Woodhull Freedom Found. v. United States

334 F. Supp. 3d 185
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 24, 2018
DocketCivil Case No. 18-cv-01552 (RJL)
StatusPublished
Cited by3 cases

This text of 334 F. Supp. 3d 185 (Woodhull Freedom Found. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woodhull Freedom Found. v. United States, 334 F. Supp. 3d 185 (D.C. Cir. 2018).

Opinion

RICHARD J. LEON, United States District Judge

On June 28, 2018, plaintiffs filed their complaint challenging the constitutionality of 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"). See Compl. ¶ 1 [Dkt. # 1]. The same day, plaintiffs filed a motion for preliminary injunction, asking this Court to enjoin the enforcement of the Act pending the resolution of this litigation. See Motion for Preliminary Injunction 1 ("Mot. for Prelim. Inj.") [Dkt. # 5]. Plaintiffs, "advocacy and human rights organizations, two individuals and the leading archival collection of Internet content," raise a bevy of claims. Id. at 2. They assert that FOSTA violates the First and Fifth Amendments to the U.S. Constitution, as well as the Ex Post Facto clause of Article I, Section 9. See Compl. ¶¶ 126-74. From plaintiffs' perspective, FOSTA offends the Constitution in a variety of ways: it is overbroad, vague, impermissibly targets speech based on viewpoint and content, pares back immunity from certain state law claims, erodes the scienter requirement, and wrongly criminalizes conduct that was lawful at the time committed. See id. Defendants, United States and Attorney General Jefferson B. Sessions (hereinafter "defendants" or "the Government"), disagree. They argue that plaintiffs lack standing to challenge the Act's constitutionality and that, in all respects, FOSTA passes constitutional muster on the merits. For the reasons discussed below, I agree with the defendants and will DENY plaintiffs'

*190Motion for Preliminary Injunction [Dkt. # 5], and GRANT defendants' Motion to Dismiss ("Mot. to Dismiss") [Dkt. # 16].

I. Statutory Scheme

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") passed the House of Representatives and the Senate on February 27, 2018 and March 21, 2018, respectively. President Donald J. Trump signed the bill into law on April 11, 2018, and FOSTA took immediate effect. 132 Stat. 1253, § 4(b).

FOSTA adds one section to the U.S. Code, and amends three others. The Act implements the "sense of Congress" that the Communications Decency Act of 1996, codified in 47 U.S.C. § 230, "was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims." 132 Stat. 1253, § 2(1). Indeed, "websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion."Id. § 2(2). For this reason, the Act continues, "clarification of [ Section 230 ] is warranted" in order to ensure that that section does not shield "such websites" from appropriate liability. Id. § 2(3).

Section 2421A is the centerpiece of FOSTA and this case. There, the Act creates a federal criminal offense for owning, managing, or operating "an interactive computer service ... with the intent to promote or facilitate the prostitution of another person," or attempting or conspiring to do so. 18 U.S.C. § 2421A(a). This offense is punishable by fine or up to ten years' imprisonment. Id. A defendant facing this charge may avail himself of an affirmative defense, namely that "the promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted." Id. § 2421A(e). The burden for establishing the affirmative defense lies with the defendant, who must establish this fact by a preponderance of the evidence. Id.

Section 2421A further provides for an "aggravated" version of the same offense, punishable by fine or up to twenty-five years' in prison. See id. § 2421A(b). The aggravated offense layers additional elements on top of the Section 2421A(a) base offense. Thus, Section 2421A(b) imposes criminal liability on anyone who owns, manages, or operates an interactive computer service with the intent to promote or facilitate the prostitution of another person and either (1) "promotes or facilitates the prostitution of five or more persons," see id. § 2421A(b)(i), or (2)"acts in reckless disregard of the fact that such conduct contributed to sex trafficking[ ] in violation of 18 U.S.C. § 1591(a)," see id. § 2421A(b)(ii). Section 1591(a), a preexisting provision of the criminal law, prohibits sex trafficking. See id. § 1591(a).1 Under Section 2421 A(c), victims of violations of Section 2421A(b) may bring civil suits in federal court to "recover damages and reasonable attorneys fees." Id. § 2421A(c). FOSTA also directs the court to order restitution for any violation of subsection (b)(2).

Next, FOSTA amends 47 U.S.C. § 230, the "safe harbor" of the Communications *191Decency Act of 1996 ("CDA"). Section 230 has two key functions. First, it immunizes interactive computer services from criminal and civil liability for content created by third parties. See

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334 F. Supp. 3d 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodhull-freedom-found-v-united-states-cadc-2018.