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 Document 5-2 Filed 06/28/18 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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WOODHULL FREEDOM FOUNDATION,
HUMAN RIGHTS WATCH, ERIC KOSZYK,
JESSE MALEY, aka 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.

Case No. _______________

DECLARATION OF RICCI LEVY IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION

I, Ricci Levy, swear or affirm, under the penalties of perjury pursuant to the laws of the
United States, that the following is true and correct.
1.

My name is Ricci Levy, I am competent to make this Declaration, and the

statements made herein are based on my personal knowledge.
2.

I am the President and Chief Executive Officer of the Woodhull Freedom

Foundation, a charitable 501(c)(3) tax-exempt organization based in Washington, DC
(“Woodhull”).

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3.

Woodhull was founded in February, 2003, and is the only national human rights

organization working full time toward affirming and protecting the fundamental human right to
sexual freedom.
4.

Woodhull envisions sexual freedom as inclusive of the right to enjoy sexual

pleasure, form relationships and families of our choosing, and protect our bodies from sexual
violence.
5.

Woodhull’s mission includes support for the health, safety, and protection of sex

workers, which include adult film performers, live webcam models, sexual wellness instructors,
exotic dancers, escorts, and prostitutes. Woodhull believes that if every human being has a right to
work and be paid to support themselves, and a right to autonomy over their body, then the rights of
sex workers must be protected as well. Woodhull strongly opposes sex trafficking or sexual assault
in any form, while advocating for the right to engage in consensual sexual activity.
6.

Woodhull’s work is conducted through education, advocacy, lobbying, and

collaboration with other organizations.
7.

For example, in 2005, Woodhull submitted testimony to the U.S. Senate, Judiciary

Committee, Subcommittee on Constitution, Civil Rights, and Property, regarding the First
Amendment protections associated with sexual explicit media. Woodhull also submitted testimony
in opposition to Washington D.C.’s “Prostitution-Free Zone Amendment Act of 2011.” In 2012,
Woodhull successfully lobbied the State of Florida to pass legislation ending the practice of
shackling and restraining pregnant female inmates. In addition, Woodhull participates as amicus
curiae in cases impacting sexual freedom issues.
8.

Woodhull operates a website containing information about the organization, its

events, and donation instructions. See https://www.woodhullfoundation.org/.

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9.

Woodhull’s website also contains a blog called Sex and Politics, which contains

posts written by various contributors. See https://www.woodhullfoundation.org/news-blogs/. The
blog allows users to comment on the posts.
10.

Woodhull uses a variety of other online technologies to conduct its business and

organize its events, such as Google Docs, Formidable form generator, online databases and cloud
storage services.
11.

Woodhull also exchanges frequent emails with event organizers and volunteers

along with website developers, promoters, and presenters.
12.

Woodhull regularly uses social media such as Facebook, Twitter, and Instagram,

along with a social media post scheduling tool called Hootsuite, and a link shortening service called
Bitly to promote the organization and its events.
13.

Woodhull uses an online ticketing service to register attendees for its events.

14.

Woodhull uses a mobile event application called YAPP, which provides information

to attendees about activities occurring at Woodhull events.
15.

Woodhull intends to use Youtube.com to store and publish workshop presenter

videos to provide information about the presenter.
16.

Woodhull’s signature event is its annual multi-day Sexual Freedom Summit

(“Summit”) held in the Washington, DC area during August, which brings together hundreds of
educators, therapists, legal and medical professionals, and leaders of advocacy organizations to
strategize, share information, and work collaboratively to protect the members of our communities

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and their right to information, health, and pleasure. Woodhull publishes a separate website devoted
to the Summit, at www.sexualfreedomsummit.org.
17.

Historically, the Summit has included a variety of educations or informational

workshops, organized into distinct tracks, each of which focus on specific aspects of sexual
freedom. Recent years have included a “sex worker” track which involved workshops devoted to
issues impacting sex workers, such as harm reductions, disability, age, health, and personal safety.
18.

For example, in 2017, the Summit included workshops entitled: Sex Work, Human

Trafficking and the Void Between; Making Pleasure Political: How To Be Politically Engaged
While Repping Your Pleasure-based Business; The Unexpected Consequences of Age of Consent
Laws; The New War on Sexual Expression; and Promoting HIV Education and Biomedical
Prevention Tools: Lessons and Next Steps From the Field.
19.

Additionally, in 2016, the Summit included workshops entitled: Intuition &

Technology: A Client Screening Workshop for Sex Workers; Sex Work is Work: Examining Ways
to Legitimize Sex Industry Experience in the Business World; The Whore Singularity: When
Everyone is Naked on the Internet, Is No One Naked on the Internet; The Road to Criminalization;
The Gameshow on How Sex for Money Became Criminalized in the US; and Advocacy: Sexual
Health for Sex Workers!
20.

Previous years’ events included a day long institute entitled: Sex Work, Sex Trade,

Prostitution & Human Rights, and workshops entitled: Breaking Ground: Understanding
Criminalization of Sex Work as Violence; End Demand and How the Anti-Trafficking Movement
is Hurting Sex Workers, LGBTQ Individuals, and the Sex-positive Community.
21.

The 2018 Summit is scheduled to occur from August 2-5, 2018, at the Hilton

Alexandria Mark Center in Alexandria, Virginia.

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22.

In early 2018, Woodhull began preparing for its annual Summit by selecting

workshop topics and presenters. After a rigorous selection process, Woodhull identified fifty-four
(54) workshop presentations, organized into six different tracks. One of the official tracks is entitled
“Sex As Work” and includes workshops entitled: Sex Work and Disability: Shifting the Focus to
Disabled Sex Workers; Capitalism is not Consensual: Sex Work and the Shaky
Foundations of Consent; Criminalization of Sex Work is a Human Rights Violation and a Labor
Rights Concern; Avoiding Harm When You Need An Ambulance; and Courting and Whoring:
Balancing Work and Play. A copy of the descriptions of these workshops as they appear on the
Summit site are attached as Exhibit 1. Woodhull historically promotes the titles of all workshops
on its Summit website, See https://www.sexualfreedomsummit.org/workshops/. In past years, the
workshop

information

appeared

in

a

section

of

Woodhull’s

primary

website:

https://www.woodhullfoundation.org/sexual-freedom-summit/.
23.

Woodhull also publishes the biographies and contact information for workshop

presenters on its Summit website. See https://www.sexualfreedomsummit.org/presenters/.
24.

Woodhull also promotes most, if not all, of the workshops in advance of the Summit

on social media such as Facebook, Instagram, and Twitter. The social media posts include links to
the presenter’s workshop and biography.
25.

Woodhull intends to livestream one of the sex worker track workshops on Facebook

Live during its upcoming 2018 Summit, to make the content available to those who are not able to
attend in person.
26.

Woodhull also intends to “live tweet” the sex worker track workshops on Twitter,

using the hashtag #SFS18, during the upcoming Summit.

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27.

Woodhull learned that a new bill, labeled SESTA / FOSTA, H.R. 1865 / S. 1693

(“FOSTA”) was passed by Congress, and signed into law on April 11, 2018. Woodhull understands
that the law contains a new criminal prohibition on promoting or facilitating prostitution using an
interactive computer service and expands liability associated with sex trafficking.
28.

Woodhull’s mission would have included immediate efforts to publish information

on its website designed to assist sex workers who were negatively impacted by FOSTA, in an effort
to educate these individuals about their rights, risks, and options under the new legal environment,
and promote their overall well-being. Woodhull would also have published resources available for
sex workers on its site, and would have strongly opposed enforcement of the law against
marginalized sex workers on its Sex and Politics blog and social media. Woodhull would have
permitted third parties to post similar information about sex work on its blog. Instead, Woodhull
has been forced to censor its own online advocacy efforts, and the speech of third parties on its blog
out of fear that its activities could be deemed to promote or facilitate prostitution.
29.

Near the time that FOSTA was signed into law, Woodhull learned that numerous

websites that provided information about sex workers or sex work had closed, blocked United States
users, or shut down channels associated with this category of information, such as: Craigslist.org
(closed its adult personals ads), reddit.com (closed sub-reddits such as: r/escorts, r/maleescorts,
r/sugardaddy, r/hookers, r/sexworkerblogs), yellowpages.com (closed adult boards), cityvibe.com
(closed), men4rentnow.com (closed), theeroticreview.com (closed due to FOSTA), nightshift.co
(closed due to FOSTA), myproviderguide.com (closed), and others.
30.

The widespread response to the law by the online community suggested to Woodhull

that the law could be broadly construed to criminalize a wide swath of online speech relating to
human sexual activity.

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31.

After the enactment of FOSTA Woodhull became concerned that the operation of

its websites, and use of various interactive computer services to organize and promote the sex
worker track workshops, including publication of the biographical information for the presenters,
could violate FOSTA given the broad, vague and uncertain scope of the new law.
32.

Immediately upon passage of FOSTA, Woodhull ceased all online promotion of the

sex work track workshops for the Summit, and blocked all information associated with these
workshops from its Summit website.
33.

Woodhull also restrained publication of the titles of the sex work track workshops,

along with the biographies and contact information for the presenters.
34.

This decision prevented Woodhull from fully publicizing and promoting its Summit

activities, and singled out sex worker content for disparate treatment, in advance of the Summit.
35.

As a result of its effort to comply with FOSTA by not promoting or publishing online

information about its sex worker track, Woodhull faced a social media backlash and threats to
boycott the Summit. At least one sex work track presenter cancelled her planned presentation due
to Woodhull’s efforts to comply with the law. These developments threatened the success and
reputation of the Summit.
36.

While Woodhull remains uncertain whether online publication and promotion of its

sex worker track workshops and presenter information is prohibited by FOSTA, it has chosen to
engage in some of these activities due to the adverse consequences it endured in attempting to
comply with the law through self-censorship. In June, 2018, in conjunction with its decision to
initiate a legal challenge to FOSTA, Woodhull decided to publish and promote all information
about the sex worker track workshops, including biographical and contact information about the
presenters. It also decided to promote the workshops on social media such as Twitter and Facebook.

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Woodhull has struggled to understand its legal obligations and remains uncertain as to its potential
liability under FOSTA, in connection with its past and future activities.
37.

As a result of its activities and decisions regarding the upcoming Summit, Woodhull

has a well-founded fear that its efforts to promote information about sex workers on the Internet
could be construed by an ambitious prosecutor or enterprising plaintiff’s attorney as promoting or
facilitating prostitution in violation of FOSTA.
38.

Woodhull is further concerned about its potential liability under FOSTA for the

content of Facebook Live streams or live tweets, as it cannot review or moderate the content of such
communications before they are published online.
39.

Woodhull has learned, upon information and belief, that in response to FOSTA, the

Desiree Alliance, a national coalition of current and former sex workers, working for an improved
understanding of sexual policies and its human, social and political impacts of criminalization
surrounding global policies in sex work, cancelled its July 2019 conference: Transcending Borders:
Immigration, Migration, and Sex Work. In an online post the Director of Desiree Alliance, Cris
Sardina, 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/.
40.

After the Desiree Alliance cancelled its July conference in response to FOSTA,

Woodhull considered offering the group an opportunity to conduct its institute during Woodhull’s
2018 Summit, described above. However, Woodhull concluded it would be too risky under FOSTA
to promote the institute in conjunction with the Summit.
41.

FOSTA’s passage substantially inhibits Woodhull’s mission which includes

advocacy for harm reduction, health, and safety of sex workers, by restricting the use of its online
resources for these purposes.

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