WASHINGTON – When lawyers for the U.S. Dept of Justice filed a brief opposing the plaintiffs’ request for a preliminary injunction and requesting dismissal of their lawsuit challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), it repeatedly argued the plaintiffs misread the law in their complaint – and lacked standing to challenge the statute in the first place.
The plaintiffs have answered with a reply which asserts it is the government, not the plaintiffs, who misreads both the law being challenged and the legal precedents which define the question of standing in the case.
Arguing that the plaintiffs have already been injured to the extent they’ve muzzled their own expression for fear of running afoul of FOSTA, the plaintiffs asserted the law “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. The Act must therefore be preliminarily enjoined.”
The DOJ argued in its opposition to the preliminary injunction the plaintiffs had failed “to establish a credible threat of prosecution based on constitutionally protected activity,” and therefor there’s no need for a preliminary injunction. The plaintiffs argued in response that it is “well established that a credible threat of present or future criminal prosecution will confer standing.”
In their reply to the government’s opposition, the plaintiffs argued that “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.’”
“The Government acknowledges these terms are undefined (and unrestricted) in the Act and that their ‘sweep is vast,’” the plaintiffs noted in their reply. “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.”
The reply provided specific examples of how each plaintiff has a credible fear of prosecution under FOSTA, stating that among other things, Woodhull “needs to know if FOSTA can be enforced against online services such as a Facebook Live feed and live tweets on Twitter, where sex workers identify themselves as such and may provide contact information.”
“It is unclear whether, by giving specific sex workers this online platform, Woodhull will be seen as ‘promoting the prostitution of another person,’” the plaintiffs argued in their reply. “It is also uncertain whether its promotion of the upcoming sex worker workshops on its own website and social media violate FOSTA for the same reason.”
The plaintiffs also noted in their reply that the government has made similar arguments in previous cases which challenged laws restricting and regulating online speech – and that the court in those cases found the arguments unavailing.
“The Government in this case advances the same argument it made in opposing preliminary injunctions of both the CDA and COPA – that concerns about potential liability under Internet censorship laws are overblown,” the plaintiffs wrote. “Reviewing courts emphatically rejected those arguments, finding ‘plaintiffs’ fear of prosecution… legitimate, even though they are not the pornographers Congress had in mind when it passed the CDA.’”
In the section of the response covering the government’s motion to dismiss the case, the plaintiffs renewed their assertion that FOSTA is overbroad – and again took issue with the government’s reading of a relevant legal standard.
“The Government misstates the First Amendment standard for constitutional overbreadth and then misapplies the law to the facts of this case,” the plaintiffs wrote. “Contrary to the claim that overbreadth applies only if a law ‘could never be applied in a valid manner’ or may ‘inhibit constitutionally protected speech of third parties,’ more recent precedent provides the correct test for overbreadth: whether the law would restrict or chill a substantial amount of speech relative to the law’s legitimate sweep.”
According to the plaintiffs, the government’s argument that FOSTA is not overbroad rests on “the erroneous premise that the First Amendment permits prohibiting any speech that may be linked to criminal activity.”
“The Government then incorrectly concludes that FOSTA’s ‘plainly legitimate sweep’ is ‘vast’ because it assumes the state can broadly prohibit online speech relating to ‘sex work’ because it ‘by definition, is a commercial activity, and for the most part in the United States is an illegal activity,’” the plaintiffs noted in their reply. “This, in a nutshell, is FOSTA’s overbreadth problem: FOSTA’s sweep is indeed ‘vast,’ but the government’s constitutional latitude for imposing restrictions on speech is far more constrained. As Plaintiffs showed in their Motion, this simplistic conclusion has been rejected by every court that has considered it, yet the Government does not mention this body of law.”
The plaintiffs also argued that because FOSTA “clearly defines the speech it targets and criminalizes by its content – online speech related to prostitution or sex trafficking – it is subject to strict scrutiny, which it cannot satisfy.”
“Any contention that the law is not content-based because it regulates speech ‘only with respect to illegal activity’ is wrong,” the plaintiffs wrote.
Referencing the three prongs of the strict scrutiny test – a statute must advance a “compelling governmental interest,” be narrowly tailored to achieve that interest and must be the least restrictive means for achieving that interest – the plaintiffs argued FOSTA fails all three prongs of the test.
“The Government does not seriously attempt to fulfill its burden to show FOSTA actually serves a compelling interest and is the least restrictive means of doing so,” the plaintiffs asserted.
“First, the Government cannot prove FOSTA directly advances an asserted interest,” the plaintiffs wrote. “Instead, it merely asserts that “[c]ontrary to Plaintiffs’ allegations, FOSTA advances an important government interest,” without identifying the specific interest to be served or responding to Plaintiffs’ expert declarations stating that FOSTA will not serve the objectives of law enforcement and instead will be counterproductive.”
That FOSTA doesn’t employ the least restrictive means of advancing the government’s asserted interest is manifest in one of the government’s own arguments, the plaintiffs added.
“DOJ proves this point when it states ‘before FOSTA was enacted, websites could have been prosecuted in federal court for those same or substantially similar crimes,’” the plaintiffs wrote. “This is analogous to the situation in Playboy Entertainment Group, where the Supreme Court, applying strict scrutiny, struck down a provision of the Telecommunications Act that was substantially duplicative (and more restrictive) than another provision directed at the same problem because the government failed to prove the necessity of the more restrictive provision. The same analysis applies here, and the Court should enjoin FOSTA on this basis alone.”
The plaintiffs also asserted that the government’s contention that criminal conduct subject to prosecution under FOSTA can already be prosecuted under other laws argues in favor of issuing the preliminary injunction requested by the plaintiffs.
“(T)he Government argues that anything reached by FOSTA could be prosecuted under existing law, thus admitting there is no public interest downside to granting injunctive relief,” the plaintiffs wrote.
The legal team representing the plaintiffs includes Robert Corn-Revere of Davis Wright Tremaine, LLP, Larry 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.
A hearing on Woodhull’s preliminary injunction request is scheduled for this Thursday, July 19, at 4pm.
