Govt Files Brief in Woodhull’s Challenge to FOSTA

Originally filed in 2018, Woodhull v. U.S. is the Woodhull Freedom Foundation’s lawsuit challenging the constitutionality of the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017”, more commonly referred to as “FOSTA.” In addition to Woodhull, the plaintiffs in the case include the Internet Archive, Human Rights Watch and two individuals, licensed massage therapist Eric Koszyk and Jesse Maley (AKA “Alex Andrews”), co-founder of the website RateThatRescue.org, a “sex worker-led, public, free, community effort to help everyone share information about both the organizations they can rely on, and those they should avoid,” according to the original complaint.

U.S. District Judge Richard Leon dismissed Woodhull’s complaint in September, 2018 – a dismissal later overturned the same court hearing the current appeal, the U.S. Court of Appeals for the District of Columbia Circuit.

In its brief filed Monday, the government repeatedly asserts that the plaintiffs are simply misreading the law – and that a correct interpretation of the statute renders all the plaintiffs’ claims invalid.

“Rejecting plaintiffs’ statutory interpretation makes quick work of their constitutional claims,” the government asserts in summarizing its response to the lawsuit’s claims. “There is no First Amendment right to engage in a course of criminal conduct that, under traditional principles of accomplice liability, intentionally aids and abets the commission of the crimes at issue here, even if that conduct involves speech. The statute’s invocation of aiding-and-abetting liability draws on settled legal concepts that provide adequate notice of what the statute prohibits, consistent with the Fifth Amendment. And plaintiffs cannot bring a facial Ex Post Facto challenge to a statute that is plainly capable of being applied prospectively.”

Under the heading “Statutory Background”, the government’s brief contains a lengthy section devoted to early attempts by prosecutors to impose liability on Backpage.com for alleged offenses that included pandering and promotion of prostitution. The brief details how those efforts had been “thwarted” by Backpage’s assertions of immunity under Section 230 of the Communications Decency Act.

(This background information appears to be offered as context for why FOSTA was deemed necessary and legislative intent behind the Act’s creation, but the government’s brief makes no mention of the fact that the Backpage executives were arrested and charged, and the domain was seized, without prosecutors making use of FOSTA.)

Throughout the brief, the government asserts the plaintiffs are at no risk of being prosecuted under FOSTA, repeatedly claiming the statute cuts a far narrower swath than the plaintiffs argue in their claims.

“Plaintiffs’ arguments depend on their mistaken reading of the statute and collapse when that reading is corrected,” the government asserts. “If the statute covers only conduct or speech so integral to criminal conduct that it falls within traditional principles of accomplice liability, it does not violate the First Amendment. Nor is there a First Amendment obstacle to removing any preexisting statutory protection from state prosecution or civil liability from anyone, like Backpage, who aids and abets such crimes.”

One major point of disagreement between the parties is the proper interpretation of the phrase “promote or facilitate” in FOSTA.

“(W)hatever meaning ‘promote’ or ‘facilitate’ might have in everyday speech, their meaning as terms of art in criminal statutes, invoking traditional principles of accomplice liability, is established,” the government writes in its brief. “FOSTA uses the phrase ‘promote or facilitate’ in the same way as the other authorities discussed above: to denote aiding-and-abetting liability under traditional principles of criminal law… The phrase ‘promote or facilitate,’ as used in FOSTA, thus extends no further than the traditional understanding of accomplice liability developed in the criminal law context.”

As some observers have noted previously, there’s good news to be found in the government’s interpretation of FOSTA, at least as it has been expressed in this case. Namely, much of the sort of speech that people in and around the adult entertainment industry have worried might be construed as a violation of FOSTA can’t be so construed, according to the government itself.

“As Judge Katsas correctly explained in the first appeal in this case, the offense specified in Section 2421A(a) thus applies only where ‘the defendant own[s], manage[s], or operate[s] a website with the specific intent to pander or otherwise abet the exchange of sex for money—not simply to advocate for, educate, or provide general assistance to persons who prostitute’”, the government notes in its brief. “’This is not to suggest that FOSTA requires proof of a specific, completed act of prostitution, as would the offense of aiding and abetting prostitution.’ But it does limit the sweep of the phrase ‘promote or facilitate’ to the kinds of intentional acts that would make an accomplice criminally liable for the prostitution of another person.”

Beyond the text of the statute (and what the government contends to be the proper interpretation of that text), the government asserts that the Act’s “legislative history… confirms that FOSTA does not criminalize plaintiffs’ advocacy, harm-reduction, or archival work.”

“Indeed, Senator Blumenthal addressed that point explicitly,” the brief adds. “He explained that FOSTA ‘would not criminalize the so-called harm reduction communication—information designed to ensure that women and men wrapped up in commercial sex trade can avoid violence, prevent HIV, and access community and support services.’”

Ultimately, the government contends, “FOSTA is not overbroad at all, much less substantially so.”

“Indeed, plaintiffs offer no argument that the statute would be substantially overbroad if ‘promote or facilitate’ were read consistent with traditional criminal law concepts,” the government adds. “The district court thus correctly concluded that FOSTA’s ‘legitimate sweep, encompassing only conduct or unprotected speech integral to criminal activity, predominates any sweep into protected speech.’ [I]ndeed,’ the court concluded, in the circumstances presented here, FOSTA does not ‘prohibit any such protected speech, much less a sufficient amount so as to render the Act overbroad.’”

The next step in the case will be the filing of amicus curiae briefs in support of the government’s position, due 10 days from the filing of the government’s brief. Woodhull’s reply brief will be due November 23, with oral argument to follow at a date that is yet to be determined.