[00:00:00] Speaker 04:
Case number 22-5105, Woodhull Freedom Foundation at out at balance versus United States of America and Maryland in his official capacity as attorney general of the United States.

[00:00:14] Speaker 04:
Mr. Cormier for the balance, Mr. Guza for the evidence.

[00:00:39] Speaker 04:
and may it please the court.

[00:00:41] Speaker 05:
When it comes to regulating speed, courts don't uphold laws simply because the government promises to apply them... Can you pull that microphone?

[00:00:51] Speaker 05:
Would you like me to start?

[00:00:52] Speaker 01:
That's better.

[00:00:53] Speaker 01:
That's better.

[00:00:53] Speaker 01:
Thank you.

[00:00:56] Speaker 05:
When it comes to regulating speed, courts don't uphold laws simply because the government has promised to apply them responsibly.

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As the Supreme Court made clear in the United States v. Stevens,

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The First Amendment protects against the government.

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It does not leave us at the mercy of noblesse oblique.

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This principle is implemented in a couple of ways.

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First, laws regulating speech must be drafted with narrow specificity.

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And second, courts exercise extreme caution when examining laws regulating what the Supreme Court has called the vast democratic forums of the internet.

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various laws intended to regulate online speech and invalidated facially applying these principles.

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These include the Communications Decency Act, the Child Online Protection Act, and the Child Pornography Prevention Act.

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Austin represents the latest attempt to regulate internet speech since these similar cases.

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And yet, remarkably, with one minor exception that I hope to get to later, neither the government nor the district court

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even cites these cases.

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Instead, the government treats foster as a garden variety aiding and abetting law without regard to whether or not it regulates speech.

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Now, there are a couple of problems with this.

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First, foster is not a garden variety aiding and abetting law.

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And the government tries to defend the statute principally by rewriting it.

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And secondly, even if foster could be so characterized,

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It is nonetheless constitutionally deficient because its terms are overly broad, undefined, and show a vast amount of protected speech.

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And that's the other remark I think about this case.

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Cost of chewing effects were predicted, they were immediate, and they were widespread across the internet.

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And this impact has never been disputed by the government.

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In fact, the district court agreed

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that appellants claims encapsulate the incentives created by this section of Falstaff.

[00:03:01] Speaker 00:
Well, how do we know... Your briefs and Namika's briefs talk about a lot of speech that is stopped in reaction to the statute.

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But how do we know how much of that speech is in fact

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covered by the statute as opposed to risk aversionists on the part of a lot of these businesses.

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Because if the statute is read as an essentially aiding and abetting provision, then I assume you would say your client's conduct

[00:03:39] Speaker 00:
doesn't fall, the PayPal account, the massage, business ads do not fall under the statute.

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As Craigslist said, that all of its speeches that shut down did fall within the statute, because that's part of the question here is whether, for over-breath at least, whether there's substantial over-breath.

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I'm not sure we can equate substantial over-breath with substantial reactions.

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to a statute without more.

[00:04:08] Speaker 00:
And that's where I'm really struggling to understand what is covered, if it's read as aiding and abetting provision, what is covered that shouldn't be covered.

[00:04:21] Speaker 05:
Right.

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And that's the problem with using broad and expansive language that relates to speech but then doesn't define what's

[00:04:29] Speaker 05:
There are three reasons why trying to interpret FOSTA as an aiding and bedding law.

[00:04:34] Speaker 00:
Can we just get more to the practical question of, is it your view that you had two individuals here?

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The one who does the rate the date and then the one with the massage business?

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Is it your position that their speech is perfectly lawful under the First Amendment, yet is covered by this statute, or they're afraid it's covered by the statute?

[00:05:03] Speaker 05:
I think that because of the indeterminate language, they can't be sure that their speech isn't covered.

[00:05:09] Speaker 00:
And if it's read as an aiding and abetting statute, criminal aiding and abetting, would their conduct be covered?

[00:05:20] Speaker 05:
I believe they would be acquitted, but that's part of the problem.

[00:05:23] Speaker 00:
No, no, no, not acquitted.

[00:05:24] Speaker 00:
Would they as a matter of law?

[00:05:26] Speaker 00:
Not acquitted, it would be, you know, you dismiss the indictment on its face right away, Judge, because this is not aiding in abetting.

[00:05:33] Speaker 05:
I do not believe their conduct amounts to aiding in abetting, but because of the way foster is structured both by using expansive language

[00:05:41] Speaker 05:
what could be covered, as well as removing protection for intermediaries, that their speech nonetheless gets censored because people rationally react to an overly broad

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regulation of speech by censoring that speech.

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And that's what the platforms have done in response to the modifications of Section 230.

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To demonstrate substantial overbred.

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That's right.

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We'll have discussions about whether it should be read this way.

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But let's just assume it is read narrowly as all sort of aiding and abetting conduct

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consistent with traditional criminal law definitions of that.

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And to decide that it's overbroad, we can't go, well, you had big words that you narrowed down to aid and abet.

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To establish that it's overbroad, you would have to show that even as an aiding and abetting statute, it would capture substantial amounts of lawful protected speech.

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So if we're in that world where it's treated as an aiding and abetting statute,

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How do I know that this statute would nonetheless be overbroad because it would nonetheless capture protected speech?

[00:07:00] Speaker 05:
Well, Your Honor, let me respectfully push back on the notion of assuming that it can be interpreted as an aiding and abetting statute.

[00:07:08] Speaker 05:
A very wise problem.

[00:07:10] Speaker 00:
No, but I know you want to push back on that, but then you're not going to answer my question.

[00:07:15] Speaker 00:
I really do want to know that if we're in that world,

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Is it still substantially overbroad, or is it only substantially overbroad because of the indeterminacy of whether this is in fact an aiding and abetting statute?

[00:07:30] Speaker 05:
The way in which statutes are interpreted gives latitude to apply beyond what is the principle concept of aiding and abetting, and that's what's true or false.

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to all of the other statutes that have been cited by both sides, frankly.

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But this is substantially different from an aiding and abetting statute.

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And that's clear from even the language of FOSS in section 2421A, when you compare it to that section of the criminal code into which it was inserted.

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It was part of Chapter 117 of the Criminal Code governing transportation of the illegal activity of related crimes.

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The Man Act, which has been on the books since 1910.

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And in every other provision, you have language that expresses what the crime is that is being prosecuted.

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So for example, Section 2422B

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criminalizes using the mail or facility or means of interstate commerce in a way that knowingly persuades, induces, entices, or coerces any individual.

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Similarly, Section 2422A applies to anyone who knowingly persuades, induces, entices, or coerces any individual to travel in interstate commerce.

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What's missing from FOSA in Section 2421A is that language of what the crime is

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puts people on notice of what they would be aiding and abetting.

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The way the statute reads is to say that anyone who owns, operates, or manages, or even attempts to own, operate, or manage an interactive computer service with bad intent, with the intent to promote or facilitate prostitution, is guilty of a federal felony.

[00:09:20] Speaker 05:
And it doesn't define what speech

[00:09:24] Speaker 05:
what actions by that interactive computer service would violate the law.

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It's that indeterminacy which says this can't be treated like the aiding and abetting laws that the government cites and that, frankly, we cite.

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We give seven examples of aiding and abetting laws at the footnote line of our brief.

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Every one of them includes that language that defines what the crime is.

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And here, it's basically speaking with bad intent.

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And for that reason, this isn't a garden variety, aiding and abetting law.

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It simply makes no sense to interpret it in that way.

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That's also true of the laws that the government cites under the model penal code.

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If you look at any of those laws, they include the description of what it is that constitutes a violation.

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And that's the problem with overly broad or indeterminate laws.

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that purport to regulate speech.

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That's the reason why the Supreme Court has always required that those laws be drafted with narrow specificity.

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And that's absolutely what's lacking here.

[00:10:32] Speaker 05:
The government suggests that we should interpret these laws using rules of statutory construction.

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And we've done that.

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And when you apply the typical rules of statutory construction, none of those support the government's reading of law steps.

[00:10:48] Speaker 05:
The plain meaning rule, the plain meaning of FOSTA in case law and its legal dictionaries means to make easier, not taking it abetting.

[00:10:59] Speaker 05:
And getting back to, I believe, your original question of why this is substantially overbroad, the government has defined what FOSTA's plain, legitimate sweep is by constantly talking about classified ad websites and talking about backpage.com.

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But as the panel of this court made clear the last time the states was before it, cost is not limited to classified advertising, and it's not limited to bad act or websites.

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Congress specifically chose broader length that applies to a broad range of protections of each.

[00:11:34] Speaker 06:
How would you?

[00:11:35] Speaker 06:
This is not a rhetorical question.

[00:11:38] Speaker 06:
curious, how would you write a law that does what you just said?

[00:11:42] Speaker 06:
To say we're going to outlaw bad actor websites sounds awfully vague.

[00:11:46] Speaker 06:
So maybe we'll start with this.

[00:11:50] Speaker 06:
Do you think it's possible for Congress to ban backpage.com?

[00:11:56] Speaker 06:
Constitutionally possible?

[00:11:57] Speaker 05:
I think it is possible to write a constitutional statute and just walk and let me say

[00:12:02] Speaker 05:
Not my job to do Congress's work and Supreme Court made that clear in the United States versus Plano.

[00:12:07] Speaker 06:
There was a footnote in your brief where you seemed awfully sympathetic to backpage.com, which was a pretty nefarious website.

[00:12:18] Speaker 06:
And so I guess I'm glad to hear you say that you think Congress can ban backpage.com.

[00:12:25] Speaker 06:
And I wonder how that law would read different than this

[00:12:32] Speaker 05:
Right, and I think it would come closer to a constitutional enactment if POMS had employed the language of, say, the Travel Act or the Protect Act, or it includes these transactional verbs that were expressly missing from FOSA.

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So, for example, the Travel Act applies to acts that promote, manage, establish, carry on, or facilitate the promotion.

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about lawful activity.

[00:13:02] Speaker 00:
Sorry, so they amended 2421 and A, capital A that way.

[00:13:06] Speaker 00:
If they had a longer list of verbs and the sort of act by language that they have in the companion provisions in this section, then it would be constitutionalist simply because we've only got promote or facilitate that is the constitutional problem.

[00:13:27] Speaker 05:
we would have to look at the final product that Congress came up with.

[00:13:30] Speaker 05:
But that was the analysis that the Supreme Court did in Williams, when it looked at the Protect Act.

[00:13:36] Speaker 06:
You just said we'd have to look at the language they came up with, but Judge Millett gave you the language.

[00:13:42] Speaker 06:
There's an echo in this.

[00:13:46] Speaker 06:
No problem.

[00:13:47] Speaker 06:
Am I even on this?

[00:13:48] Speaker 06:
I don't know.

[00:13:51] Speaker 06:
If Congress wrote the same language that Judge Millett mentioned, which I think is the same language that's in the other statutes you were mentioning, would that be constitutional?

[00:14:05] Speaker 05:
I think that would come closer because it would at least serve to narrow those terms.

[00:14:10] Speaker 05:
And the Supreme Court said, if you look at those coming closer, isn't constitutional, the ones that were made to protect that was something constitutional and it was something constitutional because those additional verbs that didn't, it went beyond promote.

[00:14:24] Speaker 06:
And so if we were to read this statute as no broader in terms of the verbs, um, then that statute, then I guess there would be no constitutional problem here.

[00:14:40] Speaker 06:
that the court will be rewriting the statute.

[00:14:43] Speaker 06:
I know, but assume that, and I know you don't agree with the government's statutory interpretation, but if we were to interpret the statute that way, then there would be no First Amendment problem, correct?

[00:14:57] Speaker 05:
No, I don't believe so, Your Honor, because again, for prosecutions going forward, you would still have that statutory language that courts would have to interpret.

[00:15:07] Speaker 06:
And then I'm back to my original question, which is, is it possible to write law that does not violate the First Amendment, but does ban Backpage.com?

[00:15:17] Speaker 05:
Well, again, Congress did have the option when it adopted this law.

[00:15:20] Speaker 05:
The government has spent a lot of time talking about how we have to read the statute in light of background law.

[00:15:29] Speaker 05:
And here, when Congress was adopting FOSTA, it was reading it with a background of law under Williams that said the terms promote and facilitate standing alone in isolation are capable of widespread meanings.

[00:15:43] Speaker 05:
They then adopted to leave out those words.

[00:15:48] Speaker 06:
This is a hypothetical, but I want to be sure we're fair to you, whoever writes the opinion.

[00:15:57] Speaker 06:
I think right now the opinion could say that the plaintiffs concede that Congress can ban Backpage.com without violating the First Amendment, but the plaintiffs cannot explain how Congress can do that.

[00:16:16] Speaker 05:
I think if you wrote a statute that said it violates the law to operate an interactive computer service, to conduct a prostitution business online, that would be a constitution.

[00:16:29] Speaker 00:
You're going to put an intent requirement in there too, aren't you?

[00:16:33] Speaker 06:
Yes.

[00:16:34] Speaker 06:
But Backstage.com wasn't running the prostitution business.

[00:16:38] Speaker 06:
It was a board.

[00:16:41] Speaker 06:
It was the equivalent of a bulletin board for sex traffickers to advertise.

[00:16:48] Speaker 05:
That is the allegation that has yet to be proven at trial.

[00:16:52] Speaker 05:
The allegations that contained in the government brief continue all sorts of allegations about trafficking, the fact that it was not charged with.

[00:16:58] Speaker 05:
But apart from that, the question is whether or not a law could be drafted.

[00:17:02] Speaker 05:
And I think it could.

[00:17:04] Speaker 05:
The transaction terms in the Travel Act talk about basically getting

[00:17:14] Speaker 05:
that is integral to that criminal activity.

[00:17:17] Speaker 05:
But that's not what Congress adopted.

[00:17:19] Speaker 06:
I understand your argument there.

[00:17:21] Speaker 06:
Let me pivot to the ex post facto claim and the question of standing.

[00:17:26] Speaker 06:
And after I answer that question, I see that I've sort of I'm intruding on my time for rebuttal.

[00:17:30] Speaker 00:
We'll give you time for rebuttal so you can keep answering questions.

[00:17:33] Speaker 06:
I've been answering all your questions.

[00:17:36] Speaker 06:
The only defendants in this suit are federal defendants.

[00:17:41] Speaker 06:
And

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The only parties that can bring a prosecution or civil suit against your clients using the ex post facto language.

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In other words, for the conduct that your clients engaged in before FOSTA, the only people who can hold them accountable for

[00:18:14] Speaker 06:
are state prosecutors and private civil litigants.

[00:18:23] Speaker 06:
Since the federal defendants are the only defendants in this case, how do you, how could issuing an injunction against the federal defendants

[00:18:36] Speaker 06:
help you in this area.

[00:18:39] Speaker 05:
Well and that's the point that we tried to make in the brief and that is the district court dismissed that claim simply by focusing on the injunctive relief portion but we in our complaint saw both declaratory and injunctive relief.

[00:18:54] Speaker 06:
So then that leads us to the California v Texas case that the Supreme Court somewhat recently decided and it was pretty clear it said that

[00:19:06] Speaker 06:
this work.

[00:19:09] Speaker 06:
They said no standing if the only relief requested is a declaration that the statutory provisions, the plaintiff's attack is unconstitutional.

[00:19:20] Speaker 06:
How do you get around that?

[00:19:24] Speaker 04:
Um, I think under, um,

[00:19:28] Speaker 05:
Sardin versus California, which says that ex post facto laws shall not be passed.

[00:19:34] Speaker 05:
And that is the expressed provision of the Constitution, Article 1, Section 9.

[00:19:39] Speaker 05:
And combined with the language of the Declaratory Judgment Act that says that any court of the United States may declare the rights of other legal relations of a interested party seeking such a declaration, whether or not such further relief is or could be sought.

[00:19:57] Speaker 05:
but still leaves the court latitude to grant declaratory relief with respect to the ex post facto claim.

[00:20:04] Speaker 06:
Imagine that it's almost a truism that ex post facto law can't be passed.

[00:20:11] Speaker 06:
The constitution says it can't be passed.

[00:20:13] Speaker 06:
But the question is, who can you sue and have standing to sue a challenge in ex post facto law?

[00:20:22] Speaker 06:
And if you picked a random name in the phone book and then sued them and then argued in court correctly that you've been injured by the ex post facto law,

[00:20:32] Speaker 06:
You wouldn't have standing because the random name in the phone book that you've chosen to sue, relief against that defendant can't redress the injury that we would all concede you have from the ex post facto.

[00:20:47] Speaker 05:
By the same token, if Congress adopted a law that simply said that states can now pass ex post facto criminal laws and

[00:20:57] Speaker 05:
You know, you had to wait for a state then to adopt an ex post facto law.

[00:21:01] Speaker 05:
You have simply allowed Congress to adopt a law that is expressly forbidden by Congress.

[00:21:06] Speaker 00:
I don't know that that law is expressly forbidden because it's not an ex post facto law.

[00:21:11] Speaker 00:
And what is the harm in waiting for someone to actually do something to hurt you?

[00:21:15] Speaker 05:
because of the chilling effect that this has had on platforms across the internet.

[00:21:21] Speaker 05:
It also doesn't operate just in isolation.

[00:21:23] Speaker 05:
It's got three different provisions that create new criminal penalties that activate the ability to impose existing state laws on behavior that existed before or took place before the law was adopted.

[00:21:38] Speaker 05:
And when you impose all of those,

[00:21:41] Speaker 05:
conditions on intermediaries with a maximum chilling effect.

[00:21:47] Speaker 05:
So the very existence of the law has created the chilling effect.

[00:21:51] Speaker 05:
You don't have to wait for a prosecution and civil cases have already gone forward alleging violations of FOSTA under actions that took place before the law was adopted.

[00:22:02] Speaker 00:
Have any states, anyone in the amicus brief said there's only been one federal prosecution

[00:22:08] Speaker 00:
under FOSTA, I assume you mean by that 2421A or do you even mean 1591 or 1519?

[00:22:16] Speaker 00:
Sorry?

[00:22:20] Speaker 00:
When there's only one prosecution under FOSTA, does that mean one prosecution under 2421A or does that include no prosecutions under the amendments to 1591?

[00:22:29] Speaker 05:
I don't recall facts.

[00:22:35] Speaker 00:
Have there been any state prosecutions under

[00:22:38] Speaker 00:
Under FOSTA that you're aware of?

[00:22:39] Speaker 05:
Not that I'm aware of.

[00:22:41] Speaker 05:
Which actually speaks to whether or not this law is either necessary or even the least restrictive means of addressing the issues that Congress sought to address, both under the strict scrutiny analysis, which requires it to be the least restrictive means, and the question of whether or not it is substantially overbroad because it is more broad than necessary.

[00:23:04] Speaker 05:
the fact that those other laws pre-existed.

[00:23:08] Speaker 00:
And more broad than necessary gets us back to the how, what Congress could write.

[00:23:14] Speaker 00:
And there, I guess I want to make sure I'm clear, the main complaint with 2421A is that by using the verbs promote or facilitate prostitution,

[00:23:27] Speaker 00:
those do not have the same narrowing language as something like, you know, 2422 with the persuades, induces, entices, coerces, those types of verbs, or more transactional verbs like Williams.

[00:23:43] Speaker 00:
That's the problem?

[00:23:45] Speaker 05:
That's the problem with 2421A.

[00:23:47] Speaker 05:
It lacks those transactional verbs.

[00:23:51] Speaker 05:
We've identified the

[00:23:54] Speaker 05:
as well.

[00:23:55] Speaker 05:
And then on top of that, by simultaneously stripping away immunities from intermediaries that carry third-party speech, that broadens the chilling effect.

[00:24:04] Speaker 00:
So for 2421A, I just want to make clear the objection is just to, you would say, the breadth of the verbs promote or facilitate.

[00:24:14] Speaker 00:
And it's not an objection that the only actus reus is operating an interactive computer service.

[00:24:24] Speaker 05:
Well, that's right.

[00:24:25] Speaker 05:
And it's basically the law constitutes operating an online computer service with bad intent.

[00:24:33] Speaker 00:
Right, that's why I thought your response would have been, no, we want more verbs and we actually would like a criminal act as Reyes.

[00:24:41] Speaker 05:
Well, we want the act as Reyes to be defined, certainly.

[00:24:44] Speaker 00:
Well, it's defined here in 2421A, it's defined as own manager operating an interactive computer service or attempting or conspiring to do that.

[00:24:52] Speaker 00:
So there is a defined actus reus, it's just like as you said, it's operating a computer with a bad intent.

[00:25:03] Speaker 05:
statutes that regulate speech to be defined with precision, because essentially this amounts to saying that you are speaking online with bad intent.

[00:25:12] Speaker 05:
The intent is defined by using words.

[00:25:14] Speaker 00:
You might not even be speaking, you might just be owning a computer service with bad intent.

[00:25:19] Speaker 05:
And thereby getting even further from the intent element, if all it is is owning or, in the words of section 2421A, attempting to own, operate, or manage an interactive computer service.

[00:25:32] Speaker 05:
All of that gets it further and further removed from actually defining what kind of speech is being regulated.

[00:25:40] Speaker 05:
And that is the device in these kinds of laws, particularly when you are regulating a medium as widespread with as many participants as the internet.

[00:25:51] Speaker 05:
Both in terms of direct action and their impact on intermediaries.

[00:25:57] Speaker 05:
make for a vast chilling effect, which has occurred.

[00:26:00] Speaker 05:
It's not just people overreacting or hallucinating that they are at risk.

[00:26:05] Speaker 05:
You have all kinds of mainline intermediaries and you have small operators all restricting their speech because of the rational calculation that they face nuclear option criminal penalties for what they may allow to be posted online or for their own speech.

[00:26:24] Speaker 05:
That's the problem.

[00:26:25] Speaker 05:
of a law that attempts to regulate speech with the breadth and precision of a law like Boston.

[00:26:32] Speaker 00:
And I want to make sure, because I had interrupted you, did you get to say what you wanted to say about your response to the government's argument that this should be read as an 18-minute vetting statute?

[00:26:41] Speaker 00:
I want to make sure you had a chance to do that.

[00:26:43] Speaker 05:
I apologize again, Your Honor, there's an echo.

[00:26:44] Speaker 00:
I want to make sure you got the opportunity, because you had said you wanted to

[00:26:49] Speaker 00:
address the government's argument that this should be read as aiding and abetting language or traditional criminal understandings of promote prostitution or facilitate.

[00:27:00] Speaker 00:
I just want to make sure you got a chance to, because I had cut you off trying to get another answer.

[00:27:06] Speaker 05:
I think at this point, I said what I wanted to say in response to your questions and in addition to what we said in the briefs.

[00:27:13] Speaker 05:
And I look forward to seeing what Mr. Buza has to say, because I'm sure I'll have a few words to add at that point.

[00:27:20] Speaker 00:
Any questions?

[00:27:21] Speaker 00:
Thank you very much.

[00:27:21] Speaker 00:
We will give you some time for a good one.

[00:27:41] Speaker 07:
Good morning.

[00:27:42] Speaker 07:
May it please the court, Joe Busa on behalf of the government.

[00:27:46] Speaker 07:
As the case is now narrowed, there is agreement between all the parties that there is no constitutional problem with a statute that prohibits

[00:27:55] Speaker 07:
aiding and abetting the underlying transactional crime of prostitution, where that is a crime in the jurisdiction in which it takes place.

[00:28:04] Speaker 06:
So the only question for this- Where did you get that concession?

[00:28:06] Speaker 06:
Because I will say, I read the plaintiff's brief to sort of imply that, but when the plaintiff was pushed today, I think he

[00:28:18] Speaker 06:
He refused to concede that and said, even if it's an aiding and abetting law, it's it's still chills too much.

[00:28:26] Speaker 07:
I guess I'm sorry.

[00:28:27] Speaker 07:
I took the opposite name from this morning.

[00:28:30] Speaker 07:
I thought he had said if it was being abandoned, then it can possibly be prohibited.

[00:28:35] Speaker 07:
By statute, you know, we cite a number of cases in which the Supreme Court says that speech in aid of a crime is categorically exempted from the First Amendment.

[00:28:44] Speaker 07:
He's provided no argument saying why that kind of cases wouldn't resolve the case if statute covers only aid.

[00:28:50] Speaker 07:
I'll ask him on that one, of course.

[00:28:53] Speaker 01:
I don't know what you mean when you say even if it's an aiding and abetting law.

[00:28:57] Speaker 01:
Isn't that the question?

[00:28:59] Speaker 01:
I completely agree.

[00:29:00] Speaker 01:
It's not an aiding and abetting law.

[00:29:02] Speaker 01:
We know how to write them when we want to.

[00:29:04] Speaker 01:
This doesn't look like anything that I understand to be an aiding and abetting law.

[00:29:10] Speaker 01:
So I'm preparing this that immediately tells me the government's got great concerns that the statute, as actually written, has problems.

[00:29:21] Speaker 01:
So let's make it something that it's not.

[00:29:23] Speaker 01:
Let's call it aiding and abetting, and maybe we can cause the court to believe that the reach of the statute is limited

[00:29:32] Speaker 01:
because we've called it something that it's not, there's nothing to suggest that it's aiding and abetting.

[00:29:39] Speaker 01:
It doesn't look like an aiding and abetting law.

[00:29:41] Speaker 01:
There's no legislative history that says it's an aiding and abetting law.

[00:29:45] Speaker 01:
And so my view as someone preparing the case is you just made something up, which would work for you if you could convince me that you're right.

[00:29:54] Speaker 01:
But it's not what the statute says.

[00:29:56] Speaker 01:
Respectfully, our we do disagree and for several reasons.

[00:29:59] Speaker 01:
That's what the statute says.

[00:30:01] Speaker 07:
So we disagree with the position you just laid out.

[00:30:07] Speaker 07:
This is not an aiding in the bank statute.

[00:30:08] Speaker 07:
And so if I could just lay out.

[00:30:10] Speaker 07:
The key features that we think show that this statute is limited to traditional principles of accomplice liability.

[00:30:17] Speaker 07:
So first, if you just take the canonical definitions of aid and abetting from Black's Law Dictionary, it's to facilitate the commission of a crime or to promote its accomplishment.

[00:30:26] Speaker 07:
The same with Lefebvre and the model of penal code.

[00:30:29] Speaker 07:
And the Supreme Court in Awahala said that the term facilitate has an equivalent meaning, the terms like aid and abet.

[00:30:35] Speaker 07:
So first, just starting from the definitions of those words.

[00:30:39] Speaker 01:
What does the Supreme Court say about promote and Williams?

[00:30:43] Speaker 01:
That's what the Supreme Court said, right?

[00:30:45] Speaker 01:
Right.

[00:30:45] Speaker 01:
So in Williams, the Supreme Court says.

[00:30:47] Speaker 01:
So already we're falling away from where you'd like to be in aiding and abetting.

[00:30:50] Speaker 01:
The Supreme Court has flatly said promoting is that's what you've got.

[00:30:55] Speaker 01:
And that's all we essentially have here, promote and facilitate.

[00:30:59] Speaker 01:
The Supreme Court has said that's not enough.

[00:31:00] Speaker 01:
That's a problem.

[00:31:01] Speaker 01:
Well, that's all you've got.

[00:31:03] Speaker 07:
I'm sorry.

[00:31:03] Speaker 07:
I'm sorry, Your Honor.

[00:31:04] Speaker 07:
The Supreme Court said in Williams that promote on its own in a vacuum could be thought to have a very broad definition or a narrow definition focused on traditional principles of accomplice liability.

[00:31:16] Speaker 07:
The Supreme Court there said look to the statute in context, quote unquote.

[00:31:20] Speaker 07:
They're the context.

[00:31:21] Speaker 01:
No, they look to the context in whole.

[00:31:24] Speaker 01:
I agree.

[00:31:25] Speaker 01:
You have to look at that.

[00:31:25] Speaker 01:
That is, are there other words that limit the scope of the

[00:31:31] Speaker 01:
offense.

[00:31:32] Speaker 01:
The Supreme Court said in Williams, there are other limiting words.

[00:31:36] Speaker 01:
And so therefore, even though promote would be a problem, if that's all was there.

[00:31:42] Speaker 01:
not a problem here because we can, in context, means there are other words which limit the sweep of the statute.

[00:31:48] Speaker 07:
So, you know, the Supreme Court in Williams didn't say the only contextual feature that could limit a word like promote to its narrow definition would be the noscator associis canon.

[00:31:57] Speaker 07:
It didn't say only that context would limit the word.

[00:32:00] Speaker 07:
It just said look at context, and that was the relevant context there.

[00:32:03] Speaker 07:
Here we do have important textual and contextual indications that we're talking about transactional crimes, not general advocacy in favor of prostitution.

[00:32:15] Speaker 07:
So first I start with the idea that we're talking about a criminal statute, we're talking about criminal intent.

[00:32:19] Speaker 07:
Then I turn to the phrase in the statute, promote the prostitution of another person, not promoting the concept of prostitution.

[00:32:26] Speaker 07:
Then there's the aggravated offense of promoting the prostitution of five or more persons.

[00:32:30] Speaker 07:
That's clearly transactional.

[00:32:32] Speaker 07:
And lastly... Of what?

[00:32:33] Speaker 07:
What did you just say?

[00:32:34] Speaker 07:
I'm sorry.

[00:32:35] Speaker 07:
I'm sorry.

[00:32:36] Speaker 07:
In the aggravated offense, in 2421A paragraph B, the statute speaks of promoting the prostitution of five or more persons.

[00:32:46] Speaker 07:
That just further underlines that we're talking about underlying criminal transactions, not the concept of prostitution as a whole.

[00:32:55] Speaker 07:
And lastly, and I don't think plaintiffs have ever given a response to this, is the affirmative defense in paragraph E. Before you, please hold that.

[00:33:03] Speaker 00:
I do want you, I'm sorry, but I just want to make sure I understand something here.

[00:33:09] Speaker 00:
General promotion of prostitution is not here, but if someone

[00:33:17] Speaker 00:
actively promotes on their website, the legalization of prostitution for the state of California.

[00:33:29] Speaker 00:
How is that not promoting the prostitution of five or more persons in California?

[00:33:35] Speaker 07:
Because it's just promoting prostitution in general as a concept.

[00:33:38] Speaker 00:
No, it's not.

[00:33:39] Speaker 00:
It says, I want, here's all my friends who are prostitutes in California.

[00:33:45] Speaker 00:
Here's 20 of them.

[00:33:47] Speaker 00:
I want to make it legal for them to engage in prostitution.

[00:33:53] Speaker 00:
So, I'm advocating for this law.

[00:33:57] Speaker 00:
How does that not promote the prostitution lawfully?

[00:34:01] Speaker 00:
I'm going to list a hundred of my friends who are prostitutes.

[00:34:04] Speaker 00:
Here's the list of their names.

[00:34:05] Speaker 00:
How would that not promote it?

[00:34:06] Speaker 00:
Just straightforward reading of the tax.

[00:34:09] Speaker 00:
I feel very strongly they should have a right to prostitute if they want to.

[00:34:13] Speaker 00:
They want to do it more.

[00:34:14] Speaker 00:
They'll be able to do it more if it's lawful.

[00:34:16] Speaker 07:
So under a traditional dictionary definition, where promote could just be encouragement in the least, or sort of any degree of promotion, maybe one can consider that being promotion of the constitution of a large number of people.

[00:34:31] Speaker 00:
I don't think you need to stretch to say that under a dictionary definition that means promote.

[00:34:34] Speaker 00:
It's not a maybe, it does.

[00:34:37] Speaker 00:
You want the super narrow Black's Law Dictionary.

[00:34:41] Speaker 07:
Well, it's not that I want that.

[00:34:42] Speaker 07:
I think it's pretty clearly what Congress was intending, but even if you disagree with me about that.

[00:34:46] Speaker 00:
Wait, how do we know Congress intended the Black's Law Dictionary?

[00:34:49] Speaker 07:
Because, so, contrary to some discussion I was having with Judge Edwards, there actually is legislative history saying that we're invoking traditional notions of a compass liability.

[00:34:58] Speaker 00:
Who's we?

[00:34:59] Speaker 00:
What was that legislative history?

[00:35:00] Speaker 07:
So we laid that out in our brief and we'll close the specific pages where they talk about... Are we talking about a House report?

[00:35:06] Speaker 00:
Are you talking about members of Congress?

[00:35:08] Speaker 07:
Four debates during the passage of the bill, where key sponsors of the bill say, this covers aiding and abetting.

[00:35:14] Speaker 07:
We're talking about a compost liability.

[00:35:16] Speaker 07:
And specifically, Senators Rumenthal and Schumer say, we are not talking about general promotion of prostitution or legalization advocacy.

[00:35:25] Speaker 07:
I'm sorry.

[00:35:25] Speaker 01:
Is there some conference report that says this?

[00:35:28] Speaker 07:
I don't believe there's a conference report that gets into that issue at all.

[00:35:30] Speaker 00:
Is there a House or Senate report, committee report that says this?

[00:35:33] Speaker 07:
I don't think any of the committee reports get into that.

[00:35:35] Speaker 01:
We're in the land in which most courts now allow to say that's legislative history, that works.

[00:35:42] Speaker 01:
We're in the question.

[00:35:43] Speaker 07:
So, Your Honor, I won't be clear.

[00:35:45] Speaker 07:
We are not saying you should resolve this case on the basis of legislative history.

[00:35:48] Speaker 07:
I'm just trying to respond to the point that is there any indication of what Congress is doing here?

[00:35:52] Speaker 07:
Yes, there is.

[00:35:53] Speaker 06:
Is there any indication of the text, structure, context, precedence, hands of construction?

[00:36:00] Speaker 07:
That's exactly where I want to focus, Your Honor.

[00:36:02] Speaker 07:
And so if I can keep going through the text of the statute, the context of the statute, that we think provides the narrowing features for a word like promote here.

[00:36:10] Speaker 00:
Then we have to put aside the first canon, which is that plain language means plain language, a couple of canons.

[00:36:16] Speaker 00:
Plain language means Congress means what it says or promotes instead of the narrower meaning.

[00:36:22] Speaker 00:
And two, when Congress has used, when Congress knows how to say it,

[00:36:28] Speaker 00:
and uses different words in another section, we assume there's different, that they intended a different meaning.

[00:36:34] Speaker 00:
I mean, when they have a statute that defines aid and abet and uses none of these verbs, aids, abets, counsels, commands, induces or procures, none of which are in here, none of which promote or facilitate isn't in there.

[00:36:47] Speaker 00:
And we don't have the string of transactional verbs.

[00:36:50] Speaker 00:
And I also, I just think promote,

[00:36:53] Speaker 00:
is different from facilitating I mean they just naturally have different meanings I understand why they use two words so that this is I understand your point and this is a criminal statute so it makes sense let's look at what these criminal meanings are but then where I'm struggling is because Congress

[00:37:12] Speaker 00:
in criminal laws knows how to say aid in a vat and didn't use a single one of those verbs knew after Williams that if it meant sort of transactional meanings to have sort of related string of verbs and again didn't choose a string of verbs that suggests transactionalism in fact promote doesn't suggest transactionalism.

[00:37:35] Speaker 00:
And so that's, I understand your job and what you're doing.

[00:37:40] Speaker 00:
I'm just struggling with what to do with those two canons.

[00:37:44] Speaker 00:
And even if we can debate whether Black's Law Dictionary prompts ordinary meaning in a plain language analysis, what do I do if the Congress knows how to say it and it didn't do it here?

[00:37:55] Speaker 07:
So on ordinary legal meaning?

[00:37:58] Speaker 07:
And the Supreme Court has said that the ordinary legal, the ordinary meaning should be taken to be the ordinary legal meaning.

[00:38:04] Speaker 07:
And so we're discussing a criminal statute.

[00:38:07] Speaker 07:
You might look first to the ordinary meaning of that word as using criminal law to address the question of what Congress said.

[00:38:14] Speaker 00:
That's great.

[00:38:16] Speaker 00:
That's great.

[00:38:17] Speaker 00:
So can you assure me that everywhere else that the word promote is used in 18 USC or criminal provisions 21 USC?

[00:38:26] Speaker 00:
It only means well it surely can't mean promote constitution so it only means what?

[00:38:32] Speaker 07:
I think in general we would start from the presumption that it's using the word promote as it's used in any number of state accomplished liability statutes.

[00:38:40] Speaker 00:
Oh wait I thought we were going to assume we don't assume it.

[00:38:43] Speaker 00:
Do we know how often promote appears elsewhere in criminal code?

[00:38:47] Speaker 07:
I don't have that for you, and I also don't want to take a firm position that literally every single time it's used, that's what it's going to mean.

[00:38:52] Speaker 00:
Here's how you can resolve this scenario.

[00:38:55] Speaker 00:
Are there other places in the criminal code?

[00:38:59] Speaker 00:
I keep wanting to say 18 USC, but I know it's more than that.

[00:39:02] Speaker 00:
Where promote has that meaning.

[00:39:05] Speaker 07:
I'm sorry.

[00:39:05] Speaker 07:
I just, I don't have that information for you.

[00:39:08] Speaker 07:
I wish I did.

[00:39:09] Speaker 07:
But here's why I think he was all the case narrow.

[00:39:12] Speaker 07:
Promoting constitution is its own special legal term of art.

[00:39:15] Speaker 07:
As noted the first time this case came on appeal and as defined in Black's law dictionary, promoting prostitution is pandering.

[00:39:22] Speaker 07:
There's a very specific legal meaning in this context.

[00:39:25] Speaker 07:
And we think that's the legal meaning you should describe to the statute.

[00:39:28] Speaker 07:
And if I could just turn to the affirmative defense in paragraph E of 2421A, because I think this is very strong contextual and structural indication that we have the right construction of the statute.

[00:39:41] Speaker 07:
If plaintiffs were right that promoting prostitution of another person included general advocacy in favor of prostitution, then Congress would be speaking out of both sides of its mouth.

[00:39:51] Speaker 07:
On the one hand, in paragraph A, it would have criminalized that conduct, despite the constitutional concerns that might arise.

[00:39:58] Speaker 07:
But then in paragraph E, it would have provided an affirmative defense because, to our knowledge, there is no jurisdiction in the United States that purports to make it criminal to generally advocate for decriminalization of prostitution.

[00:40:14] Speaker 07:
Plaintiffs have certainly identified no such jurisdiction.

[00:40:17] Speaker 00:
That would be exceedingly odd.

[00:40:18] Speaker 00:
The Congress passed a statute that says it's unlawful to promote prostitution.

[00:40:23] Speaker 00:
It's an affirmative defense to show that your promotion of prostitution was lawful.

[00:40:30] Speaker 00:
Under that theory, that would be perfectly fine.

[00:40:32] Speaker 00:
So Congress can ban speech as long as it makes an affirmative defense to show that this is constitutionally protected.

[00:40:38] Speaker 07:
I am not making that argument.

[00:40:39] Speaker 00:
I thought that's it.

[00:40:40] Speaker 00:
It's unlawful to promote prostitution.

[00:40:43] Speaker 00:
Affirmative defense, unless you can show promoting prostitution was lawful in that state.

[00:40:48] Speaker 00:
How is that different from the statute?

[00:40:50] Speaker 07:
I must have misunderstood your question.

[00:40:52] Speaker 00:
I'm not sure what you're driving at.

[00:40:56] Speaker 00:
Statute, my state is just, it's more concise.

[00:40:59] Speaker 00:
It is unlawful to promote prostitution.

[00:41:02] Speaker 00:
Do you want me to add computer?

[00:41:03] Speaker 00:
It's unlawful to use a computer service to promote prostitution one.

[00:41:08] Speaker 07:
And just to clarify the question, do you intend the hypo to include promotion to mean general advocacy, not as limited by traditional notions of accomplice liability?

[00:41:17] Speaker 07:
I'm trying to get hypo correct in my mind.

[00:41:20] Speaker 00:
I'm Congress.

[00:41:21] Speaker 00:
Who knows what I intend?

[00:41:22] Speaker 00:
OK.

[00:41:24] Speaker 00:
All right.

[00:41:24] Speaker 00:
So there'll be a couple floor statements that say that, though.

[00:41:27] Speaker 00:
All right.

[00:41:27] Speaker 00:
So it is unlawful to use the computer service to promote prostitution.

[00:41:32] Speaker 00:
It is an affirmative offense to demonstrate that promoting prostitution is lawful where you did it.

[00:41:39] Speaker 00:
That's constitutional.

[00:41:41] Speaker 07:
Well, yes, of course.

[00:41:42] Speaker 07:
I mean, if I did that motion, there would be limited to aiding and abetting a transactional crime.

[00:41:48] Speaker 00:
Just said promoting prostitution.

[00:41:50] Speaker 06:
And so we know that.

[00:41:51] Speaker 00:
Sons of Water has a different answer.

[00:41:53] Speaker 06:
Sorry, Your Honor, please go ahead.

[00:41:54] Speaker 06:
The statute just says it's illegal to promote prostitution.

[00:41:57] Speaker 06:
of another person.

[00:41:59] Speaker 06:
No, I think it's illegal to promote prostitution.

[00:42:04] Speaker 06:
Period.

[00:42:04] Speaker 06:
Full stop.

[00:42:04] Speaker 06:
That would ban someone from running a website that says, I think, I think this, I think the state of Maryland should decriminalize prostitution.

[00:42:14] Speaker 06:
You would have made that a federal felony with that.

[00:42:15] Speaker 06:
You're saying that is constitutional.

[00:42:17] Speaker 06:
No.

[00:42:18] Speaker 00:
Okay.

[00:42:18] Speaker 00:
So now if I change it to say is illegal use computer system to promote prostitution of another person.

[00:42:25] Speaker 00:
No further definition of promote and then had your affirmative defense.

[00:42:30] Speaker 00:
You think that's perfectly fine.

[00:42:31] Speaker 07:
There's no other verbs and facilitates not in there.

[00:42:34] Speaker 00:
I've given you the full text.

[00:42:36] Speaker 07:
I think we'd say, look, it's certainly a permissible construction to say promoting constitution as a specific meeting, a long standing meeting, go back centuries, meaning pandering.

[00:42:45] Speaker 07:
And if you limit it to that, it would clearly be constitutional.

[00:42:48] Speaker 07:
And because it can be so limited, it must be.

[00:42:51] Speaker 00:
I'll make sure.

[00:42:53] Speaker 06:
What does facilitate and promote add to your argument that your argument lacks?

[00:43:00] Speaker 06:
in the last type of thing.

[00:43:02] Speaker 07:
So we already know from the Supreme Court in Oahu that facilitate has an equivalent meaning to aid in a bet.

[00:43:07] Speaker 07:
And then you start thinking, well, if that has the equivalent meaning, maybe Congress had to chose the narrower definition of promote.

[00:43:14] Speaker 07:
Secondly, facilitate and promote frequently go together in defining what accomplished liability is.

[00:43:20] Speaker 07:
And again, Black's Law Dictionary.

[00:43:22] Speaker 07:
Facilitate the condition of a crime or promote its accomplishments.

[00:43:25] Speaker 07:
Model penal code.

[00:43:26] Speaker 07:
um you know aiding the commissioner of crime with the purpose of promoting or facilitating the commission of the offense will fave to give assistance or encouragement with the intent to thereby promote or facilitate the commission of the crime and also all that reads promote and facilitate the same way we might read

[00:43:44] Speaker 06:
the phrase rise and shine.

[00:43:46] Speaker 07:
Exactly.

[00:43:47] Speaker 06:
It's one thing.

[00:43:49] Speaker 06:
Yeah.

[00:43:49] Speaker 07:
And maybe it's a diptych might be the right.

[00:43:52] Speaker 07:
And I don't know what the technical term is, but that's exactly right.

[00:43:55] Speaker 07:
And it carries with it the old soil.

[00:43:57] Speaker 00:
Here's what I'm worried about too with, I'm talking about 2421, capital A. Congress passed a statute that says it's illegal interstate commerce to own, manage or operate a library with the intent

[00:44:14] Speaker 00:
to promote the prostitution of another person.

[00:44:21] Speaker 00:
That's okay.

[00:44:25] Speaker 07:
Another person is in there.

[00:44:27] Speaker 00:
With the intent to promote, yes.

[00:44:29] Speaker 07:
And facilitate or promote?

[00:44:30] Speaker 00:
No.

[00:44:31] Speaker 00:
I'm sorry.

[00:44:32] Speaker 00:
Let me try it one more time.

[00:44:34] Speaker 00:
I'm sorry.

[00:44:34] Speaker 00:
It sounds like our sound system is not working so well.

[00:44:36] Speaker 07:
No, I'm sure it's my fault.

[00:44:38] Speaker 00:
I'm giving you the interstate commerce stuff.

[00:44:40] Speaker 00:
So it is illegal to own, manage, or operate a library with the intent to promote the prostitution of another person.

[00:44:55] Speaker 00:
And you can have your affirmative defense.

[00:44:56] Speaker 07:
Sure, sure, sure.

[00:44:59] Speaker 07:
I guess if we re-promote as carrying the traditional notion of pandering, that specific meaning in that context, then yes.

[00:45:07] Speaker 00:
So the only activist radius that's needed is owning a library, owning, managing, or operating a library.

[00:45:13] Speaker 00:
If you do it with a bad intent, Congress can ban that.

[00:45:19] Speaker 00:
No action has happened.

[00:45:21] Speaker 00:
No actual promotion.

[00:45:22] Speaker 00:
This is what the statute says.

[00:45:24] Speaker 00:
It is illegal to own, operate, or manage a library.

[00:45:30] Speaker 00:
with the intent to promote the prostitution of another person.

[00:45:34] Speaker 00:
It doesn't say, and some step is taken towards the prostitution of another person.

[00:45:40] Speaker 00:
It says it is illegal to own the library with a bad intent or manage.

[00:45:47] Speaker 00:
You're just hired as the lead librarian and you have a bad intent, but you don't do anything.

[00:45:56] Speaker 00:
And you say the first amendment says that's fine.

[00:46:00] Speaker 07:
Your honor, I set up a collection of information, whether it's online or in my house, and I do it specifically to aid and abet the crime of another person.

[00:46:12] Speaker 00:
What is it?

[00:46:12] Speaker 00:
No, no, that's incorrect.

[00:46:13] Speaker 00:
No, no, no, you're... See, the problem is the aid and abet definition you want to use is the actus reus, abetting and abetting.

[00:46:20] Speaker 01:
Yeah, that makes it a narrower case.

[00:46:21] Speaker 01:
You'd love to be there.

[00:46:23] Speaker 00:
Right, you'd love to have that actus reus, but the only actus reus in 2421A

[00:46:30] Speaker 00:
zone in the computer system.

[00:46:32] Speaker 00:
And I don't know why it would change and I'm going to change it to, or sorry, own manager operate, own manager operate a library with a bad intent.

[00:46:41] Speaker 00:
And that bad intent is I intend or I would attempt to attend or whatever, conspire to attend to do this bad thing.

[00:46:51] Speaker 00:
That's why I'm here.

[00:46:52] Speaker 00:
But in fact, it's all legitimate library stuff.

[00:47:00] Speaker 00:
Fairfax County Library content, but I have a bad intent.

[00:47:05] Speaker 00:
I'm just really inept or really stupid, but I have owned, operated, or managed a library with this criminalized intent.

[00:47:18] Speaker 00:
Congress can't do that.

[00:47:21] Speaker 07:
My apologies, I have always read this statute with the actus reus.

[00:47:24] Speaker 00:
Can Congress do what I said?

[00:47:26] Speaker 07:
Yeah, let's get that one behind you.

[00:47:28] Speaker 00:
Right, and then you can tell, if I'm misreading the statute, I definitely want to hear.

[00:47:31] Speaker 01:
No, counsel, I don't always like our hypotheticals, but I'm curious to your answer.

[00:47:35] Speaker 01:
And Congress do that, yes or no, in your view.

[00:47:38] Speaker 01:
I'm not saying in my mind that ends the case, but I'm curious to hear your answer.

[00:47:43] Speaker 07:
And so just to be clear, the actus reus in the hypothetical is owning, managing, or operating a library.

[00:47:49] Speaker 07:
In interstate commerce.

[00:47:51] Speaker 07:
With the intent.

[00:47:52] Speaker 07:
In interstate commerce.

[00:47:53] Speaker 00:
with the intent to make the intent as bad as you want, with the intent to murder a prostitute.

[00:48:03] Speaker 00:
Give me your bad intent, all right?

[00:48:06] Speaker 00:
That's my intent.

[00:48:08] Speaker 00:
But all I've done is own, operate or manage an interactive computer service.

[00:48:12] Speaker 00:
And there is, or a library and there is no other requirement that anything about that operation have anything to do with what's in my head.

[00:48:21] Speaker 07:
And so in a sense, just to be very clear, nothing about the library service is actually pandering.

[00:48:28] Speaker 07:
It's just the intent.

[00:48:30] Speaker 00:
I'm owning, managing or operating a library with a really

[00:48:34] Speaker 00:
bad intent, but no other actors.

[00:48:40] Speaker 07:
I have to apologize, Your Honor.

[00:48:41] Speaker 07:
That is not a question I've considered before.

[00:48:43] Speaker 07:
I don't think it's something I'm prepared to take a definitive stance on in the absence of briefing or research.

[00:48:48] Speaker 00:
It's worrisome, isn't it?

[00:48:49] Speaker 00:
Can we at least agree it's worrisome?

[00:48:51] Speaker 07:
Well, it's confusing at the least because- Just confusing.

[00:48:54] Speaker 00:
Why is it confusing?

[00:48:55] Speaker 01:
Because I don't know why you wouldn't have thought about it.

[00:48:58] Speaker 07:
Because plaintiffs have raised it.

[00:48:59] Speaker 01:
This is your opportunity.

[00:49:01] Speaker 01:
Those are the kinds of questions in this First Amendment arena.

[00:49:04] Speaker 01:
I came in very confidently saying, this is only aid and a bet.

[00:49:08] Speaker 01:
Well, you might assume a judge would push back with exactly the kind of question that my colleague is raising.

[00:49:13] Speaker 01:
And I would have supposed that you would have an answer for it.

[00:49:16] Speaker 07:
So your honor, I have always read the statute when it says that it's raised being owning, managing, and operating interactive computer service with the intent to facilitate or promote the prostitution of another person.

[00:49:30] Speaker 07:
I've always read the owning, management, and operation as

[00:49:34] Speaker 07:
promoting and facilitating the prostitution.

[00:49:36] Speaker 00:
But that's not, wait, then it just says with the intent too.

[00:49:40] Speaker 00:
And then there's nothing after it.

[00:49:42] Speaker 00:
What I mean, just grammatically, this is what it's something I've been struggling with this.

[00:49:49] Speaker 00:
But it uses, with the intent to promote or facilitate the prostitution of another person as a mens rea, just like it's used in the Travel Act.

[00:49:59] Speaker 00:
That's just a mens rea.

[00:50:02] Speaker 00:
Same thing in the Travel Act, but then the Travel Act of course has

[00:50:06] Speaker 00:
bad actus reius too.

[00:50:07] Speaker 07:
So here the statute also covers attempt and conspiracy and I would assume that because... Those all come before the intent.

[00:50:14] Speaker 07:
Right, but if attempt itself or if conspiracy would require some sort of action towards the commission of the crime, then I would assume the base would have also done that.

[00:50:23] Speaker 00:
Can we pull up the statute and look at it together?

[00:50:24] Speaker 00:
Because the problem here is it begins whoever and then it has the actus reius

[00:50:31] Speaker 00:
Owens manager operates or conspires or attempts to do so.

[00:50:34] Speaker 00:
So that refers back to Owens managers or operates.

[00:50:39] Speaker 00:
The conspires or attempts is on those verbs.

[00:50:42] Speaker 00:
And then we have a comma, and then we have an intent language, which is much like the intent language in the travel act.

[00:50:50] Speaker 00:
It's just the intent language, shall be fine.

[00:50:53] Speaker 00:
That's what I'm worried about with this statute.

[00:50:56] Speaker 00:
It doesn't, the only act is Reyes,

[00:51:00] Speaker 00:
as I read it, and I can't figure out how I can read it otherwise, I've tried, is to own, manage, or operate, or attempt, or conspire to own, manage, or operate an interactive computer.

[00:51:15] Speaker 07:
I don't think plaintiffs here have brought this suit to cover the fanciful hypothetical in which someone does their best to aid in the debt of prostitution of another person.

[00:51:24] Speaker 00:
I think they have brought this suit to say that a statute that has an actus reus only of owning, managing, they'll tell me if I'm wrong, of only owning, operating, or managing an interactive computer service with a bad intent.

[00:51:36] Speaker 00:
He said this during his opening argument.

[00:51:38] Speaker 00:
the conflict that violates the First Amendment.

[00:51:41] Speaker 00:
I don't, fanciful is what Congress wrote here, unless you can tell me how to diagram this sentence to move part of the intent up into two or three lines up into the Actus Reius.

[00:51:55] Speaker 07:
I think I would start from the fact that Congress here is writing

[00:52:01] Speaker 07:
A criminal statute that's targeted at the prostitution of another person is using words that invoke poor concepts of aiding and abetting liability.

[00:52:10] Speaker 07:
And one of those poor concepts, of course, is taking an actus reus that would, in fact, facilitate or promote the commission of the crime.

[00:52:20] Speaker 00:
They wanted to get Backpage, and what Backpage did, as you alleged and described, and I'm not

[00:52:24] Speaker 00:
obviously making any definitive determinations on this, is set up only on your operating interactive computer service.

[00:52:32] Speaker 00:
so your honor the way they're designing it in their heads planning for it to promote prostitution that's at least the allegations and in fact doing it tell me where 2421a says and in fact they do it right obviously this actually doesn't say that your honor i guess what i would say just to continue is you start with the core concepts of getting the betting liability and you think congress is

[00:52:55] Speaker 07:
is acting reasonably and importing those concepts here.

[00:52:59] Speaker 07:
Secondly, I would focus on the affirmative defense, where it says that it's an affirmative defense if the promotion or facilitation of prosecution is legal.

[00:53:08] Speaker 07:
Third, talking about the actual promotion or facilitation, not just acting with an intent to do something, but in fact doing nothing to promote or facilitate.

[00:53:15] Speaker 07:
If the affirmative defense goes to an action that in fact promotes or facilitates, I would think it would be reasonable to read the offense as described in paragraph A as doing the same.

[00:53:25] Speaker 00:
Sorry, I'm still just struggling grammatically.

[00:53:29] Speaker 00:
So, tell me how you read this sentence.

[00:53:35] Speaker 00:
So, Owen's operating management intent to do so, comma, with the intent to promote or facilitate part of that intent language?

[00:53:51] Speaker 01:
You know, I had a great case of the heading in the statute that you're pushing instead of saying promoting soliciting said aiding and abetting.

[00:54:01] Speaker 01:
So your honor doesn't say many.

[00:54:03] Speaker 01:
And the problem is we've seen so many of these cases and aiding and abetting is a well understood notion and the words are used when Congress means to use.

[00:54:11] Speaker 07:
So your honor, many state statutes provide for accomplice liability, aiding and abetting without using that phrase.

[00:54:18] Speaker 07:
We say them in our brief.

[00:54:20] Speaker 07:
They say anyone

[00:54:21] Speaker 07:
who aids the commission of a crime with the intent to promote or facilitate the commission of that crime, shall be held liable.

[00:54:28] Speaker 07:
Don't use the word.

[00:54:29] Speaker 07:
Patrick was saying that.

[00:54:30] Speaker 00:
State's right, but Congress has a definition of aiding and abetting.

[00:54:34] Speaker 00:
And sometimes they will still put aiding and abetting language in a substantive statute as well.

[00:54:38] Speaker 00:
I give you that.

[00:54:40] Speaker 00:
Are you aware, does Congress commonly, when creating a new substantive crime and wanting to wrap aiding and abetting into that, not just rely on?

[00:54:51] Speaker 00:
existing 18 USC definition.

[00:54:53] Speaker 00:
Do they commonly use words that have no relationship to the statutory definition of aiding and abetting already in 18 USC?

[00:55:05] Speaker 00:
Do they pull at least one of them out most of the time?

[00:55:08] Speaker 07:
I can't give you an intelligent answer to that as to like a fair characterization of, in the broad space when Congress does this, what sorts of words does it use?

[00:55:16] Speaker 07:
All I know is the words they've used here are in the canonical definitions of aiding and abetting liability.

[00:55:22] Speaker 00:
Well, promote's not.

[00:55:23] Speaker 00:
Promote's not.

[00:55:23] Speaker 07:
you're relying on the promote prostitution yes of course it is your honor no to be clear facilitate and promote are both in black law dictionary this is promote or facilitate not and this is or so there's doesn't that mean they have different meanings

[00:55:37] Speaker 07:
So Black's Law Dictionary actually says that here's the definition of aid or a bet.

[00:55:43] Speaker 07:
By the way, there's a second definition for aid and a bet that says see aid or a bet.

[00:55:47] Speaker 07:
And then Black's Law Dictionary also talks about how the terms aid and a bet are often thought as having overlapping meanings, although sometimes they could have slightly different senses, but they all invoke poor concepts of criminal law.

[00:55:58] Speaker 07:
The key point is that all of those poor concepts of criminal law limit the stature so that it presents no constitutional defense.

[00:56:07] Speaker 07:
You know, we think we have the best reading of the statute, but you don't have to agree with us on that to rule in our favor.

[00:56:13] Speaker 07:
All you have to conclude is that we have a permissible understanding of this statute that would avoid the need to resolve any First Amendment questions in this case.

[00:56:22] Speaker 07:
That's, and I think that'd be the simplest grounds on which to resolve this case.

[00:56:26] Speaker 00:
And the last part I thought I wanted to- So just Black's Law Dictionary, she has promoter.

[00:56:33] Speaker 00:
I'm not saying promote.

[00:56:35] Speaker 00:
Promoter, a person who encourages or incites, encourages.

[00:56:44] Speaker 00:
I'd like to make prostitution lawful in California for my friends.

[00:56:47] Speaker 00:
And then it has promoting prostitution.

[00:56:50] Speaker 00:
And then we go over to pandering.

[00:56:56] Speaker 00:
Well, panders, one who engages in pandering, and then

[00:57:00] Speaker 00:
And then you have the pandering definition that I think you probably want, like recruiting a prostitute, right?

[00:57:06] Speaker 00:
Or the act or offense of distributing or selling or textual or visual materials.

[00:57:11] Speaker 00:
Openly advertise to appeal to the recipient's sexual interest.

[00:57:17] Speaker 00:
That's another definition of pandering.

[00:57:21] Speaker 07:
So, Your Honor, the definition I'm working with here is the Black's Law Dictionary definition available in the online Westlaw version where it says it's in the full format.

[00:57:29] Speaker 07:
I don't know what version you're doing.

[00:57:31] Speaker 07:
I apologize.

[00:57:31] Speaker 07:
There might be different versions.

[00:57:33] Speaker 07:
Here's the exact quote.

[00:57:34] Speaker 00:
Well, it's the same one that was in effect at the time they passed the statute.

[00:57:37] Speaker 07:
So here's the exact quote that I have.

[00:57:40] Speaker 00:
That was in effect at the time they passed the statute.

[00:57:42] Speaker 00:
When you're quoting from?

[00:57:44] Speaker 07:
It would have been extremely close.

[00:57:45] Speaker 07:
This is a 2018 statute.

[00:57:46] Speaker 07:
I think this is the most recent version of Lacks Law, so it might be off by a couple of years.

[00:57:50] Speaker 07:
I can't imagine the definition has evolved radically in that time.

[00:57:53] Speaker 07:
But here's the exact definition.

[00:57:54] Speaker 07:
Quote, aiding and abetting is, quote, to assist or facilitate the commission of a crime or to promote its accomplishment.

[00:58:02] Speaker 07:
And that's the exact definition in the Model People Code, promote, facilitate, both there together.

[00:58:07] Speaker 07:
LaFaith, both there together.

[00:58:09] Speaker 07:
The Supreme Court citing, I believe it's the Black's Law Dictionary case and authority in that case says, yeah, facilitate, just relying on that, has an equivalent meaning to words like aid and abet.

[00:58:20] Speaker 07:
The exact same reason it would apply to the word promote, especially when we know that pandering is also known as promoting prostitution in many state statutes around the country as defined in Black's Law Dictionary.

[00:58:29] Speaker 00:
Is that talking there about the action verb?

[00:58:34] Speaker 07:
So I believe that sometimes accomplice liability statutes will use promote and facilitate in the verb component of the actions necessary.

[00:58:44] Speaker 07:
And sometimes we use it in the intent component and frequently use it both together.

[00:58:49] Speaker 07:
The last thought I want to leave you with, unless of course there's any other questions, which I'm happy to take, is that if, as is true, general accomplice liability statutes throughout the United States say it is a crime to promote

[00:59:04] Speaker 07:
the crime of another person.

[00:59:05] Speaker 07:
And if prostitution is widely criminalized throughout the United States, then if promote had the widest possible meaning, and that plaintiffs want to describe it to us, it would seem by their logic that all of those statutes would be unconstitutional in the First Amendment.

[00:59:21] Speaker 07:
They've cited no cases at all of any court ever saying so.

[00:59:25] Speaker 07:
And by the way, the general statutes are all about general, like aiding the commission of the crime.

[00:59:30] Speaker 07:
Here we're talking about one more specific thing, operating interactive computer service.

[00:59:34] Speaker 07:
We think that we have the best interpretation of the statute, but at a minimum it is feasible.

[00:59:39] Speaker 00:
Sorry, they're aiding or abetting.

[00:59:40] Speaker 00:
They're aiding, they're not aiding or abetting the owning, managing or operating.

[00:59:46] Speaker 00:
That's not what they're doing.

[00:59:47] Speaker 00:
They're intending.

[00:59:50] Speaker 00:
to aid or abet the own manager.

[00:59:53] Speaker 00:
I bet you there aren't a lot of state statutes.

[00:59:56] Speaker 07:
I'm sorry.

[00:59:56] Speaker 00:
I bet you there aren't a lot of state statutes like that.

[00:59:59] Speaker 07:
We know the state statutes are much more broad.

[01:00:01] Speaker 07:
They have to cover this already.

[01:00:03] Speaker 00:
They have the only act of sprains is owning or operating a computer system with a bad intent.

[01:00:11] Speaker 07:
In those general statutes, it's a general accomplice liability statute, and it prohibits aiding the condition of the crime, which covers, of course, this plus anything else under the sun that falls within traditional notions of aiding and abetting liability.

[01:00:25] Speaker 07:
This statute doesn't criminalize anything new.

[01:00:28] Speaker 00:
It's already criminal under state statutes and... So if I have a, what do they call it, computer geek's business?

[01:00:35] Speaker 00:
Like a computer big geeks, the people that help repair computers.

[01:00:39] Speaker 00:
And I have a contract with someone who owns a computer interactive computer system.

[01:00:48] Speaker 00:
And I repair it, you know, breaks off and I'm sort of pretty there.

[01:00:52] Speaker 00:
I'm on call, I'm on contract and sort of every week I'm in there, something's wrong, I got to fix it up.

[01:00:57] Speaker 00:
It's a very popular interactive computer system.

[01:01:02] Speaker 00:
And the owner of that interactive computer system has a really bad intent that its interactive computer system be used to promote or facilitate the prostitution of another person.

[01:01:14] Speaker 00:
In fact, nothing on the computer system does that, but the owner has this really bad intent.

[01:01:22] Speaker 00:
And I know it.

[01:01:24] Speaker 00:
I'm the owner of computer, I'm the computer geek tech.

[01:01:27] Speaker 02:
Okay.

[01:01:28] Speaker 00:
I know it, but I've checked there's nothing on this computer system that looks at all like promoting prostitution.

[01:01:34] Speaker 00:
Have I aided and abetted that crime because I'm constantly repairing this interactive computer system that is operated with this intent to promote or facilitate the prostitution of another person?

[01:01:49] Speaker 07:
I'm not sure, Your Honor.

[01:01:50] Speaker 07:
I want to consult, you know, hundreds of years of case law about aiding and abetting liability under the specific facts of that case to see if repairing that computer system with the right mens rea would fall within traditional notions of accomplice liability.

[01:02:02] Speaker 00:
Well, I know he's got the bad intent.

[01:02:04] Speaker 00:
I know I've got the bad, he knows I've got the bad intent.

[01:02:06] Speaker 00:
I forget who I am, but let's say I'm ready now because I can't really compare it.

[01:02:10] Speaker 00:
I can't hardly turn it on.

[01:02:12] Speaker 00:
So I certainly can't be there.

[01:02:14] Speaker 00:
Now, if we change the hypothetical, and in fact, person with a bad intent has, it's what you would allege back page has done, or let's come since there's, I guess, litigation about that, we'll just call it badwebsite.com.

[01:02:28] Speaker 00:
Sure.

[01:02:29] Speaker 00:
Badpromotingandfacilitatingprostitution.com, okay?

[01:02:35] Speaker 00:
And so not only does I have that terrible intent, but in fact, the content of the website, their interactive computer system,

[01:02:45] Speaker 00:
is pretty bad.

[01:02:49] Speaker 00:
It looks like a bulletin board to match people up.

[01:02:55] Speaker 00:
And it even has, here's how to get fake passports if you're interested in transporting girls.

[01:03:05] Speaker 00:
And I'm the tech and I come in and I'm and I know the intent and I know the content and I come in and operate and manage and manage and work on and repair that system every week.

[01:03:16] Speaker 00:
That would be 18 with that knowledge.

[01:03:18] Speaker 00:
Would it not?

[01:03:19] Speaker 07:
It sounds like it's in the zone.

[01:03:20] Speaker 07:
Again, before you get into the answer, I personally just consult.

[01:03:24] Speaker 07:
peace law about how aiding and abetting.

[01:03:27] Speaker 00:
So you're not clear whether helping to keep the computer system going is with knowledge.

[01:03:32] Speaker 00:
I would think so.

[01:03:33] Speaker 07:
But again, I have to admit.

[01:03:35] Speaker 00:
If aiding and abetting is getting to be this ambiguous, then we've got another problem.

[01:03:39] Speaker 00:
I think I should have thought that would be.

[01:03:41] Speaker 07:
No, so I don't think so, Your Honor.

[01:03:43] Speaker 07:
You know, the Supreme Court and Humanitarian Law Project says, look, the fact that there can be close cases doesn't mean that there's a facial constitutional problem with the statute.

[01:03:52] Speaker 07:
That's what Azteglah challenges are for.

[01:03:54] Speaker 00:
I didn't think the tech repairing the computer system with full knowledge of what it was doing and what it was intended to do was a close case.

[01:04:01] Speaker 07:
No, it could be well within.

[01:04:02] Speaker 07:
I just don't happen to know.

[01:04:03] Speaker 07:
I apologize, Your Honor, because I haven't consulted the facts of, I haven't consulted the case law

[01:04:07] Speaker 00:
What is an example of aiding and abetting then?

[01:04:10] Speaker 00:
What is it?

[01:04:11] Speaker 00:
You're pretty confident that promoting or facilitating prostitution.

[01:04:15] Speaker 00:
Are you confident what counts as aiding and abetting the prostitution of another person?

[01:04:19] Speaker 07:
I am confident that what Backpage did and things like Backpage would count.

[01:04:24] Speaker 07:
I can also imagine.

[01:04:25] Speaker 00:
Okay, but that doesn't help us interpret a general statute.

[01:04:28] Speaker 00:
So I mean, can you tell me?

[01:04:30] Speaker 00:
Sure.

[01:04:32] Speaker 00:
I had thought your whole argument was that aiding or abetting

[01:04:36] Speaker 00:
added clarity, but now I don't understand why.

[01:04:39] Speaker 00:
I thought my tech life was easy.

[01:04:41] Speaker 07:
So as clarity, your honor, there's hundreds of years of case law to help figure out what counts as aiding and abetting and what doesn't.

[01:04:47] Speaker 07:
And of course, with the specific facts in a given case, you would consult that case law and come to the determination.

[01:04:52] Speaker 07:
The only issue for this court is whether the statute covers aiding and abetting or not, not what specific things actually constitute aiding and abetting or not.

[01:05:00] Speaker 07:
That can be handled in as applied cases.

[01:05:02] Speaker 07:
This is really just about statutory interpretation.

[01:05:04] Speaker 07:
Does this statute cover

[01:05:05] Speaker 07:
aiding and abetting an underlying crime of exchanging sex for money.

[01:05:09] Speaker 07:
We provide you all the reasons on both our definitions of the words themselves and also textual and contextual indications as to why we think that's true.

[01:05:16] Speaker 07:
But again, all we have to conclude is that it's permissible interpretation.

[01:05:20] Speaker 07:
And then under the canon of constitutional avoidance, we would win this case.

[01:05:23] Speaker 00:
I've asked you a lot of questions.

[01:05:24] Speaker 00:
My colleagues have.

[01:05:26] Speaker 00:
Do you mind if I ask you one?

[01:05:29] Speaker 00:
Sorry.

[01:05:31] Speaker 00:
One more.

[01:05:31] Speaker 00:
No, it's on this.

[01:05:32] Speaker 00:
Well, go ahead.

[01:05:36] Speaker 00:
We have lots of time.

[01:05:40] Speaker 00:
The argument they make about the change to the scope of section 230 immunity, and they have this sort of selective withdrawal argument.

[01:05:51] Speaker 00:
And what we're kind of a little confused about is that the prior immunity by its terms didn't apply if it was a violation of federal law.

[01:06:00] Speaker 03:
Correct.

[01:06:00] Speaker 03:
Right.

[01:06:01] Speaker 00:
And promoting or facilitating, well, aiding or abetting the prostitution in interstate commerce, the interstate commerce component,

[01:06:15] Speaker 00:
was unlawful even before it was enacted.

[01:06:19] Speaker 00:
In fact, you say in your brief, and they say, I keep getting confused about this, that FOSTA didn't change what was illegal.

[01:06:27] Speaker 00:
It just sort of changed, I guess, who can prosecute or civil remedies.

[01:06:29] Speaker 07:
That's absolutely correct.

[01:06:30] Speaker 07:
Yes, everything that's prosecutable, I believe under 2421A was already prosecutable under the Travel Act.

[01:06:37] Speaker 07:
The main reason for enacting 2421A as a separate section is as an easy cross-reference to exempt only certain state crimes from Section 230C's protections, not everything under the Travel Act.

[01:06:50] Speaker 07:
But of course, it does more than just that.

[01:06:52] Speaker 07:
And I don't want to discount that.

[01:06:54] Speaker 07:
Of course, it provides for civil liability.

[01:06:57] Speaker 07:
It provides for, I believe, higher punishments than were available in the Travel Act itself.

[01:07:03] Speaker 00:
And put aside the civil remedy, the same thing could have been accomplished by just amending 230, just as to the immunity withdrawal.

[01:07:17] Speaker 00:
amending it to say it doesn't extend to anything contrary to federal or state law or violation.

[01:07:22] Speaker 00:
I think it's a violation of federal law or state law.

[01:07:25] Speaker 00:
That's effectively what's happened as to allowing.

[01:07:27] Speaker 00:
As to this.

[01:07:28] Speaker 00:
230 was an immunity, before this was an immunity not just to civil suits, but criminal prosecutions by states.

[01:07:36] Speaker 07:
That's correct with the qualification that depends on the scope of 230C, which of course is an act of litigation in the U.S.

[01:07:41] Speaker 07:
Supreme Court.

[01:07:43] Speaker 07:
But what Congress was doing was clarifying that the First Circuit in the Backpage case had misunderstood the scope of 230C, and it fixed that in 230E to allow state prosecutions of state crimes where that constitutes... I don't think they misunderstood.

[01:07:58] Speaker 00:
It does say federal law in there.

[01:08:00] Speaker 00:
But if Congress decided it wanted to change that.

[01:08:03] Speaker 07:
Congress said it was clarifying, but I understand that

[01:08:05] Speaker 00:
That's a lot of clarifying.

[01:08:11] Speaker 00:
So certainly then as to federal law, there was no giving and then taking back of immunity.

[01:08:17] Speaker 00:
And then what I wish to be upfront, what I'm worried about is sort of constitutionalizing the concept of you grant an immunity and then Congress can never amend it.

[01:08:31] Speaker 00:
That's a big thing to do.

[01:08:35] Speaker 00:
But they do raise a sort of selectivity argument.

[01:08:39] Speaker 00:
What am I to do with, you know, the Congress can't sort of pick on somebody like it couldn't, I assume, have amended to say and back page doesn't get it.

[01:08:47] Speaker 03:
Right.

[01:08:47] Speaker 00:
And maybe I don't know.

[01:08:48] Speaker 00:
Right.

[01:08:50] Speaker 00:
Right.

[01:08:51] Speaker 00:
But isn't that so how would you answer an argument that says that's effectively back page and it's

[01:08:57] Speaker 07:
Relatives can't do this anymore as to state as to state prosecution is entitled to make the determination that there are certain crimes that are so troubling that, you know, we need to get all our law enforcement partners on board.

[01:09:11] Speaker 07:
We can't just have federal prosecution.

[01:09:13] Speaker 07:
This is the purpose behind the statute.

[01:09:15] Speaker 07:
I mean, I think all 50 state attorneys general sent a letter to Congress saying, please untie our hands.

[01:09:20] Speaker 07:
We need to go after these people that are sex trafficking children.

[01:09:24] Speaker 07:
I think Congress is perfectly entitled to make a determination that in addition to federal prosecutions, state prosecutions, such things should be allowed.

[01:09:33] Speaker 07:
I don't know of any precedent that would call into question that judgment.

[01:09:38] Speaker 06:
Well, now I do have a question.

[01:09:40] Speaker 06:
Just out of curiosity, the plaintiff mentioned that there haven't been any state prosecutions.

[01:09:46] Speaker 06:
Is that your sense as well?

[01:09:48] Speaker 06:
I have no sense of that, Your Honor.

[01:09:50] Speaker 07:
I mean, it would depend on.

[01:09:53] Speaker 07:
I just don't have the information at my fingertips.

[01:09:55] Speaker 07:
My knowledge is a reporting requirement that the states, when they prosecute somebody and invoke this exception to 230 seeds immunity, that they then report it to us.

[01:10:02] Speaker 07:
So I just do not have information about that.

[01:10:04] Speaker 07:
I apologize.

[01:10:05] Speaker 00:
I mean, I know this either, but do you know if the civil remedies provision has been able to be used?

[01:10:09] Speaker 00:
I mean, this statute, it's a lot because the statute's been around since 2018.

[01:10:13] Speaker 00:
And it's usually these first moment challenges happen pretty fast.

[01:10:17] Speaker 03:
Right.

[01:10:17] Speaker 00:
I'm just curious as to four years in, um,

[01:10:22] Speaker 00:
And do you know if there have been civil remedy actions?

[01:10:25] Speaker 07:
I cannot recall coming across a reported case in which I've read about that being invoked.

[01:10:29] Speaker 07:
It doesn't mean that it hasn't happened.

[01:10:31] Speaker 00:
For sure.

[01:10:34] Speaker 00:
Thank you very much.

[01:10:35] Speaker 04:
Thank you very much, Your Honor.

[01:10:36] Speaker 04:
We ask that you affirm.

[01:10:48] Speaker 04:
We'll give you four minutes for rebuttal.

[01:10:51] Speaker 05:
Thank you, Your Honor.

[01:10:53] Speaker 05:
I'll try and be brief.

[01:10:54] Speaker 05:
I mentioned at the outset of my argument that it was remarkable that neither the district court nor the government cited any of the First Amendment cases involving regulation of the internet.

[01:11:05] Speaker 05:
But I also noted that there was one small exception to that that I would hope to get back to.

[01:11:10] Speaker 05:
And that's what I want to talk about just for a minute now.

[01:11:13] Speaker 05:
The only reference to any of those cases that I alluded to was at page 40 of the government's brief

[01:11:20] Speaker 05:
where it cites Ashcroft versus Free Speech Coalition for the proposition that courts thus decide what a statute prohibits, not what it could prohibit.

[01:11:30] Speaker 05:
Now, be aside for a minute.

[01:11:32] Speaker 05:
That's not what Ashcroft versus Free Speech Coalition says.

[01:11:35] Speaker 05:
I think it's important to recognize what that case did.

[01:11:38] Speaker 05:
It said that that law is a stark example of why we allow

[01:11:42] Speaker 05:
challenges to speech regulations, and then it went on to hold that that law could apply to even a Hollywood production of Romeo and Juliet.

[01:11:53] Speaker 05:
Now, on that basis, it found the law to be overly broad.

[01:11:57] Speaker 05:
The way that ties into this case specifically is that the statute that was upheld in Williams was passed in reaction to Free Speech Coalition versus Ashcroft.

[01:12:08] Speaker 05:
And the

[01:12:10] Speaker 05:
language in Williams that was upheld was especially that string of verbs that explained what the crime was.

[01:12:18] Speaker 05:
So the backdrop for adopting FOSTA is that Congress after FOSTA, I'm sorry, Congress after Williams, and after the Supreme Court had said that the terms promote and facilitate when used in isolation are capable of multiple and wide ranging meanings, Congress then adopted a statute regulating internet speech.

[01:12:39] Speaker 05:
that simply uses those terms in isolation, which means specifically undid what Congress had tried to do in saving Protect Act.

[01:12:51] Speaker 05:
Congress then added a provision to the manner, which shows to exclude the verbs that had existed in that law narrowing its scope since 1910.

[01:13:03] Speaker 05:
And in the midst

[01:13:09] Speaker 05:
of law's regulating speech are mostly drafted with precision.

[01:13:14] Speaker 05:
And on top of all of that, Congress focused on, in FOSTA, not only adopting these amorphous penalties, but doing so that increases risks for online intermediaries, creating at their veto, or worse, a prosecuted veto, in which Professor Eric Goldman also represents the worst in both worlds.

[01:13:37] Speaker 05:
And as a result, it's unconstitutional and should be enjoyed.

[01:13:41] Speaker 06:
Let me ask a couple of questions.

[01:13:43] Speaker 06:
One is, you set aside your ex post facto argument.

[01:13:49] Speaker 06:
And if you set aside your 230 immunity being required, so just put those aside for a second.

[01:13:57] Speaker 06:
If we adopt the government's narrow aiding and abetting reading of FOSTA, do you concede that there's no constitutional problem with the statute?

[01:14:08] Speaker 05:
Well, there's a constitutional problem in that there has to be the language in the statute to get to that understanding.

[01:14:14] Speaker 05:
And that was the Supreme Court said.

[01:14:18] Speaker 06:
Don't, if we read, I know you think we shouldn't read that language in, maybe we won't read that language yet.

[01:14:25] Speaker 06:
But if we read the statute, if we read it narrowly to only include aiding and abetting,

[01:14:38] Speaker 06:
do you concede that there's no constitutional problem?

[01:14:46] Speaker 06:
Are you asking about the mens rea or an act?

[01:14:55] Speaker 06:
The government started its argument.

[01:14:58] Speaker 06:
You heard him.

[01:14:58] Speaker 06:
The government started his argument and he said, if we're right about how to interpret the statute, the plaintiffs concede the first amendment has not been violated.

[01:15:08] Speaker 06:
And do you agree?

[01:15:11] Speaker 05:
Well, what I'm struggling with, I'm not trying to obey your question, Your Honor, is that it seems like the question is, if we assume the law is constitutional, then it's constitutional.

[01:15:19] Speaker 05:
No, no, no.

[01:15:20] Speaker 05:
If we assume that it's limited to aiding and abetting.

[01:15:24] Speaker 05:
And that's where the disconnect that Judge Malat was focusing on between Actus Reus and Mesrea becomes critical, because it doesn't define a criminal Actus Reus other than

[01:15:40] Speaker 05:
an interactive computer service.

[01:15:42] Speaker 05:
And so they trying to say it then constitutes aiding and abetting makes no sense because it's simply saying we are in the hypothetical proposal by Judge Mollett, owning, managing and operating a library with really bad intent.

[01:15:56] Speaker 05:
Okay.

[01:15:57] Speaker 00:
Let me, let me... Aiding and abetting intent.

[01:16:03] Speaker 06:
The, I'm going to read the Mann Act or the key part of the Mann Act.

[01:16:09] Speaker 06:
I think this is the text.

[01:16:11] Speaker 06:
And I'm going to stop when it gets to the mens rea.

[01:16:15] Speaker 06:
I'm going to stop when it gets to the intent.

[01:16:19] Speaker 06:
Whoever knowingly transports any individual in interstate or foreign commerce or in any territory or possession of the United States with intent, and then it defines the intent.

[01:16:31] Speaker 06:
So giving out the interstate commerce book, whoever knowingly transports any individual

[01:16:38] Speaker 06:
That's the actus reus.

[01:16:40] Speaker 06:
Is that right?

[01:16:41] Speaker 04:
I'm not sure which section you're reading from.

[01:16:48] Speaker 05:
I was looking at the section of 2422A, which applies to anyone who knowingly persuades, induces, entices, or coerces any individual to travel in their state commerce to engage in prostitution.

[01:17:00] Speaker 05:
Again, it's an example of where the law includes in the actus reus a more precise definition

[01:17:07] Speaker 05:
So I think this is your 24, 21.

[01:17:10] Speaker 00:
Yeah.

[01:17:15] Speaker 00:
Would you referring to now?

[01:17:16] Speaker 00:
24, 21.

[01:17:17] Speaker 06:
18 USC, 24, 21, the general provision.

[01:17:23] Speaker 06:
Yeah.

[01:17:24] Speaker 06:
Whoever knowingly transports any individual.

[01:17:26] Speaker 06:
Oh, that's not what it is.

[01:17:29] Speaker 01:
Then there's the interstate commerce.

[01:17:30] Speaker 01:
24, 21A small a. Okay.

[01:17:38] Speaker 06:
Whoever knowingly transports any individual.

[01:17:42] Speaker 06:
Then there's the interstate commerce hook and followed by the mens rea.

[01:17:47] Speaker 06:
So whoever knowingly transports any individual is the actus res.

[01:17:52] Speaker 06:
Is that right?

[01:17:54] Speaker 06:
It is.

[01:17:54] Speaker 06:
And you have a constitutional right to travel, the Supreme Court has said, right?

[01:18:00] Speaker 06:
Yes.

[01:18:02] Speaker 06:
Now is the man act constitutional?

[01:18:05] Speaker 00:
You have a constitutional right to transport, a First Amendment right or constitutional right to transport someone else?

[01:18:10] Speaker 05:
I think that's where the focus on whether or not this is a regulation of speech becomes important because of the imprecision around speech.

[01:18:22] Speaker 05:
Knowing whether or not your speech falls within that category is a much more difficult and nuanced question than whether or not you have physically transported someone across straight lines.

[01:18:33] Speaker 05:
I appreciate that.

[01:18:36] Speaker 00:
Any other questions?

[01:18:39] Speaker 00:
Thanks to both counsel.

[01:18:41] Speaker 00:
Much longer than we anticipated, but we appreciate your help working through this complicated statute and the cases submitted.