Welcome News: DC Circuit Revives The Constitutional Challenge Of FOSTA
from the appealing-decision dept
We’ve written several times before about the constitutional challenge to FOSTA in the case Woodhull Freedom Foundation, et al. v. U.S. That challenge hit a roadblock when the district court dismissed that lawsuit for lack of standing by the plaintiffs. Per the district court, the plaintiffs had not been hurt by the statute, nor were they likely to be hurt by it, and thus they had no right to challenge it in the courts. The plaintiffs appealed, and we supported the appeal with an amicus brief.
Back in September I attended the oral argument in the appeal and came away cautiously optimistic that the DC Circuit would see the matter differently. While the way the DOJ read the statute would mean that the plaintiffs had nothing to fear, what the court honed in on was that it was not the only plausible way to read the statute. And with these other plausible reads the plaintiffs would indeed have something to worry about.
On Friday the court issued its ruling, and, as I’d suspected/hoped, it reversed the dismissal of the case by finding standing for at least two of the plaintiffs, which the court decided was enough for purposes of reviving the litigation. [p. 12]. For plaintiffs like Eric Koszyk, a licensed massage therapist whose ability to earn a living was harmed when Craigslist prohibited ads for therapeutic services in the wake of FOSTA, [p. 9], the court found they had standing based on the issue of “redressability.” In other words, while the direct harm them was due to actions taken by a third party (in Koszyk’s case when Craigslist prevented him from posting any more of the ads he had posted for years and depended on to find his clientele), the court found that the harm was really attributable to FOSTA and thus likely to be remediated if the law were found unconstitutional. [p. 17-18].
Meanwhile, for plaintiffs like Alex Andrews, who runs a website called “Rate That Rescue,” “which is a sex worker-led, ratings and review website that provides a resource for sex workers to learn more about the various organizations that provide services for them,” [p. 8-9], the ambiguous language of the statute put their constitutionally-protected activity in jeopardy.
Andrews has established an Article III injury-in-fact because she has alleged ?an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.? Her alleged conduct is ?arguably affected with a constitutional interest,? because Andrews? intended future conduct involves speech. Andrews operates a website that allows sex workers to share information. Her conduct is ?arguably proscribed? by FOSTA because it is a crime to own, manage, or operate an ?interactive computer service? with the intent to ?promote or facilitate the prostitution of another person,? 18 U.S.C. ? 2421A(a). FOSTA does not define ?promote? or ?facilitate,? nor does it specify what constitutes ?prostitution,? a term undefined by federal law. Nor are these terms limited by a string of adjacent verbs (such as advertises, distributes, or solicits) that would convey ?a transactional connotation? that might narrow the statute?s reach. [p. 13].
These terms, ?promote? and ?facilitate,? the court continued, ?are susceptible of multiple and wide-ranging meanings.? [p. 13]
Because the verbs ?promote? and ?facilitate? are disjunctive, FOSTA arguably proscribes conduct that facilitates prostitution. The common meaning of facilitate is ??to make easier? or less difficult, or to assist or aid.? [?] Alternatively, the term ?facilitate? could be interpreted ?as a synonym for ?terms like ?aid,? ?abet,? and ?assist,?? in which case the term?s meaning would be limited by the background law of aiding and abetting. Even reading the term ?facilitate? narrowly, Andrews has adequately alleged her intention to engage in a course of conduct arguably proscribed by FOSTA. [p. 13-14].
And that wasn’t all. Back when amicus briefs were filed in support of the government, we noticed a strange one submitted by twenty-one state attorney generals. The problem was, for the government to win the appeal and keep the constitutional challenge dismissed, it needed to convince the appeals court that the plaintiffs had not been hurt and would not be hurt. But then the state attorney generals filed their brief, which proudly made the point that they just hadn’t used the power FOSTA granted them to hurt people like the plaintiffs yet. The court noticed that brief, and how it served to bolster the plaintiffs’ standing argument:
Furthermore, Section 2421A provides a private right of action for any person injured by an aggravated violation. 18 U.S.C. ? 2421A(c). The Supreme Court has acknowledged that ?[t]he credibility of [a] threat is bolstered? where ?the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations.? And Congress amended Section 230 to allow prosecutions under state law if the conduct underlying the charge would constitute a violation of Section 2421A. Twenty-one states emphasize that ?the State need not wait for the Department of Justice to prosecute traffickers operating in the State.? Amicus Br. for the State of Texas, et al., 9. This amicus brief also cites pending legislation in Texas that would enact a local FOSTA. Id. at 9 n.3. These states have not disavowed any intention to prosecute individuals like Andrews. [p. 16-17]
All in all, this decision is good news, but it doesn’t end the matter. With standing now found, the case has been revived and remanded back to the district court for further proceedings to determine FOSTA’s constitutionality. One note of caution for those hoping for such a result, however, is that one of the three judges on the panel, Judge Katsas, while agreeing with the ultimate finding that the plaintiffs did indeed have standing, articulated some reservations about how that standing was found. To him FOSTA’s language simply wasn’t quite as vague and all-encompassing as the plaintiffs claimed:
Properly construed, FOSTA does not arguably cover the advocacy, education, assistance, or archiving done by plaintiffs Woodhull Freedom Foundation, Human Rights Watch, and Internet Archive. Nor does it arguably cover Andrews?s website insofar as it provides information about ?support and rescue? organizations that either discourage prostitution altogether or seek to mitigate its harmfulness. But as my colleagues explain, the website also provides prostitutes with information about ?online payment processors like PayPal,? which directly assists the exchange of sex for money. In context, such postings might support an inference that Andrews has the requisite intent to ?promote or facilitate the prostitution? of someone besides herself. Because Andrews thus arguably engages in activities proscribed by FOSTA, I agree with my colleagues that she has standing to challenge it. [concurrence p. 2-3]
So, although this decision is a win, there will be lots more for the plaintiffs to fight about in order to get FOSTA finally set aside.