[00:00:01] Speaker 03:
Mr. Smith, on behalf of the court, we want to thank you for your assistance.

[00:01:17] Speaker 03:
Good morning.

[00:01:18] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:01:22] Speaker 01:
This Court should reverse the decision below denying standing for three reasons.

[00:01:26] Speaker 01:
First, the District Court failed to apply the correct standard for evaluating standing in the context of a pre-enforcement challenge to a law that criminalizes speech.

[00:01:36] Speaker 01:
Second,

[00:01:37] Speaker 01:
fosters widespread chilling effects, and in particular, appellants' reasonable fear of prosecution of the prospect of civil liability provide proper bases for standing under the relevant standard.

[00:01:49] Speaker 01:
And third, the district court and the Department of Justice simply misconstrue the law.

[00:01:55] Speaker 01:
To begin with, the district court ignored First Amendment standing doctrine.

[00:01:59] Speaker 01:
This Court has made clear in numerous cases that more forgiving rules apply in the context of First Amendment cases.

[00:02:05] Speaker 01:
Now rather than apply these rules, the District Court relied on cases like Navigar versus United States and Seeger versus Gonzales.

[00:02:12] Speaker 02:
Mr. Court interviewer, FOSTA has been on the books for over a year now, isn't that right?

[00:02:18] Speaker 02:
It has.

[00:02:19] Speaker 02:
Are you aware of any prosecutions for violation of 2421A?

[00:02:24] Speaker 02:
I'm not aware of any prosecution for violating 2421.

[00:02:26] Speaker 02:
How about any real-life examples of suits being brought after the amendment of 230?

[00:02:33] Speaker 01:
Well, right at the same time that Foster was adopted, the Justice Department indicted the operators and former owners of Backpage.com, which the Justice Department continues to say was the primary target of Foster.

[00:02:47] Speaker 01:
So they've been busy with that prosecution over the last year.

[00:02:50] Speaker 01:
But there have been none others?

[00:02:52] Speaker 01:
No prosecutions under Foster.

[00:02:54] Speaker 01:
There have been, however, civil litigants that have been taking advantage of the amendments which removed immunities from Section 230 of the Communications Decency Act.

[00:03:05] Speaker 01:
So at least a couple of cases in Texas.

[00:03:07] Speaker 01:
One of them is mentioned in the amicus filing of 464, page 8 of that amicus brief.

[00:03:14] Speaker 01:
But whether or not there have been prosecutions isn't the relevant standard for the purposes of standing in First Amendment context.

[00:03:24] Speaker 01:
Whether or not there has been even the threat of prosecution or an actual prosecution is a determinative of whether or not standing exists.

[00:03:32] Speaker 00:
There has to be a credible threat of enforcement, right?

[00:03:36] Speaker 01:
That's right, there has to be a reasonable concern.

[00:03:39] Speaker 01:
And in every other case involving internet regulations, internet speech regulations, courts have uniformly found that fear.

[00:03:46] Speaker 01:
And the question isn't whether or not the government believes that the concerns are unrealistic or hyperbolic, as they claim to hear.

[00:03:54] Speaker 01:
In any of those cases, if the terms of the statute can be applied, and it's not an unreasonable interpretation, then the court should

[00:04:04] Speaker 01:
rely on the interpretation of the plaintiff to the extent that it's reasonable.

[00:04:08] Speaker 01:
So in the case of the Communications Decency Act back in the 90s, the government made the same argument that it's unreasonable to think that the Carnegie Library or Critical Path AIDS Project or Stop Prisoner Rape could be targeted to prosecutions under the Communications Decency Act.

[00:04:25] Speaker 01:
Nevertheless, the Eastern District of Pennsylvania found that there was standing to go ahead because of the concern, because of the chilling effects.

[00:04:33] Speaker 01:
The same was true with the Child Online Protection Act that was adopted in the wake of the CDA.

[00:04:42] Speaker 01:
Once again, the government made the argument that concerns about prosecution were unrealistic.

[00:04:47] Speaker 01:
And in fact, in every case involving these kinds of wide-scale internet speech regulations, standing has been found.

[00:04:55] Speaker 01:
But FOSTA, while it's in the same mold as those regulations, in many ways is worse.

[00:05:00] Speaker 01:
fostered sole purpose.

[00:05:02] Speaker 02:
Now, for 2421, let's just take 2421, for example.

[00:05:06] Speaker 02:
You only need to find one plaintiff who has standing, I recognize that.

[00:05:10] Speaker 02:
That's correct.

[00:05:10] Speaker 02:
But who's got the strongest standing arguments in 2421, in your view?

[00:05:17] Speaker 01:
Well, I think the weakest.

[00:05:19] Speaker 01:
I certainly think that Woodhall Freedom Foundation has a good case for standing under that because they have the intention to facilitate sex work by making it safer, by doing harm reduction, by providing educational programs.

[00:05:34] Speaker 01:
The same is true for Alex Andrews.

[00:05:36] Speaker 01:
who has been a long-time advocate for sex workers and had to forego the opportunity to provide a mobile app that would allow sex workers to report violence, harassment, or other forms of abuse.

[00:05:50] Speaker 01:
Human Rights Watch, who does work on behalf of sex workers, including advocating decriminalization, and has done reports on police abuse towards sex workers.

[00:06:00] Speaker 01:
Would they say that they have an intent to facilitate?

[00:06:03] Speaker 01:
Well, yes.

[00:06:04] Speaker 01:
Well, they have an intention to facilitate.

[00:06:06] Speaker 01:
But the question is whether or not an intention to facilitate is criminal speech.

[00:06:11] Speaker 01:
The question is whether or not it crosses the line from actually participating in the criminality, which is what is required for the speech integral to criminal conduct exception to the First Amendment, and advocacy that can be the target or is chilled by the government's efforts and by this legislation.

[00:06:30] Speaker 03:
But let me ask you by analogy.

[00:06:32] Speaker 03:
There are lots of articles that are written about how our drug laws are too severe, the mandatory minimums, those types of things.

[00:06:43] Speaker 03:
And yet there's never been any suggestion that the government would bring a prosecution.

[00:06:50] Speaker 01:
I'm sorry.

[00:06:51] Speaker 03:
There's never been any suggestion, for example, that the prosecution would bring an action against someone who's writing that type of article.

[00:07:02] Speaker 03:
even though the article is urging Congress to amend the statute, pointing out all the horrors that happen under the current statute.

[00:07:13] Speaker 01:
Well, it's interesting you should mention that, Your Honor, because one of the positions that the Justice Department took in front of the District Court is that efforts to make drug use safer or to harm reduction efforts with drug use would never be the subject of prosecution under drug laws.

[00:07:30] Speaker 01:
As a matter of fact, at the hearing in front of Judge Leon, and this appears at page 275 of the appendix,

[00:07:36] Speaker 01:
The Justice Department said no one in their right mind would say that safe needle programs, needle exchange programs, or injection programs could be the subject of threats by the Justice Department.

[00:07:47] Speaker 01:
But after, in our supplemental brief, we gave examples of just those kinds of threats in those kinds of programs and harm reduction programs.

[00:07:56] Speaker 01:
We didn't see a word about that kind of harm reduction or that kind of analogy to these kinds of laws in the government's brief to this court.

[00:08:05] Speaker 03:
indicating that these needle exchange programs have been sued.

[00:08:11] Speaker 03:
You're saying that they have been sued?

[00:08:14] Speaker 01:
They have been threatened by the U.S.

[00:08:15] Speaker 01:
attorney in the district of Vermont, among others.

[00:08:18] Speaker 01:
That's one of the examples that we give.

[00:08:20] Speaker 01:
We also give the example of Human Rights Watch on the behalf of sex workers, where they have done reports on police abuse and where workers who try and distribute condoms to keep sex workers safer have been threatened by police.

[00:08:34] Speaker 01:
So it's that kind of thing that can happen under this law.

[00:08:39] Speaker 01:
As a matter of fact, one of the things, too, that makes this law different from the other examples that we provided is that you can have a law that the Justice Department might enforce.

[00:08:51] Speaker 01:
This isn't limited to the Justice Department.

[00:08:54] Speaker 01:
It's one of the ways in which FOSTA is so much worse than the other examples from the standpoint of both the threat to speech and the reasons for standing.

[00:09:02] Speaker 01:
than the other examples of internet speech regulations.

[00:09:05] Speaker 01:
This can be enforced not by the Justice Department, but by state prosecutors, local prosecutors, state attorney general's offices can bring parents' patriotic actions.

[00:09:16] Speaker 01:
The entire thrust and the entire purpose of this law was to make speech in this area more subject to these kinds of actions and to create more draconian penalties.

[00:09:29] Speaker 01:
As a matter of fact, the Supreme Court summed this up in Ashcroft v. Free Speech Coalition, admittedly a different law, where it said, this case is a textbook example of why we permit facial challenges to statutes that burden expression.

[00:09:45] Speaker 01:
This law directly targets expressive activities and can be enforced by any number of ways.

[00:09:53] Speaker 00:
Would it violate the First Amendment for the government to prohibit

[00:09:59] Speaker 00:
aiding and abetting criminal acts of prosecution through speech.

[00:10:05] Speaker 00:
No, it would not be.

[00:10:07] Speaker 00:
No.

[00:10:08] Speaker 00:
So why shouldn't we construe this statute along those lines, rather than construe it to be flagrantly unconstitutional by prohibiting advocacy for decriminalization and things of that nature?

[00:10:26] Speaker 01:
Because you would have to rewrite the statute to construe it that way.

[00:10:29] Speaker 00:
If you look at this... No, we would just have to say that

[00:10:32] Speaker 00:
verbs like promote and facilitate mean something like aid and a bet.

[00:10:39] Speaker 00:
And there are a lot of cases that support that proposition with regard to criminal laws generally on lenity principles, and you would have lenity here reinforced by avoidance.

[00:10:52] Speaker 01:
You wouldn't – again, this brought an enactment, and I think the best analysis of that was in the Ninth Circuit, in the case of the United States versus Senator Smith, that looked at the Immigration and Nationality Act.

[00:11:03] Speaker 01:
And it addressed that precise question, whether or not this should be considered aiding and abetting, and said that the language of that statute, which is very analogous to this one, cannot be construed with those terms as being limited to speech integral to criminal conduct.

[00:11:20] Speaker 01:
For that, it identified three different ones.

[00:11:23] Speaker 00:
Well, let's focus on this one.

[00:11:26] Speaker 00:
We've got the verb promote and the verb facilitate.

[00:11:30] Speaker 00:
Yes.

[00:11:32] Speaker 00:
promote prostitution sounds like a concept of pandering and facilitate

[00:11:41] Speaker 00:
I don't think the brief cited any cases, but we found cases construing the verb facilitate in a criminal statute precisely to mean beating and abetting.

[00:11:53] Speaker 01:
There are also cases we cite in our brief that define facilitate under the Travel Act as anything that would make something easier, anything that would assist in any way.

[00:12:04] Speaker 01:
And that's the way in which when you apply those kinds of regulations to speech, and keep in mind those other laws weren't limited to speech, false to is.

[00:12:12] Speaker 01:
And when you apply that kind of language, facilitation, meaning any assistance to speech.

[00:12:18] Speaker 00:
But you have those verbs that at least plausibly can be construed narrowly.

[00:12:25] Speaker 00:
You have this formulation

[00:12:29] Speaker 00:
the prostitution of another person.

[00:12:32] Speaker 00:
I mean, that would be an extremely odd way of getting at advocacy and the prostitution equivalent of needle programs.

[00:12:43] Speaker 00:
And then you have a specific intent requirement, which I think distinguishes your Ninth Circuit case.

[00:12:51] Speaker 00:
No, I don't think the specific intent... You have specific intent here, and the Ninth Circuit case involved reckless disregard of illegality.

[00:13:01] Speaker 01:
Well, the Justice Department's position was that it requires specific intent, and that's only for 2421A.

[00:13:06] Speaker 01:
Keep in mind that there are multiple aspects of FOSTA, and that's just one of them.

[00:13:10] Speaker 01:
It happens to be the one that the District Court focused on.

[00:13:13] Speaker 01:
But the specific intent requirement, I think, is an over-reading of the statute.

[00:13:17] Speaker 01:
All we need for standing purposes is for the plaintiff's and the appellant's reading to be plausible, not just the most certain or the most likely interpretation.

[00:13:26] Speaker 00:
I understand, and there may well be hard questions.

[00:13:31] Speaker 00:
about how this statute applies to hypothetical cases.

[00:13:35] Speaker 00:
But I have to say, applying this statute to advocacy for decriminalization to take the low hanging fruit, that seems to me extremely implausible.

[00:13:46] Speaker 01:
And yet that's precisely the kind of activity the Ninth Circuit and Senator Smith said could be subject to the Immigration and Nationality Act, using those same verbs.

[00:13:56] Speaker 01:
I will say that the Justice Department in cases like this tends to do a bait and switch.

[00:14:00] Speaker 01:
They'll argue when they are defending the law that they're going to be very careful and it's just specific intent and that no one could possibly prosecute anyone other than the very guilty.

[00:14:11] Speaker 01:
And yet, when it comes to actually applying the law, they're less fastidious about applying specific intent.

[00:14:18] Speaker 01:
The current criminal case against the former owners of Backpage.com, for example, at a hearing just last month, the Justice Department was arguing that general intent is enough.

[00:14:30] Speaker 01:
that they don't have to have specific knowledge of specific ads and a specific intent to promote prostitution through those ads.

[00:14:38] Speaker 01:
The primary way in which the Justice Department has misinterpreted this law is to try and treat this as it's just a regulation of people who are engaged in the business, who are

[00:14:49] Speaker 01:
actually doing classified ads and in some way involved in prostitution, whereas the language of FOSTA is written much more broadly and applies to a much wider range of activity than just that.

[00:15:04] Speaker 01:
You find 50 references in either the Justice Department's briefs or the briefs that are supporting Miki saying that this isn't a law to go after classified ad sites.

[00:15:13] Speaker 01:
But that's not how this law was written, and it's allowed to be enforced not just by the Justice Department,

[00:15:18] Speaker 01:
but by law enforcement officials at all levels and by civil litigants.

[00:15:23] Speaker 01:
And we even see the supporting amici, supporting the Justice Department, saying they've already found Foster useful in contacting websites and using it essentially as a heckler's veto, saying they can persuade people to modify their behavior, to monitor content, and to take down certain content because of the hammer that Foster provides.

[00:15:44] Speaker 01:
And so with all of those different ways of applying foster, it makes it different from any of the other statutes we're talking about.

[00:15:53] Speaker 02:
What happens in a case when the text of the statute seems to cover the conduct, but when we apply principles of leniency and avoidance, it doesn't cover?

[00:16:05] Speaker 02:
What are we to do then at this stage of the case?

[00:16:09] Speaker 01:
At this stage, I think you accept

[00:16:13] Speaker 01:
the reasonable arguments of the plaintiffs of what they think the statute can cover so that a court can look at the statute.

[00:16:19] Speaker 01:
So disregard principles of leniency and avoidance?

[00:16:23] Speaker 01:
I think when it's written this broadly, I don't think that you can do that without rewriting the statute.

[00:16:29] Speaker 01:
I see that my time is expired.

[00:16:30] Speaker 01:
I reserve the rest of it for the rest.

[00:16:32] Speaker 03:
And we could focus on the Supreme Court's definition of when the rule of lenity applies, too.

[00:16:39] Speaker 03:
So it's narrow.

[00:16:41] Speaker 03:
All right, well, let us hear from council for I believe.

[00:16:56] Speaker 04:
Good morning and may it please the Court, Courtney Dixon for the United States.

[00:17:00] Speaker 04:
Both this Court and the Supreme Court have made clear that even in the First Amendment context, to have standing to bring a pre-enforcement challenge, you have to show a credible threat to prosecution, as Your Honor mentioned.

[00:17:11] Speaker 04:
plaintiffs here have not established that.

[00:17:13] Speaker 04:
The district court, in its opinion, went through each of the individual plaintiffs, the allegations that are actually in the complaint, compared it to the text of FOSTA, and explained why plaintiffs simply have not demonstrated that the activity that they are engaged in as they allege it could even arguably, let alone plausibly, apply to... FOSTA's text cannot apply to that.

[00:17:35] Speaker 02:
You don't think that what the Woodhull Foundation does facilitates

[00:17:40] Speaker 02:
and promotes prostitution?

[00:17:42] Speaker 04:
Your Honor, plaintiffs have written a lot of words out of the statute in describing what Section 2421A does.

[00:17:49] Speaker 04:
The statute does not merely say facilitate prostitution.

[00:17:52] Speaker 04:
It is owning, operating, or maintaining an interactive computer service with the intent to promote or facilitate the prostitution of another person.

[00:18:01] Speaker 02:
If – they act as if Congress – How is the prostitution of another person different than prostitution?

[00:18:07] Speaker 04:
We had a plaintiff suggest that Congress was trying to criminalize discussion of prosecution as an abstract concept or general subject matter, but the statute refers to the prostitution of another person, which, as the district court reasoned, is intended to refer to specific acts of prosecution.

[00:18:24] Speaker 02:
Excuse me, prostitution.

[00:18:26] Speaker 02:
That's a reasonable interpretation, but is it an unreasonable interpretation to say that it's broader than that?

[00:18:31] Speaker 04:
I think so, Your Honor.

[00:18:32] Speaker 02:
Is that foreclosed by?

[00:18:34] Speaker 04:
I think the most natural reading of the prostitution of another person is as the district court... Maybe that's the most natural, but that's not the standard right now.

[00:18:42] Speaker 02:
We're just looking for a plausible read.

[00:18:44] Speaker 02:
Doesn't need to be the best, right?

[00:18:46] Speaker 02:
At this stage, doesn't need to be the best.

[00:18:48] Speaker 02:
Get to the merits, then we're talking about needs to be the best.

[00:18:50] Speaker 02:
But right now, this is a standing inquiry on a motion to dismiss the First Amendment area.

[00:18:56] Speaker 02:
I mean, all the case law tells us this is an area where we...

[00:18:59] Speaker 02:
Tread lightly.

[00:19:00] Speaker 02:
Let it proceed unless it's unusual.

[00:19:03] Speaker 04:
Even in First Amendment cases, in the pre-enforcement context, Your Honor, this Court has made clear that subjective chill is not sufficient to demonstrate an Article III injury.

[00:19:10] Speaker 04:
In fact, if a plaintiff fears prosecution under a statute that does not apply to their conduct, and they do not actually have a reasonable, credible fear of prosecution, they do not have an Article III injury.

[00:19:19] Speaker 04:
This Court made a similar point.

[00:19:21] Speaker 02:
So you're saying, let's just take the Woodhull Foundation.

[00:19:23] Speaker 02:
As they look at the language of 2421,

[00:19:26] Speaker 02:
It would be unreasonable for them to think that a prosecutor could believe that they have the intent to promote and facilitate prostitution when they're – given the activities that they're engaged in, which in fact do facilitate and promote prostitution.

[00:19:45] Speaker 04:
I don't know if that's a fair representation of what they've alleged in their complaint, Your Honor.

[00:19:48] Speaker 04:
Woodhull alleges that it puts on, for example, a sexual freedom summit every year in which it brings together doctors and therapists and educators to talk about topics that affect sex workers.

[00:19:59] Speaker 04:
I think they advocate for the safety and well-being of sex workers.

[00:20:02] Speaker 04:
That kind of harm reduction activity is different in kind from promoting or facilitating any specific act of prosecution.

[00:20:09] Speaker 04:
Prostitution, sorry, I hope I don't continue to do that throughout this entire argument.

[00:20:12] Speaker 04:
To put it in the words of Senator Blumenthal as he was speaking on the floor, Your Honor, the text of FOSTA was not intended to target harm reduction activity, and the language of the bill makes that clear.

[00:20:23] Speaker 04:
It's also clear from the context and legislative history of the statute, Your Honor.

[00:20:27] Speaker 02:
Does the Justice Department argue we should look at the legislative history of this?

[00:20:31] Speaker 04:
Really, to the extent that it confirms what the plain text of the statute says, Your Honor, certainly we're not saying that

[00:20:36] Speaker 04:
look at that alone.

[00:20:37] Speaker 04:
But of course, this law arose in the context of – Congress wrote specifically about laws against websites such as Backpage.com that were previously barred by Section 230 of the Communications Decency Act.

[00:20:49] Speaker 04:
And of course, the full text of this law, your article title, is the Allow States and Victims to Fight Online Sex Trafficking Act.

[00:20:56] Speaker 04:
Congress

[00:20:57] Speaker 04:
wrote Section 2421A and amended Section 230 of the Communications Decency Act to narrowly allow certain civil lawsuits and state criminal prosecutions.

[00:21:11] Speaker 04:
She alleges that she has a website, Rape.Rescue.org, in her complaint and in the declaration that she submitted in support of plaintiff's motion for preliminary injunction.

[00:21:21] Speaker 04:
She actually discusses their intent behind creating that website.

[00:21:25] Speaker 04:
That's at J145 to 46.

[00:21:28] Speaker 04:
That's her declaration, Your Honor.

[00:21:29] Speaker 04:
And she alleges that she created a website so that people can provide information on rescue organizations that reach out to sex workers to tell them which of them they can rely on and which of them they can avoid.

[00:21:39] Speaker 02:
That's, again.

[00:21:41] Speaker 02:
There's no argument that that could be understood to be having an intent to promote and facilitate prostitution?

[00:21:49] Speaker 04:
Again, Your Honor, I think providing harm reduction information to persons who are engaged in sex work is different in kind from promoting and facilitating any specific instance of prostitution or sex work.

[00:21:59] Speaker 02:
So your argument is really turning on the specific instance language?

[00:22:02] Speaker 04:
Again, the other language, the prostitution of another person.

[00:22:05] Speaker 04:
Congress could have written the statute differently, but they wrote the prostitution of another person.

[00:22:10] Speaker 04:
And I think plaintiffs distort the statute beyond recognition in saying that it targets prostitution as a subject matter or as a general concept.

[00:22:17] Speaker 04:
I also think that plaintiffs distort the allegation.

[00:22:19] Speaker 02:
But at this stage, if we agree with you, we would have to say that the only

[00:22:27] Speaker 02:
way the statute could reasonably be read.

[00:22:29] Speaker 02:
The only way it could reasonably be read would be in connection with a specific act of prostitution.

[00:22:36] Speaker 04:
A specific instance of prostitution.

[00:22:36] Speaker 02:
That's the only reasonable way.

[00:22:38] Speaker 02:
That's your argument.

[00:22:38] Speaker 02:
That's the only reasonable way that the statute could be read.

[00:22:41] Speaker 04:
Your Honor, I think at this stage, this court would have to decide that the arguable ways that the statute could be read do not apply to plaintiff's conduct.

[00:22:48] Speaker 04:
So if there might be other ways that the statute could be read, maybe this isn't the only one.

[00:22:52] Speaker 04:
But certainly, I don't think that there's a reasonable reading of this statute, Your Honor, that applies to the plaintiff's conduct as they've alleged it in the complaint.

[00:22:59] Speaker 04:
And of course, plaintiffs have to show a credible threat of prosecution to have standing at this stage.

[00:23:05] Speaker 04:
As this court said in the Matthew Goldstein versus State Department case in a pre-enforcement challenge

[00:23:10] Speaker 04:
there must be some action by the plaintiff that would trigger enforcement in the first place, and plaintiffs have not alleged that here.

[00:23:16] Speaker 00:
Does the operator of the website need a specific intent with respect to prostitution of an identified victim?

[00:23:32] Speaker 04:
They don't know if it needs to be an identified victim, because I imagine a lot of this is anonymous, Your Honor, but it does have to be an instance of prostitution, the prostitution of another person.

[00:23:40] Speaker 00:
I mean, what I'm getting at is if you say, right, the paradigmatic example that Congress was getting at seems to be like the operator of Backpage, and they might not have

[00:23:55] Speaker 00:
any knowledge, much less specific intent, with regard to individual instances of prostitution.

[00:24:03] Speaker 00:
They're just designing the website to facilitate illegal activity.

[00:24:09] Speaker 04:
They might have intent about specific transactions, even if they don't know the identified... They have intent with regard to illegal transactions.

[00:24:16] Speaker 04:
Yes, Your Honor.

[00:24:18] Speaker 00:
But no intent or no knowledge with regard to individual transactions.

[00:24:23] Speaker 04:
I think that there could be inferences of individual transactions in that instance.

[00:24:27] Speaker 04:
I would note that they mentioned the prosecution of Backpage and they implied that the government is arguing for a lower mens rea standard in that case.

[00:24:35] Speaker 00:
I guess what I'm suggesting is it's not entirely clear how much work the phrase prostitution of another person does insofar as it might suggest

[00:24:52] Speaker 00:
a very particularized focus on an identified victim.

[00:24:56] Speaker 04:
I think it's speaking of acts of prostitution, Your Honor, again, not simply the subject matter of prostitution.

[00:25:01] Speaker 04:
And although, as Your Honor mentioned, there might be difficult cases on the margin, all this court needs to conclude is this statute cannot be arguably read to apply to plaintiff's conduct here.

[00:25:09] Speaker 04:
And the point that I was just making quickly, Your Honor, is that Backpage, in fact, was prosecuted under the Travel Act before Section 2421A was enacted.

[00:25:16] Speaker 04:
So I want to clear up, perhaps, any misconception about the arguments that appellants were making about – and it's right there.

[00:25:22] Speaker 03:
So just as a matter of information, Backpage, did it only deal instance by instance?

[00:25:28] Speaker 04:
I'm not familiar, Your Honor.

[00:25:29] Speaker 04:
I know that there was a large Senate investigation against Backpage, and we cite that in our brief.

[00:25:34] Speaker 04:
And the Senate, of course, found in that investigation that Backpage was deliberately designing its website, deliberately operating its – To do what?

[00:25:43] Speaker 04:
to allow for prostitution to be advertised on its website or perhaps other sex trafficking offenses?

[00:25:49] Speaker 03:
I haven't read probably as much as you, but I don't see any indication it was limited to specific instances of prostitution.

[00:25:59] Speaker 04:
The law or back page is conduct, Your Honor.

[00:26:02] Speaker 04:
Back page.

[00:26:03] Speaker 04:
I think, Your Honor, that they were operating their website with the intent to allow

[00:26:11] Speaker 04:
for commercial sex to be advertised or sex trafficking itself.

[00:26:15] Speaker 04:
They were allowing – they were changing words that were, for example, in advertisements.

[00:26:20] Speaker 03:
Correct.

[00:26:20] Speaker 03:
Not as to a specific act.

[00:26:22] Speaker 03:
That's what I'm trying to get at.

[00:26:23] Speaker 03:
I think that suggests Congress had a broader intent.

[00:26:29] Speaker 04:
I think, Your Honor, there's still, it's speaking of instances of prostitution, identified instances of prostitution, not prostitution as a subject matter or as a concept, which you get as plaintiff's argument here.

[00:26:44] Speaker 03:
one involving Mary, one involving Susie, one involving Susie.

[00:26:47] Speaker 04:
And I don't mean to suggest, Your Honor, that it's exact specifics involving individuals, merely that it's speaking of unlawful instances of prostitution and not prostitution as an abstract subject matter or concept.

[00:26:59] Speaker 03:
So if it's saying, as to unlawful acts, we want to make it safer for these unlawful acts to occur,

[00:27:08] Speaker 04:
I don't think that that's a fair reading, Your Honor, because ... Of what?

[00:27:12] Speaker 04:
Of the ... Excuse me.

[00:27:15] Speaker 04:
I think providing resources to make sex workers safer is not acting to intentionally promote or facilitate any unlawful instances of sex work occurring, Your Honor.

[00:27:26] Speaker 03:
I mean, we're back to Judge Griffith.

[00:27:29] Speaker 03:
That is the department's interpretation, I gather.

[00:27:34] Speaker 03:
But is it the only?

[00:27:35] Speaker 03:
plausible interpretation of the statute, and that's why I referenced Backpage.

[00:27:41] Speaker 04:
I think, Your Honor, Backpage only confirms what Congress was trying to do in this statute, and it wasn't to criminalize any type of speech about prostitution on the Internet, and that is how plaintiffs have characterized the statute here.

[00:27:54] Speaker 04:
As they've alleged their conduct, there is no credible threat of prosecution against them.

[00:27:59] Speaker 03:
For promoting or facilitating prostitution

[00:28:04] Speaker 03:
of another person.

[00:28:06] Speaker 04:
The prostitution of another person.

[00:28:08] Speaker 03:
The prostitution of another person.

[00:28:10] Speaker 03:
And why does that have to be limited to a single person?

[00:28:16] Speaker 04:
Not necessarily a single person, Your Honor, but again, instances of prostitution.

[00:28:20] Speaker 03:
And intentionally so.

[00:28:21] Speaker 04:
So that's that cage.

[00:28:22] Speaker 03:
And that's what the appellants are arguing, at least for standing, is a plausible interpretation.

[00:28:33] Speaker 03:
It's not so beyond the realm.

[00:28:36] Speaker 03:
Now there's Senator Blumenthal's statement, but that's it.

[00:28:39] Speaker 04:
You know, it's not just that.

[00:28:40] Speaker 04:
It's the language of the bill, or sorry, the text of the statute, the context of course,

[00:28:46] Speaker 04:
confirms that.

[00:28:47] Speaker 04:
And of course, no one has suggested, either before FASTA or now, that it was intended at all to apply to harm reduction activities of the kind that plaintiffs allege here.

[00:28:56] Speaker 04:
And of course, section 2421A is similar to the Travel Act, which has been on the books since 1961.

[00:29:02] Speaker 04:
It's different.

[00:29:04] Speaker 03:
That law prohibits... All the reasons set out in the brief.

[00:29:07] Speaker 04:
It says, Your Honor, promoting or facilitating the promotion of unlawful instances of prostitution.

[00:29:15] Speaker 04:
Certainly, Your Honor, I know the arguments, but I think, Your Honor, if it could be said that promoting or facilitating the promotion of unlawful prostitution means this kind of harm reduction activity,

[00:29:25] Speaker 04:
then presumably that would also be a lawful understable act.

[00:29:27] Speaker 02:
But Andrew's website isn't just harm reduction activity, it's giving suggestions about how to use PayPal.

[00:29:33] Speaker 02:
What's the harm reduction in that?

[00:29:37] Speaker 02:
That is facilitating, it's helping a sex worker carry out their trade by facilitating payment through PayPal.

[00:29:47] Speaker 04:
Your Honor, I think if you look at the allegations that are in the complaint about, that Ms.

[00:29:50] Speaker 04:
Andrews alleges of her intent for creating Rate That Rescue and what that Rate That Rescue does,

[00:29:54] Speaker 04:
It does not meet the intent bar for one, Your Honor, and I don't think that it can plausibly be said to be promoting or facilitating unlawful instances of prostitution.

[00:30:03] Speaker 04:
I think it's different in kind, Your Honor.

[00:30:05] Speaker 04:
And again, we're relying on the text of the bill itself.

[00:30:11] Speaker 02:
Perhaps it's different in kind, but at this stage of the litigation, the government has to show that the plaintiff's reading of it is totally unreasonable.

[00:30:22] Speaker 02:
There's no basis for it at all.

[00:30:25] Speaker 02:
It's supposed to be a really heavy burden on the government.

[00:30:28] Speaker 02:
The First Amendment here, right?

[00:30:30] Speaker 02:
There's a heavy burden on the government here.

[00:30:32] Speaker 02:
And you have to persuade me, at least, that their reading is totally implausible.

[00:30:40] Speaker 04:
Your Honor, this court's decision in American Library Association v. Barr

[00:30:44] Speaker 04:
Matthew Goldstein versus the State Department, those were pre-enforcement cases in which this court made clear that mere subjective chill is not sufficient.

[00:30:52] Speaker 04:
If there is no allegation that establishes a credible fear of prosecution, then they do not have standing to bring a pre-enforcement suit that does not— It's a little bit broader than that, right?

[00:31:03] Speaker 00:
Because even if we accept your interpretation

[00:31:09] Speaker 00:
as binding on the federal government, right?

[00:31:12] Speaker 00:
This statute was designed to facilitate and civil litigation, right?

[00:31:21] Speaker 00:
So we need, for standing purposes, we're talking about exposure to enforcement actions.

[00:31:27] Speaker 00:
I don't think that FOSTA... And we need to consider state prosecutions and civil litigation, right?

[00:31:33] Speaker 04:
I don't think that FOSTA's amendments in that respect change the analysis because FOSTA amended Section 230 of the Communications Decency Act to allow certain state criminal prosecutions in civil suits to the extent that they violate Section 1591, which is a pre-existing... They allowed... There's a private civil cause of action, right?

[00:31:51] Speaker 04:
Section 1591.

[00:31:51] Speaker 00:
So any...

[00:31:55] Speaker 00:
any putative victim can pursue a civil case resting on a broader interpretation of the statute.

[00:32:03] Speaker 04:
Your Honor, if Section 1591 is a pre-existing federal criminal prohibition on sex trafficking that prescribes knowingly performing certain activities, if the, with... No, but 2241A has a private right of action associated with it.

[00:32:18] Speaker 04:
But Your Honor, the reduction in Section 230 immunity is, I think,

[00:32:24] Speaker 04:
it's tied to Section 2421A.

[00:32:26] Speaker 00:
So to the extent that... I think I'm, unless I have it confused, I think I'm just talking about the new freestanding substantive criminal prohibition in 2241A.

[00:32:39] Speaker 00:
And it has a private right of action associated with it.

[00:32:45] Speaker 04:
have to be four.

[00:32:46] Speaker 04:
I think that one in particular, the private right of action, if you're referring to, I don't have the... I'll get it in a second.

[00:33:01] Speaker 00:
It's 2241 capital A little c, any person injured by reason of a violation of

[00:33:08] Speaker 00:
2241 A little B, which is the new provision we've been primarily talking about.

[00:33:16] Speaker 00:
2421 A B is the aggravated violation prohibition in section 2421 A. Sure, but it has all the relevant language about prostitution of a person and promotion and the like.

[00:33:28] Speaker 04:
I think section – I think the aggravated violation section, Your Honor, just again confirms that Section 2421A is talking about instances of prostitution and not merely prostitution as a concept of subject matter.

[00:33:38] Speaker 00:
I mean, but we're just – we're just going over the same arguments about prostitution of a person and facilitation.

[00:33:44] Speaker 04:
I apologize if I sound like a broken record, Your Honor.

[00:33:47] Speaker 00:
No, no, I know.

[00:33:48] Speaker 00:
All I'm saying is there's nothing – for purposes of this discussion, there are no relevant differences between the aggravator and the

[00:33:56] Speaker 00:
primary provision.

[00:33:58] Speaker 04:
In terms of the fact that Section 2421A-B speaks of promoting or facilitating the prostitution of five or more persons, again we're talking about identified instances of prostitution, and also if it's in reckless disregard of the fact that it's sex trafficking in violation of Section 1591.

[00:34:12] Speaker 04:
And again, that's a pre-existing prohibition on sex trafficking that prohibits knowingly performing certain actions, knowing that force, fraud, or coercion were used to cause a person to engage in a sex act when the person was under the age of 18.

[00:34:23] Speaker 04:
And again, that's certainly identified instances of prostitution and not merely prostitution as a subject matter or things that could be hard.

[00:34:30] Speaker 00:
I mean, it's an or, right?

[00:34:32] Speaker 00:
So I can give you 1591 without losing this point.

[00:34:38] Speaker 04:
Well, I think, Your Honor, if plaintiffs are correct about the meaning of Section 2421A, then it's hard to see what the meaning of the aggravated violation is doing, because if you're simply speaking of prostitution generally... Difference between one and five.

[00:34:49] Speaker 04:
Well, if you're speaking about prostitution generally and that Section 2421A could plausibly cover this kind of harm reduction activity, you would almost always presumably be speaking about more than five people.

[00:35:00] Speaker 04:
And so it's hard to see, again, what the aggravated violation provision would even be.

[00:35:04] Speaker 04:
doing there.

[00:35:05] Speaker 04:
And I also note that there's also the affirmative defense that's in Section 2421A as well, which of course speaks to if it's legal in the jurisdiction.

[00:35:14] Speaker 04:
Again, we're talking about particular acts of prostitution, transactions of prostitution.

[00:35:17] Speaker 04:
It's not simply this concept of prostitution that plaintiffs are suggesting.

[00:35:22] Speaker 04:
And to go back to your point about states and civil litigants, again, to the extent that FASTA allows these lawsuits to proceed, it's only to the extent that they violate Section 2421A or Section 1591.

[00:35:33] Speaker 00:
And right, but at the standing stage, the relevant inquiry is not who's ultimately right.

[00:35:41] Speaker 00:
It's whether potential defendants potentially in the crosshairs are going to be subjected to the hassles of defending criminal or civil enforcement actions.

[00:35:58] Speaker 04:
Well, Your Honor, first, I think there's no threat of that because, again, we don't think that these statutes can be reasonably read to apply to plaintiff's conduct.

[00:36:06] Speaker 04:
If someone brought a suit notwithstanding the text, it's hard to see how that would be traceable to the federal government and FOSTA here.

[00:36:13] Speaker 04:
But even setting all of that aside, Your Honor, again, FOSTA has been on the books for about a year now.

[00:36:17] Speaker 04:
Plaintiffs allege that so many people are chomping at the bit to indict them under this statute or bring civil suits against this statute.

[00:36:23] Speaker 04:
But they do not suggest that anyone's brought suit against advocacy organizations such as themselves.

[00:36:28] Speaker 04:
And that only demonstrates how this law cannot plausibly be read to apply to their conduct, Your Honor.

[00:36:32] Speaker 04:
We have amicus briefs on both sides.

[00:36:34] Speaker 04:
And I don't think that anyone who has threatened to bring a lawsuit against any kind of advocacy work that plaintiffs here are suggesting.

[00:36:41] Speaker 04:
And that's because the plain text of the statute does not support it.

[00:36:45] Speaker 00:
One different point.

[00:36:48] Speaker 00:
You talk about, can we talk about Kozik for a minute?

[00:36:52] Speaker 00:
Yes sir.

[00:36:52] Speaker 00:
His injury's a little bit different, right?

[00:36:54] Speaker 00:
He's alleging a classic pocketbook injury, harm to his business.

[00:37:02] Speaker 00:
And the issue is traceability and redressability in the context where the chain of causation runs through a third party, not before the court.

[00:37:15] Speaker 04:
His injury is different, Your Honor.

[00:37:18] Speaker 00:
And you say, well, we don't know.

[00:37:26] Speaker 00:
We have to predict what Craigslist is going to do when they're not before the court, and that's the hard thing to do.

[00:37:31] Speaker 00:
That's true as a general matter, but we pretty much do know what Craigslist did and why they did it, which is they constricted their website within a couple of days of the statute's enactment.

[00:37:49] Speaker 00:
They said they were doing it because the statute was enacted.

[00:37:53] Speaker 00:
And they said they wanted to resume the advertising platform if they were allowed to in the future.

[00:38:06] Speaker 00:
That seems like an emotion to dismiss.

[00:38:08] Speaker 00:
That seems like a plausible showing of causation.

[00:38:14] Speaker 04:
Your Honor, the – they rely for these allegations on a statement from Craigslist, appears in the Joint Appendix at 123.

[00:38:21] Speaker 04:
I don't think that it supports all of the inferences that Your Honor was just explaining.

[00:38:26] Speaker 04:
For one – Why not?

[00:38:28] Speaker 04:
So Craigslist explains – they mention that FOSTA was enacted, and they say any service can be misused.

[00:38:33] Speaker 04:
They're taking down their personal services section.

[00:38:36] Speaker 04:
They said, we hope that we can bring it back someday.

[00:38:38] Speaker 04:
The implication from that is not that if FOSTA wasn't joined, that Craigslist tomorrow is going to put back up a section of its website that it knew was being misused for either prostitution or sex trafficking, Your Honor.

[00:38:50] Speaker 04:
For one, even setting aside Craigslist's own business decisions in that regard, and they're not here to talk about what they would do.

[00:38:56] Speaker 04:
But two, that activity would be in violation of other federal statutes, not simply

[00:39:02] Speaker 04:
FOSTA, Your Honor, for one, the Travel Act, as we've discussed, but also to the extent that it would be sex trafficking, Section 1591.

[00:39:08] Speaker 00:
But we know they were willing to provide an advertising platform that was helpful to COZIC, facing all the pre-FOSTA statutes on the books, Travel Act and everything else.

[00:39:25] Speaker 00:
And we know that they stopped doing that

[00:39:29] Speaker 00:
in the wake of FOSTA because of FOSTA.

[00:39:33] Speaker 00:
At least on a motion to dismiss.

[00:39:35] Speaker 00:
That's the allegation and it doesn't run into any twombly hit ball problems that I can see.

[00:39:42] Speaker 04:
The Supreme Court in Defenders of Wildlife, Your Honor, made clear that when we're talking about the independent business decisions of a third party who's not before the court, standing is more difficult.

[00:39:51] Speaker 00:
It's more difficult.

[00:39:52] Speaker 00:
There's not a legal rule that it can't be shown.

[00:39:54] Speaker 00:
It's just there's a harder

[00:39:57] Speaker 00:
burden of proof.

[00:39:58] Speaker 04:
Right, Your Honor, and we're not saying that it can't be shown, but based on the allegations that are in the complaint and specifically the statement from Craigslist that plaintiffs are hanging all of these allegations on, I don't think that plaintiffs have established plausibility in this context.

[00:40:10] Speaker 04:
I'll also note, as we mentioned in our brief, Craigslist has made business decisions both before FOSTA as well in 2010 to take down certain parts of its website.

[00:40:21] Speaker 00:
What more could or would they have to show?

[00:40:24] Speaker 00:
I mean, they have a statement from the third party, this is what we're doing, this is what we did, and this is why we did it.

[00:40:32] Speaker 04:
Governor, I think plaintiffs are merely speculating about redressability based on an independent actor that's not before the court.

[00:40:38] Speaker 04:
I don't think that they've met their burden.

[00:40:40] Speaker 00:
Who says we want to resume this service if we can?

[00:40:44] Speaker 04:
Hopefully they can, they said hopefully we can bring it back some day.

[00:40:46] Speaker 04:
I think the implication there is that the service is no longer misused.

[00:40:49] Speaker 04:
Hopefully they could bring it back some day, not if FOSTA is enjoying that they would put back up a section of its website that it knew was potentially in violation of the law.

[00:40:57] Speaker 04:
I'll also note that to the extent that this court thinks that Mr. Crachick

[00:41:01] Speaker 04:
has alleged enough for standing, his theory of injury is quite different from the other plaintiffs.

[00:41:07] Speaker 04:
So I still think this court should affirm the dismissal of the other plaintiffs, even assuming Mr. Kosciuk has standing here.

[00:41:13] Speaker 04:
But of course, we don't think he has.

[00:41:16] Speaker 00:
How would that narrow the case?

[00:41:19] Speaker 00:
I mean, it wouldn't matter if they could all seek the same relief.

[00:41:22] Speaker 00:
But why would Kosciuk's theory support fewer arguments than the standing theories of the other plaintiffs?

[00:41:31] Speaker 04:
The other plaintiffs allege that FOSTA prescribes their protected speech conduct.

[00:41:37] Speaker 00:
Everyone agrees that... No, but on the merits, there's a First Amendment argument, there's a vagueness argument, there's an ex post facto argument.

[00:41:45] Speaker 00:
Is there some reason why the other plaintiffs could make more of those arguments than Kozak?

[00:41:52] Speaker 04:
Everyone agrees that Mr. Kosick's advertisements are not prescribed by FOSTA.

[00:41:56] Speaker 04:
His argument is that even though my advertisement is not prescribed by this statute, Craigslist has taken actions to take my advertisement down.

[00:42:03] Speaker 04:
That's quite different from the other plaintiffs who allege that FOSTA is written so broadly.

[00:42:06] Speaker 00:
Which is his injury that supports arguments to attack the statute on these various constitutional grounds.

[00:42:13] Speaker 04:
My point is merely that that's quite different from the other plaintiffs who are alleging that FOSTA is written so broadly.

[00:42:18] Speaker 04:
It encompasses their advocacy type activity, Your Honor.

[00:42:21] Speaker 04:
has suggested that Mr. Kosick's advertisements are at all prescribed by FOSTA.

[00:42:27] Speaker 04:
But of course, we think that all of this is unnecessary, Your Honor, because Mr. Kosick.

[00:42:29] Speaker 00:
I see it, right.

[00:42:31] Speaker 00:
He couldn't, he might not be able to frame a challenge as applied to those specific acts.

[00:42:40] Speaker 00:
But to the extent, I assume they'll raise a facial challenge based on over-breadth.

[00:42:46] Speaker 00:
I mean, they all could do that equally.

[00:42:48] Speaker 04:
But as Your Honor was suggesting,

[00:42:51] Speaker 04:
His injury is distinct based on the fact that my advertisements are not prescribed by FOSTA, but Craig's List, again, not here, independent third party, has taken actions, allegedly, as a result.

[00:43:02] Speaker 04:
But all of that, I think, would be unnecessary, Your Honor, because, of course, we don't think that he's alleged enough facts for standing aside the other plaintiffs and them as well.

[00:43:11] Speaker 04:
So if there are no further questions, we ask that the district court be affirmed.

[00:43:15] Speaker 04:
Thank you.

[00:43:18] Speaker 03:
All right.

[00:43:18] Speaker 03:
Council for Appellants.

[00:43:30] Speaker 01:
I think it makes sense to start with Eric Kozik.

[00:43:34] Speaker 01:
And I think you're correct, Your Honor, in your questions that having one party alone that establishes standing is enough for the pre-enforcement challenge to go forward.

[00:43:42] Speaker 01:
And here, the idea that the fact that a third party has to take an action is no barrier to standing.

[00:43:49] Speaker 01:
Otherwise, any time a bookstore is threatened with prosecution, the publishers of books would never have

[00:43:56] Speaker 01:
standing to challenge that government action, because you couldn't guarantee that the bookstore would then restock the books afterwards.

[00:44:03] Speaker 01:
That's the theory of Banton Books versus Sullivan.

[00:44:05] Speaker 00:
Right, there's still, we still have a background rule that subjective chill is not enough.

[00:44:11] Speaker 00:
It's usually applied to the primary party in court, but presumably extends to the third party, right?

[00:44:18] Speaker 00:
So we still would have to assess

[00:44:21] Speaker 00:
whether Craigslist engaged in an action reasonably required under a plausible interpretation or whether they just unreasonably overreact.

[00:44:38] Speaker 01:
Right, but Craigslist, like the widespread reaction across the internet, was to cut back on sites in reaction to Faust.

[00:44:46] Speaker 01:
And Craigslist explained that's the reason it was doing it and saying that it was hoping.

[00:44:50] Speaker 01:
it could bring those categories of ads back in the future.

[00:44:54] Speaker 00:
And that was exactly the situation that... Assume we think that a non-sexual massage service like the one that Kazik says he operates, that advertising for that is not even remotely covered

[00:45:16] Speaker 00:
by the statute.

[00:45:18] Speaker 01:
The point is it doesn't matter whether or not his specific ads are remotely covered by the statute if the reaction of the platform is to be overly cautious because of the possibility that as a general proposition broad categories of advertising could be targeted under the law.

[00:45:36] Speaker 01:
So his specific ads really aren't the issue.

[00:45:38] Speaker 01:
It's the reaction of the platform to having immunity stripped away and statutory terms that reach

[00:45:45] Speaker 01:
those categories, and were the basis, by the way, for going after classified advertising platforms in the first place, saying that they had categories that the government didn't like.

[00:45:56] Speaker 01:
The point is, the very case that the district court relies on, saying that having a third party make a decision cuts off standing, actually supports standing in this case.

[00:46:07] Speaker 01:
And that's this court's decision in Teton Historic Aviation Foundation versus Department of Defense.

[00:46:13] Speaker 01:
It's cited by Judge Leon below.

[00:46:14] Speaker 01:
But in fact, that case found standing in a situation not dissimilar from this one, where you had a challenge to a change in classifications for used military parts and foundations that restored historic aircraft, objected to the fact that that change in classification cut off their supply of parts to restore these historic aircraft.

[00:46:37] Speaker 01:
Now, for them to have standing, you would have had not only the Department of Defense restoring the original classification, but also third-party liquidators continue to stock those parts.

[00:46:47] Speaker 01:
And in that situation, this Court found standing, saying that the Department has sold parts like these in the past and has incentives to do so in the future.

[00:46:56] Speaker 01:
It is precisely

[00:46:57] Speaker 01:
the kind of situation we face here where Craigslist had these advertising categories in the past and it has the incentive to do so in the future and said that it wants to.

[00:47:07] Speaker 01:
With respect to Mr. Kozik specifically, he had been advertising on Craigslist for 12 years.

[00:47:12] Speaker 01:
The only changing variable was that Foster was adopted

[00:47:15] Speaker 01:
and Craigslist and many other websites cut back on what they could reasonably carry without fear of liability.

[00:47:23] Speaker 01:
And in cases like this, it's usually when you're talking about speculative harm, the concern that you have a plaintiff with eggshell thin sensibilities and you don't want to open the courts wide for that possibility.

[00:47:36] Speaker 01:
But here we don't have just an isolated reaction or a speculative reaction on behalf of a few parties in court.

[00:47:43] Speaker 01:
As soon as Foster was adopted, we saw widespread reactions all across the internet.

[00:47:49] Speaker 01:
We had – and this is set forth in some detail in the amicus brief by Freedom Network – saying that this affected not to sex workers, but sex therapists, size therapists, harm reduction and adverse groups,

[00:48:03] Speaker 01:
You had large and small platforms all reacting to this.

[00:48:07] Speaker 01:
Google changed its policies.

[00:48:09] Speaker 01:
Reddit changed its policies.

[00:48:12] Speaker 01:
And then you had other more targeted effects, such as Desiree Alliance canceling its conference for harm reduction and sex workers.

[00:48:20] Speaker 01:
So this isn't just isolated to an aberrational reaction on a part of these pellets.

[00:48:26] Speaker 01:
These appellants happened to be simply the ones who were courageous enough to come forward and explain through the declarations to the district court what the effects had been on them.

[00:48:37] Speaker 01:
I realize I'm over my time, but if – but the court's indulgence, I would just –

[00:48:43] Speaker 01:
Let me just make one last point, and that goes to the whole question of whether or not the wording of the statute, and more specifically the 2421A section of the statute, which is not all the frosted, but whether or not the expression, the prostitution of another person minimizes this in any way.

[00:49:05] Speaker 01:
It simply doesn't limit the scope of what it means to facilitate or to promote, whether or not you're talking about one person or many.

[00:49:13] Speaker 01:
It was sort of a telling admission by the government to say that she didn't know what work the aggravated offense of 2421A was doing, because if you're – you've got a website that reaches one person, it's also going to reach five.

[00:49:28] Speaker 01:
you know, every offense under 22 – 41A is arguably an aggravated offense.

[00:49:37] Speaker 03:
But just – Well, I thought she was actually using that to reinforce her point.

[00:49:42] Speaker 01:
Well, I'm simply saying that

[00:49:47] Speaker 01:
If you read it like that, then the affirmative defense and the attempted narrowing of the statute essentially mean nothing.

[00:49:54] Speaker 01:
But if you took a look at specifically whether or not narrowing it to a specific person narrows the statute, it simply doesn't.

[00:50:02] Speaker 01:
And again, I'll go back to the analysis of the Ninth Circuit in Senator Smith.

[00:50:06] Speaker 01:
where that very argument was made.

[00:50:10] Speaker 01:
And the court said that implying a mens rea requirement into the statute and implying it only to speech of a particular person does not cure the statutes in permissible scope.

[00:50:20] Speaker 01:
Because again, the other verbs in the statute apply a range of actions that do infringe on speech.

[00:50:28] Speaker 01:
Finally,

[00:50:30] Speaker 01:
The Justice Department's position is expressed here today is that the prosecution's back page confirms what Congress was trying to do when it adopted FOSTA.

[00:50:40] Speaker 01:
But if that's the case, you would think that Congress would have written a statute that prohibited classified advertising online or talked about commercial transactions or in some other way had a narrowing language.

[00:50:52] Speaker 01:
That's not what we got with Foster.

[00:50:54] Speaker 01:
We got a broadly written statute, not limited to commercial transactions, not limited to advertising, that talks about any activity on an online publisher that can be seen as promoting or facilitating prostitution, as well as the other provisions of Foster, can be the subject of liability.

[00:51:14] Speaker 01:
And for that reason, at a minimum, these appellants have standing.

[00:51:18] Speaker 03:
All right.

[00:51:18] Speaker 03:
Thank you.

[00:51:18] Speaker 03:
We'll take the case under advisement.