IP Law Daily At least two plaintiffs have standing to challenge FOSTA
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Monday, January 27, 2020

At least two plaintiffs have standing to challenge FOSTA

By Lynn Stanton,TR Daily

An activist for sex workers and a certified massage therapist can go forward with a constitutional challenge over the first statutory carve-out from the safe harbor provided by Section 230 of the CDA.

The U.S. Court of Appeals for the District of Columbia Circuit has ruled that at least two of the plaintiffs who challenged the 2017 Allow States and Victims to Fight Online Sex Trafficking (FOSTA) Act had standing to do so, contrary to a ruling by a lower court. FOSTA eliminated the third-party-content safe-harbor for websites that knowingly allow content that enables sex trafficking in Section 230 of the Communications Decency Act—the first statutory carve-out from the safe harbor, which has come under increasing criticism in recent years (Woodhull Freedom Foundation v. U.S., January 24, 2020, Rogers, J.).

Woodhull Freedom Foundation, Human Rights Watch, the Internet Archive, an activist for sex workers, and a certified massage therapist challenged FOSTA before the U.S. District Court for the District of Columbia in 2018 on First and Fifth Amendment grounds. The district court granted the government’s motion to dismiss, ruling that the plaintiffs "lacked standing to bring a pre-enforcement challenge to FOSTA, interpreting FOSTA not to apply to their described conduct and finding that they lacked a credible threat of prosecution," the appeals court recalled.

Circuit Judge Judith W. Rodgers, joined by Circuit Judge Thomas B. Griffith, said that upon de novo review and "upon accepting as true, as we must, all material allegations of the complaint and construing the complaint in favor of the complaining party, ... we hold that [sex worker rights advocate Alex] Andrews and [licensed massage therapist Eric] Koszyk have demonstrated their [U.S. Constitution] Article III standing."

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," the court said.

Koszyk "has also established Article III standing. Where ‘a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation ... of someone else, ... causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party.’ ... Koszyk’s alleged injury-in-fact is, however, fairly traceable to the passage of FOSTA and ‘not ... th[e] result [of] the independent action of some third party not before the court.’ ... Craigslist removed Koszyk’s advertisements and ‘shut down its Therapeutic Services section in response to FOSTA’s passage,’ and Koszyk alleges that he has not been able to post on Craigslist since, thereby drying up his client base," the court said.

It added that Koszyk "has met his burden to establish redressability. ... Given Craigslist’s statements about the reason for the removal of those sections and its desire to bring them back, there is a ‘significant increase in likelihood’ that Koszyk would obtain relief in the event that FOSTA is invalidated."

Concurring opinion. Circuit Judge Gregory G. Katsas concurred in part and concurred in the judgment.

"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," Judge Katsas said. "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,’ id., 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," he continued.

"Finally, I agree with my colleagues’ analysis of why Koszyk has standing, so I join Parts I, II, and III.B of the majority opinion, and I respectfully concur in the judgment," Judge Katsas concluded.

EFF statement. In a statement, Electronic Frontier Foundation staff attorney Aaron Mackey, one of the lawyers representing the plaintiffs, said, "We are pleased the court recognized that the law’s undefined and vague terms can sweep up constitutionally protected speech and potentially lead to federal, state, and local criminal prosecution, as well as civil liability. The court’s ruling recognizes that plaintiffs face a substantial threat of broad criminal and civil liability merely for speaking online or hosting forums that support sex workers."

This case is No. 18-5298.

Attorneys: Robert Lawrence Corn-Revere (Davis Wright Tremaine LLP) for Woodhull Freedom Foundation. Courtney Dixon, U.S. Department of Justice, for the United States.

Companies: Woodhull Freedom Foundation

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