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)

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

[PROPOSED] ORDER
Upon consideration of the Motion for Preliminary Injunction and supporting papers of
Plaintiffs Woodhull Freedom Foundation, Human Rights Watch, Eric Koszyk, Jesse Maley a/k/a
Alex Andrews, and The Internet Archive, and Defendants’ opposition thereto, together with the
arguments of the parties, the Court makes the following FINDINGS OF FACT and CONCLUSIONS OF LAW:
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.
The Court finds that it 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).
Initially, a preliminary injunction is appropriate 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)).
The Court finds that 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 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 or disseminate 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, content-based prohibitions impose criminal penalties and
authorize heavy civil liability for online publishers based on expansive but undefined terms

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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). The Court further finds that plaintiffs are also likely to 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).
Plaintiffs have 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 (1976); 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)). Moreover, the balance of the
equities tip 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

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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, 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).
IT IS HEREBY ORDERED that Plaintiff’s Motion is GRANTED.
Defendants are hereby enjoined from enforcing 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.
DATED: ______________, 2018

United States District Judge

cc: Counsel of Record

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