WASHINGTON — A judge's dismissal of a legal challenge to FOSTA was plain and simple — the plaintiffs, including the Woodhull Freedom Foundation — lacked standing, or a vested interest, in the case.
Plaintiffs now are weighing what to do next after U.S. District Judge Richard Leon on Tuesday refused to grant relief over amendments to Section 230 of the Communications Decency Act that enable state prosecutors to apply their statutes against prostitution.
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. The federal statute also allows for civil claims, as well.
Though Leon’s decision is certainly not what Woodhull and the other plaintiffs wanted, adult industry attorney Joe Obenberger — a former federal prosecutor who is not a party to the case challenging FOSTA — said the ruling is nonetheless “a decision rendering remarkable and profound protection concerning criminal liability under FOSTA.”
“Judge Leon's decision goes very far to limit the government's use of FOSTA against broad, vague claims that an online publisher somehow generally advanced prostitution,” Obenberger told XBIZ. “He used strong language to say that's just not enough for a conviction.”
Obenberger said that Leon’s wording in a memorandum opinion issued yesterday interpreted Section 2421A, the so-called centerpiece of FOSTA and this case.
There, the law creates a federal criminal offense for owning, managing or operating an online service with the intent to promote or facilitate the prostitution of another person or conspiring to do so.
"Section 2421A will require the government to show not simply that the defendant was aware of a potential result of the criminal offense, but instead that the defendant intended to 'explicitly further' a specified unlawful act," Leon wrote. “Of course, the mere promotion or facilitation of prostitution is not enough ….”
Obenberger said that Leon identified and coupled three parts of the statute to determine its sharp limitations.
“First, the prostitution must be linked specifically to ‘another person’ or ‘five or more,’" Obenberger said. “Second, the prostitution must be against the law of a particular jurisdiction. Third, the mens rea described in the statute — the criminal intent required — is one that he calls ‘stringent.’
“From these three factors, he reads the act to require that one is guilty of violation of FOSTA only when a specific act of illegal prostitution of a particular person in a particular jurisdiction is intended,” Obenberger said.
“It would be the difficult job of a prosecutor to prove a facilitation or promotion of a very particular, specified, identified act.”
Even though there was some clarification of Section 2421A, Obenberger said that the “major letdown” of the case is that Leon refused relief concerning the amendments to Section 230 that enable state prosecutors to apply their prostitution statutes.
“Judge Leon never really reaches Section 230, apparently because he does not believe that any of the parties have standing, a vested interest, strong enough to stay in court; this may be the weakest part of his reasoning,” Obenberger said.
“Until or unless he is reversed on appeal, the boots on the ground can be expected to challenge criminal prostitution laws on privacy grounds in court, or to agitate for their repeal in jurisdictions whose populations may accept the idea,” he said.
“Should even a small number of states do so, it is likely that a significant number of others would follow.”
