[R]egulation of speech is content based if a law applies to particular speech because of
the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 135 S. Ct. 2218,
section in a classified ad service, whatever its social merits, is not illegal.”), cert. denied, 137 S.
Ct. 622 (2017); Backpage.com 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 v. Cooper, 939 F. Supp. 2d 805, 833-34 (M.D. Tenn. 2013) (ads on
Backpage.com are protected speech under the First Amendment); Backpage.com v. Hoffman,
2013 WL 4502097, at *9-11 (D.N.J. Aug. 20, 2013) (rejecting argument that escort ads on the
website are unprotected speech); M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d
1041, 1049-50 (E.D. Mo. 2011). See also Craigslist, 665 F. Supp. 2d at 968 (“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.”); Cohen v.
Bd. of Supervisors, 707 P.2d 840, 852 (Cal. 1985) (“An escort service may very well involve
lawful activities relating to sex.”) (internal quotation marks omitted).
8

See Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157,
1174 (9th Cir. 2008) (“there will always be close cases where a clever lawyer could argue that
something the website operator did encouraged the illegality” and websites will be faced with
“death by ten thousand duck-bites, fighting off claims that they promoted or encouraged – or at
least tacitly assented to – the illegality of third parties”).

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2227 (2015). See Consolidated Edison Co. of N.Y. v. Public Serv. Comm’n of N.Y., 447 U.S.
530, 537 (1980) (“The First Amendment’s hostility to content-based regulation extends not only
to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire
topic.”). “Some facial distinctions based on a message are obvious, defining regulated speech by
particular subject matter, and others are more subtle, defining regulated speech by its function or
purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore,
are subject to strict scrutiny.” Reed, 135 S. Ct. at 2227.
FOSTA creates new criminal provisions in 18 U.S.C. § 2421A that apply to any online
publisher who intends to “promote” or “facilitate” the prostitution of another or acts in “reckless
disregard” that their actions “contributed to sex trafficking.” Section 2421A thus targets speech
based on its “message” and “function” – the promotion or facilitation of prostitution. Reed, 135
S. Ct. at 2227. See also Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502
U.S. 105, 116 (1991) (statute restricting speech about crime is content-based). Section 2421A
“focuses only on the content of the speech …. This is the essence of content-based regulation.”
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 811-12 (2000).
Section 2421A not only imposes content-based restrictions, but also allows the government to discriminate against certain viewpoints, which is an even more “blatant” and “egregious
form of content discrimination.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
829 (1995); True the Vote, Inc. v. IRS, 831 F.3d 551, 560 (D.C. Cir. 2016). By criminalizing
speech that promotes or facilitates prostitution, the law’s sweep includes speech by Plaintiffs
such as harm-reduction education aimed at sex workers, and advocacy intended to bring about
decriminalization of sex work. Maley Decl. ¶¶ 27-31; Declaration of Dr. Alexandra Lutnick
(“Lutnick Decl.”) ¶ 20. Speech condemning prostitution faces no such prohibition. The statute

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does not define “promote” and “facilitate,” but by their plain meanings, these terms encompass
advocacy and education that has the effect of furthering prostitution.9 See also United States v.
Rivera, 775 F.2d 1559, 1562 (11th Cir. 1985) (defining “facilitate” as “to make easier or less
difficult”); cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 7 (2010) (statute prohibiting
“material support” of terrorist organizations meant “any contribution” that “facilitate[d]” their
criminal conduct); id. at 36 (statute applied even where providers of support meant to “promote
only the groups’ nonviolent ends”) (emphasis added).
For similar reasons, the exception added by FOSTA to 47 U.S.C. § 230(e)(5)(C) is also
content-based. Together, subsections 230(c)(1) and (e)(3) provide broad immunity to providers
of interactive computer services who host speech by others that violates state law. See id.
§ 230(e)(3) (“No cause of action may be brought and no liability may be imposed under any
State or local law that is inconsistent with this section.”). Subsection (e)(5)(C) selectively cuts
back this protection based entirely on the content of speech, exposing platforms to prosecution
under state laws “if the conduct underlying the charge would constitute a violation” of 18 U.S.C.
§ 2421A and “prostitution is illegal in the jurisdiction where the defendant’s promotion or
facilitation of prostitution was targeted.” The law is content-based because it discriminates
against platforms based on the content of the speech they host, providing protection for hosting
any and all speech that may be illegal under state law except speech that “facilitates” prostitution.
Because FOSTA imposes content-based restrictions on speech, it is subject to strict
scrutiny, “regardless of the government’s benign motive, content-neutral justification, or lack of
‘animus toward the ideas contained’ in the regulated speech.” Pursuing America’s Greatness,
9

According to the Oxford English Dictionary, “promote” means “to advance or actively
support (a process, cause, result, etc.),” Oxford English Dictionary (3d ed. 2007), while Black’s
Law Dictionary defines “to facilitate” as “to make the occurrence of (something) less difficult.”
Black’s Law Dictionary (10th ed. 2014).

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831 F.3d at 509 (quoting Reed, 135 S. Ct. at 2228). Such content-based restrictions of speech,
“enforced by severe criminal penalties, have the constant potential to be a repressive force in the
lives and thoughts of a free people.” Ashcroft v. ACLU, 542 U.S. at 660. See also Brown v.
Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011) (“It is rare that a regulation restricting speech
because of its content will ever be permissible.”). The First Amendment “demands” that such
restrictions “be presumed invalid, and that the Government bear the burden of showing their
constitutionality.” Ashcroft, 542 U.S. at 660 (citations omitted).
To satisfy strict scrutiny, the government must prove the law is “narrowly tailored to promote a compelling Government interest,” and that no “less restrictive alternative would serve the
[its] purpose.” Playboy, 529 U.S. at 813; Brown, 564 U.S. at 799. This means it may limit
speech “no further than necessary to achieve the goal,” to “ensure that legitimate speech is not
chilled or punished.” Ashcroft, 542 U.S. at 666. Any speech restriction must directly advance
the government interest and be neither overinclusive nor underinclusive, and there can be no less
speech-restrictive alternatives to serve the government interest. Reno, 521 U.S. at 874.
The government’s burden is particularly heavy in this case where Congress adopted
“nuclear option”-level penalties to ensure compliance. See Free Speech Coalition, 535 U.S. at
244 (“a law imposing criminal penalties on protected speech is a stark example of speech suppression” and “a textbook example of why we permit facial challenges to statutes that burden expression”). In Reno, the Supreme Court noted that violations of the CDA could be punished by
up to two years in prison and concluded “the severity of criminal sanctions may well cause
speakers to remain silent rather than communicate even arguably unlawful words, ideas, and
images.” Reno, 521 U.S. at 872. But where the threat of such sanctions under the CDA were
undeniably chilling, FOSTA imposes a deep freeze: Violations of Section 2421A are subject to

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10 years in prison, while aggravated violations carry a sentence of up to 25 years. 18 U.S.C.
§ 2421A(a)-(b). While the CDA raised possible enforcement by federal prosecutors, FOSTA
authorizes criminal enforcement by federal authorities, 50 state attorneys general, and hundreds
of local prosecutors. 18 U.S.C. § 2421A(a); 47 U.S.C. § 230(e)(5); 18 U.S.C. § 1595(d).10
Here, FOSTA fails strict scrutiny because the law does not directly advance the government’s objective. If anything, the law has made it more difficult, as Congress was warned, for
law enforcement to investigate trafficking. See Winkler Statement, Latest Developments in
Combating Online Sex Trafficking, supra note 2, at p.4; Declaration of Professor Alexandra Frell
Levy (“Professor Levy Decl.”) ¶¶ 7-9; Declaration of Dr. Kimberly Mehlman-Orozco (“MehlmanOrozco Decl.”) ¶¶ 247-29, 31; Lutnick Decl. ¶¶ 17-19. It has also hindered operations of antitrafficking organizations. Lutnick Decl. ¶ 21; Freedom Network Statement, supra 6-7.
Further, the government cannot meet the heavy burden to demonstrate that FOSTA is
narrowly tailored. First, it is overinclusive because it restricts more speech than necessary to
further the government’s interest. Even granting that there is a compelling interest in preventing
sex trafficking, “[t]he prospect of crime … by itself does not justify laws suppressing protected
speech.” Free Speech Coalition, 535 U.S. at 244-45; see also Kingsley Int’l Pictures Corp. v.
Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959). Section 2421A reaches beyond prostitution
and sex trafficking, criminalizing speech intended to promote sex workers’ rights and safety,
including advocacy and education that may “facilitate” prostitution. Congress’ belief that such
speech about sex work contributes to sex trafficking is not supported by evidence.
10

In addition, FOSTA authorizes civil damages, strips away existing statutory immunities
from civil liability in state and federal courts, and imposes mandatory restitution “in addition to
any other civil or criminal penalties.” 18 U.S.C. § 2421A(c)-(d); 47 U.S.C. § 230(e)(5). As with
criminal penalties, the prospect of significant civil liability based on the exercise of free speech is
circumscribed by the First Amendment. Snyder v. Phelps, 580 F.3d 206, 217-18 (4th Cir. 2009),
aff’d, 562 U.S. 443 (2011); New York Times Co. v. Sullivan, 376 U.S. 254, 264-65 (1964).

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Just as “the Government may not reduce the adult population to only what is fit for
children,” Reno, 521 U.S. at 875, neither may it limit how Americans may discuss issues that
may include illegal behavior. FOSTA’s chilling effects go even further. It has adversely
affected online platforms that host classified ads (whether or not sexually-oriented), even though
it cannot be presumed speech about sex is necessarily illegal or unprotected by the First Amendment.

Backpage.com, LLC v. Dart, 807 F.3d at 234 (“not all advertisements for sex are

advertisements for illegal sex”). This is the very definition of a chilling effect. Given this broad
impact, the government cannot meet its “heavy burden” under strict scrutiny, Reno, 521 U.S. at
879, unless it can show that FOSTA restricts speech “no further than necessary.” Ashcroft, 542
U.S. at 666. Here, however, the law’s vague and expansive terms, combined with its watereddown scienter requirements and draconian penalties show that Congress used “a butcher knife on
a problem that requires a scalpel to fix.” Cooper, 939 F. Supp. 2d at 813.
Second, there are less speech-restrictive alternatives that would effectively further the
government’s stated interest in eliminating sex trafficking. “When a plausible, less restrictive
alternative is offered to a content-based speech restriction, it is the Government’s obligation to
prove that [it] will be ineffective to achieve its goals.” Playboy, 529 U.S. at 816. Indeed, some
of these alternatives already exist in federal law; prior to FOSTA’s enactment, it was already a
crime to “advertise[]” sex trafficking (on the Internet or elsewhere) and to “benefit[] financially”
from a venture involving such ads. 18 U.S.C. § 1591(a)(1), (2). Such laws, subject to First
Amendment limits and when enforced pursuant to constitutionally required mens rea requirements, constitute less restrictive ways to address the government’s interest. Backpage.com, LLC
v. Lynch, 216 F. Supp. 3d 96, 108-09 (D.D.C. 2016); Playboy, 529 U.S. at 816-26.

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3.

FOSTA’s Prohibitions are Unconstitutionally Vague

Not only is FOSTA overly broad, its restrictions on speech also are unconstitutionally
vague.11 As a general proposition, vague laws offend due process because they fail to give
people of ordinary intelligence fair warning of what conduct is prohibited, allow arbitrary and
discriminatory enforcement, and delegate basic policy matters to policemen, judges and juries for
resolution on an ad hoc and subjective basis. Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). Statutory vagueness takes on added significance beyond normal due process concerns
where the government seeks to regulate speech. Vague statutes that affect “sensitive areas of
basic First Amendment freedoms” are unconstitutional because they “inevitably lead citizens to
‘steer far wider of the unlawful zone’ … than if the boundaries of the forbidden areas were
clearly marked.” Id. at 108 (quoting Baggett, 377 U.S. at 372). As a result, “this Circuit has
ruled that officials must have ‘explicit guidelines in order to avoid arbitrary and discriminatory
enforcement.’”

Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67, 81 (D.D.C. 2001)

(quoting Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1035 (D.C. Cir. 1980)). If a law
“lacks terms which can be defined objectively, a court will strike it down for vagueness.” Id. at
77 (quoting Fire Fighters Ass’n, D.C. v. Barry, 742 F. Supp. 1182, 1196 (D.D.C. 1990)).
A vague law that regulates expression “‘raises special First Amendment concerns because of its obvious chilling effect on free speech.’” Brown, 564 U.S. at 807 (quoting Reno, 521
U.S. at 871-72). See also Smith v. Goguen, 415 U.S. 566, 573 (1974) (“Where a statute’s literal
11

Questions involving overbreadth and vagueness in laws that regulate speech necessarily
are related. However, a restriction can be unconstitutionally overbroad without being vague.
E.g., Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 570,
577 (1987) (resolution banning all “First Amendment activities” at Los Angeles International
Airport is overbroad). At the same time, vague restrictions on speech are inherently overbroad,
because a nebulous law really imposes “no rule or standard at all.” Baggett v. Bullitt, 377 U.S.
360, 365 (1964). Reno, 521 U.S. at 864 (vagueness is relevant to the First Amendment
overbreadth inquiry).

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scope … is capable of reaching expression sheltered by the First Amendment, the [vagueness]
doctrine demands a greater degree of specificity than in other contexts.”). And where penal
statutes are involved, “[p]recision of regulation must be the touchstone in an area so closely
touching our most precious freedoms.” NAACP, 371 U.S. at 438. Finally, for reasons already
discussed, the “unique nature of the [Internet] cannot be overemphasized in discussing and
determining the vagueness issue.” Reno, 929 F. Supp. at 865 n.9.
FOSTA falls far short of this constitutional standard. It imposes criminal penalties based
entirely on speaking or publishing online with “intent” to “promote” or “facilitate” the prohibited
offenses but does not define those terms.12 The Act creates further ambiguity by increasing
punishment for those who act “in reckless disregard … that … conduct contributed to sex trafficking,” without defining how one “contributes to sex trafficking.” 18 U.S.C. § 2421A(b)(2).
The vagueness of “contributed to sex trafficking” is compounded by Congress’s belief that sex
trafficking and consensual sex work are “inherently linked,” thus raising the probability that it
considers anything that “contributes to” sex work, whatever that means, to also “inherently”
“contribute to sex trafficking.”

Even under normal due process standards, an intent to

“facilitate” criminal activity can be constitutionally vague.13 But the Supreme Court has held
this requirement takes on even greater urgency in the First Amendment context.
12

FOSTA’s inclusion of an “intent” standard does nothing to cure the law’s vagueness
where the operative terms “promote” or “facilitate” are ambiguous and undefined. Amusement
Devices Ass’n v. Ohio, 443 F. Supp. 1040, 1051 (S.D. Ohio 1977) (“[T]he 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.”). In
any event, the law’s scienter elements are defective, as explained infra § I.A.4.
13

E.g., Amusement Devices Ass’n, 443 F. Supp. at 1051 (invalidating state law prohibiting
provision of legal services to criminal syndicate with a purpose of “establishing or maintaining”
the syndicate or “facilitating any of its activities” because the language “fails to specify with
reasonable clarity which kind or kinds of conduct it prohibits”).

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The operative terms of FOSTA impose a far more amorphous burden on protected speech
by prohibiting any communication that may be said to “promote” or “facilitate” prostitution or
trafficking than the undefined terms the Supreme Court held unconstitutionally vague in Reno:
“obscene or indecent” and “patently offensive.” Reno, 521 U.S. at 858-59, 871-79. Not only
does FOSTA fail to define the key terms “promote” or “facilitate,” other federal statutes with
those terms have been interpreted fairly boundlessly, with facilitate, for example, meaning
simply “to make easy or less difficult.” E.g., United States v. Miller, 379 F.2d 483, 485-86 (7th
Cir. 1967) (interpreting provisions of Travel Act). Under these vague parameters, any online
speech that might be considered encouraging to sex workers, or that provides services or seeks to
minimize harm in a way that encourages, or makes sex work easier and safer for sex workers,
could be swept up in prosecutions or civil claims. Or, as the Court put it in Reno, no one could
say with confidence that such speech would not be subject to legal sanctions. 521 U.S. at 871.
The same dynamic is at work here. As the Court observed in Baggett, “the susceptibility
of the statutory language to require the foreswearing of an undefined variety of ‘guiltless knowing behavior’” makes a law unconstitutionally vague. Id. at 366-68 (striking down a statute requiring teachers to sign oaths affirming they did not “advise, teach, abet, or advocate” overthrow
of government). Compare Reno, 521 U.S. at 871 (“Could a speaker confidently assume that a
serious discussion about birth control [], homosexuality, the First Amendment issues raised by
the Appendix to our Pacifica opinion, or … prison rape would not violate the CDA?”), with
Baggett, 377 U.S. at 368 (“Does the statute reach endorsement or support for Communist candidates for office? Does it reach a lawyer who represents the Communist Party or its members
or a journalist who defends [the] constitutional rights of the Communist Party or its members or

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anyone who supports any cause which is likewise supported by Communists or the Communist
Party?”).14
It would ignore reality – as well as the history of Internet censorship – to disregard how
FOSTA’s vague mandate will be used by prosecutors and private litigants in all 50 states to
censor speech and threaten lifestyle choices with which they disagree. FOSTA provides them a
perfect tool for driving material they dislike from the Internet, even though it is constitutionally
protected. Given the massive criminal penalties and onerous potential civil liability, online platforms large and small will have no choice but to “steer far wider of the unlawful zone.” Grayned, 408 U.S. at 109. Indeed, they have already done so on a massive scale. See supra 11-12.
4.

FOSTA Lacks the Necessary Scienter to Satisfy First
Amendment Requirements

FOSTA is also unconstitutional because it does not include the requisite standard of mens
rea. The Supreme Court has long held the First Amendment bars the State from imposing
liability for distributing expressive materials without proof of scienter. In Smith v. California,
361 U.S. 147 (1959), for example, the Court struck down a Los Angeles ordinance making it a
crime for booksellers to possess obscene books. Even though the First Amendment does not
protect obscene speech, the Court held a bookseller could not be liable without proof of knowledge of the contents of a given book. Id. at 153-54 (“It would be altogether unreasonable to
demand so near an approach to omniscience. And the bookseller’s burden would become the
public’s burden”). See also Mishkin v. New York, 383 U.S. 502, 511 (1966) (“The Constitution
requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected

14

See also Cramp v. Board of Pub. Instruction, 368 U.S. 278, 281 (1961) (invalidating
Florida law that required public employees to swear they never lent “aid, support, advice,
counsel or influence to the Communist Party”).

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material ....”).15 The First Amendment burden imposed by self-censorship is magnified online,
because “websites … will bear an impossible burden to review all of their millions of postings
or, more likely, shut down their adult services entirely.” Cooper, 939 F. Supp. 2d at 830.
FOSTA amended Section 1591 to provide that violation of the law requires only “participation in a venture” that includes “knowingly assisting, supporting, or facilitating” prostitution or
trafficking, but left undefined what constitutes “assisting, supporting, or facilitating” such
activities. See Cooper, 939 F. Supp. 2d at 830 (broad and undefined terms undermine scienter
requirements). FOSTA’s “aggravated” offense in Section 2421A further dispenses of scienter by
imposing liability based on “reckless disregard” of the fact that conduct “contributed to sex
trafficking.” 18 U.S.C. § 2421A(b)(2). This provision strips away the requirement of specific
knowledge mandated by the Constitution in favor of an amorphous standard that imposes
massive liability based on generalized knowledge that online speech may be construed to
“promote or facilitate” prostitution or to “contribute to sex trafficking.” See Elonis, 135 S. Ct. at
2009 (holding defendant “must know the facts that make his conduct fit the definition of the
offense, even if he does not know that those facts give rise to a crime”).
The House Report on the legislation explained that the purpose of this change was to
create a workaround to the specific knowledge requirement for advertising in the prior version of
Section 1591. It noted Section 1591’s previous knowledge requirement was difficult to prove
because “online advertisements rarely, if ever, indicate that sex trafficking is involved.” H.R.
Rep. No. 115-572, pt. 1, at 5. The Report added that “federal prosecutors usually cannot
15

See also United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (“[A] statute
completely bereft of a scienter requirement as to the age of the performers would raise serious
constitutional doubts.”); Video Software Dealers Ass’n v. Webster, 968 F.2d 684, 690 (8th Cir.
1992) (“Statutes that impose criminal responsibility for dissemination of unprotected speech
must contain a knowledge requirement.”); Elonis v. United States, 135 S. Ct. 2001, 2009 (2015)
(“[W]rongdoing must be conscious to be criminal.”).

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demonstrate beyond a reasonable doubt that the website operators knew the advertisements
involved sex trafficking.” FOSTA therefore adopted a generalized knowledge standard, contrary
to constitutional requirements.
The predictable result of this legislation has been “self-censorship of constitutionally
protected material” on a massive scale, Mishkin, 383 U.S. at 511, such as where Craigslist eliminated its entire personals section. See supra 11, 16. Such mainstream, general-purpose websites
are of the sort that the Supreme Court called “indispensable” in Packingham. 137 S. Ct. at 173536. And that is without even consideration of online services like those of the Plaintiffs, which
merely talk about sex work and related topics (or, in the case of Mr. Koszyk, does not involve
such subject matter at all) yet have restricted themselves in an effort to “steer far wide[] of the
unlawful zone.” Speiser v. Randall, 357 U.S. 513, 526 (1958).
B.

FOSTA’s Selective Modification of Section 230’s Immunity for Online
Intermediaries Violates the First Amendment and Promotes Widespread
Censorship of Internet Speech

Section 230 of the CDA was based on understanding that the Internet would be crippled
if online providers could be held liable for third-party content, “given the volume of material
communicated …, the difficulty of separating lawful from unlawful speech, and the relative lack
of incentives to protect lawful speech.” Lycos, 478 F.3d at 418-19. At the same time, Congress
recognized that “Internet service providers are likely to abandon efforts to self-regulate content
posted on their site[s]” if “efforts to review and omit third-party … inappropriate material make
a computer service provider … liable for posted speech.” Batzel, 333 F.3d at 1029. To serve
these twin goals, Congress adopted two different immunity provisions: Section 230(c)(1), which
bars imposing liability on service providers for alleged harms arising from content posted by
third parties, and Section 230(c)(2) which shields service providers from liability for good faith
efforts to restrict access to material they consider “obscene, lewd, lascivious, filthy, excessively
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violent, harassing, or otherwise objectionable, whether or not such material is constitutionally
protected.”16 Together, the two immunity provisions reinforce important First Amendment protections. However, by limiting the scope of Section 230(c)(1) and preserving only the immunity
of (c)(2) based on blocking or removing posted content, FOSTA transforms Section 230 into an
engine of censorship in violation of the First Amendment.
Section 230 was adopted to promote free expression online, to free intermediaries from
threats of liability for hosting third-party speech, and to encourage websites to make editorial
judgments without risking liability. See, e.g., Batzel, 333 F.3d at 1027-29 (Section 230 was
added to the CDA “to further First Amendment and e-commerce interests on the Internet while
also promoting the protection of minors”); Barrett v. Rosenthal, 40 Cal. 4th 33, 56 (2006)
(Section 230 reflects “legislative commitment to the value of maintaining a free market for
online expression”).17 It flows from recognition that online platforms have a constitutional right
to make editorial choices,18 as well as from the understanding that Internet speech will be
16

Section 230(c)(1) protects free speech online by allowing intermediaries to post thirdparty content without the threat of unlimited liability from state prosecutors or civil litigants who
claim to be harmed by the postings. Section 230(c)(2), on the other hand, protects against
liability from third parties when editorial policies are enforced that prevent certain materials
from posting. See Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1174-75 (9th Cir. 2009)
(explaining different purposes of respective Section 230 immunities); Chicago Lawyers’ Comm.
for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670-71 (7th Cir. 2008)
(Section 230(c)(1)’s immunity is “general,” while (c)(2) ensures providers who filter offensive
material are “‘not liable to the censored customer’”) (emphasis added).
17

See also Google v. Hood, 822 F.3d at 220 (“First Amendment values … drive the CDA”);
Zeran, 129 F.3d at 330; Lycos, 478 F.3d at 418-19; 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).
18

La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 991-22 (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 allimportant ordering that causes some materials to be displayed first and others last, they are
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broadly stifled if platforms are held liable for speech posted by third parties. Lycos, 478 F.3d at
418-19; Zeran, 129 F.3d at 331.
FOSTA ignores the First Amendment basis for Section 230 immunity and seeks to limit
selectively the scope of Section 230 immunity for third-party postings that relate to prostitution
and sex trafficking. It amends Section 230(c)(1), which previously provided that online intermediaries are not to be treated as the publisher or speaker of third-party speech, so that it no
longer bars civil claims under 18 U.S.C. § 1595, or state criminal charges where the underlying
conduct would violate 18 U.S.C. § 1591, or the parallel 18 U.S.C. § 2421A in jurisdictions where
prostitution is illegal. At the same time, it does not affect immunity under Section 230(c)(2),
which immunizes actions taken to restrict speech in various categories “whether or not protected
by the First Amendment,” so long as it is done in “good faith.” Thus, as reformulated, Section
230(c)(2) now provides a powerful incentive for online platforms to over-censor speech to
qualify for immunity, and to do so under a nebulous and undefined “good faith” standard.19

engaging in fully protected First Amendment expression—‘[t]he presentation of an edited
compilation of speech generated by other persons”); Langdon v. Google, Inc., 474 F. Supp. 2d
622, 629-30 (D. Del. 2007) (First Amendment protects decisions about placement, ranking, or
rejection of online advertisements); Search King, Inc. v. Google Tech., Inc., 2003 WL 21464568,
at *4 (W.D. Okla. 2003) (“Google’s PageRanks are entitled to ‘full constitutional protection.’”)
(citation omitted).
19

The Senate Report on SESTA confused the immunities provided by Section 230(c)(1)
versus 230(c)(2) in suggesting interactive computer service providers “would not have their good
faith efforts to restrict access to objectionable content used against them” because the legislation
“would not abrogate section 230(c)(2)(A).” S. Rep. No. 115-199, at 4 (2018). This congressional action misstates the purpose of Section 230(c)(2), which was enacted to protect intermediaries against claims made by their customers who might object to deletions to posted
material or other editorial choices made by the service provider. See supra 33-34 & n.16. As
now reinterpreted by Congress, Section 230(c)(1) immunity from prosecution or for claims
brought by those claiming harm from third-party posts in the prescribed content categories would
depend on the “good faith” limitation in Section 230(c)(2), which authorizes deleting content
“whether or not [such speech is] protected by the First Amendment.” 47 U.S.C. § 230(c)(2).

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Because this change will be effectuated through potential state prosecutions and civil
lawsuits, websites have been, and will continue to be, forced to err on the side of excessive
censorship. Moreover, the new provisions provide a mechanism for exercise of a heckler’s veto,
whereby any person can claim a website contains illegal content, thus triggering that site’s
“knowledge” – and forcing sites to choose between investigating each claim or simply taking the
challenged content down.
Based on past experience, this is exactly what will happen: those seeking to impose
liability under Sections 1591 or 1595 (and, by logical extension, under the new federal crime
under Section 2421A), will argue that any website that allows postings regarding “escorts” or
“adult services” (or anything else promoting human interaction, such as “dating” or “personals”)
promotes or facilitates prostitution or trafficking. E.g., Craigslist, 665 F. Supp. 2d at 962. See
also Koszyk Decl. ¶¶ 21-24 (describing Craigslist’s closure of its Therapeutic Services section
after FOSTA’s passage). The fact that such speech is constitutionally protected will no longer
matter, and online platforms will have no option but to err on the side of censorship.
Section 230 previously barred liability based on bare allegations that a website “encouraged” unlawful content in some way based on the understanding that such a basis for liability
effectively eclipses the immunity Congress sought to provide. E.g., Jones, 755 F.3d at 408-09.
Under FOSTA, it is not necessary to allege a website encouraged the posting of material in
violation of its provisions, but only that the operator “promoted” or “facilitated” prostitution, or
disregarded that postings “contributed to sex trafficking,” which could encompass a wide range
of behavior. As the Ninth Circuit concluded, under Section 230 prior to FOSTA, such cases
“must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing
websites to face death by ten thousand duck-bites, fighting off claims that they promoted or

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encouraged – or at least tacitly assented to – the illegality of third parties.” Roommates.com, 521
F.3d at 1174.

But after FOSTA, websites (and especially those without substantial legal

resources) face just that kind of death. Lutnick Decl. ¶ 12. The only rational response is to
broadly censor constitutionally protected material and to immediately take down material subject
to a complaint ‒ which is exactly what has occurred.
C.

FOSTA is an Unconstitutional Ex Post Facto Law

On its face, FOSTA violates the Constitution’s command that “[n]o … ex post facto Law
shall be passed.” U.S. Const. art. I, § 9. See also U.S. Const. art. I, § 10 (barring states from
adopting ex post facto laws). “[T]he presumption against retroactive legislation is deeply rooted
in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf
v. USI Film Prods., 511 U.S. 244, 265 (1994).20 The Supreme Court has thus long recognized
retroactive legislation as “oppressive, unjust, and tyrannical,” and therefore “condemned by the
universal sentence of civilized man.” Ogden v. Sanders, 25 U.S. (12 Wheat.) 213, 266 (1827).
FOSTA is an ex post facto law because its effective date enables enforcement “regardless
of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such
date of enactment.” FOSTA § 4(b). This provision implements changes to 47 U.S.C. § 230(e),
which authorizes (1) civil claims that are predicated on violations of criminal law in 18 U.S.C.
§ 1591; (2) criminal prosecutions under state law where the underlying conduct violates Section
1591; and (3) criminal prosecutions under state law where the underlying conduct violates newly
adopted prohibitions in 18 U.S.C. § 2421A.
20

The Constitution’s Framers were keenly aware of the dangers posed by such laws. See
The Federalist No. 44 (James Madison) (“ex-post-facto laws … are contrary to the first
principles of the social compact, and to every principle of sound legislation”); The Federalist No.
84 (Alexander Hamilton) (“the prohibition of ex-post-facto laws … are perhaps greater securities
to liberty and republicanism” than any other constitutional principles).

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Congress was clearly aware of this constitutional concern, yet the provision passed both
houses of Congress and was signed into law without change. As noted, DOJ warned Congress
about this defect prior to FOSTA’s passage. Citing the proposed effective date, DOJ notified the
Chairman of the House Judiciary Committee that the Department “objects to this provision
because it 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). The Memorandum explained that “Insofar as this will “impose[] a
punishment for an act which was not punishable at the time it was committed” or “impose[]
additional punishment to that then prescribed” it would violate the Constitution’s Ex post facto
Clause. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867); see Beazell v. Ohio, 269
U.S. 167, 169-70 (1925); U.S. Const. art. I, § 9, cl. 3.
As both DOJ and Congress understood,21 this provision is unconstitutional. For present
purposes, however, the question is whether the government will defend this provision or agree it
must be enjoined.22 “Federal officials are not only bound by the Constitution, they must also
take a specific oath to support and defend it. U.S. Const. art. VI, cl. 3. To enforce a … policy
that the [government] itself believes is unconstitutional may well constitute a violation of that
21

Representative Goodlatte acknowledged the law’s constitutional problems in a floor
speech shortly before the legislation passed the House. HOUSE OF REPRESENTATIVES JUDICIARY
COMMITTEE, Goodlatte Floor Speech in Support of FOSTA (Feb. 27, 2018), available at
https://judiciary.house.gov/press-release/69685/ (noting that retroactive application of FOSTA
“could subject this legislation to a constitutional challenge under the Ex Post Facto Clause”).
Chairman Goodlatte said that he hoped the problem could be fixed and promised to propose an
amendment to do so. However, no such amendment was forthcoming and the bill was passed
with the constitutional flaws intact.
22

DOJ faced a similar issue with the CDA, which originally contained a section prohibiting
the transmission of information “intended for producing abortion.” See Sanger v. Reno, 966
F. Supp. 151, 157-58 (E.D.N.Y. 1997) (discussing the Hyde Amendment, codified as CDA
§ 507). Upon passage, the Attorney General wrote to Congress explaining that § 507 violated
the First Amendment and that DOJ would decline to enforce it. Id. at 158.

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oath.” Meredith Corp. v. FCC, 809 F.2d 863, 874 (D.C. Cir. 1987).23 In light of DOJ’s position
on FOSTA’s ex post facto provisions, it cannot defend the provision.24
II.

PLAINTIFFS AND ALL OTHER INTERNET PUBLISHERS AND USERS HAVE
SUFFERED AND WILL CONTINUE TO SUFFER IRREPARABLE HARM
ABSENT PRELIMINARY RELIEF
Because Plaintiffs are likely to succeed on the merits of their challenges to FOSTA, and

in particular that it violates the First Amendment, they also have shown likelihood of irreparable
harm. The Supreme Court has repeatedly held that “[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at
373. See also supra 19 (citing Bays, 668 F.3d at 819, regarding how preliminary injunction
factors essentially collapse when First Amendment rights are implicated). Here, the Plaintiffs
have already had their protected speech curtailed due to FOSTA’s chilling effect, and the need to
self-censor, causing further loss of First Amendment rights, will only continue. The same is true
for other websites, and the members of the public who use them.
FOSTA’s enactment is substantially inhibiting Woodhull’s mission to advocate for harmreduction, and for the health and safety of sex workers, by forcing it to curtail its use of online
resources. Levy Decl. ¶ 28. Woodhull has already censored publication of information on its
website that could assist sex workers negatively impacted by FOSTA, and was inhibited from
posting other resources for sex workers, from expressing opposition to FOSTA, and from allowing third parties to make similar posts to Woodhull’s Sex and Politics blog. Id. It also held back
23

Even if violation of the oath did not present a constitutional problem, taking a position in
court that contradicts DOJ’s representations to Congress at least raises a question whether pleadings signed by government lawyers “are warranted by existing law.” Fed. R. Civ. P. 11(b)(2).
24

The Attorney General is obligated to notify Congress whenever the Justice Department
establishes a policy of declining to enforce or defend a given law passed by Congress based on
the Department’s conclusion that the act is unconstitutional. Pub. L. No. 96-132, § 21(a)(2), 93
Stat. 1040, 1049 (1979).

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from promoting portions of its 2018 Summit dedicated to sex workers – even though the material
is educational and informational, and participants include advocates, educators, therapists and
legal and medical professionals – from the time of FOSTA’s enactment until such time that
Woodhull was so whipsawed by its constituents’ reactions that it had to bear the risk FOSTA
presented and promote the Summit’s sex work track. Id. ¶¶ 32-36. This decision prevented
Woodhull from fully publicizing and promoting its Summit activities, and singled out sex worker
content for disparate treatment. Id. ¶ 34. Despite its nervous self-reversal on promoting the
Summit, Woodhull still felt unable to offer a platform there to the Desiree Alliance’s conference,
and Woodhull remains hesitant to continue former efforts to promote sex worker education and
harm-reduction on its website. Id. ¶ 40. And Woodhull does not know whether it will commit a
federal crime if it livestreams or live tweets the sex work track as it hopes to do. Id. ¶ 38.
HRW is uncertain whether its global advocacy against criminalization of sex work and
arrest of sex workers could be seen by U.S. litigants as “facilitating” “prostitution” or in some
way assisting sex trafficking, thus violating FOSTA. Also, HRW relies heavily on individuals
disseminating its content through social media, and is concerned that social media platforms and
websites that host, disseminate, or allow users to spread its reports and advocacy materials may
be inhibited from doing so, on the basis of the substantial additional penalties of Section 2421A
for “reckless[] indifferen[ce]” to sex trafficking activities. PoKempner Decl. ¶¶ 8-9.
Alex Andrews’ Rate That Rescue website continues to operate under the uncertainty that
retrenched Section 230 immunity presents given its inability to moderate the third-party content
at its site. The very fact that Rate That Rescue was established by sex workers and advocates for
them to improve their lives, health, safety, and wellbeing creates existential doubts given the
speech FOSTA criminalizes. Maley Decl. ¶¶ 27-31. The new law is also impeding progress on

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an in-development smartphone app and website, the raison d'être of which is intended to be the
communication of safety information critical to protecting sex workers. Id. ¶¶ 32-39.
Eric Koszyk, meanwhile, he has lost all access to Craigslist, the one national, well-known
online platform for promotion of his licensed, therapeutic massage business – which comprises
exclusively protected speech. Koszyk Decl. ¶¶ 21-24. As Mr. Koszyk attests, he is unaware of
any other website that will allow him to post similar ads and reach a similar sized audience as
Craigslist. Id. ¶ 25. FOSTA has prevented him from being able to post ads on Craigslist for
months, with no end in sight absent a preliminary injunction.
And Mr. Koszyk’s circumstance highlights the irreparable harm of lost First Amendment
rights by others not presently before the Court. See Lutnick Decl. ¶¶ 12-16. Some of these are
connected to Plaintiffs, such as the speaker scheduled for Woodhull’s Summit who pulled out
after FOSTA silenced the organization’s promotion of workshops in the sex worker track, or the
Desiree Alliance, which given Woodhull’s inability to step in, was forced to cancel what would
have been the largest U.S. gathering to address human, labor, and civil rights for sex workers.
The removal of content, shuttering of services, and changes in policies outlined above by numerous online services further evidences the incursion on First Amendment rights FOSTA imposes.
This is especially true of websites and interactive computer services that enable interpersonal contact by users such as those for personal ads, dating services, and similar platforms
that facilitate the “unlimited … communication of all kinds” that the Supreme Court deemed so
vital. Packingham, 137 S. Ct. at 1735-36 (citation omitted); Lutnick Decl. ¶¶ 12-16. This
intrusion on the types of speech that online intermediaries facilitate, and that mark the Internet as
a unique mass medium, trenches deeply on “the right of the public to … social, political, esthetic,
moral, and other ideas and experiences,” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1967),

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and the right more generally of willing listeners to receive information from willing speakers.
E.g., Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976).
The Internet Archive is concerned its practice of hosting third-party content, such as
archives of particular websites, information about books, and the books themselves, could be
construed as promoting or facilitating prostitution, or assisting, supporting, or facilitating sex
trafficking. The Archive also fears it can no longer rely on Section 230 to bar liability for thirdparty content hosted by the Archive, on account of FOSTA. Kahle Decl. ¶¶ 21-22.
This, of course, affects not just the First Amendment interests of online platforms that
host speech, but those of the millions of individuals who use them to access that information, as
“[f]reedom of speech is not merely freedom to speak; it is also freedom to read.” Koger v. Dart,
114 F. Supp. 3d 572, 578 (N.D. Ill. 2015) (quoting King v. Fed. Bureau of Prisons, 415 F.3d
634, 638 (7th Cir. 2005)). And it all, of course, reflects the specter of criminal and civil
exposure under FOSTA’s addition of Section 2421A as a new criminal offense and its amendments to Section 1591 and to the scope of Section 230 immunity. If the Supreme Court agreed
in Reno that a threat of two years in prison under the CDA justified the district court’s entry of a
preliminary injunction, see 521 U.S. at 862, 885; see also id. at 872, the prospect of ten years in
prison, ratcheting up to as many as 25 under FOSTA, certainly warrants preliminary injunctive
relief. All of the above incursions on Plaintiffs’ rights to free expression, and the self-censoring
conduct of non-parties, constitute irreparable harm that compels preliminary injunctive relief.
III.

THE BALANCE OF EQUITIES FAVORS INJUNCTIVE RELIEF
Any harm the government might cite from grant of a preliminary injunction pales com-

pared to the loss of First Amendment freedoms Plaintiffs have shown. As a threshold matter, all
of the laws that already criminalize the conduct of traffickers will continue to apply. Further,
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although FOSTA is premised on preventing sex trafficking and helping ameliorate harm that
may be involved in sex work, it is having a decidedly opposite impact. Organizations like
Woodhull, Desiree Alliance, and their cohorts, and websites like Rate That Rescue, seek to
provide information, education, and strategies geared to the safety and well-being of their
constituencies. Yet FOSTA has forced them to curtail those efforts. The same is true of online
services and forums such as Reddit or VerifyHim.com, which have limited or eliminated opportunities for users to communicate in these areas. See D’Adamo Decl. ¶¶ 10-13 (documenting
actions by websites in response to FOSTA); Professor Levy Decl. ¶¶ 6-9 (discussing how
shuttering online platforms will inhibit detection of sex trafficking); Lutnick Decl. ¶¶ 20-21.
Moreover, by eliminating online forums for sex workers, FOSTA is having a devastating
impact of sex workers’ health and safety. Sex workers have lost the ability to screen clients,
protect their identities, and arrange safe meeting places. FOSTA also is driving sex workers
back to street-based work and pimps, which is far more dangerous. Street-based sex workers are
far more likely to experience violence or exploitation. Street-based sex work also increases
marginalization and isolation, which in turn increases violence, and diminishes a sex worker’s
ability to seek help when needed. Lutnick Decl. ¶¶ 11-15.
At the same time, there is no evidence FOSTA will, in fact, curtail sex trafficking, and
censorship of online content is a questionable approach – at best – to combatting it. Indeed,
there is evidence that it actually hinders anti-trafficking efforts. Lutnick Decl. ¶¶ 16-19. It also
hinders law enforcement in targeting trafficking. See Winkler Statement, supra note 2, at p.4.
As expert Dr. Mehlman-Orozco testifies, trafficking is clandestine and difficult to identify; so
where law enforcement could once turn to a small number of concentrated, open-access websites
in the U.S. to catalyze arrests and rescues, FOSTA caused commercial sex ads to disperse to

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hundreds of platforms, leaving trafficking even more hidden from law enforcement. MehlmanOrozco Decl. ¶¶ 16, 24-25, 28, 31. As noted above, Congress was warned of this very outcome.
Given that Plaintiffs have demonstrated irreparable injury if a preliminary injunction does
not issue, the balance of equities clearly tips in Plaintiffs’ favor. See Winter, 555 U.S. at 20. The
balance of equities also favors injunctive relief because “no substantial harm to others can be
said to inhere” in allowing a violation of constitutional rights to continue. Déjà vu of Nashville,
Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 274 F.3d 377, 400 (6th Cir. 2001).
IV.

PRELIMINARY RELIEF WOULD SERVE THE PUBLIC INTEREST
A preliminary injunction is particularly warranted in this case because, as this Court has

held, “[s]imply stated, it is in the public interest to uphold a constitutionally guaranteed right.”
PHE, Inc. v. U.S. Dep’t of Justice, 743 F. Supp. 15, 26 (D.D.C. 1990); cf. Pearson v. Shalala,
130 F. Supp. 2d 105, 119 (D.D.C. 2001) (“it is clearly in the public interest to ensure that [the]
government[] … fully compl[ies] with the law, especially when that law concerns the parameters
of a party’s First Amendment rights” ). As the D.C. Circuit has stressed, allowing unconstitutional government action to stand “is always contrary to the public interest,” which lies in
“protecting First Amendment rights.” Pursuing America’s Greatness, 831 F.3d at 511-12 (quoting Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)).
Injunctive relief is especially in the public interest here because the public “has a strong
interest in having largely-unfettered access to Internet mediums for the purpose of publishing
and viewing content and information,” consistent with the exercise of First Amendment rights.
Google v. Hood, 96 F. Supp. 3d at 601. See also Pursuing America’s Greatness, 831 F.3d at 511
(“there is always a strong public interest in the exercise of free speech rights otherwise abridged
by an unconstitutional regulation”). For the same reasons that FOSTA’s counter-productivity
undermines the government’s interest, see supra 43-44, it is likewise in the public interest to
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allow those like Plaintiffs, the platforms that they offer and/or use, and those who would speak
through them to continue to do so without the incursion on First Amendment rights that FOSTA
imposes.
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 to
the law.
DATED:

June 28, 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 Admission Pending
Walters Law Group
195 W. Pine Ave.
Longwood, FL 32750-4104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

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AARON MACKEY
D.C. Bar No. 1017004
DAVID GREENE
(admitted in California)
Pro Hac Vice Admission Pending
CORYNNE MCSHERRY
(admitted in California)
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
[phone]
Email: [e-mail]
[e-mail]
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

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