One Need Not Wait until Criminal Charges Are Filed to Challenge the Constitutionality of a Federal Criminal Statute

In Woodhull Freedom Foundation v. United States, ___ F.3d ___, 2020 WL 398625 (D.C. Cir. Jan. 24, 2020), a panel of the District of Columbia Circuit held that some plaintiff-appellants had standing under Article III of the Constitution of the United States to bring a pre-enforcement challenge to the constitutionality of a statute intended by Congress to protect minors online from sex trafficking.  In 2017, Congress enacted the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) to provide prosecutors with new tools to combat the sex trafficking of both minors and adults.  Woodhull Freedom Foundation and others brought a declaratory judgment action seeking a declaration that the statute violated the Fifth and First Amendments.  FOSTA proscribed the owning, managing, or operating an interactive computer service with the intent to promote or facilitate the prostitution of another person, punishable by fine and imprisonment for not more than ten years.  After FOSTA was enacted, Craigslist, an online service provider that enables interaction between users, eliminated its Personals and Therapeutic Services sections and blocked reposting of advertisements previously listed in the Therapeutic Service section to other sections.

In June 2018, individuals and organizations purporting to engage in constitutionally protected speech on the internet filed a pre-enforcement challenge to FOSTA alleging harm to their online services.  The Complaint presented facial and applied challenges to FOSTA under the First and Fifth Amendments.  The district court granted the government's motion to dismiss for lack of Article III standing, ruling that the challenged provision of FOSTA did not apply to their conduct and, therefore, concluding that they lack a credible threat of prosecution.

The D.C. Circuit reversed and remanded the case finding that at least some of the plaintiff's had standing, noting that pre-enforcement review is permitted where the threatened enforcement of a law is “sufficiently imminent.”  The court of appeals observed that a plaintiff satisfied the “injury in fact” component of Article III standing where a plaintiff alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and there exists a credible threat of prosecution.  The court then concluded that plaintiff Andrews's alleged conduct is arguably affected with a constitutional interest because Andrews's intended future conduct affected speech.  Andrews is the cofounder of several groups that advocate for the health, safety, and human rights of sex workers.  The court held that Andrews has adequately alleged her intention to engage in a course of conduct arguably proscribed by FOSTA, rejecting the government's argument that the advocacy and educational services provided by Andrews fell outside the scope of FOSTA.  The court stated that because Andrews's website allows sex workers to share information about online payment processors like PayPal, Andrews has alleged some desired conduct that might trigger an enforcement action and FOSTA does not limit its scope to “bad-actor websites.”  The D.C. Circuit also held that plaintiff Koszyks has Article III standing because Craigslist removed his advertisements and shut down its Therapeutic Services section in response to the enactment of FOSTA.

A concurring opinion agreed with the majority reasoning on standing at this stage of the case but questioned whether the provisions of FOSTA cited by plaintiffs applied to their conduct.