Woodhull Freedom Foundation v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2023 Decided July 7, 2023

No. 22-5105

WOODHULL FREEDOM FOUNDATION, ET AL.,
APPELLANTS

v.

UNITED STATES OF AMERICA AND MERRICK B. GARLAND, 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 Corn-Revere argued the cause for appellants. With
him on the briefs were Lawrence G. Walters, Adam S. Sieff,
Caesar Kalinowski IV, David Greene, Aaron Mackey, Corynne
McSherry, and Daphne Keller.

Christopher T. Bavitz was on the brief for amicus curiae
Transgender Law Center in support of appellants.

Lauren Gallo White and Brian M. Willen were on the brief
for amicus curiae Center for Democracy & Technology in
support of appellants.
 2

Catherine Sevcenko was on the brief for amici curiae
COYOTE-RI, et al. in support of appellants.

Rebecca Cleary was on the brief for amici curiae
Decriminalize Sex Work, et al. in support of appellants.

Joseph F. Busa, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Mark B. Stern, Attorney.

Before: MILLETT and WALKER, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: In 2018, Congress enacted the
Allow States and Victims to Fight Online Sex Trafficking Act
of 2017 (commonly referred to as “FOSTA”). Pub. L. No. 115-
164, 132 Stat. 1253 (2018) (codified as amended in 18 U.S.C.
§§ 1591(e), 1595, 2421A and 47 U.S.C. § 230(e)(5)). Section
2421A(a) of FOSTA makes it a felony to “own[], manage[], or
operate[]” an interactive computer service—for example, a
website, chat room, or search engine—“with the intent to
promote or facilitate the prostitution of another person[.]” 18
U.S.C. § 2421A(a). Section 2421A(b), in turn, denominates as
an aggravated offense a violation of Section 2421A(a) that
either “promotes or facilitates the prostitution of 5 or more
persons” or is “in reckless disregard of the fact that such
conduct contributed to sex trafficking” in violation of Section
1591(a) of the Trafficking Act. Id. § 2421A(b).

FOSTA also subjects the providers of those computer
services to liability in civil and state-law criminal actions for
 3
any third-party content they publish that violates 18 U.S.C.
§ 2421A or the Trafficking Victims Protection Act of 2000
(“Trafficking Act”), Pub. L. No. 106-386, 114 Stat. 1466
(codified as amended in various Sections of 8, 18, and 22 of the
United States Code), denying them an immunity from lawsuits
that is otherwise generally accorded to computer service
providers under 47 U.S.C. § 230. FOSTA withholds immunity
regardless of whether the outlawed conduct occurred before,
on, or after FOSTA’s enactment. 47 U.S.C. § 230(e)(5) &
note.

Finally, FOSTA adds a new definitional provision to the
Trafficking Act, 18 U.S.C. § 1591(e)(4), and authorizes parens
patriae suits by States against persons who violate that same
Act’s prohibition of sex trafficking, id. § 1595(d).

The Woodhull Freedom Foundation and four other
plaintiffs challenged the constitutionality of FOSTA on
numerous grounds, but the district court upheld FOSTA in full.

We affirm. Neither Section 2421A of FOSTA nor
FOSTA’s amendments to the Trafficking Act are overbroad or
unconstitutionally vague. FOSTA’s clarification that Section
230 withholds immunity for violations of federal sex
trafficking laws comports with the First Amendment. And the
district court correctly dismissed the challenge to Section
230(e)(5)’s retroactive application.

I

A

For decades, Congress has worked to protect minors online
while promoting free speech over the Internet. In 1996,
Congress enacted the Communications Decency Act, Pub. L.
 4
No. 104-104, Title V, 110 Stat. 56, 133–143 (codified in
various Sections of 18 and 47 of the United States Code), which
prohibited the online transmission of obscene and indecent
speech. See 47 U.S.C. § 223(a); see generally Reno v. ACLU,
521 U.S. 844, 858–861 (1997).

As relevant here, the Communications Decency Act had
twin aims. On the one hand, it sought to protect minors by
shielding them from exposure to sexually explicit materials
posted online. See Woodhull Freedom Found. v. United States,
948 F.3d 363, 367 (D.C. Cir. 2020) (“Woodhull II”). The
Supreme Court ultimately struck down that portion of the Act
on overbreadth grounds because it “lack[ed] the precision that
the First Amendment requires when a statute regulates the
content of speech.” Reno v. ACLU, 521 U.S. at 874.

At the same time, the Act shields interactive computer
services from liability for speech posted on their sites.
Congress did so to “promote the continued development of the
Internet and other interactive computer services” and to
“preserve the vibrant and competitive free market that
presently exists for the Internet and other interactive computer
services[.]” 47 U.S.C. §§ 230(b)(1)–(2). To that end, Section
230 of the Act immunizes providers of such computer
services—like YouTube, Facebook, and Craigslist—from
liability for content that is posted on their sites by third parties.
Id. § 230(c)(1). 1

Congress, though, limited Section 230’s grant of immunity
to conduct that does not independently violate federal criminal

1
Section 230 also immunizes users of those same computer services.
47 U.S.C. § 230(c)(1). The immunity shield, as applied to users, is
not at issue in this case.
 5
law. 47 U.S.C. § 230(e)(1). One such law is the Trafficking
Act, which broadly outlaws sex trafficking. In 2003, Congress
authorized survivors of sex trafficking to file civil actions for
violations of the Trafficking Act. Trafficking Victims
Protection Reauthorization Act of 2003, Pub. L. No. 108-193,
117 Stat. 2875 (codified as amended in 18 U.S.C. § 1595).

Nevertheless, when sex-trafficking survivors attempted to
sue the publishers of online classified advertising that allegedly
helped their traffickers avoid detection, the lawsuits failed
because courts found the publishers to be immune from
liability under Section 230 for the third-party speech posted on
their sites. See Woodhull II, 948 F.3d at 367–368 (detailing
Section 230’s role in preventing lawsuits by survivors of sex
trafficking).

B

Congress enacted FOSTA to strengthen protections
against online sex trafficking. In doing so, Congress
underscored that Section 230 of the Communications Decency
Act “was never intended to provide legal protection to websites
that unlawfully promote and facilitate prostitution” or to
“websites that facilitate traffickers in advertising the sale of
unlawful sex acts with sex trafficking victims[.]” 47 U.S.C.
§ 230 note. Congress added that “websites that promote and
facilitate prostitution have been reckless in allowing the sale of
sex trafficking victims and have done nothing to prevent the
trafficking of children and victims of force, fraud, and
coercion[.]” Id. FOSTA, Congress explained, was designed to
make clear that Section 230 does not cloak “such websites”
with immunity. Id.

As relevant here, FOSTA changed the law in four ways.
 6
First, FOSTA amended Section 1591 of the Trafficking
Act to define what it means to “participat[e] in a venture.” 18
U.S.C. § 1591(e)(4). Since 2015, Section 1591(a)(2) of the
Trafficking Act has proscribed knowingly “benefit[ing],
financially or by receiving anything of value, from
participation in a venture which has engaged in” recruiting,
enticing, harboring, transporting, providing, obtaining,
advertising, maintaining, patronizing, or soliciting a person,
while

knowing, or, except where the act * * * is
advertising, in reckless disregard of the fact, that
means of force, threats of force, fraud, [or] coercion
* * * will be used to cause the person to engage in a
commercial sex act, or that the person [is under] the
age of 18 and will be caused to engage in a
commercial sex act[.]

Id. § 1591(a)(2).

FOSTA clarified Section 1591(a)(2)’s reach by defining
“participation in a venture” as “knowingly assisting,
supporting, or facilitating a violation of subsection (a)(1)[,]”
which criminalizes active participation in sex trafficking. 18
U.S.C. § 1591(e)(4). Putting the two together, Section
1591(a)(2) now provides:

Whoever knowingly— * * * benefits, financially or
by receiving anything of value, from [knowingly
assisting, supporting, or facilitating a violation of
subsection (a)(1)] knowing, or, except where the act
constituting the violation of paragraph (1) is
advertising, in reckless disregard of the fact, that
means of force, threats of force, fraud, coercion
described in subsection (e)(2), or any combination
 7
of such means will be used to cause the person to
engage in a commercial sex act, or that the person
has not attained the age of 18 years and will be
caused to engage in a commercial sex act, shall be
punished as provided in subsection (b).

See id. §§ 1591(a)(2), (e)(4).

Second, FOSTA amended Section 1595 of Title 18 by
authorizing States’ attorneys general to bring civil actions
against those who violate Section 1591. 18 U.S.C. § 1595(d).

Third, FOSTA created Section 2421A of Title 18, a brand-
new felony offense. In relevant part, that provision states:

(a) In General.—Whoever, using a facility or means
of interstate or foreign commerce or in or affecting
interstate or foreign commerce, owns, manages, or
operates an interactive computer service (as such
term is defined in * * * 47 U.S.C. 230(f))[], or
conspires or attempts to do so, with the intent to
promote or facilitate the prostitution of another
person shall be fined under this title, imprisoned
for not more than 10 years, or both.

(b) Aggravated Violation.—Whoever, using a
facility or means of interstate or foreign
commerce or in or affecting interstate or foreign
commerce, owns, manages, or operates an
interactive computer service (as such term is
defined in * * * 47 U.S.C. 230(f))[], or conspires
or attempts to do so, with the intent to promote or
facilitate the prostitution of another person and—
 8
(1) promotes or facilitates the prostitution of
5 or more persons; or

(2) acts in reckless disregard of the fact that
such conduct contributed to sex
trafficking, in violation of 1591(a),

shall be fined under this title, imprisoned for not more
than 25 years, or both.

18 U.S.C. §§ 2421A(a)–(b).

As used in Section 2421A, “interactive computer
service[s]” are online platforms that “provide[] or enable[]
computer access by multiple users to a computer server[.]” 47
U.S.C. § 230(f)(2). (Going forward, we will refer to interactive
computer services more colloquially as “online platforms.”)

Section 2421A(a) makes it a felony, punishable by up to
ten years of imprisonment, to “own[], manage[], or operate[]
an interactive computer service, * * * or conspire[] or attempt[]
to do so” if done “with the intent to promote or facilitate the
prostitution of another person[.]” 18 U.S.C. § 2421A(a).

Section 2421A(b) separately creates an aggravated
offense, punishable by up to 25 years of imprisonment, for
anyone who both violates Section 2421A(a) and also
“promotes or facilitates the prostitution of 5 or more persons”
or “acts in reckless disregard of the fact that such conduct
contributed to sex trafficking” in violation of Section 1591(a)
of the Trafficking Act. 18 U.S.C. § 2421A(b).

Fourth, FOSTA clarifies that Section 230’s immunity
shield does not impair or limit liability for (i) civil actions
brought under Section 1595 of the Trafficking Act if the
 9
underlying conduct violates Section 1591 of the Trafficking
Act, or (ii) criminal charges brought under state law if the
underlying conduct violates Section 1591 of the Trafficking
Act or Section 2421A of Title 18. 47 U.S.C. § 230(e)(5).

FOSTA adds that its amendments to Section 230 “shall
apply regardless of whether the conduct alleged occurred, or is
alleged to have occurred, before, on, or after [FOSTA’s]
enactment.” 47 U.S.C. § 230 note.

C

In response to FOSTA’s enactment, several online
platforms removed content and deleted entire sections of their
websites. Woodhull II, 948 F.3d at 368–369. For example, two
days after Congress passed the Act, Craigslist eliminated all
personal ads, including those in non-sexual categories, and
named FOSTA as the reason for doing so. Other websites
followed suit, and many blamed the Act’s broad criminal
prohibitions and severe penalties. See COYOTE-RI, et al.,
Amicus Br. A. 15 (“FOSTA changes [liability] in a way that
makes sites operated by small organizations * * * much riskier
to operate. [The Act] essentially says that if we facilitate the
prostitution of another person we’re liable. * * * [T]he problem
is that ‘or facilitate’ is ill-defined.”).

The plaintiffs in this case similarly allege that FOSTA has
chilled or halted their constitutionally protected speech.
Plaintiff Woodhull Freedom Foundation is an advocacy
organization that supports the health, safety, and protection of
sex workers. Because of the Act, Woodhull has censored its
publication of information that might, in its view, be
considered to promote or facilitate sex work.
 10
Plaintiff Alex Andrews is the cofounder and organizer of
several advocacy groups for sex workers. Andrews created
Rate That Rescue, a website that allows sex workers to report
and warn others about violence and other harmful behavior by
clients. Rate That Rescue also shares information about
products and services that sex workers can use, including
online payment processors and contact information for rescue
organizations. See Woodhull II, 948 F.3d at 369. Because Rate
That Rescue has thousands of users, and because Andrews has
alleged that she intends to use Rate That Rescue to host
discussions that in her view “facilitate” sex trafficking,
Andrews’s conduct is arguably proscribed by FOSTA. Id. at
372. In addition, an organization of which Andrews is a board
member canceled its acquisition and development of an
electronic tool for sex workers to report violent and harmful
behavior because of FOSTA.

Plaintiff Human Rights Watch is an advocacy organization
that, among other things, advocates for the human rights of sex
workers. In so doing, Human Rights Watch chronicles rights
violations committed against sex workers and describes police
tactics targeted at their work. Human Rights Watch alleges that
the Act endangers its human rights advocacy work, especially
its documentation of abuses against sex workers.

Plaintiff the Internet Archive captures, displays, and stores
all types of historical website data and third-party material. It
fears prosecution for its preservation of web pages that may
later be found to violate FOSTA, and for the third-party
material it hosts.

Finally, plaintiff Eric Koszyk is a licensed massage
therapist. Before FOSTA, Koszyk advertised his business on
Craigslist. But Craigslist removed its “therapeutic services”
section after FOSTA’s enactment and took down his ads,
 11
allegedly causing Koszyk to lose revenue and a substantial
number of clients.

II

A

In June 2018, Woodhull Freedom Foundation, Human
Rights Watch, the Internet Archive, Andrews, and Koszyk
(collectively, “Woodhull”) filed a pre-enforcement facial
challenge to FOSTA. Woodhull mounts several First
Amendment attacks on the Act, including that it is an
overbroad, content-based restriction on speech that fails strict
scrutiny. Woodhull also alleges that the Act is
unconstitutionally vague in violation of the Fifth Amendment
and that it imposes an unconstitutional retroactive criminal
penalty in violation of the Ex Post Facto Clause of Article I,
Section 9 of the Constitution.

The district court originally dismissed the case and denied
Woodhull’s preliminary injunction for lack of standing.
Woodhull Freedom Found. v. United States, 334 F. Supp. 3d
185, 203 (D.D.C. 2018) (“Woodhull I”), rev’d and remanded,
948 F.3d 363 (D.C. Cir. 2020).

This court reversed, holding that at least some plaintiffs
had established standing, and remanded the case for further
proceedings. See Woodhull II, 948 F.3d at 371–374. We held
that, at a minimum, Andrews had standing because she
“operates a website that allows sex workers to share
information” that arguably violates Section 2421A. Id. at 372.
The court noted that the Act could be read one of two ways.
First, because Section 2421A does not define “promote” or
“facilitate,” and the terms are listed disjunctively, the Act could
separately proscribe promoting prostitution and facilitating
 12
prostitution. Id. Given that the ordinary meaning of
“facilitate” is “to make easier,” this court concluded that
FOSTA may criminalize any behavior that makes unlawful sex
work easier. See id. (quoting United States v. Rivera, 775 F.2d
1559, 1562 (11th Cir. 1985)) (further citation omitted). On the
other hand, FOSTA could be read to use “facilitate” in its
criminal law context, which would outlaw only conduct that
aids and abets unlawful sex work. Id.

Because Andrews’s website allows sex workers to share
information about payment processors, the court reasoned that
it faced regulation under either reading of the statute.
Woodhull II, 948 F.3d at 372–373. For that reason, this court
held that Andrews had standing to bring a pre-enforcement
First Amendment challenge to FOSTA.

This court also held that Koszyk had standing because
Craigslist’s removal of his advertisements is traceable to
FOSTA. Woodhull II, 948 F.3d at 374. In addition, his injury
is redressable because a favorable ruling invalidating the Act
would likely result in the reinstatement of personalized ads. Id.
Because Andrews and Koszyk established standing, the court
did not evaluate whether the three institutional plaintiffs also
had standing. Id. at 371. 2

B

On remand, the district court granted the Government’s
motion for summary judgment and denied Woodhull’s cross-
motion, holding that the Act is not unconstitutional under the
First or Fifth Amendments. Woodhull Freedom Found. v.
United States, No. CV 18-1552 (RJL), 2022 WL 910600, at *1

2
Judge Katsas filed an opinion concurring in part and concurring in
the judgment.
 13
(D.D.C. March 29, 2022) (“Woodhull III”). The district court
found that FOSTA is not overbroad if “promote or facilitate” is
read in its criminal law context. Id. at *5–6 (quoting 18 U.S.C.
§ 2421A(a)). When read that way, the court reasoned, FOSTA
does not target advocacy, but instead is narrowly tailored to
target “services that are owned, operated, or managed with the
intent to aid, abet, or assist” acts of prostitution. Id. at *6. On
that same basis and in light of FOSTA’s scienter requirements,
the district court rejected Woodhull’s vagueness challenge. Id.
at *8–9.

As for the amendment of Section 230, the district court
found no constitutional basis for the immunity Woodhull
claimed, and it rejected Woodhull’s challenge based on content
and viewpoint discrimination on the ground that FOSTA does
not regulate speech. Woodhull III, 2022 WL 910600, at *9.
Finally, the district court dismissed Woodhull’s Ex Post Facto
Clause challenge to FOSTA’s effective date. Id. at *11. That
provision allows civil liability under Section 1595 of the
Trafficking Act and state criminal liability against online
platforms for conduct that violates FOSTA and applies even if
the conduct occurred before FOSTA’s enactment. 47 U.S.C.
§ 230 note. The only actors who can enforce that provision are
private plaintiffs and state law enforcement officers. Id.
§ 230(e)(5)(C). Because the named defendants in this pre-
enforcement challenge are all federal officials who cannot
bring lawsuits under Section 230(e)(5)(C), the district court
ruled that it could not provide Woodhull with a remedy for its
Ex Post Facto Clause claim. Woodhull III, 2022 WL 910600,
at *11.

III

Woodhull timely filed a notice of appeal. We have
jurisdiction under 28 U.S.C. § 1291. We review the district
 14
court’s grant of summary judgment de novo. See Edwards v.
District of Columbia, 755 F.3d 996, 1000 (D.C. Cir. 2014).
Questions of statutory interpretation and constitutional law are
likewise reviewed de novo. See Blackman v. District of
Columbia, 456 F.3d 167, 176 (D.C. Cir. 2006); United States
v. Bronstein, 849 F.3d 1101, 1106 (D.C. Cir. 2017).

IV

Woodhull levels multiple First and Fifth Amendment
challenges to FOSTA. None of them succeeds.

A

Woodhull argues that FOSTA’s amendment of Section
1591(e)(4) of the Trafficking Act to define “participation in a
venture” is unconstitutionally overbroad under the First
Amendment. We disagree.

“[A] statute is facially invalid [under the overbreadth
doctrine] if it prohibits a substantial amount of protected
speech.” United States v. Williams, 553 U.S. 285, 292 (2008).
Invalidation for overbreadth is “strong medicine” that is not to
be “casually employed.” Id. at 293 (citations and quotation
marks omitted). Accordingly, courts “vigorously enforce[]”
the requirement that any “overbreadth be substantial, not only
in an absolute sense, but also relative to the statute’s plainly
legitimate sweep.” Id. at 292 (citations omitted); see United
States v. Stevens, 559 U.S. 460, 473 (2010); Initiative &
Referendum Inst. v. United States Postal Serv., 417 F.3d 1299,
1312–1313 (D.C. Cir. 2005).

To determine if Section 1591(e)(4) is overbroad, we must
first construe the provision’s meaning, for “it is impossible to
determine whether a statute reaches too far without first
 15
knowing what the statute covers.” Williams, 553 U.S. at 293;
see United States v. Hansen, No. 22-179, slip op. at 5 (U.S.
June 23, 2023) (same). So we start, as we must, with the
statutory text. See Republic of Sudan v. Harrison, 139 S. Ct.
1048, 1055–1056 (2019).

Recall that Section 1591(a) outlaws knowingly benefiting
from “participation in a venture” that one knows has engaged
in sex trafficking. 18 U.S.C. § 1591(a)(2). FOSTA defines
“participation in a venture” as “knowingly assisting,
supporting, or facilitating [sex trafficking].” Id. § 1591(e)(4).
Woodhull argues that Section 1591(e)(4) is overbroad because
the operative verbs—assisting, supporting, or facilitating—are
broad and potentially sweeping in their reach. That is incorrect.

Standing alone, verbs like “assisting” and “facilitating”
can be broad in their reach. But we read statutory terms in
context, not in isolation. See Williams, 553 U.S. at 294. When
read together, with each word drawing meaning from the other,
the string of verbs “assisting, supporting, or facilitating” is
most naturally understood to refer to aiding and abetting sex
trafficking. After all, the word assist means “to lend aid; to
help.” See Assist, WEBSTER’S NEW INTERNATIONAL
DICTIONARY 167 (2d ed. 1954) (def. 2); see also OXFORD
ENGLISH DICTIONARY 715 (2d ed. 1989) (def. 1) (“An act of
assistance; aid, help.”); AMERICAN HERITAGE DICTIONARY 108
(5th ed. 2018) (def. 1) (“To give help or support to[.]”).
Similarly, “support” commonly means “assist” or “help[.]”
Support, MERRIAM-WEBSTER DICTIONARY 1256 (11th ed.
2014) (def. 2 b (1)); OXFORD ENGLISH DICTIONARY 257 (2d ed.
1989) (def. 1. a.) ([A]ssistance[.]”).

In addition, “assist” is commonly used by Congress as part
of aiding-and-abetting language. See, e.g., 8 U.S.C.
§ 1227(a)(1)(E) (“Any alien who * * * knowingly has
 16
encouraged, induced, assisted, abetted, or aided any other alien
to enter or to try to enter the United States in violation of law
is deportable.”); 15 U.S.C. § 3057(a)(2)(K) (“Assisting,
encouraging, aiding, abetting, conspiring, covering up, or any
other type of intentional complicity involving a safety,
performance, or anti-doping and medication control rule[.]”);
18 U.S.C. § 3014(a) (special assessment for persons who aid
and abet immigration violations unless “the person induced,
assisted, abetted, or aided” a child, spouse, or parent); 26
U.S.C. § 6701(a) (applying to “[a]ny person—(1) who aids or
assists in, procures, or advises with respect to, the preparation
or presentation of any portion of a return, affidavit, claim, or
other document”); 43 U.S.C. § 1064 (punishing any person
“who shall aid, abet, counsel, advise, or assist in any violation
hereof”).

Given the company it keeps in Section 1591(e)(4),
“facilitating” similarly connotes helping to make sex
trafficking happen—that is, aiding and abetting the offense.
See Facilitation, BLACK’S LAW DICTIONARY (10th ed. 2014)
(def. 2) (“The act or an instance of aiding or helping; esp., in
criminal law, the act of making it easier for another person to
commit a crime.”).

The Supreme Court has come to the same conclusion.
Most recently, the Court explained that “[f]acilitation—also
called aiding and abetting—is the provision of assistance to a
wrongdoer with the intent to further an offense’s commission.”
Hansen, slip op., at 6. Likewise, in Abuelhawa v. United
States, 556 U.S. 816 (2009), the statute at issue made it “a
felony ‘to use any communication facility in committing or in
causing or facilitating’ certain felonies prohibited by” the
Controlled Substances Act, id. at 818 (quoting 21 U.S.C.
§ 843(b)). There the Court held that, when used that way, the
term “facilitate” had “comparable scope” to aid and abet. Id.
 17
at 821. As the Second Circuit has explained, when Congress
uses “‘facilitate’ * * * to describe an action distinct from
‘committing’ a crime, its meaning is commonly limited to
actions taken to assist someone else’s crime.” United States v.
Desposito, 704 F.3d 221, 228 n.8 (2d Cir. 2013) (emphasis
omitted); see id. (citing Abuelhawa, 556 U.S. at 821, for the
proposition that “‘facilitate’ has an ‘equivalent meaning’ to
‘aid,’ ‘abet,’ and ‘assist’”).

Likewise, here, Section 1591(e)(4) uses “facilitates” to
describe a criminal act distinct from a direct violation of the
law. Compare 18 U.S.C. § 1591(a)(1), with id. §§ 1591(a)(2)
& (e)(4). And by placing “facilitate” alongside “assist” and
“support,” Congress framed it in a manner that indicates an
aiding-and-abetting offense.

In sum, reading Section 1591(e)(4)’s definition of
“participation in a venture” in light of its context and placement
in the statutory scheme, the definition permissibly prohibits
aiding and abetting a venture that one knows to be engaged in
sex trafficking while knowingly benefiting from that venture.
We thus hold that the provision does not have the expansive
scope that Woodhull fears, but instead, proscribes only speech
that falls within the traditional bounds of aiding-and-abetting
liability, which is not a form of speech protected by the First
Amendment. See Stevens, 559 U.S. at 468 (First Amendment
allows restrictions on the content of “speech integral to
criminal conduct”) (citations omitted); National Org. for
Women v. Operation Rescue, 37 F.3d 646, 656 (D.C. Cir. 1994)
(“That ‘aiding and abetting’ of an illegal act may be carried out
through speech is no bar to its illegality.”); see also Hansen,
slip op. at 17 (“Section 1324(a)(1)(A)(iv) reaches no further
than the purposeful * * * facilitation of specific acts known to
violate federal law. So understood, the statute does not
‘prohibi[t] a substantial amount of protected speech’ relative to
 18
its ‘plainly legitimate sweep.’”) (quoting Williams, 553 U.S. at
292).

B

Woodhull also argues that Sections 2421A(a) and (b)(1) of
FOSTA are overbroad because the phrase “promote or
facilitate” has a variety of meanings, many of which include
protected speech, such as general advocacy and the provision
of safety and health information. The Government, on the
other hand, contends that “promote or facilitate” should be read
to mean aid or abet. The Government is correct. Sections
2421A(a) and (b)(1) of FOSTA are not unconstitutionally
overbroad under the First Amendment.

1

Start with the statutory text. Section 2421A(a) provides:

Whoever, using a facility or means of interstate or foreign
commerce or in or affecting interstate or foreign
commerce, owns, manages, or operates an interactive
computer service (as such term is defined in * * * 47
U.S.C. § 230(f))[], or conspires or attempts to do so, with
the intent to promote or facilitate the prostitution of
another person shall be fined under this title, imprisoned
for not more than 10 years, or both.

18 U.S.C. § 2421A(a).

Section 2421A(a)’s mens rea is clear: An intent to
promote or facilitate the prostitution of another person. As we
have already held, “‘promote’ and ‘facilitate,’ when considered
in isolation, ‘are susceptible of multiple and wide-ranging
meanings.’” Woodhull II, 948 F.3d at 372 (quoting and citing
 19
Williams, 553 U.S. at 294). But contrary to Woodhull’s
assertion, when read in context, Section 2421A(a)’s mens rea
requirement is constitutional.

Section 2421A is a criminal statute and, as the district
court noted, “promoting prostitution” has a distinct meaning in
criminal law. Woodhull III, 2022 WL 910600, at *6. For
example, Black’s Law Dictionary defines “promoting
prostitution” as “[t]he act or offense of recruiting a prostitute,
finding a place of business for a prostitute, or soliciting
customers for a prostitute.” Promoting Prostitution, BLACK’S
LAW DICTIONARY (10th ed. 2014). 3

That specialized meaning is important because, “when
Congress ‘borrows terms of art in which are accumulated the
legal tradition and meaning of centuries of practice, it
presumably knows and adopts the cluster of ideas that were
attached to each borrowed word.’” Hansen, slip op. at 9–10
(quoting Morissette v. United States, 342 U.S. 246, 263
(1952)). So when read within its traditional criminal law
context, Section 2421A(a)’s prohibition on promoting the
prostitution of another person proscribes owning, managing, or
operating an online platform with the intent to recruit, solicit,

3
The definition of “promoting prostitution” directs the reader to the
first definition of pandering. Promoting Prostitution, BLACK’S LAW
DICTIONARY (10th ed. 2014). The first definition of pandering
states: “[t]he 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.” Pandering, BLACK’S LAW
DICTIONARY) (10th ed. 2014) (def. 1).
 20
or find a place of business for a sex worker—that is, to aid and
abet prostitution. 4

While “facilitating prostitution” has not been so defined,
the context in which it is used in Section 2421A(a) similarly
narrows its reach to additional forms of aiding and abetting that
go beyond the recruitment, solicitation, or finding of a place of
business, which “promote” already covers.

As a preliminary matter, the Supreme Court explained in
Hansen that the word “facilitate” is a synonym for aiding and
abetting when that word is used in the context of criminal
statutes. See Hansen, slip op. at 6 (“Facilitation—also called
aiding and abetting[.]”). The Court further observed that
facilitation is a “longstanding criminal theor[y] targeting those
who support the crimes of a principal wrongdoer.” Id. So it
seems clear that, in this statute, “facilitating prostitution” is
most naturally read to mean aiding and abetting prostitution.

4
That is also the sense in which “promoting prostitution” is used in
several state criminal statutes and the Model Penal Code. See, e.g.,
18 PA. CONS. STAT. § 5902(b) (2022) (defining “promoting
prostitution” as, among other things, “owning * * * a house of
prostitution,” “procuring an inmate for a house of prostitution[,]” and
“inducing or otherwise intentionally causing another to become or
remain a prostitute”); OHIO REV. CODE ANN. § 2907.22(A) (West
2023) (To “promote prostitution” is, among other things, to
“establish * * * a brothel,” to “[s]upervise, manage, or control the
activities of a prostitute in engaging in sexual activity for hire,” or to
“induce or procure another to engage in sexual activity for hire”);
720 ILL. COMP. STAT. ANN. 5/11-14.3(a)(2) (West 2023) (A person
“commits promoting prostitution” by, among other things,
“profit[ing] from prostitution by: compelling a person to become a
prostitute; [or] arranging or offering to arrange a situation in which a
person may practice prostitution[.]”); MODEL PENAL CODE § 251.2
(similar).
 21

Notably, elsewhere in FOSTA, “facilitate” appears in the
company of other aiding-and-abetting verbs, suggesting that
Congress meant to carry that sense forward into Section
2421A. See Section IV.A., supra. So too here: “[F]acilitate”
appears alongside “promote” and is directly tied to the criminal
offense of prostituting another person, so reading “facilitate” to
mean aiding and abetting makes textual sense. See National
Postal Policy Council v. Postal Regul. Comm’n, 17 F.4th 1184,
1191 (D.C. Cir. 2021) (“[A] standard principle of statutory
construction provides that identical words and phrases within
the same statute should normally be given the same meaning.”)
(quoting Powerex Corp. v. Reliant Energy Servs., Inc., 551
U.S. 224, 232 (2007)), cert. denied, 142 S. Ct. 2868 (2022).

What is more, the phrase “promote or facilitate” is often
used as the mens rea for accomplice liability in the Model Penal
Code and state aiding-and-abetting statutes. For example, the
Model Penal Code defines an accomplice as a person who aids
or agrees with another in planning or committing a crime “with
the purpose of promoting or facilitating the commission of the
offense[.]” MODEL PENAL CODE § 2.06(3)(a).

State aiding-and-abetting statutes mirror this language by
defining aiding and abetting as engaging in a circumscribed act
with the purpose of “promoting or facilitating” a crime. See,
e.g., ALASKA STAT. § 11.16.110(2)(B) (2022); COLO. REV.
STAT. § 18-1-603 (2023); DEL. CODE. ANN. tit. 11, § 271
(2023); 720 ILL. COMP. STAT. 5/5-2 (2022); N.J. STAT. ANN.
§ 2C:2-6 (West 2023); 18 PA. CONS. STAT. § 306 (2023).
Federal criminal law also employs a similar phrase in the
Travel Act, which in part outlaws traveling with the intent to
“promote or * * * facilitate the promotion” of unlawful
activity. 18 U.S.C. § 1952(a)(3); cf. Urena-Ramirez v.
Ashcroft, 341 F.3d 51, 54 (1st Cir. 2003) (conduct underlying
 22
promotion of unlawful activity was tantamount to aiding and
abetting). 5

2

In addition to employing “promotes or facilitates” in an
aiding-and-abetting context, Section 2421A(a) uses a very
specific criminal object that itself narrows the reach of
“facilitates.” Congress, after all, did not use “facilitate” or
“facilitate prostitution” in isolation. Instead, the statute
outlaws “facilitat[ing] * * * the prostitution of another person.”
18 U.S.C. § 2421A(a). By placing both “facilitate” and
“promote” in relation to the same object—namely “the
prostitution of another person”—Congress signaled that
“facilitate” should carry the same criminal-law meaning of
aiding and abetting the prostitution of another as the
companion phrase “promotes” prostitution does, with
“facilitates” capturing those forms of aiding and abetting not
covered by the verb “promotes.” See Woodhull II, 948 F.3d at
5
The Model Penal Code and state statutes also employ the phrase
“promote or facilitate” to define the mens rea in other criminal
offenses such as solicitation and conspiracy. See, e.g., MODEL
PENAL CODE § 5.02(1) (solicitation occurs if a person commands,
encourages, or requests another person to commit a crime “with the
purpose of promoting or facilitating its commission”); id.
§ 5.03(1)(a) (conspiracy is the act of agreeing to aid another in the
planning or commission of a crime “with the purpose of promoting
or facilitating its commission”); ARIZ. REV. STAT. ANN. § 13-1002
(2023) (mirroring the Model Penal Code’s definition of solicitation);
KY. REV. STAT. ANN. § 506.030 (West 2023) (solicitation); PA.
CONS. STAT. § 902(a) (2023) (solicitation); KAN. STAT. ANN. § 21-
5303 (2022) (solicitation); 18 PA. CONS. STAT. § 903(a) (2023)
(mirroring the Model Penal Code’s definition of conspiracy); N.J.
STAT. § 2C:5–2(a) (West 2023) (conspiracy); MO. REV. STAT.
§ 562.014(1) (2023) (conspiracy); HAW. REV. STAT. § 702-222
(2023) (conspiracy).
 23
372 (“‘[F]acilitate’ 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.”) (formatting modified); see also Williams, 553 U.S.
at 295 (the meaning of “facilitate” can be narrowed by
neighboring words). In that way, “promote or facilitate
prostitution of another person” encompasses both actions that
count as promoting prostitution—like running a “prostitution
business,” or “procur[ing] a prostitute for a patron,” see N.J.
STAT. ANN. § 2C:34–1(a)(4) (West 2023)—and other actions
that aid and abet prostitution, like getting someone addicted to
drugs, stealing their money or passports, or threatening them
against leaving.

Section 2421A(a)’s object—“the prostitution of another
person”— also focuses the otherwise potentially broad reach of
“facilitates.” 18 U.S.C. § 2421A(a). Notably, that statutory
phrasing does not proscribe facilitating prostitution more
generally, which could extend to speech arguing for the
legalization of prostitution or that discusses, educates, or
informs about prostitution. The person “being prostituted” (in
Congress’s words) is the object of the facilitation and the
offense of being prostituted. See Williams, 553 U.S. at 298–
299 (“[T]here remains an important distinction between a
proposal to engage in illegal activity and the abstract advocacy
of illegality.”). The language bespeaks something done to a
particular person—aiding their prostitution by someone else or
some force independent of the person being prostituted.
Prostitution, MERRIAM-WEBSTER DICTIONARY (11th ed. 2014)
(def. 2) (“The state of being prostituted.”); see also Williams,
553 U.S. at 300 (While the First Amendment does not allow
criminalizing “abstract advocacy,” it does permit outlawing
“the recommendation of a particular piece of purported child
pornography with the intent of initiating a transfer.”). That
understanding also maps onto Congress’s intent in FOSTA to
 24
deny protection to “websites that facilitate traffickers in
advertising the sale of unlawful sex acts with sex trafficking
victims[.]” 47 U.S.C. § 230 note.

This understanding of “facilitate the prostitution of another
person” likewise parallels the definition of “promote
prostitution” employed in the Model Penal Code and state
statutes, adopting it as actions that “encourag[e], induc[e] or
otherwise purposely caus[e] another to become or remain a
prostitute[.]” MODEL PENAL CODE § 251.2(2)(c); see also note
4, supra. In that way, “facilitate the prostitution of another
person” encompasses actions that cause a specific person to “be
prostituted” or helps to orchestrate their prostitution.

We therefore hold that Section 2421A(a)’s mental state
requirement does not reach the intent to engage in general
advocacy about prostitution, or to give advice to sex workers
generally to protect them from abuse. Nor would it cover the
intent to preserve for historical purposes webpages that discuss
prostitution. Instead, it reaches a person’s intent to aid or abet
the prostitution of another person. That reading also makes
sense in a statute that targets prostitution alongside sex
trafficking, and seeks to eradicate the use of online platforms
when they contribute to sex work that is compelled by “force,
fraud, and coercion[.]” 47 U.S.C. § 230 note.

Undoubtedly, the term “facilitate” could be read more
broadly. See Woodhull II, 948 F.3d at 372. But nothing in
Section 2421A(a) compels us to read “facilitate” that way.
Doubly so when a more expansive reading could raise grave
constitutional concerns. See Judicial Watch, Inc. v. United
States Secret Serv., 726 F.3d 208, 226 (D.C. Cir. 2013) (canon
of constitutional avoidance requires courts to “interpret[]
statutes to avoid deciding difficult constitutional questions
where the text fairly admits of a less problematic construction”)
 25
(quoting Public Citizen v. Department of Justice, 491 U.S. 440,
455 (1989)). Rather, as the Supreme Court emphasizes, we
must adopt any “fairly possible” reading that assures the
constitutionality of the text. Hansen, slip op. at 16 (quoting
Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)). And that
reading is plainly available here, especially when “facilitate” is
read as a companion to the verb “promote,” and with the very
specific object of “the prostitution of another person.”

3

Woodhull also argues that Section 2421A(b)(1) is
substantially overbroad, just like Section 2421A(a). Because
we have already concluded that the provision’s mens rea
clause, which is identical to that in subsection (a), can be read
narrowly to fall within constitutional bounds, see Sections
IV.B.1–2., supra, that challenge fails.

C

Woodhull separately argues that certain portions of
FOSTA are void for vagueness. In particular, Woodhull
objects to Section 1591(e)(4)’s definition of “participation in a
venture,” Section 2421A’s mens rea clause, Section
2421A(b)(2)’s aggravated offense provision, and Section
230(e)(5)(A)’s scienter requirement. All of Woodhull’s
challenges fail.

“Vagueness doctrine is an outgrowth not of the First
Amendment, but of the Due Process Clause of the Fifth
Amendment.” Williams, 553 U.S. at 304. A law is
unconstitutionally vague if it “fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement.” Id. “What renders a statute
 26
vague is not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of precisely what that fact
is.” Id. at 306. That concern takes no root here.

First, there is no relevant indeterminacy in Section
1591(e)(4)’s definition of “participation in a venture[,]” or in
Section 2421A’s mens rea clause. Instead, as explained above,
conventional tools of statutory construction show that both
provisions capture traditional aiding-and-abetting liability. See
Bronstein, 849 F.3d at 1106 (“A statute’s vagueness is either
susceptible to judicial construction or is void for vagueness
based on the application of traditional rules for statutory
interpretation.”). That long-settled standard for criminal
liability puts persons on fair notice that aiding and abetting a
group engaged in sex trafficking or acting with the intent to aid
and abet the prostitution of another person is prohibited. See
Hansen, slip op. at 6 (concept of facilitation is a “longstanding
criminal theor[y]”). Nothing in Section 1591(e)(4)’s definition
of participating in a venture or in Section 2421A’s mens rea
depends on the type of subjective or wholly discretionary or
indiscernible judgments that courts have struck down as
unconstitutionally vague. See Williams, 553 U.S. at 306 (terms
like “annoying” or “indecent” lack sufficient objective content
to provide fair notice).

Second, Woodhull argues that Section 2421A(b)(2) is
unconstitutionally vague because it imposes liability on anyone
who acts in “reckless disregard” of the fact that their conduct
“contributed to sex trafficking” in violation of Section 1591 of
the Trafficking Act without defining those phrases. Woodhull
is incorrect.

For one, “reckless disregard” is a commonly used mens
rea with a settled criminal law meaning. See Borden v. United
 27
States, 141 S. Ct. 1817, 1824 (2021) (“A person acts recklessly,
in the most common formulation, when he ‘consciously
disregards a substantial and unjustifiable risk’ attached to his
conduct, in ‘gross deviation’ from accepted standards.”)
(quoting MODEL PENAL CODE § 2.02(2)(c)).

In addition, while “contributes to” sex trafficking can
range from helping to bring about sex trafficking to aiding and
abetting sex trafficking, the breadth of the standard does not
make it vague. See Williams, 553 U.S. at 304; see also
Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212
(1998) (“[T]he fact that a statute can be ‘applied in situations
not expressly anticipated by Congress does not demonstrate
ambiguity. It demonstrates breadth.’”) (quoting Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)). Nor does its
operation turn on wholly discretionary and unpredictable
judgments. See Contribute, AMERICAN HERITAGE DICTIONARY
399 (5th ed. 2016) (def. 2) (“[T]o help bring about a result; act
as a factor[.]”); WEBSTER’S NEW WORLD 324 (5th ed. 2014)
(def. 3) (“[T]o give or furnish (knowledge, ideas, etc.)—to
have a share in bringing about (a result); be partly responsible
for[.]”); Williams, 553 U.S. at 304. As such, the provision is
not unconstitutionally vague.

Third, Section 230(e)(5)(A)’s scienter requirement
likewise passes constitutional muster. Recall that Section 1595
of the Trafficking Act allows survivors of sex trafficking to
bring a civil action against a perpetrator or anyone who
“knowingly benefits, * * * from participation in a venture
which that person knew or should have known has engaged in
[sex trafficking].” 18 U.S.C. § 1595(a). At the same time,
Section 230 broadly immunizes providers of online platforms
from civil liability for content posted on their platforms by third
parties. 47 U.S.C. § 230(c).
 28
In FOSTA, Congress clarified that online platforms sued
in civil actions under Section 1595 do not enjoy Section 230
immunity “if the conduct underlying the claim constitutes a
violation of section 1591”—that is, conduct that involves either
directly engaging in sex trafficking or knowingly benefiting
from participation in a venture that one knows has engaged in
sex trafficking, 18 U.S.C. § 1591. See 47 U.S.C.
§ 230(e)(5)(A).

While both Sections 1591 and 1595 prohibit “participation
in a venture” that has engaged in sex trafficking, Section
1595’s civil liability provision does not explicitly specify a
mens rea for “participation in a venture[.]” While the statutory
text is not explicit and a few initial rulings were contradictory,
court rulings are now consistent that Section 1595 requires an
actual knowledge mens rea for participation in a venture. 6

Woodhull points to that evolution in case law as evidence
that the provision is unconstitutionally vague. But the fact that
6
Initially, while two courts required actual knowledge, two others
had held that constructive knowledge sufficed. Compare Doe v. Kik
Interactive, Inc., 482 F. Supp. 3d 1242, 1249–1251 (S.D. Fla. 2020)
(actual knowledge), and J.B. v. G6 Hosp., LLC, No. 19-CV-07848-
HSG, 2021 WL 4079207, at *5 (N.D. Cal. 2021), aff’d sub nom. J.B.
v. Craigslist, Inc., No. 22-15290, 2023 WL 3220913 (9th Cir. May
3, 2023) (actual knowledge), with Doe v. Mindgeek USA Inc., 558 F.
Supp. 3d 828, 836 (constructive knowledge), adhered to on denial of
reconsideration, 574 F. Supp. 3d 760 (C.D. Cal. 2021), and Doe v.
Twitter, Inc., 555 F. Supp. 3d 889, 920 (N.D. Cal. 2021)
(constructive knowledge), aff’d in part, rev’d in part and remanded
sub nom. Doe #1 v. Twitter, Inc., No. 22-15103, 2023 WL 3220912
(9th Cir. May 3, 2023), and abrogated by Does 1-6 v. Reddit, Inc.,
51 F.4th 1137 (9th Cir. 2022). The Ninth Circuit has since ruled that
actual knowledge is required, Does 1-6 v. Reddit, Inc., 51 F.4th 1137,
1141, 1145 (9th Cir. 2022), and so all courts to have decided the issue
thus far are now in alignment.
 29
a statutory construction question may be difficult or unresolved
does not make the law unconstitutionally vague. Otherwise,
countless laws would be invalidated. “[P]erfect clarity and
precise guidance have never been required even of regulations
that restrict expressive activity.” Williams, 553 U.S. at 304
(quoting Ward v. Rock Against Racism, 49 U.S. 781, 794
(1989)). Rather, a statute is unconstitutionally vague only “if,
applying the rules for interpreting legal texts, its meaning
specifies no [determinable] standard of conduct at all.”
Bronstein, 849 F.3d at 1107 (formatting modified).

Section 230(e)(5)(A) suffers from no such problem.
Principles of statutory construction have proven up to the task
of interpreting that provision. And whatever mens rea is
required, it does not turn on subjective, unascertainable, or
wholly discretionary judgments, or on the absence of any
standard at all. See Williams, 553 U.S. at 304. That suffices to
foreclose Woodhull’s vagueness challenge. See Bronstein, 849
F.3d at 1107 (“[A] statutory term is not rendered
unconstitutionally vague because it ‘do[es] not mean the same
thing to all people, all the time, everywhere.’”) (quoting Roth
v. United States, 354 U.S. 476, 491 (1957)); see also United
States v. Kernell, 667 F.3d 746, 754 (6th Cir. 2012) (“[T]he fact
that different courts have interpreted a statute differently does
not make the statute vague—if that were true, a circuit split
over the interpretation of a criminal statute would by definition
render the statute unconstitutional.”).

V

Woodhull also argues that Section 4(b) of FOSTA runs
afoul of the Constitution’s prohibition of ex post facto laws.
See U.S. CONST. Art. I, § 9, cl. 3. Section 4(b) provides that
the amendments to Section 230(e)(5)’s immunity provision,
which exclude criminal sex trafficking conduct, “shall apply
 30
regardless of whether the conduct alleged occurred, or is
alleged to have occurred, before, on, or after” FOSTA’s
enactment. 47 U.S.C. § 230 note. Woodhull argues that
Section 4(b) violates the Ex Post Facto Clause because it
allows private parties and States to prosecute online platforms
for third parties’ speech on their sites even when that speech
predated FOSTA’s enactment. Woodhull seeks a declaration
that the Act violates the Ex Post Facto Clause and a permanent
injunction forbidding the defendants to enforce that provision.
Compl. at 50–51, J.A. 61–62.

Woodhull’s argument does not get out of the starting gate.
The only persons who could even arguably violate the Ex Post
Facto Clause by prosecuting the state-law actions authorized
by Section 230(e)(5)(C) are state officials and private parties.
None of the federal defendants whom Woodhull has sued have
any ability or authority to bring the state-law actions that
Section 230(e)(5)(C) authorizes. So there is no possible
conduct by these federal defendants that a court could declare
unconstitutional or enjoin as unlawful on ex post facto grounds.
Nor does the complaint name any state or private defendants.
A pre-enforcement declaratory judgment cannot be issued
against defendants who do not enforce the challenged provision
of law. See California v. Texas, 141 S. Ct. 2104, 2116 (2021)
(denying declaratory relief when “[t]here is no one, and
nothing, to enjoin[]”); see also Haaland v. Brackeen, No. 21-
376, slip op. at 30–31 (U.S. June 15, 2023) (declining request
for injunctive relief and declaratory judgment against federal
officials where “‘[t]here is no federal official who administers
[the statute] or carries out its mandates’ * * * [and] state
officials are nonparties who would not be bound by the
judgment”) (quoting Brief for Individual Pet’rs at 63, Haaland
v. Brackeen (No. 21-376)).
 31
Usually, dismissal with prejudice for failure to name a
proper defendant is granted only if “the allegation of other facts
consistent with the challenged pleading could not possibly cure
the deficiency.” Jarrell v. United States Postal Serv., 753 F.2d
1088, 1091 (D.C. Cir. 1985) (quoting Bonanno v. Thomas, 309
F.2d 320, 322 (9th Cir. 1962)). But Woodhull never asked the
district court (or this court) for the opportunity to amend the
complaint and add a proper defendant for the ex post facto
claim. With Woodhull having made no effort to substitute in a
proper party, the district court did not abuse its discretion in
dismissing the ex post facto claim without allowing leave to
amend. See Atchinson v. District of Columbia, 73 F.3d 418,
426 (D.C. Cir. 1996) (“[W]e review district court decisions
under Rule 15(a) for abuse of discretion.”).

VI

Woodhull brings an additional challenge to the Act’s
amendment of Section 230. Prior to FOSTA, Section 230
withheld immunity for online platform owners, managers, and
operators if the content posted on the platform violated federal
criminal law. See 47 U.S.C. § 230(e)(1). FOSTA clarified that
Section 230’s immunity carve-out includes civil liability in
private actions under Section 1595 of the Trafficking Act, 18
U.S.C. § 1595, and state criminal liability if the underlying
conduct violates Section 1591 of the Trafficking Act, id.
§ 1591, or Section 2421A of FOSTA, id. § 2421A. 47 U.S.C.
§ 230(e)(5).

Woodhull argues that selective withdrawal of Section 230
immunity only for those who speak on disfavored subjects like
the promotion of prostitution and sex trafficking violates the
First Amendment. Once again, Woodhull’s argument fails.
 32
To start, FOSTA does not criminalize promoting
prostitution broadly. It only punishes aiding or abetting the
“prostitution of another person,” which has a much narrower
reach. See Section IV.B., supra.

As for Woodhull’s argument that Section 230(e)(5)
selectively withdraws immunity on the basis of speech’s
content or viewpoint, that misunderstands the law. Sections
230(e)(5)(A)–(B) withhold immunity only for content that
violates the federal criminal prohibition on sex trafficking in
Section 1591, and Woodhull makes no argument that Section
1591 itself is unconstitutional under the First Amendment or
otherwise. Neither does Woodhull explain how denying
immunity for speech integral to criminal conduct would trench
on the First Amendment.

Nor did the amendment make a material or selective
change in the scope of immunity. Section 230’s text has always
withheld immunity for speech that violates federal criminal
law. 47 U.S.C. § 230(e)(1). Woodhull brings no constitutional
challenge to Section 230(e)(1)’s original withholding of
immunity for violations of all federal criminal laws, including
Section 1591. And Woodhull does not argue that Section
230(e)(1)’s original withholding applies only to federal laws in
effect at the time of Section 230’s enactment. That means that
Section 230(e)(1)’s withholding of immunity automatically
applies to new criminal laws such as Section 2421A as a textual
matter. That automatic inclusion of all new criminal laws
belies Woodhull’s claim of selective targeting based on
content.

Congress was explicit in FOSTA that Section 230’s
immunity provision “was never intended to provide legal
protection” to websites that unlawfully promote prostitution or
assist traffickers, and accordingly determined that
 33
“clarification * * * [wa]s warranted to ensure that such section
does not provide such protection to such websites.” 47 U.S.C.
§ 230 note. Congress amended Section 230 in response to the
many court decisions immunizing websites hosting unlawful
speech in a manner that was deemed to be contrary to
Congress’s original design. See Woodhull II, 948 F.3d at 367–
368 (explaining that courts frequently held that Section 230
prevented liability for violations of federal law). So all FOSTA
does is clarify and reinforce the prior exclusion of immunity
within the specific context of sex trafficking, and explain that
the limit on immunity extends to civil liability as well.

Nothing in the First Amendment required Congress to
confer Section 230 immunity on speech that violates federal
criminal laws in the first place, and nothing in the First
Amendment ossifies such immunity once granted against any
later clarification.

VII

In addition to its overbreadth and vagueness challenges,
Woodhull asserts that, as regulations of speech, Sections
2421A and 1591(e)(4) do not survive strict scrutiny. But those
Sections, as we have interpreted them in response to the
challenges raised, only cover speech integral to criminal
conduct, which does not receive First Amendment protection.
See Hansen, slip op. at 18 (“Speech intended to bring about a
particular unlawful act has no social value; therefore, it is
unprotected.”); Stevens, 559 U.S. at 468 (First Amendment
allows restrictions on the content of “speech integral to
 34
criminal conduct”). Thus, Woodhull’s strict scrutiny challenge
must be rejected.

VIII

For all of the foregoing reasons, the district court’s
judgment is affirmed.

So ordered.