UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Woodhull Freedom Foundation, et al., )
)
Plaintiffs, )
)
v. ) Civil Case No. 18-cv-01552 (RJL)
)
United States of America, et al., )
)
Defendants. ) F I L E D
§ SEP 2 4 2018
C|erk, U.S. Distr|ct & Bankruptcy
MEMORANDUM OPINION COU|'tS lof the DlStl'lCt Ol COlUmbla

 

september 2$/((', 2018 [Dkr. ## 5, 16]

On June 28,‘ 2018, plaintiffs filed their complaint challenging the constitutionality
of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No.
115-164, 132 Stat. 1253 (2018) (“FOSTA” or “the Act”). See Compl. ll l [Dkt. # l]. The
same day, plaintiffs filed a motion for preliminary injunction, asking this Court to enjoin
the enforcement of the Act pending the resolution of this litigation. See l\/lotion for
Preliminary lnjunction l (“l\/lot. for Prelim. Inj.”) [Dkt. # 5]. Plaintiffs, “advocacy and
human rights organizations, two individuals and the leading archival collection of lnternet
content,” raise a bevy of claims. Id. at 2. They assert that FOSTA violates the First and
Fifth Amendments to the U.S. Constitution, as Well as the EX Post Facto clause of Article
I, Section 9. See Compl. 1[1[ 126-74. From plaintiffs’ perspective, FOSTA offends the
Constitution in a variety of ways: it is overbroad, vague, impermissibly targets speech

based on viewpoint and content, pares back immunity from certain state law claims, erodes

the scienter requirement, and wrongly criminalizes conduct that was lawful at the time
committed See id. Defendants, United States and Attorney General Jefferson B. Sessions
(hereinafter “defendants” or “the Government”), disagree. "l`hey argue that plaintiffs lack
standing to challenge the Act’s constitutionality and that, in all respects, F()STA passes
constitutional muster on the merits. For the reasons discussed below, l agree with the
defendants and will DENY plaintiffs’ 1\/lotion for Preliminary lnjunction [Dkt. # 5], and
GRANT defendants’ l\/lotion to Dismiss (“l\/lot. to Dismiss”) [Dkt. #16:|.
I. Statutory Scheme

The Allow States and Victims to Fight Online Sex Trafficking Act of2017, Pub. L.
No. 115-164, 132 Stat. 1253 (2018) (“FOSTA” or “the Act”) passed the l*louse of
Representatives and the Senate on February 27, 2018 and l\/larch 21, 2018, respectively.
President Donald .l. "frump signed the bill into law on April 11, 2018, and FOSTA took
immediate effect. 132 Stat. 1253, § 4(b).

FOS'l`A adds one section to the U.S. Code, and amends three others. ”l`he Act
implements the “sense of Congress” that the Communications Decency Act of 1996,
codified in 47 U.S.C. § 230, “was never intended to provide legal protection to websites
that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in
advertising the sale of unlawful sex acts with sex trafficking victims."’ 132 Stat. 1253, §
2(1). lndeed, “websites that promote and facilitate prostitution have been reckless in
allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking

ofchildren and victims offorce, vfraud, and coercion.” Icz’. § 2(2). For this reason, the Act

continues, “clarilicatit)n of [Section 230] is warranted” in order to ensure that that section
does not shield “‘such websites” from appropriate liability. ]a’. § 2(3).

Section 2421A is the centerpiece ofFOS'l"A and this case. There, the Act creates a
federal criminal offense for owning, managing, or operating “an interactive computer
service . . . with the intent to promote or facilitate the prostitution of another person,"` or
attempting or conspiring to do so. 18 U.S.C. § 2421A(a). This offense is punishable by
fine or up to ten ycars’ imprisonment. lcz’. A defendant facing this charge may avail himself
of an affirmative defense, namely that “the promotion or facilitation of prostitution is legal
in the jurisdiction where the promotion or facilitation was targeted.” 10’. § 2421A(e). The
burden for establishing the affirmative defense lies with the defendant, who must establish
this fact by a preponderance of the evidence. [d.

Section 2421A further provides for an “aggravated” version of the same offense,
punishable by fine or up to twenty-five years’ in prison. See id. § 2421A(b). The
aggravated offense layers additional elements on top ofthe Section 2421A(a) base offense
Thus, Section 2421A(b) imposes criminal liability on anyone who owns, manages, or
operates an interactive computer service with the intent to promote or facilitate the
prostitution of another person and either (1) “promotes or facilitates the prostitution of five
or more persons,” see id. § 2421A(b)(i), or (2) “acts in reckless disregard of the fact that
such conduct contributed to sex trafficking[] in violation of 18 U.S.C. § 1591(a),” see id.

§ 2421A(b)(ii). Section 159l(a), a preexisting provision ofthe criminal law, prohibits sex

trafficking See /c/. § 1591(a).l Under Section 2421A(c), victims ofviolations of Section
2421A(b) may bring civil suits in federal court to “recover damages and reasonable
attorneys fees.” Ia’. § 2421A(c). FOS'I`A also directs the court to order restitution for any
violation ofsubsection (b)(2).

Next, FOS'l`A amends 47 U.S.C. § 230, the “safe harbor” of the Communications
l)ccciicy Act of 1996 (“Cl`)A”). Section 230 has two key functions. First, it immunizes
interactive computer services from criminal and civil liability for content created by third
parties. See 47 U.S.C. § 230(c)(1) (providing that “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of any information provided
by another information content provider”); ia’. § 230(e)(3) (_preempting conflicting state
and local law); see also Bennetl' v. Goagle, LLC, 882 F.3d 1163, 1165 (D.C. Cir. 2018)
("‘"l`he intent of the [Communications Decency Act] is thus to promote rather than chill
internet speech.”); see also Janes v. Di//ly Worla’ Enrertal`mnent Recordz`ngs LLC, 755 F.3d
398, 406-07 (6th Cir. 2014) (“Section 230 marks a departure from the common-law rule
that allocates liability to publishers or distributors oftortious material written or prepared
by others.”). At the same time, however, Section 230 “encourage[s] service providers to
self-regulate the dissemination of offensive material over their services.” Bennetl, 882

F.3d at 1165 (quoting Zeran v. Am. On[z`ne, Inc., 129 F.3d 327, 331 (4th Cir. 1997)). With

 

l Because sex trafficking of minors and sex trafficking “by force, fraud, or coercion” are unlawful
in the United States, see 18 U.S.C. § 1591, the fact that prostitution is legal in thejurisdiction where the
promotion or facilitation is targeted is not an affirmative defense as to subsection (b)(2). See ia’. § 2421 A(e).

these two grants of immunity, Section 230 “incentivize[s] companies to neither restrict
content nor bury their heads in the sand in order to avoid liability.” Ia’.

FOS'l`A clarifies the scope of Section 230’s preemptive effect. rl`he Act states that
“nothing in” Section 230(c)(1) ~ the provision immunizing providers of interactive
computer services from liability for the speech of third parties » “shall be construed to
impair or limit” three categories ofcivil claims and criminal prosecutions [a’. § 230(e)(5).
First, FOSTA makes clear that Section 230 does not preclude civil claims by victims
against perpetrators and persons who “receiv[ed] anything of value from participation in a
[:sex traf`ficking:| venture” under 18 U.S.C. § 1595 ifsuch participation was “knowing" as
defined in 18 U.S.C. § 1591. [a’. § 230(e)(5)(A). Second, Section 230 does not foreclose
state criminal prosecution if the conduct underlying the charge would have violated 18
U.S.C. § 1591. ld. § 230(e)(5)(B). And third, Section 230 does not preclude state criminal
prosecution if the conduct would constitute a violation of 18 U.S.C. § 2421A, the newly-
created li`OSTA criminal offense. ]d. § 230(e)(5)(C). ffhese amendments to Section 230
“shall apply regardless of whether the conduct alleged occurred, or is alleged to have

occurred, before, on, or after such date of enactment.”2 132 Stat. 1253, § 4(b).

 

2 As FOS'I"/~\ worked its way through the legislative process, the Department of rlustice wrote to
Rep. Bob Goodlatte, one of the Act’s sponsors See 164 Cong. Rec. H1297 (daily ed. Feb. 27, 2018). 'l`he
letter began by raising some prudential concerns about the necessity of FOSTA and its effectiveness as a
law enforcement tool. After making these policy-based complaints, the DOJ expressed concern that the
retroactive application of FOST/¢\’s amendment ofSection 230 ran afoul ofthe Ex Post Facto Clause ofthe
U.S. Constitution. ln particular, the DO.I wrotc, “insofar as [FOSTA] would ‘impose|:| a punishment for
an act which.was not punishable at the time it was committed’ or ‘impose[:| additional punishment to that
then prescribed,”’ it would offend the Ex l’ost Facto clause. Id. (quoting (71/'11”1/'11§;.\' v. Ml'.s'.s'z)m”i, 4 Wall.
277, 325-26 (1867)).

Next, F()S'l`A adds a definition to 18 U.S.C. § 1591, the provision of the code that
prohibits sex trafficking There, l*`()S"l`/\ clarifies that the term “participation in a venture”
means “knowingly assisting, supporting, or facilitating" sex trafficking la’. § 159l(e)(4).
'l"he term “participation in a venture” appears elsewhere in the same section, but had
previously been undefined. See ia'. § l591(a)(2) (criminalizing the knowing “participation
in a venture” to cause sex trafficking of an adult by “force, fraud, or coercion" or of a
minor).

Fourth, and finally, FOSTA amends Section 1595 ofthe same title to authorize state
attorneys general to bring civil actions 111 parens patriae on behalfof residents of the state
who have been “threatened or adversely affected by any person who violates” 18 U.S.C. §
1591. See 18 U.S.C. § l595(d). ln layman’s terms, Section 1595 allows state attorneys
general to step into the shoes ofvictims and bring civil suits on their behalf. [a’.

II. Parties

The Woodhull Freedom Foundation (“Woodhull”) is an advocacy and lobbying
organization focused on “affirming and protecting the fundamental human right to sexual
freedom.” Declaration of Ricci Levy in Support of l\/lotion for Preliminary lnjunction (“R.
Levy Decl."`) 11 3 [Dkt. # 5-2]. lt provides “support for the health, safety, and protection of
sex workers, which include adult film performers, live webcam models. sexual wellness
instructors, exotic dancers, escorts, and prostitutes.” Ic/. 11 5. Woodhull “strongly opposes
sex trafficking or sexual assault in any form, while advocating for the right to engage in
consensual sexual activity.” Id. 'l`he organization maintains a website, ia’. 11 8, blog, ia’. 11

9, and social media accounts, z`d. 11 12.

Woodhull’s “signature event” is the annual Sexual Freedom Summit, held in the
Washington, D.C. area. See ial 1111 16-26. The Summit “brings together hundreds of
educators, therapists, legal and medical professionals,” id. 11 16, and features “workshops
devoted to issues impacting sex workers, such as harm reductions, disability, age, health,
and personal safety,” ia'. 11 17. The most recent Summit took place while this litigation was
pending, from August 2-5, 2018 in Alexandria, Virginia.3 As part of the Summit,
Woodhull represented that it intended to use social media, such as Facebook Live and
'l`witter, to reach individuals unable to attend in person. [a’. 11 24. Livestreamed events
included titles such as “Criminalization of Sex Work is a Human Rights Violation and a
liabor Rights Concern,” “FOS'l"A! lfow Congress Broke the lnternet,” and “Sexual
l"reedom in the Age of "l"rump.” See https://www.sexualfreedomsummit.org/. Woodhull’s
President, Ricci Levy, represents that the organization has “a well founded fear"’ of
prosecution under FOSTA based on “its efforts to promote information about sex workers
on the lnternet."' llevy Deel. 1111 37-38.4

The second named plaintiff, l~luman Rights Watch (“l-IRW"), monitors potential

violations of human rights around the world. Declaration of Dinah PoKempner

 

3 As discussed below, plaintiffs requested a ruling from this Court on the motion for preliminary
injunction prior to the Summit. Nevertheless, the Summit took place and, so far as the Court is aware, no
prosecutions or civil suits have ensued against Woodhull for its sponsorship ofthe Summit.

4 Woodhull’s President, Ricci lsevy, avers that the organization has taken precautionary steps to
avoid FOSTA liability. These prophylactic steps included refraining from publishing articles on the
Woodhull website concerning FOSTA and its effect on sex workers. Levy Decl. 11 28. Those planned
articles and blog posts would have advocated against the enforcement of FOST/~\, and “educated [sex
workers] about their rights, risks, and options under the new legal environment." /a'. ln addition, Woodhull
initially decided to self-censor the promotion of workshops related to sex workers at the Summit, although
it eventually reversed this position and advertised for those events on its website and by way of social
media. 151.111132-33, 36.

(“PoKempner Decl.”) 11112-3 [Dkt. # 5-31. As part ofthis mission, HRW does research and
advocacy on behalf of sex workers, including in favor of decriminalization. Ia’. 1111 2-5.
l~lRW’s body of`work includes reporting on such issues as “police searches of women for
condoms as evidence of prostitution” in the United States Ia’. 11 5. Nevertheless, like
Woodhull, HRW is fiercely opposed to “[f]orced prostitution and trafficking.” Ia’. 11 7.
And, like Woodhull, HRW details its “concern["|” about potential FOSTA liability
“[d]espite then clear distinctions in [its1 policy” between advocacy for decriminalization
of consensual prostitution and opposition to forced prostitution and sex trafficking [a’. 11
8‘5

Plaintiffs also include two individuals The first, Eric Koszyk, is a licensed massage
therapist in Portland, Oregon, and the sole proprietor of Soothing Spirit l\/lassage, a
massage parlor that he has run for over a decade. See Declaration of Eric Koszyk (Koszyk
Decl.) 1111 1-2, 5 1D'kt. # 5-4]. He uses Craiglist ads to attract over 90% of his customers,
and finds Craigslist to be the “easiest and best way to reach clients” for his massage
business la’. 1111 6, 9. Koszyk placed his ads in the “'l`herapeutic Services” section of
Craigslist, and specified that he was “a man providing massage therapy"` and that his
“services were professional and therapeutic.” Ia’. 11 7. li`ollowing passage of the Act,

Craigslist has taken down Koszyk’s ads, and has refused to allow him to post new ads Ia’.

 

5 l*lRW also repolts that “it is concerned that social media platforms and websites that host,
disseminate, or allow users to spread [its:| reports and advocacy materials” may be affected by Section
2421/\. l)ol(empner l)ecl.119.

1111 22-23. As a result, Koszyk represents that he “no longer [has] a place on the website to
advertise |:his] services as a licensed massage therapist.” la’. 11 23.6

flesse l\/laley is a self-described advocate for “sex workers’ health, safety, and human
rights.” Declaration ofJesse l\/laley (l\/laley Decl.) 11 l [Dkt. # 5-51. ln her professional
life, l\/laley goes by the name “Alex Andrews” [a’. 112.7 l\/laley co-founded and continues
to manage a website entitled ratethatrescue.org (“Rate That Rescue”), a “sex worker-led,
public, free community ef`fort” intended to educate sex workers about organizations used
by sex workers [a’. 11 13. The term “Rescue” refers to so-called rescue organizations
which seek to “assist or rescue sex workers.” ]a’. 11 14. Some rescue organizations at least
in l\/laley’s view, do more harm than good by failing to distinguish between consensual and
coerced sex work and “treat[ing] all sex workers as victims” Id. 11 16.

With this in mind, l\/laley co-founded Rate That Rescue in order to inform and
educate sex workers about the nature and mission ofvarious rescue organizations Since
its founding in 2015, the website has expanded to provide information on all manner of
organizations “unrelated to . . . sex work,” but nevertheless relied on by sex workers [d.

11 17. rl"hose include organizations that address substance abuse, health care, and child care.

 

(‘ Koszyk states in his declaration that “other licensed and certified massage therapists experienced
similar problems with their advertisements on Craiglist.” Koszyk Decl. 1126.

7 ln addition to her work for Rate 'l`hat l{escue, l\/laley is the treasurer and a member of the board
of directors ofthe Sex Workers Outreach Proiect USA (“SWOP USA”), the founder ofthe Orlando chapter
ofSWOP, and the founder of“SWOP Behind Bars." [a'.11113, 7-8. SWOP USA is a “national social_iustice
network” that advocates for the decriminalization of sex work; it operates a national hotline and has local
chapters [a’. 1111 3-6. SWOP Behind Bars has a more narrow focus, offering support to incarcerated sex
workers by way of a support line, an electronic newsletter, and a re-entry guide for those leaving prison.
la’. 1111 8-10. /-\lthough SWOP is not a party to this case, l\/laley represents that SWOP has chosen not to
purchase a mobile application out of concern for liability under FOSTA. Ia’. 1111 32-39.

[a'. 1111 17, 22. Listings of organizations specify basic information - a brief description of
the organization, contact information, the type of service offered - and include ratings on
a 1 to 5 scale by users, as well as comments by those users ]a'. 111121-22.

Rate That Rescue relies on ratings and reviews added by unpaid, volunteer third
parties See [d.1125. lt does so on the thinking that sex workers who have received services
from organizations will be in the best position to rate their effectiveness la’. 11 18. Users,
acting by name or anonymously, can create listings for particular organizations and post
reviews on existing listings ld. 11 19. Rate That Rescue also allows the rated organizations
to modify existing listings, and respond to users’ comments lal. 1120.8 ln her declaration,
l\/laley relays that, with FOSTA on the books, she is “extremely worried that Rate 'l`hat
Rescue is potentially criminally liable for the speech of 1its] users” [a’. 11 26. l\/laley’s
declaration discusses this concern at length, reciting various legal theories under which
Rate kl`hat Rescue could be liable under FOSTA. See id. 1111 24-31.

The lnternet Archive (“the Archive”) is an organization that archives internet
webpages. Declaration ofBrewster Kahle (Kahle Decl.)11114-7 [Dkt. # 5-61. 'l`he Archive’s
mission is to preserve digital materials in order to prevent them from “disappearing into
the past.” [a'. 11 4. lt has a function that “crawl[s]” across webpages, mapping and storing
those pages in order to preserve them for future use. la'. 11 7. 'l`he Archive collects and

stores 80 million pages per day, and includes 330 billion web pages from 1996 to thc

 

8 l\/laley’s declaration records a 1993 conviction for “aggravated promotion of prostitution in
violation of Texas law,” based on her operation ofan escort service in San Antonio. [a’. 11 1 1. The court
imposed ten years` probation; that probation period was terminated in 2001. Ia’. l\/laley represents that she
“no longer operate[s] the escort service,” and has not since her conviction. Icl.

10

present. [a’. 1111 7-8. lt therefore comes as no surprise that “1t:|he vast majority of the
material in the lnternet Archive’s collection is authored by third parties" Ia’. 11 4. ln
addition, third parties can make their own contributions to this site, supplementing the
Archive’s collection by uploading stored webpages from the past. [a'. 11 13. 'fhe general
public uploads roughly 20,000 items per day to the Archive. Ia’. Although the Archive
does “at times” remove content, it has “no practical ability to evaluate the legality of any
significant portion of the third-party content that it archives and makes available."` la’. 11
14. The Archive’s founder, Brewster Kahle, avers that he is “afi‘aid” that l?()Sil`A will
result in criminal or civil liability for the Archive. ]a’. 11 21.
III. ProceduralHistory

Plaintiffs filed this complaint on .lune 28, 2018. See Compl. 1 [Dkt. # 11. rl`he same
day, they moved for a preliminary injunction pursuant to l-`<`ed. R. Civ. P. 65(a). See l\/lot.
for Prelim. lnj. 1 1_Dkt. # 51. This Court set a hearing on .luly 19, 2018 for oral argument
on the l\/lotion. See 7/5/2018 l\/lin. Order. Prior to oral argument, the Court twice extended
briefing deadlines to afford the parties more time to develop their arguments See 7/5/2018
l\/lin. Order; 7/10/2018 l\/lin. Order. On .1uly 12, 2018, defendants filed their Opposition to
Plaintiff`s’ l\/lotion for Preliminary lnjunction [Dkt. # 151 and l\/fotion to Dismiss (“l\/lot. to
Dismiss”) 1:Dkt. # 161, and, on July 17, 2018, plaintiffs filed a Reply in support of their
l\/lotion for Preliminary lnjunction (“Pls’ Reply”) [Dkt. # 171 and, on .luly 29, 2018, an
Opposition to defendants’ l\/lotion to Dismiss [Dkt. # 191.

At the hearing, plaintiffs requested a ruling on their motion for preliminary

injunction prior to Woodhull’s Sexual Freedom Summit, scheduled for August 2-5, 2018.

11

1 advised the parties that, due to plaintiffs` decision to wait to challenge FOST/-\ until
months after its passage, as well as the novelty of the issues presented in plaintiffs’
eomplaint, this Court would not be in a position to rule and issue a lengthy opinion within
the two weeks remaining prior to the Summit. 7/19/2018 1-1r’g Tr. 13:25-15:9 1Dkt. # 23`_|.
Nevertheless, l pledged to issue an opinion as soon as practicable, and gave the parties the
opportunity to supplement their briefing within seven days ofthe publication ofthe hearing
transcript [o’. 41 :5-8, 42116-19. 'l`he briefing was finalized on August 6, 2018. See Defs.’
Reply in Support of l\/lotion to Dismiss and Supp. l\/lot. Hearing Br. 1Dkt. # 211; Supp. Br.
in Support of l’ls.’ l\/lot. for Prelim. lnj. 1Dkt. # 221.
lV. Standard of Review

Plaintiffs ask this Court to issue a preliminary injunction blocking the enforcement
of FOST/-\. The test for this “extraordinary remedy” is well known. Pursul`ng Amerl'ca ’s
Greamess vi Fea’. Elecrz`orz Comm’n, 831 F.3d 500, 505 (D.C. Cir. 2016) (quoting Wz'nter
v. Nat. Res. Def Cozmcl`l, lnc., 555 U.S. 7, 22 (2008)). 1n order to receive a preliminary
injunction, plaintiffs must make a “clear showing"` that four factors taken together, warrant
relief. Ia’. rfhese factors are “111 likely success on the merits 121 likely irreparable harm
in the absence of`preliminary relief, 131 a balance of the equities in 1their1 favor, and 141
accord with the public interest,” Icl. (citing Winler, 555 U.S. at 20); See also Davls v.
Pensz`on Benefl`l Gz,/ar. Co/”p., 571 l"`.3d 1288, 1291-92 (D.C. Cir. 2009).

Defendants, for their part, assert that the case should be dismissed for want of
subject-matter jurisdiction See Fed. R. Civ. P. 12(b)(1). 1n particular, defendants assert

that plaintiffs have failed to satisfy the requirements of Article 111 standing to sue. lt is of

19

A_,

course, black-letter law that the jurisdictional requirements of Article 111 must be present
before this Court may proceed to the merits See Sreel Co. v. C/`Il`zens for a Bel'ler
Env’l, 523 U.S. 83, 94-95 (1998). lndeed, “1i1f the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3).

l’laintiffs bear the burden of establishing by preponderance of the evidence, that
this Court has subject-matterjurisdiction over their claims See Spolceo ]nc. v. Rol)ms, 136
S Ct. 1540, 1547 (2016). At the pleading stage, this means that plaintiffs must “clearly . .
. allege facts demonstrating” each element of Article 111 standing la’. (quoting Warlli v.
Sela’l`n, 422 U.S. 490, 518 (1975)). When reviewing a Rule l2(b)(1) motion to dismiss on
jurisdictional grounds “the Court must accept as true all of the factual allegations
contained in the complaint.” U.S. ex rel Dl'gl`lal Heallltcare, lnc. v. A/j‘ilz`alecl Co/v'zpal'er
Se/”vs., 778 F. Supp. 2d 37, 43 (D.D.C. 2011). fl`hat said, 1 need not “accept inferences
unsupported by the facts alleged or legal conclusions that are cast as factual allegations.”
Rann v. Clzao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001).

Defendants also move for dismissal pursuant to lied. R. Civ. P. 12(b)(6), on the
grounds that plaintiffs have failed to state a claim upon which relief can be granted As
with the Rule 12(b)(1) motion, for purposes of Rule l2(b)(6), this Court must “assume the
truth of all material factual allegations in the complaint and construe the complaint
liberally, granting plaintiff the benefit of all inferences that can be derived from the facts
alleged” without crediting unsupported inferences from those factual allegations or legal

conclusions couched as facts See Am. Nal’l lns. Co. v. Fea’. Deposz`l his Corp., 642 F.3d

13

1137, 1139 (D.C. Cir. 2011) (citation and quotation marks omitted); Ramz, 154 1". Supp.
2d at 64.°
V. Discussion

Article 111 limits the jurisdiction of the federal courts to thc adjudication of“Cases”
and “Controversies” - that is “cases and controversies of the sort traditionally amenable
to, and resolved by, thejudicial process."` Sleel Co., 523 U.S. at 95. “‘One element of the
case-or-controversy requirement’ is that plaintiffs ‘must establish that they have standing
to sue.”’ Clapper v. Amnesly lnt’l USA, 568 U.S. 398, 408 (2013) (quoting Raz`nes v. Byro’,
521 U.S. 811, 818 (1997)). Standing “‘serves to prevent thejudicial process from being
used to usurp the powers of the political branches,’ and confines the federal courts to a
properly judicial role.” Spokeo, 136 S. Ct. at 1547 (quoting Clapper, 568 U.S. at 408).…
Given these separation of powers concerns the Supreme Court has emphasized that the
“standing inquiry has been especially rigorous when reaching the merits of the dispute

would force us to decide whether an action taken by one of the other two branches ofthe

 

9 Some cases suggest a discrepancy in the standard of review between Rule 12(b)(1) and Ru|e
12(1))(6) motions with the former requiring more searching scrutiny on the part ofthe Court than the latter.
See, e.g., G/”cmd L()clge ofF/”afernal ()rder ofPoliCe v. Ars‘l1cl'Q/l", 185 F. Supp. 2d 9, 13-14 (D.D.C. 20()1)
(“11)11aintif1"s factual allegations in the complaint. . . will bear closer scrutiny in resolving a 12(b)(1) motion
than in resolving a 12(b)(6) motion for failure to state a claim.”). Because plaintiffs fail adequately to allege
Ai'ticle 111 standing to sue, 1 need not determine what daylight, if any, exists between the 12(b)(1) and
12(b)(6) standards

'O Article 111 standing also helps to ensure that the plaintiff maintains “a ‘personal stake in the
outcome ofthe controversy.”’ Sasan B. Azilliony Li.s'l v. D/'/`ehaas 134 S. Ct. 2334, 2341 (2014) (quoting
Warlh, 422 U.S. at 498). For this reason, in order to show standing, plaintiffs must “‘allege|:'| such a
personal stake in the outcome of the controversy’ as to warrant 1their1 invocation of federal-court
jurisdiction and to justify exercise ofthe court's remedial powers on 1their1 behalf.” War/h, 422 U.S. at
498-99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

14

Federal Government was unconstitutional.” Clapper, 568 U.S. at 408 (quoting Rames, 521
U.S. at 819-20).

'fhe “irreducible constitutional minimum"` of Article 111 standing contains three
elements Spo/ceo, 136 S. Ct. at 1547 (quoting La/`an, 504 U.S. at 560). The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision. [cl.
(citing Lu_jan, 504 U.S. at 560-61).ll Of these elements the “1f11rst and foremost” is the
injury in fact requirementl Ia’. (quoting Sleel Co., 523 U.S. at 103).

As the Supreme Court has explained, in order to establish injury in fact_, “a plaintiff
must show that he or she suffered ‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.”’
[cl. at 1548 (quoting Lajarz v. Defemlers ole`lcll;`fe, 504 U.S. 555, 560 (1992)). lmminence,
the element most relevant here, “is concededly a somewhat elastic concept.” Clapper, 568
U.S. at 409 (quoting Laja/'z, 504 U.S. at 565 n.2). Nevertheless, imminence “cannot be
stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative
for Article 111 purposes - that the injury is certainly impending.” lcl. (quoting Lujarz, 504

U.S. at 565 n.2) (emphasis in original). Thus mere allegations of“possll)le future injury”

 

" rfhere is some confusion as to whether the Court may fold the Article lll standing inquiry, in the
context ofa preliminary injunction, into its assessment of the likelihood of success on the merits See, e.g.,
K)`ngmcm Park Civic As.s' ')7 v. Gray, 956 F. Supp. 2d 230, 241 (D.D.C. 2013) (ana|yzing standing as part of
the “likelihood of success on the merits” prong to the preliminary injunction test). Article 111 standing,
however, is a component ofsubject-matterjurisdiction; as such, it does not go to the merits but to the very
authority this Court has to entertain the case before it. See Sleel Co., 523 U.S. at 89-90. lior this reason, 1
will address the question of Article 111 standing to sue before considering the four-factor preliminary
injunction test.

15

cannot suffice for purposes of the injury in fact requirement lcl. (quoting W/il`lmore v.
Ar/cansas, 495 U.S._149, 158 1990)) (allegations in original); see also Szlsan B. Arzzlzony
Lisl v. Drl,`e/zaas, 134 S. Ct. 2334, 2342 (2014) (“1W1e have permitted pre-enforcement
review under circumstances that render the threatened enforcement sufficiently
imminent.”).

The concept of imminence has been particularly important in the context of prc-
enf`orcement challenges '1`he Supreme Court has held that “|:a1 plaintiff who challenges a
statute must demonstrate a realistic danger of sustaining a direct injury as a result of the
statute’s operation or eiif`orceinent.” Bal)/)z`l't v. United Farm Wor/cers Nar’l Urzz`on, 442
U.S. 289, 298 (1979). A credible threat ofprosecution exists when the challenged law “is
aimed directly at plaintiffs who, if their interpretation ofthe statute is correct, will have to
take significant and costly compliance measures or risk criminal prosecution.” Virgirzia v.
Am. Boolcsellers Ass'n, [nc., 484 U.S. 383, 392 (1988). Thus fear of prosecution cannot
be “imaginary or wholly speculative,” Bal)bz`tt, 442 U.S. at 302, and “1a1llegations of a
subjective ‘chill’ are not an adequate substitute for a claim of specific present objective
harm or a threat of specific future harm,” Lalrcl v. Tatum, 408 U.S. 1, 13-14 (1972).

Our Circuit Court has stated that the question whether “a threat of prosecution
adequate to satisfy the requirements of justiciability 1exists1 in any particular
preenforcement challenge is a factual and case-specific one.” Navegar, [nc. v. United
States, 103 F.3d 994, 999 (D.C. Cir. 1997). As such, 1 must look to the “full panoply of
circumstances relevant to the plaintiffs’ claim of an imminent threat ofprosecution.” Icz'.

'l`hose factors “may include the history of enforcement of the challenged statute to like

16

facts 1and1 any threats of enforcement.” Jolmson v. Disl. ofColum., 71 F. Supp. 3d 155,
160 (,D.D.C. 2014); see also Seegars v. Go/izales, 396 F.3d 1248, 1252 (1).C. Cir. 2005)
(summarizing analysis of pre-enforcement standing); Blzmz v. Hola’er, 744 F.3d 790, 798
(1st Cir.), cerl. clemea’, 135 S. Ct. 477 (2014) (applying Clapper to First Amendment
claim).12

Plaintiffs assert that they face a credible threat ol"prosecution under 1"`OSTA. Reply
at 2. 'l`hey claim that the statute’s broad sweep places them in criminal and civil jeopardy
for their educational and advocacy efforts concerning “sex work.” See ia’. '1`he mere threat
ofprosecution, plaintiffs maintain, itself works an injury by chilling their speech. See icl.
at 2-3. The Government', for its part, contends that plaintiffs’ conduct, as described in the
declarations accompanying plaintiffs’ l\/lotion for Preliminary lnjunction, would not fall
within FOSTA’s ambit. As such, it contends that plaintiffs lack standing to challenge the
Act’s constitutionality, because, without a credible threat of prosecution, they have
suffered no cognizable injury. For the following reasons 1 agree with the Government.

Plaintiff`s have the burden of establishing that their conduct is arguably “proscribed
by 1the challenged1 statute,” Sasan B. Anl/iony Lisl, 134 S. Ct. at 2342. As such, 1 must
compare the terms of FOSTA with plaintiffs’ actual and proposed conduct in order to

ascertain whether plaintiffs have adequately alleged standing Although plaintiffs’

 

12 To be sure, 1 “cannot construe a criminal statute on the assumption that the Government will ‘use
it responsibly.”’ McDo/mell v. UnileclSlales, 136 S. Ct. 2355, 2372-73 (2016) (quoting United S!a/es v.
Slevens, 559 U.S. 460, 480 (2010)). As explained below, however, the Government presents a strong
textual case, along with a persuasive body of evidence concerning prosecution under an analogous statute,
in support of its reading of FOSTA. Those sources are the basis for this Court’s holding - not the
representations ofthe Government as to its intended exercise of prosecutorial discretion.

17

declarations each contain pre-packaged assertions as to the legality of their proposed
conduct, those legal conclusions are not binding on this Court. See Doe v. Ramsfela’, 683
1".3d 390, 391 (D.C. Cir. 2012). Therefore, the following is a plaintiff-by-plaintiff review
of the alleged conduct and claimed bases for prosecution.

A. Woodhull Freedom Foundation

What is it that plaintiffs plan to do ? Woodhull’s l\/lotion for Preliminary lnjunction
cited its annual Sexual Freedom Summit, scheduled to take place in Virginia from August
2-5, as the primary basis for standing That event has now taken place. rl"he Summit, the
Court is told, featured workshops on topics such as “Sex and Disability: Shifting the Focus
to Disabled Sex Workers” and “Capitalism is not Consensual: Sex Workers and the Shaky
Foundations of Consent.” Levy Decl. 11 22. As part of the summit, Woodhull used social
media, such as Facebook Live and Twitter, to reach individuals unable to attend in person.
]cl. 111124-26. llivestreamed events included titles such as “Criminalization of Sex Work is
a Human Rights Violation and a Labor Rights Concern,” “FOSTA! l-low Congress Broke
the lnternet,” and “Sexual lireedom in the Age of Trump.”
https://www.sexualfreedomsummit.org/.

Woodhull does not assert that, by livestreaming or promoting its workshops or
publishing biographies and contact information ofsex workers it intends to facilitate acts
of prostitution by those sex workers Compl. 1111 74, 80-81. Nevertheless Woodhull
believes that federal, state, or local authorities could wield "the broad, vague, and
undefined prohibitions contained in FOSTA” against it for having sponsored the Sexual

Frecdom Summit. Reply at 3. That is so because, under Woodhull’s reading ofthe statute,

18

l~'"OST/-\ does not “suggest discernable limits for what might constitute promotion or
facilitation of prostitution or trafficking” l\/lot. for Prelim. lnj. at 20.

Woodhull is particularly concerned with Section 2421A’s use of the terms
“promoting” and “facilitating.” See, e.g, 7/19/2018 Hr’g 6:16-22 (stating that Woodhull
“provide1s1 workshops for sex workers again, to provide safety information, to advocate
on their behalf. . . . 1T1hey are concerned that that would be considered by some to be
promotion or facilitation of prostitution, in violation of the law.”); see also z`a’. 7:3-5
(complaining that Woodhull has been “hampered in prolnoting” the Summit due to
FOSTA). FOSTA does not define those terms and plaintiffs believe that they could sweep
broadly - so broadly, in fact, that they could place any activity that arguably “make1s1
prostitution easier” within the sweep of the statute. Mot. for Prelim. lnj. at 21. 1ndeed,
plaintiffs assert that Section 2421A can be construed to criminalize any conduct that
“make1s1 prostitution easier” or more likely. [a’.

Unfortunately for Woodhull, plaintiffs marshal precious little authority in support
of this construction First, plaintiffs cite one case from the Northern District oflllinois and
two Seventh Circuit opinions rl`hey do so in support of the proposition that merely
providing a platform for speech of someone who might commit illegal acts “does not
satisfy the ordinary understanding of culpable assistance to a wrongdoer.” Doe v. GTE
Corp., 347 F.3d 655, 659 (7th Cir. 2003); see also 111 re Almster Copyrighle'z‘ig., 3341*`.3d
643, 651 (7th Cir. 2003); Darl v. Cral‘gslz`sz‘, 665 F. Supp. 2d 961, 967 (N.D. 111. 2009).

'1`hat line ofcases however, only reaffirms the Government’s position ! '1hat is so because

those opinions reaffirm that, for platforms said to promote or facilitate particular illegal

19

acts the law imposes a heightened mens rea requirement. See GTE Corp., 347 F.3d at 659
(stating that the activity of the internet service provider “does not satisfy the ordinary
understanding of culpable assistance to a wrongdoer, which requires a desire to promote
the wrongful venture’s suecess” (emphasis added)). lndeed, Section 2421A contains just
such a heightened mens rea requirement, demanding that the Government prove lnlenl -
rather than knowledge, or even recklessness - to promote or facilitate 18 U.S.C. §
2421/-\(a).13

'fhen, in a footnote, plaintiffs cite the Oxford English Dictionary’s definition of
“promote” as “to advance or actively support,” see Oxford English Dictionary (3d ed.
2007), and Black’s 1_,aw Dictionary’s definition of “to facilitate” as “to make the
occurrence of(something) less difficult," see Black’s Law Dictionary (10th ed. 2014). See
l\/lot. for Prelim. lnj. at 24 n.9. Those definitions however, do not shed light on Section
2421A as a whole. 1nstead, they strip “promote” and “facilitate” from the rest of Section
2421A(a), ignoring both the /nens rea requirement and the language “prostitution of
another person,” which denotes specific unlawful acts Plaintiffs’ preferred method of
statutory interpretation turns a blind eye to “the specific context in which that language is
used, and the broader context of the statute as a whole.” Nal’l Veterans Legal Servs.
Progra/n v. Unilea’ Slal'es, 291 F. Supp. 3d 123, 138-39 (D.D.C. 2018) (quoting Unz`tea’

Stales v. Wr'lson, 290 F.3d 347, 352-53 (D.C. Cir. 2002)).

 

'3 Plaintiffs attempt to make much ofthe fact that Section 2421A(b)’s aggravated offense punishes
conduct based on a scienter of recklessness But the subsection (b) aggravated offense requires /)o/h intent
as to the promotion or facilitation of particular acts ofprostitution, as well as recklessness with respect to
whether that conduct constitutes sex trafficking as defined in 18 U.S.C. § 1591. "l`hus it cannot be said that
the aggravated offense punishes conduct solely on the basis ofa mens rea of recklessness

20

Woodhull’s construction of Section 2421A is fiawed for additional reasons First,
Section 2421A mirrors an existing federal criminal law, the c"’l`ravel Act,” 18 U.S.C. §
1952. The history of enforcement of the '1`rave1 Act gives a sense both of the meaning of
the plain text of Section 2421A, and of the likelihood of enforcement for specific conduct.
'1`he Travel Act bars the use of“any facility in interstate or foreign commerce” (such as the
lnternet) with the intent to “promote, manage, establish, carry on, or facilitate the
promotion, management establishing, or carrying on, of any unlawful activity,” including
“prostitution offenses in violation ofthe laws of the State in which they are committed or
ofthe United States.” 18 U.S.C. § 1952(a)(3), (b).

Woodhull does not present the Court with any example of prosecution under the
rl`ravel Act that tracks its own theory of FOSTA’s vast sweep. 1n United Slal'es v. Bennetl,
the Ninth Circuit affirmed the district court’s jury instruction, in a prosecution under the
'1`ravel Act, that ‘i‘t<) promote’ or ‘facilitate the promotion of` any illegal activity means to
do an act that would cause the activity to be accomplished or to assist in the activity.” 95
F.3d 1158 (9th Cir. 1996). This delinition, with language like “cause the activity to be
accomplished,"y or “assist in the activity,” reflects the close causal connection required for
prosecution under the Travel Act. Not surprisingly, recent prosecutions reflect the close
connection between “promoting” and “facilitating” and the underlying particular criminal
act. See, e.g., Unitea' Slal'es v. Rez`ner, 500 F.3d 10, 12-19 (1st Cir. 2007); UnitedStaz‘es v.
Seals, 5:10-CR-50127 (”l`LB), 2014 WL 3847916, at *7-8 (W.D. Ark. /-\ug. 5, 2014).

To be sure, plaintiffs attempt to distinguish Section 2421A from the Travel Act

'l`hey maintain that the ”l`ravel Act, unlike Section 2421A, proscribes specific acts of

21

prostitution as defined in state law. Those state law violations are thus a predicate to a
1`ravel Act offense. By contrast, plaintiffs say, FOSTA criminalizes “anything that
promotes or facilitates prostitution, and not a specific crime.” 7/19/2018 Hr’g Tr. 16:10-
13. This is particularly problematic because prostitution “is an area where there has been
significant advocacy, both by government entities and by private citizens” [a’. at 16:14-
16. As plaintiffs see it, that advocacy places them in FOSTA’s crosshairs.

1n pressing this argument, however, plaintiffs ignore key textual indications that
make clear that lr`OSTA targets specific acts of illegal prostitution ~ not the abstract topic
of prostitution or sex work. See United Slales v. Willz'a/ns, 553 U.S. 285, 294 (2008); cjf.
Sonllz Carol/`na v. Catawl)a ]nclz'an Tr/,'l)e, ]nc., 476 U.S. 498, 510 n.22 (1986) (“lt is an
elementary canon of construction that a statute should be interpreted so as not to render
one part inoperative.” (citation omitted)). First_, the text of Section 2421A criminalizes the
conduct of owning, operating or managing an interactive computer service with the intent
to promote or facilitate “the prostitun`on of another person.” 18 U.S.C. § 2421A(a)
(emphasis added). '1`he reference to “the prostitution of another person” is plainly
calculated to ensnare only specific unlawful acts with respect to a particular individual, not
the broad subject-matter ofprostitution. This reading ofSection 2421A(a) is confirmed by
Section 2421A(e), which states that the fact that prostitution is legal “in the jurisdiction
where the promotion or facilitation was targeted” is an affirmative defense. Ia’. § 2421A(e).
By making reference to the laws of specific “jurisdiction1s1,” Section 2421A(e)’s
affirmative defense tethers subsection (a)’s prohibition on acts intended to promote or

facilitate “the prostitution of another person” to specific crimes much in the way that the

22

'1`ravel Act does Put differently, the Government may prosecute under Section 2421/-\
only for acts that are otherwise illegal under existing federal or state law.

Plaintiffs also insist that, by virtue of the language “own, manage, or operate an
interactive computer service," Section 2421A impermissibly targets speech. 1 disagree. lt
is black-letter law that speech that “is intended to induce or commence illegal activities” is
not protected by the 1`"irst Amendment. Willlams, 553 U.S. at 297; see also Pl`ttsl)urglz
Press Co. v. Pll'lsl)urglz Comm ’n on Haman Relatl`ons, 413 U.S. 376, 388-89 (1973) (_“We
have no doubt that a newspaper constitutionally could be forbidden to publish a want ad
proposing a sale of narcotics or soliciting prostitutes”). As the Supreme Court has
explained, “offers to give or requests to receive what it is unlawful to possess have no
social value” and thus are not entitled to the protections of the First Amendment [a’.
lndeed, the statute upheld against an over-breadth challenge in Wlllz`ams - which imposed
a criminal penalty for knowingly “advertis1ing1, promot1ing1, present1ing1, distribut[ing:|,
or solicit1ing1” child pornography - bears resemblance to FOSTA’s prohibition on
“promot1ing1” or “facilitate[ing1” unlawful prostitution 553 U.S. at 289-90.

And that is to say nothing of Section 2421A’s mens rea requirement, which only
further narrows that provision’s scope. Section 2421A will require the Government to
show not simply that the defendant was aware ofa potential result ofthe criminal offense,
but instead that the defendant intended to “explicitly further11" a specified unlawful act
See United Stales v. Brown, 186 F.3d 661, 670 (5th Cir. 1999). Woodhull’s Sexual
Freedom Summit shares at most, a “weak . . . nexus” with illegal prostitution, and does

not approach the high bar required under Section 2421A’s mens rea standard [d. All told,

23

Woodhull has failed to meet its burden in persuading the Court that it faces any credible
threat of prosecution Nor has it identified any other cognizable injury in fact necessary
for standing to pursue this case.14
B. Human Rights Watch

'l`he second plaintif"f, 1-1uman Rights Watch, shares similar concerns to those of
Woodhull. HRW advocates for sex worker rights and safety across the globc, and
documents “abuses against sex workers in the United States Lebanon, and South Africa.”
PoKempner Decl. 11 5. ln addition, llRW has reported on “police searches of women for
condoms as evidence ofprostitution in four U.S. cities.” Icl. This advocacy and reporting,
lelRW asserts make sex work “safer and thus easier.” Reply at 5. For instance, HRW’s
reporting on policing methods “forewarn sex workers about methods police use to discover
and shut down sex work, thus making it easier for sex workers to avoid detection by law
enforceinent.” [a’. But, again, the record contains no indication that HRW, through its
advocacy and educational work, intends to promote or facilitate specific acts of prostitution
in violation of state or federal law. Without that mens rea, there is no credible threat of
prosecution, and thus no standing to bring this pre-enforcement challenge

C. Jesse lVlaley a/k/a Alex Andrews

Next, lesse 1\/1aley, a/k/a Alex Andrews, the creator and operator of

ratethatrescue.org (“Rate That Rescue”), fears prosecution for her efforts to use that

 

'f‘ ln arguing that Section 2421A sweeps broadly, plaintiffs lean on statements made in legislative
history. But it is beyond dispute that legislative history is useful only when the text itself is ambiguous ln
this case, my “inquiry ceases” because “the statutory language is unambiguous and the statutory scheme is
coherent and consistent.” Sel)e/l'ns v. C/oer, 569 U.S. 369, 380 (2013) (quoting Barnliart v. S)'g)non Coa/
(,.'o., 534 U.S. 438, 450 (2002)).

24

website to “make sex work safer and thus easier.” ]a’. at 4-5 & n.5. As 1 noted earlier, Rate
That Rescue aggregates reviews and ratings by third parties '1`hose third parties provide,
as counsel explained at oral argument, “information about bad dates” and “dangerous
situations” in order to “keep women safe.” 7/19/2018 lelr’g 5:17-24. ln addition, l\/laley
states that Rate rl`hat Rescue maintains a forum for information on organizations that,
although not directly related to sex work as such, provide services used by sex workers
such as “housing, childcare, counseling 1and1 education.” l\/laley Decl. 11 22.

Under l\/laley’s reasoning because providing housing or childcare services to sex
workers “make1s1 sex work easier,” Rate That Rescue could be said to promote or facilitate
prostitution Reply at 4-5. For this reason, l\/laley fears that FOSTA’s amendments to
Section 230 - which clarify that immunity does not extend to conduct made unlawful by
Section 2421A - could expose her to prosecution for the speech of third parties on Rate
That Rescue. See i`a’. As a precaution, l\/laley has “put on hold her acquisition of an in-
dcvelopinent reporting application” for mobile devices although she continues to maintain
the website itself. [cl. at 4. Her concerns however, are unwarranted

Put simply, l\/laley has failed to show that FOS'l`A’s Section 230 amendments
expose her to a credible threat of prosecution That is so because l\/laley, on the current
record, lacks the mens rea to violate any of the provisions specified in Section 230(e)(5).
As 1 noted earlier, FOSTA amends Section 230 by adding Section 230(e)(5), which
clarifies that Section 23 O(b) does not preclude liability under certain provisions of the U.S.
Code. Section 230(e) mentions three provisions in particular: state law prosecutions for

conduct banned by the newly-created Section 2421A; state law prosecutions for conduct

25

banned by 18 U.S.C. § 1591, which forbids the sex trafficking of adults by “force, fraud,
or cocrcion” and of minors categorically; and 18 U.S.C. § 1595, which supplies a civil
remedy for victims of the criminal conduct described in Section 1591.

1n managing Rate That Rescue, l\/laley cannot possibly be said to act “with the intent
to promote or facilitate the prostitution of another person” in violation of Section 2421/-\.
l\/laley`s declaration concedes as much, repeatedly expressing concern that law
enforcement could determine that “the user-generated content on Rate That Rescue
promotes or facilitates prostitution,” id. 1129; see also id. 11 30. But those formulations lack
the critical mens rea element of the Section 2421A offense. lndeed, l\/Ialey herself does
not even assert that law enforcement could credibly contend that, in managing Rate That
Rescue, she acts “with the intent to promote or facilitate” the prostitution of another person
18 U.S.C. § 2421A(a). Of course, the mere promotion or facilitation of prostitution is not
enough: l\/laley must intend that her conduct produce the specific result ]d. l\/laley, not
surprisingly, does not represent that she has any such intent in managing Rate That Rescue,
and the record before this Court presents no basis for inferring that mens rea. Cf.` id. 11 18
(explaining Rate That Rescue’s goal of helping “sex workers get information about . . .
organizations based on the experiences ofother sex workers”), 1111 19-24 (summarizing Rate
'l`hat Rescue posting and editing process), 11 25 (stating that Rate "fhat Rescue has “no
revenue,” “is run by volunteers,” and is “unable to actively or comprehensively review,
edit, or moderate user-generated content”).

Nor do Sections 1591 and 1595 furnish a basis for holding l\/laley criminally or

civilly liable, at least based on the record before this Court. The record is barren of any

26

evidence suggesting that Rate Fl`hat Rescue has ever hosted content assisting the sex
trafficking of minors such that Andrews could be liable for “l<nowingly” participating in
a venture that “recruits entices harbors transports provides obtains advertises
maintains or solicits by any means a person . . . knowing . . . 111 that means of force . . .
will be used to cause the person to engage in a commercial sex act, or 121 that the person
has not attained the age of 18 years and will be caused to engage in a commercial sex act"
18 U.S.C. § 1591; see id. § 1595 (providing civil cause of action for victims of conduct
unlawful pursuant to 18 U.S.C. § 1591).
D. Eric Koszyk

Next, firic Koszyk, a licensed therapist, maintains that he has standing to sue
because Craigslist eliminated its rl`herapeutic Services section “as a direct response to
F()STA.” Reply at 6. Koszyk represents that he cannot operate his business without
Craigslist. '1`hat injury traces to FOS'fA’s enactment, and can be redressed by a ruling
invalidating the Act and “leading” Craiglist to re-open its 'l`herapeutic Services webpage.
Reply at 6-7; Compl. 11 101; D’Amato Decl. 11 10.

Unfortunately for Koszyk, he cannot establish redressability under the relevant
precedents 1`hat is so because Koszyk has not established that a victory “will likely
alleviate the particularized injury alleged” Wesl v. Lyncn, 845 F.3d 1228, 1235 (1).C. Cir.
2017). lt is well established that a plaintiff lacks standing when the “redress for its injury
depends entirely on the occurrence ofsome other, future event made no more likely by its
victory in court.” Telon Historic Aviaiion Foiind. v. U.S. Dep ’t ofDefense, 785 F.3d 719,

726 (D.C. Cir. 2015). When, as here, a third party “can exercise ‘broad and legitimate

27

discretion the courts cannot presume either to control or to predict,’ a court is generally
unable to redress the alleged injury and, accordingly, standing is found wanting.” Nyam/)al
v. anicliin, 245 F. Supp. 3d 217, 224 (_D.D.C. 2017) (citation omitted); see also Simon v.
E. Ky. Wel/`are Rigliis1 Org., 426 U.S. 26, 42-43 (1976).
E. The lnternet Archive

1"`inally, the lnternet Archivc “intentionally stores and displays a vast amount ofboth
historical website data and third-party content that it has no ‘practical ability to evaluate
the legality of.”’ Reply at 6 (quoting Kahle Decl. 11 14). Although the lnternet Archive
represents that it does not intend to promote sex trafficking or prostitution, it believes that
the Section 230 amendments - and the ambiguity of their scope - may expose it to liability.
()nce again, however, there are no facts in the record supporting an inference of the mens
rea standard necessary to peel back Section 230’s protections The lnternet Archive’s
practice of sweeping up vast amounts of content from the web for indefinite storage` Kahle
Decl. 11 7-8, and its attested practical inability to review the legality of that third-party
content, id. 11 14, mean that that entity simply cannot meet the stringent mens rea standard

required for liability under Sections 2421A, 1591, or 1595.

28

CONCLUSION
Thus for all the above reasons plaintiffs have each failed to adequately allege
standing As such, this Court lacks subject matter jurisdiction over their claims Fed. R.
Civ. P. 12(h)(3), and must GRANT defendants’ Motion to Disiniss 1Dkt. # 161 and DENY
as moot plaintiffs-’ Motion for Preliminary Injunction 1Dkt. # 51. A separate order

consistent with this opinion will be issued this day.

 

United States b 'trict Judge

29

