WASHINGTON – At what point does a possibility of prosecution under a statute become a “credible threat” of prosecution under the same law?
While not stated quite this way, the question above has taken center stage in filings submitted by the opposing parties in Woodhull Freedom Foundation v. Sessions, the lawsuit challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”) filed by Woodhull and its co-plaintiffs, the organizations Human Rights Watch and the Internet Archive, along with two individual plaintiffs – massage therapist Eric Koszyk and Jesse Maley (AKA Alex Andrews), an activist and advocate for sex workers.
The government’s core argument (quoting the case Backpage.com, LLC v. Lynch) is that to establish standing in the case, the plaintiffs must “allege an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there [must] exist a credible threat of prosecution thereunder.”
As the government’s legal team sees it, the plaintiffs haven’t met this burden.
“None of the Plaintiffs has identified an intended course of conduct that is proscribed by section 2421A,” the government reiterated in its latest filing in the case. “Moreover, the plain language of section 2421A makes clear that it does not prohibit conduct protected by the First Amendment.”
Referencing the case Sandvig v. Sessions, the government said the court in that case “recognized that a court need not accept a ‘frivolous’ interpretation of a statute.”
“When determining if a plaintiff has standing, the Court can, and should, consider whether a statute’s meaning is plainly contrary to a plaintiff’s interpretation,” the government argued in its brief. “Otherwise, the requirement that a plaintiff establish that its intended conduct is ‘proscribed by [the challenged] statute’ would be meaningless.”
The government further asserted that the “language of section 2421A cannot plausibly be read to criminalize any of the intended conduct that Plaintiffs have identified because none of the Plaintiffs alleges an intent to promote or facilitate the prostitution of another person; nor does any Plaintiff allege that its intended conduct is illegal in the jurisdiction where it would occur.”
In a supplemental brief filed in support of their motion for a preliminary injunction, the Woodhull plaintiffs countered that the government “fundamentally misapplies the First Amendment in this case because it misapprehends how FOSTA regulates speech.”
“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 plaintiffs wrote. “The same standard applies to operation of an ‘interactive computer service,’ as the case law uniformly holds.”
The plaintiffs also argued the government’s contention “that the law would not reach Plaintiffs’ activities because of strict mens rea requirements is also wrong.”
“Even under an intent standard (as in Section 2421A), Plaintiffs Woodhull, HRW, and Andrews all use and operate interactive computer services with the intent to advocate for, and to provide assistance to sex workers – including those involved in prostitution,” the plaintiffs wrote. “That suffices to support a prosecution under Bennett. In particular, those who advocate decriminalization have reason for concern, as such advocacy may be considered evidence of intent to facilitate a violation of the law.”
The plaintiffs further argued that the government’s reliance on the mens rea standard applied in Backpage v. Lynch is mislaid, in no small part because the holding in that case was based on an interpretation of the law before FOSTA was passed.
“Congress amended Section 1591 to broaden ‘participation in a venture’ to undo the mens rea standard articulated in Lynch,” the plaintiffs noted. “The House Report on FOSTA explained the reason for these changes: proving specific knowledge was too difficult, so Congress had to adopt a new statute that ‘targets promotion and facilitation of prostitution’ based on the premise that “prostitution and sex trafficking are inextricably linked.’”
The plaintiffs also noted that the government itself has already described the House’s signing statement quoted above as “the best guidance as to what [DOJ] sees as the law and how it interprets it.”
“That statement explains that FOSTA was adopted because, under prior law, prosecutors were ‘limited by the high evidentiary standard needed to bring federal criminal charges,”’ the plaintiffs wrote. “These changes create a particular threat of liability for online platforms that host third-party speech.”
At this time, it is not clear when U.S. District Judge Richard Leon, the judge hearing the case, will rule on the plaintiffs’ motion for a preliminary injunction, or the government’s motion to dismiss.
