948 F.3d 363 (D.C. Cir. 2020), 18-5298, Woodhull Freedom Foundation v. United States

Docket Nº:18-5298
Citation:948 F.3d 363
Opinion Judge:Rogers, Circuit Judge:
Party Name:WOODHULL FREEDOM FOUNDATION, et al., Appellants v. UNITED STATES of America and William P. Barr, in his official capacity as Attorney General of the United States, Appellees
Attorney:Robert L. Corn-Revere, Washington, DC, argued the cause for appellants. With him on the briefs were Ronald G. London, Washington, DC, Lawrence G. Walters, Daphne Keller, David Greene, Aaron Mackey, and Corynne McSherry. Catherine R. Gellis was on the brief for amici curiae Floor64, Inc. d/b/a The...
Judge Panel:Before: Rogers, Griffith and Katsas, Circuit Judges. Katsas, Circuit Judge
Case Date:January 24, 2020
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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948 F.3d 363 (D.C. Cir. 2020)

WOODHULL FREEDOM FOUNDATION, et al., Appellants

v.

UNITED STATES of America and William P. Barr, in his official capacity as Attorney General of the United States, Appellees

No. 18-5298

United States Court of Appeals, District of Columbia Circuit

January 24, 2020

Argued September 20, 2019

Page 364

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-01552)

Robert L. Corn-Revere, Washington, DC, argued the cause for appellants. With him on the briefs were Ronald G. London, Washington, DC, Lawrence G. Walters, Daphne Keller, David Greene, Aaron Mackey, and Corynne McSherry.

Catherine R. Gellis was on the brief for amici curiae Floor64, Inc. d/b/a The Copia Institute, et al. in support of plaintiffs-appellants.

Allen Dickerson and Zac Morgan were on the brief for amicus curiae Institute for Free Speech in support of appellants.

Brian M. Willen, New York, NY, and Lauren G. White, San Francisco, CA, were on the brief for amicus curiae Center for Democracy & Technology in support of plaintiffs-appellants.

James Turner was on the brief for amici curiae Freedom Network USA, et al. in support of appellants.

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Courtney Dixon, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Jessie K. Liu, U.S. Attorney, and Scott R. McIntosh, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance. Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Kyle D. Hawkins, Solicitor General, Karen L. Watkins, Assistant Attorney General, Steven Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Ashley Moody, Attorney General, Office of the Attorney General for th e State of Florida, Chris Carr, Attorney General, Office of the Attorney General for the State of Georgia, Lawrence G. Wasden, Attorney General, Office of the Attorney General for the State of Idaho, Curtis T. Hill, Jr., Attorney General, Office of the Attorney General for the State of Indiana, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Andy Beshear, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Jim Hood, Attorney General, Office of the Attorney General for the State of Mississippi, Timothy C. Fox, Attorney General, Office of the Attorney General for the State of Montana, Dave Yost, Attorney General, Office of the Attorney General for the State of Ohio, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, Jason Ravnsborg, Attorney General, Office of the Attorney General for the State of South Dakota, Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Mark R. Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, and Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, were on the brief for the amici curiae States in support of appellees.

Christopher J. Schmidt, Jonathan B. Potts, St. Louis, MO, and Adam L. Shaw, Washington, DC, were on the brief for amicus curiae National Center for Missing and Exploited Children in support of appellees and affirmance.

David Boies, Fairfax, VA, and Karen A. Chesley, New York, NY, were on the brief for amici curiae Legal Momentum, et al. in support of defendants-appellees.

Before: Rogers, Griffith and Katsas, Circuit Judges.

OPINION

Rogers, Circuit Judge:

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The district court dismissed a pre-enforcement challenge to a federal statute reflecting Congress’s continual goal of protecting minors online while promoting a free and open internet upon concluding that no plaintiff had demonstrated standing under Article III of the Constitution. Upon review, we hold for the following reasons that at least two of the plaintiffs, among the appellants before this court, have demonstrated their standing.

I.

This case relates to Congress’s ongoing effort to protect minors online while promoting a free and open internet. To this end, Congress passed the Communications Decency Act in 1996. The Act prohibited the transmission of obscene and indecent speech online in order to protect minors from being exposed to sexually explicit materials. 47 U.S.C. § § 223(a), (d); see generally Reno v. Am. Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). The Act also sought to protect the entities that publish the online speech of others in order "to promote the continued development of the Internet" and "to preserve the vibrant and competitive free market that presently exists." 47 U.S.C. § 230(b)(1)-(2). Section 230 shields interactive computer service providers from being treated "as the publisher or speaker" of any content that is posted by users of the site, id. § 230(c)(1), except where the published user content violates federal law, id. § 230(e)(1), including 47 U.S.C. § 223, relating to obscenity, and 18 U.S.C. § 110, relating to the sexual exploitation of children. It defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server ...." 47 U.S.C. § 230(f)(2).

In 2000, Congress enacted the Trafficking Victims Protection Act, codified as relevant at 18 U.S.C. § 1591, to prohibit the sex trafficking of children by force, fraud, or coercion. In 2003, Congress authorized victims of sex trafficking to file civil actions. 18 U.S.C. § 1595.

When minor victims of sex trafficking sued publishers of online classified advertising related to sex trafficking, however the courts have held that Section 230(c)(1) precluded liability. For instance, when three victims of sex trafficking filed suit under Section 1595, alleging that Backpage.com, a publisher of online classified advertising, had structured its website to camouflage advertisements for sex traffickers, the district court ruled that Section 230 provided Backpage.com civil immunity from suit and dismissed the suit in its entirety. Doe ex rel. Roe v. Backpage.com, LLC, 104 F.Supp.3d 149, 154, 159-61, 165 (D. Mass. 2015). The First Circuit Court of Appeals affirmed, observing the courts had interpreted Section 230(c)(1) broadly so that "lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred." Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18 (1st Cir. 2016) (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)) (collecting cases). To the extent victims of sex

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trafficking wished to bring civil suits against internet publishers such as Backpage.com that "tailor[ ] [their] website[s] to make sex trafficking easier," the First Circuit advised that "the remedy is through legislation" — amending Section 230 — "not through litigation." Doe No. 1 v. Backpage.com, 817 F.3d at 29.

In 2017, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act ("FOSTA"), Pub. L. No. 115-164, 132 Stat. 1253 (2018), to narrow Section 230’s scope and provide prosecutors with new tools to combat the sex trafficking of both minors and adults. FOSTA set forth the "sense of Congress" that Section 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," id. § 2(1), 132 Stat. at 1253, and declared that "clarification" of Section 230 was needed to ensure that it would "not provide such protection to such websites," id. § 2(3). FOSTA narrowed the scope of immunity for interactive computer service providers, by providing that Section 230 has "[n]o effect on sex trafficking law," and shall not "be construed to impair or limit" civil claims brought under Section 1595 or criminal charges brought under state law if the underlying conduct would constitute a violation of Sections 1591 or 2421A. Id. § 4(a), 125 Stat. at 1254 (codified at 47 U.S.C. § 230(e)(5)). These amendments are retroactive, applying "regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after ... enactment." Id. § 4(b), 132 Stat. at 1254-55.

In a new provision, FOSTA proscribed "own[ing], manag[ing], or operat[ing] an interactive computer service ... with the intent to promote or facilitate the prostitution of another person," punishable by a fine and imprisonment for not more than ten years. Id. § 3(a), 132 Stat. at 1253-54 (codified at 18 U.S.C. § 2421A(a)). This provision adopts the definition of "interactive computer service" in Section 230(f) of the Communications Decency Act. 18 U.S.C. § 2421A(a). When the underlying conduct "promotes or facilitates the prostitution of 5 or more persons" or when the person "acts in reckless disregard of the fact that such conduct contributed to sex trafficking," there is an enhanced penalty of imprisonment for not more than twenty-five years. Id. § 2421A(b). An individual injured by such an aggravated violation...

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