WASHINGTON — Lawyers representing the Woodhull Freedom Foundation and other plaintiffs filed court papers today to support their motion for preliminary injunction against FOSTA.
Woodhull — along with the Human Rights Watch, the Internet Archive and two individuals, Alex Andrews and Eric Koszyk — filed a lawsuit against the federal government focusing on First and Fifth Amendments violations that come with the statute amending Section 230 of the Communications Decency Act. Section 230 provided companies immunity from most liability for publishing third-party content.
FOSTA, known formally as the Allow States and Victims to Fight Online Sex Trafficking Act, brings new tools for law enforcement, including the ability to bring criminal charges against the operators of sites that facilitate prostitution, as well as for private lawsuits.
Since initiating the suit seeking the law's reversal, Woodhull and other plaintiffs have said that FOSTA chills sexual speech and harms sex workers.
In a supplemental brief filed today in support of an injunction, Woodhull said that FOSTA can be interpreted to reach plaintiffs’ activities, and that the plaintiffs face a credible threat of prosecution, and that they are likely to be adversely affected by the law.
“This court should hold that plaintiffs have standing and issue the requested preliminary injunctive relief,” said plaintiffs’ counsel, which include attorneys Bob Corn-Revere, Ronald London, Daphne Keller and Lawrence Walters, along with counsel from the Electronic Frontier Foundation.
“The government fundamentally misapplies the First Amendment in this case because it misapprehends how FOSTA regulates speech,” plaintiffs counsel wrote in the motion. “Contrary to the government’s mistaken assumption, the only activity of an interactive computer service is communication, and FOSTA’s amendments to Section 230 provide that the operator of such a service shall be treated as the publisher or speaker of … information provided by another on topics specified by the law."
Plaintiffs attorneys said the misunderstanding undermines the government’s overall defense of FOSTA, “including its analyses of whether the law reaches plaintiffs’ activities, whether there is a realistic threat of prosecution or civil liability and how those risks affect the plaintiffs.”
“If FOSTA had been enacted pre-internet and imposed penalties on anyone who owns, manages, or operates a printing press or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person, no one would doubt it was a regulation of the press and subject to strict First Amendment limits.
“The same standard applies to operation of an interactive computer service, as the case law uniformly holds.”
U.S. District Judge Richard Leon in Washington already has heard oral arguments over the plaintiffs’ request for injunctive relief.
In the proceedings on July 19 at U.S. District Court for the District of Columbia, the plaintiffs’ motion was heard and taken under advisement.
Leon said that he would allow supplemental pleadings within 10 days of receipt of transcript. Today, plaintiffs filed their additional pleadings.
Leon, however, did not disclose when he would rule on the motion for preliminary injunction.