WASHINGTON — The Woodhull Freedom Foundation along with other plaintiffs filed court papers today in their legal quest to win a preliminary injunction against the enforcement of FOSTA.
Woodhull and the other plaintiffs replied to the Justice Department’s opposition for an injunction, which was filed on Thursday.
Woodhull and the others maintain in the reply brief that FOSTA is unconstitutionally vague, overbroad and fails strict scrutiny tests over advancing an important government interest.
FOSTA brings new tools for law enforcement, including the ability to bring criminal charges against the operators of sites that facilitate prostitution as it amends Section 230 of the Communications Decency Act, which provided companies immunity from most liability for publishing third-party content.
The act, known formally as the Allow States and Victims to Fight Online Sex Trafficking Act, allows for civil claims, as well.
In the government’s opposition brief filed Thursday, Justice Department attorneys said that the plaintiffs lacked standing in their case and that the case in its entirety should be dismissed.
The brief filed with the court today by Woodhull and co-plaintiffs Human Rights Watch, Eric Koszyk, Alex Andrews and the Internet Archive said that the plaintiffs indeed do have standing and that the government misreads the law governing it.
“[A]ssertions that plaintiffs need not fear application of FOSTA’s open-ended terms and draconian penalties utterly ignores a history of internet regulation that includes overly broad and unconstitutional efforts to regulate speech,” plaintiffs’ counsel wrote in their reply brief, urging U.S. District Richard Leon to preliminarily enjoin the new federal legislation signed into law by President Trump in April.
“FOSTA is even more extreme, imposing more severe criminal penalties than ever, and piling on redundant layers of potential civil liability while simultaneously stripping away immunities,” plaintiffs’ counsel wrote.
“Although the government suggests (repeatedly) that FOSTA reaches only speech that advertises illegal activity, the act by its plain terms extends far more broadly to any online speech that may be said to ‘promote’ or ‘facilitate’ prostitution, or to ‘assist,’ ‘support’ or ‘facilitate’ sex trafficking. It is small wonder plaintiffs and many others have been deterred from posting anything close to ‘the unlawful zone.’”
“FOSTA has had an entirely predictable chilling effect, and as such it causes both injury-in-fact that gives plaintiffs standing to challenge it, and First Amendment violations that constitute irreparable harm,” plaintiffs’ counsel wrote.
"Woodhull and other plaintiffs have standing to challenge FOSTA because the law proscribes online speech in ways that directly threaten plaintiffs’ expressive activities, plaintiffs’ counsel wrote, noting that there are myriad ways in which their speech has already been dampened by the law, and which have gone unchallenged by the government,” they wrote. “It is well established that a credible threat of present or future criminal prosecution will confer standing."
“FOSTA reaches anyone who owns, manages, or operates an interactive computer service so as to promote or facilitate the prostitution of another person and exposes to even greater liability one who acts in reckless disregard of the fact that his conduct contributed to sex trafficking,” plaintiffs’ counsel wrote.
“The government acknowledges these terms are undefined (and unrestricted) in the act and that their sweep is vast. FOSTA can easily be read to encompass plaintiffs’ advocacy for sex workers, provision of health-related information, and harm reduction activities; as a result, it is at best uncertain whether they have the requisite intent to facilitate prostitution.”
In the brief, plaintiffs’ attorneys pointed to Andrews, who is challenging the law with the others.
She “has alleged a credible fear of legal penalties for both the creation and maintenance of Rate that Rescue and also put on hold her acquisition of an in-development reporting application,” plaintiffs’ attorneys wrote. “Andrews intends that both the website and the app will make sex work safer and thus easier.”
They also discussed plaintiffs Human Rights Watch and the Internet Archive.
“FOSTA reasonably could be interpreted to apply to Human Rights Watch’s human rights advocacy because Human Rights Watch seeks to make sex work safer and thus easier,” plaintiffs’ counsel wrote. “Human Rights Watch makes sex work easier by advocating on behalf of sex workers’ rights and safety in the U.S. and internationally, and by documenting abuses against sex workers in the U.S., Lebanon and South Africa.”
“The Internet Archive reasonably fears prosecution not only for its preservation of web pages, but also for material it hosts that third parties upload.”
Finally, the plaintiffs’ counsel wrote about Koszyk, who they said, like the others, have standing in the case.
“Mr. Koszyk was injured when Craigslist eliminated its Therapeutic Services section as a direct response to FOSTA. That Koszyk’s actions “do not fall within those proscribed by the Act,” is irrelevant,” they wrote. “As Craigslist is critical to Koszyk’s ability to conduct his business, its removal of his ads due to its fear of prosecution or litigation under FOSTA causes him injury.”
Plaintiffs’ counsel said that the government not only ignores these facts, it misreads the law in regards to the determination of standing.
“Its claim that the standing inquiry must be ‘especially rigorous’ fails to recognize the First Amendment context of this case,” they wrote. “There is no authority for the government’s proposition that plaintiffs’ speech has not been chilled because they have not gone completely silent. The law is clear that ‘[a] statute which has the effect of deterring speech, even if not totally suppressing speech, is a restraint on free expression.’”
Plaintiffs’ counsel also noted that the Justice Department styled its opposition to the motion for a preliminary injunction as also constituting its motion to dismiss the complaint.
“The court’s rules allow more time for an opposition to a motion to dismiss than has been allowed for briefing and hearing the preliminary injunction motion,” plaintiffs’ counsel wrote. “Plaintiffs will oppose the motion to dismiss in due course, if necessary, in the wake of the court’s ruling on the preliminary injunction.”
Counsel representing the plaintiffs includes Bob Corn-Revere of Davis Wright Tremaine; Lawrence Walters of the Walters Law Group; Aaron Mackey, David Greene and Corynne McSherry of the Electronic Frontier Foundation; and Daphne Keller of the Stanford Law School Center for Internet and Society.
Leon will hear the motion for preliminary injunction on Thursday at 4 p.m., in his courtroom at U.S. District Court in the District of Columbia.
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