Woodhull Freedom Foundation v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2019 Decided January 24, 2020

No. 18-5298

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

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

Robert L. Corn-Revere argued the cause for appellants.
With him on the briefs were Ronald G. London, 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.
 2
Allen Dickerson and Zac Morgan were on the brief for
amicus curiae Institute for Free Speech in support of
appellants.

Brian M. Willen and Lauren G. White 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.

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 the 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
 3
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, and Adam L.
Shaw were on the brief for amicus curiae National Center for
Missing and Exploited Children in support of appellees and
affirmance.

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

Before: ROGERS, GRIFFITH and KATSAS, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Opinion concurring in part and concurring in the judgment
by Circuit Judge KATSAS.

ROGERS, Circuit Judge: The district court dismissed a pre-
enforcement challenge to a federal statute reflecting
 4
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 (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
 5
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 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
 6
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 may sue for
money damages. Id. § 2421A(c). It is an affirmative defense
if “the promotion or facilitation of prostitution is legal in the
jurisdiction where the promotion or facilitation was targeted.”
Id. § 2421A(e).
 7

FOSTA also amended 18 U.S.C. § 1591, which prohibits
the sex trafficking of children, to define “participation in a
venture” to mean “knowingly assisting, supporting, or
facilitating a violation” of the section. FOSTA § 5(2), 132 Stat.
at 1255 (codified at 18 U.S.C. § 1591(e)(4)). Further, it
amended 18 U.S.C. § 1595, which provides a federal cause of
action for victims of sex trafficking, to authorize state attorneys
general to file civil parens patriae suits when they have “reason
to believe that an interest of the residents of that State has been
or is threatened or adversely affected by a person who violates
section 1591.” FOSTA § 6(a), 132 Stat. at 1255 (codified at 18
U.S.C. § 1595(d)).

Upon enactment of FOSTA, a number of online service
providers that enable interpersonal contact between users, like
Craigslist and Reddit, immediately removed content and
eliminated entire sections of their websites. Compl. ¶¶ 53–60.
For example, Craigslist eliminated its Personals and
Therapeutic Services sections and blocked the reposting of
advertisements previously listed in the Therapeutic Services
section to other sections. Compl. ¶¶ 55–56. In a public
statement, Craigslist explained that it had taken these services
offline because Congress had passed FOSTA and it did not
want to risk liability and jeopardize its other services. Compl.
¶ 55. Craigslist added that it hoped to bring these services back
some day. Id.

II.

On June 28, 2018, appellants, who are various 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 activities.
Their complaint presented facial and as applied challenges to
 8
FOSTA under the First and Fifth Amendments. The plaintiffs
argued that (1) FOSTA’s content-based restrictions are
overbroad and fail to satisfy strict scrutiny; and (2) FOSTA’s
restrictions on speech are impermissibly vague. They also
argued that FOSTA contains an unconstitutional ex post facto
provision. They sought a preliminary injunction to enjoin the
enforcement of FOSTA.

Four plaintiffs alleged concerns that their advocacy for,
dissemination of information and resources to, or hosting of
others’ online speech about sex workers could be characterized
a “promoting” or “facilitating” prostitution. These plaintiffs
include a national human rights organization dedicated to
sexual freedom, an international human rights organization, an
advocate for sex workers, and a digital library of websites.
Compl. ¶ 2. Specifically, Woodhull Freedom Foundation
(“Woodhull”) is an advocacy organization dedicated to
protecting the right to sexual freedom. The organization works
to support the health and safety of sex workers, a group that
includes adult film performers, live webcam models, sexual
wellness instructors, escorts, and prostitutes. Woodhull
operates a website and uses a variety of online technologies to
plan and host its annual multi-day Sexual Freedom Summit.
Compl. ¶ 74. The Summit includes a sex worker track with
workshops devoted to issues affecting sex workers. Compl. ¶¶
67–73. Human Rights Watch is an international human rights
monitoring organization that publishes reports, press releases,
podcasts, videos and other online documents to advocate for
the decriminalization of sex work and document abuses against
sex workers. Compl. ¶¶ 86–89. Alex Andrews is an advocate
for sex worker rights and a co-founder of several groups that
advocate for the health, safety, and human rights of sex
workers. In 2015, Andrews collaborated with advocates and
sex workers to create Rate That Rescue, which is a sex worker-
led, ratings and review website that provides a resource for sex
 9
workers to learn more about the various organizations that
provide services for them. Compl. ¶¶ 105–06. Notably,
although Rate That Rescue was originally designed to provide
information about support and rescue organizations, it has
expanded to share information about all types of products and
services that sex workers use — ranging from social media
networks like Twitter, to website builders like Wix, to online
payment processors like PayPal. Compl. ¶ 109. The Internet
Archive, as its name suggests, stores and displays a vast
amount of historical website data; it regularly archives web
pages and maintains over 330 billion web pages spanning from
1996 to present. Compl. ¶¶ 121–23.

The remaining plaintiff, Eric Koszyk, is a licensed
massage therapist and the owner of Soothing Spirit Massage.
Compl. ¶ 93. He alleged that he suffered constitutional and
monetary injuries when Craigslist, the online platform he used
to disseminate his speech, shut down certain services in
response to FOSTA. Compl. ¶ 2. Since 2007, Koszyk had
posted weekly advertisements on Craigslist — in the
Therapeutic Services section — in order to reach
approximately 90 percent of his clientele. Compl. ¶¶ 94–95.
After FOSTA became law, Craigslist removed his
advertisements, shut down its Therapeutic Services section,
Compl. ¶ 97, and blocked his attempts to re-post his
advertisements to other sections of Craigslist’s website.
Compl. ¶ 98. Because he has been unable to post his
advertisements on Craigslist, he alleged that he has had almost
no clients and has been unable to provide a supplemental
income for his family. Compl. ¶ 100.

The district court granted the government’s motion to
dismiss for lack of Article III standing. The district court ruled
that plaintiffs Woodhull, Human Rights Watch, Andrews, and
the Internet Archive lacked standing to bring a pre-enforcement
 10
challenge to FOSTA, interpreting FOSTA not to apply to their
described conduct and finding that they lacked a credible threat
of prosecution. Woodhull Freedom Found. v. United States,
334 F. Supp. 3d 185, 196-204 (D.D.C. 2018). The district court
stated that Section 2421A was “plainly calculated to ensnare
only specific unlawful acts with respect to a particular
individual, not the broad subject-matter of prostitution.” Id. at
200. The district court noted FOSTA requires that a person act
“with the intent to promote or facilitate ‘the prostitution of
another person,’” id. (emphasis in original), and the requisite
mens rea establishes a “high bar,” which “further narrows that
provision’s scope,” id. at 201. Additionally, the district court
ruled that Koszyk failed to establish redressability because his
injury was the result of Craigslist’s decision to remove his
advertisements — a discretionary decision by a third party not
before the court. Id. at 203.

III.

To establish Article III standing, “a plaintiff must show (1)
an ‘injury in fact,’ (2) a sufficient ‘causal connection between
the injury and the conduct complained of,’ and (3) a
‘likel[ihood]’ the injury ‘will be redressed by a favorable
decision.’” Susan B. Anthony List v. Driehaus (SBA), 573 U.S.
149, 157–58 (2014) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–61 (1992)). Pre-enforcement review is
permitted where the threatened enforcement of a law is
“sufficiently imminent.” SBA, 573 U.S. at 159. “[A]n actual
arrest, prosecution, or other enforcement action is not a
prerequisite to challenging the law.” Id. at 158. Rather, “a
plaintiff satisfies the injury-in-fact requirement where he
alleges ‘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.” Id. at 159 (quoting Babbitt v. United Farm
 11
Workers Nat’l Union, 442 U.S. 289, 298 (1979)). In Babbitt,
the Court quoted its precedent for the proposition that
individuals whose fear of prosecution is “imaginary or
speculative[] are not to be accepted as appropriate plaintiffs.”
442 U.S. at 298 (quoting Younger v. Harris, 401 U.S. 37, 42
(1971)).

Applying Babbitt, the Court in SBA analyzed whether the
plaintiffs had established a sufficiently imminent threat in a
three-part test. First, had the plaintiffs alleged “an intention to
engage in a course of conduct arguably affected with a
constitutional interest.” 573 U.S. at 161 (quoting Babbitt, 442
U.S. at 298). Second, was the intended future conduct
“‘arguably . . . proscribed by [the] statute’ they wish[ed] to
challenge.” SBA, 573 U.S. at 162 (quoting Babbitt, 442 U.S. at
298). Third, was “the threat of future enforcement of the
[challenged] statute . . . substantial.” SBA, 573 U.S. at 164.
Although lower “courts’ willingness to permit pre-enforcement
review is ‘at its peak’ when claims are rooted in the First
Amendment,” N.Y. Republican State Comm. v. SEC, 799 F.3d
1126, 1135 (D.C. Cir. 2015) (quoting Unity08 v. FEC, 596 F.3d
861, 865 (D.C. Cir. 2010)), a plaintiff must still demonstrate
more than a subjective chill to establish an injury-in-fact, see,
e.g., Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir.
2005); Am. Library Ass’n v. Barr, 956 F.2d 1178, 1194 (D.C.
Cir. 1992).

Upon de novo review of the dismissal of plaintiffs’
complaint for lack of Article III standing, see Renal Physicians
Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267,
1273 (D.C. Cir. 2007), and upon accepting as true, as we must,
all material allegations of the complaint and construing the
complaint in favor of the complaining party, Warth v. Seldin,
422 U.S. 490, 501 (1975), we hold that Andrews and Koszyk
have demonstrated their Article III standing. Given identical
 12
claims by the other plaintiffs, the court need not decide whether
additional plaintiffs have standing. See Rumsfeld v. Forum for
Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006);
Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981);
UAW-Labor Emp’t & Training Corp. v. Chao, 325 F.3d 360,
362 (D.C. Cir. 2003).

As an initial matter, the parties possibly disagree about
whether at the motion to dismiss stage, a “plaintiff’s non-
frivolous contention regarding the meaning of a statute must be
taken as correct for purposes of standing.” Appellants’ Br. 23
(quoting Sandvig v. Sessions, 315 F. Supp. 3d 1, 18 (D.D.C.
2018)). Appellants rely on Information Handling Services, Inc.
v. Defense Automated Printing Services, 338 F.3d 1024 (D.C.
Cir. 2003), where the plaintiff alleged that the government had
violated statutory requirements, id. at 1026, and the court held
that, at the motion to dismiss stage, the court “assume[s]” that
the plaintiff “has read the statute correctly,” id. at 1030. The
government acknowledges that this is the correct standard
“[w]hen a plaintiff’s theory of injury is that the defendant has
violated a statute and caused the plaintiff harm.” Appellees’
Br. 28 (emphasis in original). Under such circumstances, the
court assumes that the plaintiff’s legal theory is correct
because, “[w]ere that not the case, [the court] would effectively
be deciding the merits under the guise of determining the
plaintiff’s standing.” Information Handling Servs., 338 F.3d at
1030. But in a pre-enforcement challenge, which Information
Handling was not, the government correctly points out that the
court should look to SBA to determine whether the plaintiff has
asserted an “imminent threat” that a statute will be enforced
against the plaintiff because the plaintiff’s conduct is “arguably
. . . proscribed by a statute, and there exists a credible threat of
prosecution thereunder,” SBA, 573 U.S. at 159 (quoting
Babbitt, 442 U.S. at 298). Upon applying the test in SBA, we
 13
conclude that plaintiffs Andrews and Koszyk have Article III
standing.

A.
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.” SBA, 573 U.S. at 159 (quoting
Babbitt, 442 U.S. at 298). Her alleged conduct is “arguably
affected with a constitutional interest,” SBA, 573 U.S. at 161
(quoting Babbitt, 442 U.S. at 298), because Andrews’ intended
future conduct involves speech. Andrews operates a website
that allows sex workers to share information. Compl. ¶¶ 106,
109. Her conduct is “arguably proscribed” by FOSTA because
it is a crime to own, manage, or operate an “interactive
computer service[]” with the intent to “promote or facilitate the
prostitution of another person,” 18 U.S.C. § 2421A(a). FOSTA
does not define “promote” or “facilitate,” nor does it specify
what constitutes “prostitution,” a term undefined by federal
law. Nor are these terms limited by a string of adjacent verbs
(such as advertises, distributes, or solicits) that would convey
“a transactional connotation” that might narrow the statute’s
reach. Cf. United States v. Williams, 553 U.S. 285, 294 (2008).

The terms “promote” and “facilitate,” when considered in
isolation, “are susceptible of multiple and wide-ranging
meanings.” Cf. id. Because the verbs “promote” and
“facilitate” are disjunctive, FOSTA arguably proscribes
conduct that facilitates prostitution. The common meaning of
facilitate is “‘to make easier’ or less difficult, or to assist or
aid.” United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir.
1985) (quoting United States v. Phillips, 664 F.2d 971, 1032
(5th Cir. 1981)); see also BLACK’S LAW DICTIONARY (11th ed.
2019) (“To make the occurrence of (something) easier; to
 14
render less difficult.”); cf. United States v. Bennett, 1996 WL
477048, at *5 (9th Cir. Aug. 21, 1996).

Alternatively, the term “facilitate” could be interpreted “as
a synonym for ‘terms like ‘aid,’ ‘abet,’ and ‘assist,’” in which
case the term’s meaning would be limited by the background
law of aiding and abetting. See Concurring Op. 2 (quoting
Abuelhawa v. United States, 556 U.S. 816, 821 (2009)). Even
reading the term “facilitate” narrowly, Andrews has adequately
alleged her intention to engage in a course of conduct arguably
proscribed by FOSTA.

Andrews founded a sex worker-led, community forum
called Rate That Rescue. Compl. ¶¶ 105–06. Rate That Rescue
operates as a ratings and review website, hosting content
created by both organizations that provide services to sex
workers and the sex worker community. Compl. ¶ 106. Rate
That Rescue allows sex workers to share information about
products or services that they commonly use, such as payment
processors, like PayPal. Compl. ¶ 109. Such discussions may,
for example, facilitate prostitution by providing sex workers
and others with tools to ensure the receipt of payment for sexual
services. Because Andrews has alleged that she intends to host
such discussions on her website, her intended conduct is
arguably proscribed by FOSTA. And because Rate That
Rescue has thousands of users, Compl. ¶ 116, Andrews’
intended conduct is also arguably proscribed by the aggravated
offense provision. See 18 U.S.C. § 2421A(b)(1) (“promotes or
facilitates the prostitution of 5 or more persons”).

The government maintains that even if the terms
“promote” or “facilitate” can be read broadly in isolation,
FOSTA cannot be read to encompass plaintiffs’ intended
conduct because advocacy and educational activities do not
promote or facilitate any specific, unlawful instance of
 15
prostitution. Appellees’ Br. 21–22. It endorses the district
court’s interpretation that the text of Section 2421A is “plainly
calculated to ensnare only specific unlawful acts with respect
to a particular individual.” Woodhull, 334 F. Supp. 3d at 200;
Appellees’ Br. 16–17. Further, the government suggests that
individuals and organizations who advocate for the safety or
well-being of sex workers do not act “with the intent” to
facilitate a specific act of illegal prostitution, as required under
Section 2421A. Appellees’ Br. 19; Woodhull, 334 F. Supp. 3d
at 201.

In short, the court need not read FOSTA to encompass
advocacy or educational activities to hold that Andrews has
standing. Because Andrews’ website allows sex workers to
share information about online payment processors like
PayPal, Compl. ¶ 109, Andrews has alleged “some desired
conduct . . . that might trigger an enforcement action,” see
Matthew A. Goldstein, PLLC v. U.S. Dep’t of State, 851 F.3d
1, 4 (D.C. Cir. 2017); Compl. ¶ 109. That Andrews’ intended
conduct is unlike the intentional measures taken by
Backpage.com to help online sex traffickers avoid detection by
law enforcement, even assuming Backpage.com was a
motivating consideration behind FOSTA’s enactment,
Appellees’ Br. 17–19; see H.R. Rep. No. 115-572, pt. 1, at 3–
6 (2018), does not mean that Andrews’ conduct falls outside
FOSTA’s scope. FOSTA’s text does not limit its scope to
“bad-actor websites,” id. at 3, or even to classified advertising
websites.

On this record, there is also ample reason to conclude that
the threat of future enforcement against Andrews is substantial.
SBA, 573 U.S. at 164. The Department of Justice “has not
disavowed any intention of invoking the criminal penalty
provision,” Babbitt, 442 U.S. at 302, against individuals who
operate websites like Rate That Rescue. For instance, the
 16
Department noted in a March 23, 2018, letter to the Office of
Management and Budget that prosecutors can avoid any
unconstitutional ex post facto problems by pursuing only
prosecutable criminal conduct that takes place after FOSTA
was enacted, yet never suggested that the terms “promote” and
“facilitate” are to be narrowly understood to focus on classified
advertising websites, like Backpage.com, and to exclude
information sharing websites like Rate That Rescue. Further,
the Department has repeatedly characterized Rate That Rescue
as a website that “collects reviews of rescue resources for sex
workers, such as housing, rehabilitation, and domestic-
violence facilities,” Appellees’ Br. 18–19, and maintained that
providing harm reduction information to persons engaged in
sex work is different in kind from promoting or facilitating
prostitution, Oral Arg. Recording at 21:10–21:58; 29:25–30:10
(Sept. 20, 2019). But the Department has yet to disavow any
intention to prosecute an individual or organization that
operates a sex worker-led forum about topics like PayPal. And
although the Department has maintained in the instant litigation
that plaintiffs’ intended conduct is not proscribed by Section
2421A, “there is nothing that prevents the [Department] from
changing its mind,” Vt. Right to Life Comm., Inc. v. Sorrell, 221
F.3d 376, 383 (2d Cir. 2000).

Furthermore, Section 2421A provides a private right of
action for any person injured by an aggravated violation. 18
U.S.C. § 2421A(c). The Supreme Court has acknowledged that
“[t]he credibility of [a] threat is bolstered” where “the universe
of potential complainants is not restricted to state officials who
are constrained by explicit guidelines or ethical obligations.”
SBA, 573 U.S. at 164. And Congress amended Section 230 to
allow prosecutions under state law if the conduct underlying
the charge would constitute a violation of Section 2421A.
Twenty-one states emphasize that “the State need not wait for
the Department of Justice to prosecute traffickers operating in
 17
the State.” Amicus Br. for the State of Texas, et al., 9. This
amicus brief also cites pending legislation in Texas that would
enact a local FOSTA. Id. at 9 n.3. These states have not
disavowed any intention to prosecute individuals like
Andrews.

B.
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.” Lujan, 504 U.S. at 562
(emphasis in original). 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.” Id. at 560 (quoting Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). 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. Compl.
¶¶ 97–100.

Additionally, Koszyk has met his burden to establish
redressability. Where the requested “relief for the [plaintiff]
depends on actions by a third party not before the court,” the
plaintiff “must demonstrate that a favorable decision would
create ‘a significant increase in the likelihood that the plaintiff
would obtain relief that directly redresses the injury suffered.’”
Klamath Water Users Ass’n v. FERC, 534 F.3d 735, 739 (D.C.
Cir. 2008) (quoting Utah v. Evans, 536 U.S. 452, 464 (2002)).
Koszyk alleges that Craigslist shut down the Therapeutic
Services section on its website and began to remove his posts
shortly after the passage of FOSTA. Compl. ¶¶ 97–98.
Craigslist publicly announced that it attributed the closure of
 18
this section to concerns about FOSTA, stating, “US Congress
just passed HR 1865, ‘FOSTA’, seeking to subject websites to
criminal and civil liability when third parties (users) misuse
online personals unlawfully.” Compl. ¶ 55 (quoting About
FOSTA, CRAIGSLIST,
https://www.craigslist.org/about/FOSTA (last visited Nov. 15,
2019)). Further, Craigslist stated that it was taking “craigslist
personals offline” so as not to risk liability and jeopardize its
other services. Id. Craigslist added: “Hopefully we can bring
them back some day.” Id. 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.

Accordingly, because Andrews and Koszyk have
established their Article III standing to bring a pre-enforcement
challenge to FOSTA — Andrews has alleged intended conduct
that is arguably proscribed by FOSTA and the threat of future
enforcement is substantial, while Koszyk has demonstrated
that a favorable decision would create a significant increase in
likelihood that he would obtain relief — we reverse the order
dismissing the complaint for lack of subject-matter jurisdiction
and remand the case to the district court for further
proceedings.
 KATSAS, Circuit Judge, concurring in part and concurring
in the judgment: I agree with my colleagues on the bottom line.
At the motion-to-dismiss stage of this case, plaintiffs Alex
Andrews and Eric Koszyk plausibly alleged Article III standing
to bring a pre-enforcement challenge to the Allow States and
Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA),
Pub. L. No. 115-164, 132 Stat. 1253 (2018). I also agree with
most, but not all of my colleagues’ reasoning.

FOSTA’s central provision makes it a crime to own,
manage, or operate a website “with the intent to promote or
facilitate the prostitution of another person.” 18 U.S.C.
§ 2421A(a). To secure standing, and to make FOSTA seem
obviously unconstitutional, the plaintiffs advocate a sweeping
construction of this provision. Here is their position in a
nutshell: the phrase “promote or facilitate” is disjunctive,
“facilitate” can mean “make easier,” and FOSTA thus prohibits
any online speech that makes prostitution easier. According to
the plaintiffs, this includes several categories of speech in
which they seek to engage—advocating for decriminalization;
educating prostitutes about rights and risks; helping prostitutes
obtain housing, medical attention, child care, or other essential
services; and even internet archiving that incidentally sweeps
up content related to prostitution. My colleagues neither adopt
this construction of FOSTA nor follow it to its logical
conclusion that all five plaintiffs have standing. But they do
identify this construction as at least one possible reading of
FOSTA. Ante at 13–14.

I would reject the plaintiffs’ proposed construction, which
ignores or overreads all the key statutory terms. To begin,
FOSTA focuses not on prostitution as an abstract legal or
policy matter, but on “the prostitution of another person”—a
widely criminalized act involving the exchange of sex for
money, see, e.g., Prostitution, BLACK’S LAW DICTIONARY
(10th ed. 2014). Moreover, in the criminal law, to “promote”
prostitution means to pander or pimp—another common
 2
offense that involves recruiting a prostitute or soliciting
prospective customers. See, e.g., Pandering, BLACK’S LAW
DICTIONARY, supra (“The act or offense of recruiting a
prostitute, finding a place of business for a prostitute, or
soliciting customers for a prostitute.—Also termed promoting
prostitution.”). Likewise, in criminal statutes, “facilitate” need
not mean “make easier.” Abuelhawa v. United States, 556 U.S.
816, 819 (2009). To the contrary, as a synonym for “terms like
‘aid,’ ‘abet,’ and ‘assist,’” it presumptively follows, and is
limited by, the background law of aiding and abetting. Id. at
821. FOSTA’s requirement of action with an “intent to
promote or facilitate” prostitution confirms this presumption,
by tracking almost verbatim the canonical formulation for the
offense of aiding and abetting. See, e.g., Rosemond v. United
States, 572 U.S. 65, 74 (2014) (to give assistance “with the
intent thereby to promote or facilitate commission of the
crime” (quotation marks omitted)); 2 W. LAFAVE,
SUBSTANTIVE CRIM. L. § 13.2 (3d ed. 2018) (same). This is not
to suggest that FOSTA requires proof of a specific, completed
act of prostitution, as would the offense of aiding and abetting
prostitution. But FOSTA does require that the defendant own,
manage, or operate a website with the specific intent to pander
or otherwise abet the exchange of sex for money—not simply
to advocate for, educate, or provide general assistance to
persons who prostitute.

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. 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. Ante at 9. But
as my colleagues explain, the website also provides prostitutes
with information about “online payment processors like
 3
PayPal,” id., which directly assists the exchange of sex for
money, id. at 14. 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.

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.