“WASHINGTON, D.C.—It’s been about three weeks since the Woodhull Freedom Foundation, two other organizations and two individuals filed a lawsuit to challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), under the First and Fifth Amendments of the United States Constitution—and the U.S. Department Of Justice (DOJ) has wasted no time in attempting to get the suit thrown out.
The case has been assigned to Judge Richard J. Leon of the U.S. District Court for the District of Columbia—some may recall that it was this same judge who dismissed the DOJ’s obscenity case against Evil Angel—and it took the DOJ just one week to register its objections to the Temporary Restraining Order (TRO) against FOSTA that is being sought by the plaintiffs, and last Thursday, it filed its formal objection to both the suit and the TRO.
The basis for the government’s objection? The plaintiffs “lack standing to bring this pre-enforcement challenge,” and on top of that, that the District Court lacks jurisdiction over the matter. As to the first claim, the DOJ attorneys argue in their motion that none of the plaintiffs will suffer any cognizable harm if the TRO is not issued, noting that neither Woodhull nor the other two organizations, Human Rights Watch and the Internet Archive, typically post content that is likely to run afoul of the material that would trigger government action under FOSTA (known as an “injury-in-fact”).
“Only actions taken with the intent to promote or facilitate the prostitution of another person in a jurisdiction where prostitution is illegal, per Section 2421A and Section 4(a) of FOSTA, or knowing sex trafficking under Section 1591, fall within the specifications of the Act,” the government argues, claiming that nothing the organizations publish online would “realistically” fall under either category.
As to the two individual plaintiffs, massage therapist Eric Koszyk and sex worker activist Jesse Maley (aka Alex Andrews), the government argues that nothing the pair have stated in the complaint indicate that they have any intention to post material that would violate the act—even though Andrews is affiliated with the Sex Work Outreach Project (SWOP), which frequently writes about legalizing prostitution.
“Plaintiffs’ argument that the terms ‘promote’ and ‘facilitate’ [in the law] are overbroad and likely to encompass their advocacy for the legalization of prostitution or the health and safety of sex workers is unavailing and contrary to the enforcement history of substantially similar crimes,” the DOJ filing argues, even though the vagueness of those terms is a primary constitutional issue—if the plaintiffs have standing to present it.
In short, the DOJ “memorandum” spends nearly 30 pages attempting to nitpick apart the plaintiffs’ claims to deny them the standing ot bring both the TRO and the lawsuit it self—and the plaintiffs spend nearly as many pages justifying their position, as their reply to the government’s objections, which was filed this afternoon, reveals.”