WASHINGTON – After responding to the U.S. Dept of Justice’s claim they lacked standing to file the case, the legal team representing the Woodhull Freedom Foundation and other plaintiffs in a case challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”) have now turned their attention to opposing the government’s motion to dismiss the case.
In a response filed Thursday, the plaintiffs renewed their assertion they have standing to challenge FOSTA and argued their complaint “states multiple claims upon which relief can and should be granted.”
“Plaintiffs have standing to challenge FOSTA because the law proscribes online speech in ways that directly threaten Plaintiffs’ expressive activities,” the plaintiffs stated in their response. “The Government’s Rule 12(b)(1) argument, predicated solely on lack of standing, asserts that Plaintiffs face no credible threat of enforcement, based on a claim that FOSTA does not proscribe any course of conduct in which they wish to engage. This argument disregards the full scope and contours of the Act, the facts it alleges regarding Plaintiffs, and the history of regulation and enforcement actions targeting online speech that makes clear why concerns about potential liability are credible.”
While the government asserted in its motion to dismiss that none of FOSTA’s prohibitions are “aimed directly at Plaintiffs,” the plaintiff’s legal team says this argument is beside the point.
“The issue before the Court is not simply whether FOSTA’s prohibitions are ‘aimed directly at Plaintiffs,’ as DOJ posits… or the likelihood of a U.S. attorney initiating a prosecution,” the plaintiffs wrote, quoting ACLU v. Reno to add that the court should “assume a credible threat of prosecution in the absence of compelling contrary evidence.”
The response noted this is a “quite forgiving” standard which should be construed in favor of Woodhull and the other plaintiffs in the case.
“The rationale underlying this rule is that credible threat of present or future prosecution is itself an injury that suffices to confer standing, even if there is no history of past enforcement,” the plaintiffs added. “This recognizes that a speaker who fears prosecution may engage in self-censorship, which is itself an injury.”
Beyond noting that previous courts have construed the issue in favor of plaintiffs in similar cases, the Woodhull plaintiffs asserted that the government is assessing the risk according to its own interpretation of the statute – and claimed this is not the interpretation the court should adopt in considering the motion to dismiss.
“Standing to bring a pre-enforcement challenge to a statute is adjudged according to the Plaintiffs’ interpretation of the statute, not the interpretation of the Government,” the plaintiffs wrote. “The Supreme Court has found injury-in-fact for plaintiffs ‘who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution.’”
Beyond the question of how the DOJ would interpret and apply the law, the plaintiffs also noted FOSTA creates causes for action by civil plaintiffs and other potential litigants – a fact which means the plaintiffs can’t take much comfort in the DOJ’s promise to construe and enforce the law narrowly.
“This is not a situation where the lead agency or official in charge of enforcing a law can announce a definitive interpretation to remove doubts about its scope or otherwise deny any intention to enforce it,” the plaintiffs wrote. “The extent to which FOSTA will be applied to restrict online speech simply is beyond DOJ’s control. State attorneys general and private civil litigants each will likely have their own definitions of ‘promote,’ ‘facilitate,’ ‘assist,’ ‘support’ and ‘contribute to sex trafficking,’ and may not be as studied in the supposedly limited applications of the Travel Act as DOJ claims it intends.”
The plaintiffs also argued the government’s assessment of the plaintiffs’ risk of being prosecuted under FOSTA “ignores the history of Internet regulation and the series of events that led to FOSTA’s adoption.”
“For nearly a decade, law enforcement officials at the state and local level attempted various ways to impose criminal and civil liability on Internet intermediaries for hosting speech related to sex, and when they were unsuccessful, lobbied Congress to remove immunities provided by Section 230,” the plaintiffs wrote. “Civil litigants who had been actively involved in suing online platforms also sought to modify the law to make imposing liability easier. FOSTA was the result, and the end product was even broader than the changes originally contemplated. In light of this background, Plaintiffs’ concerns about potential liability are well-founded.”
