EXHIBIT INDEX TO DEFENDANTS’ REPLY IN SUPPORT OF 

MOTION FOR RECONSIDERATION

United State of America v. Michael Lacey, et al.

2:18-cr-00422-PHX-DJH

Exhibit Description

A July 7, 2023 Decision in Woodhull Freedom Foundation v. United States 

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EXHIBIT A 

 

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2023 Decided July 7, 2023

No. 22-5105

WOODHULL FREEDOM FOUNDATION, ET AL.,

APPELLANTS

v.

UNITED STATES OF AMERICA AND MERRICK B. GARLAND, IN 

HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE 

UNITED STATES,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-01552)

Robert Corn-Revere argued the cause for appellants. With 

him on the briefs were Lawrence G. Walters, Adam S. Sieff,

Caesar Kalinowski IV, David Greene, Aaron Mackey, Corynne 

McSherry, and Daphne Keller.

Christopher T. Bavitz was on the brief for amicus curiae 

Transgender Law Center in support of appellants.

Lauren Gallo White and Brian M. Willen were on the brief 

for amicus curiae Center for Democracy & Technology in 

support of appellants.

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Catherine Sevcenko was on the brief for amici curiae

COYOTE-RI, et al. in support of appellants.

Rebecca Cleary was on the brief for amici curiae

Decriminalize Sex Work, et al. in support of appellants. 

Joseph F. Busa, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Brian M. Boynton, Principal Deputy Assistant Attorney 

General, and Mark B. Stern, Attorney.

Before: MILLETT and WALKER, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT. 

MILLETT, Circuit Judge: In 2018, Congress enacted the 

Allow States and Victims to Fight Online Sex Trafficking Act

of 2017 (commonly referred to as “FOSTA”). Pub. L. No. 115-

164, 132 Stat. 1253 (2018) (codified as amended in 18 U.S.C. 

§§ 1591(e), 1595, 2421A and 47 U.S.C. § 230(e)(5)). Section 

2421A(a) of FOSTA makes it a felony to “own[], manage[], or 

operate[]” an interactive computer service—for example, a 

website, chat room, or search engine—“with the intent to 

promote or facilitate the prostitution of another person[.]” 18 

U.S.C. § 2421A(a). Section 2421A(b), in turn, denominates as 

an aggravated offense a violation of Section 2421A(a) that 

either “promotes or facilitates the prostitution of 5 or more 

persons” or is “in reckless disregard of the fact that such 

conduct contributed to sex trafficking” in violation of Section 

1591(a) of the Trafficking Act. Id. § 2421A(b). 

FOSTA also subjects the providers of those computer 

services to liability in civil and state-law criminal actions for 

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any third-party content they publish that violates 18 U.S.C. 

§ 2421A or the Trafficking Victims Protection Act of 2000 

(“Trafficking Act”), Pub. L. No. 106-386, 114 Stat. 1466 

(codified as amended in various Sections of 8, 18, and 22 of the 

United States Code), denying them an immunity from lawsuits 

that is otherwise generally accorded to computer service 

providers under 47 U.S.C. § 230. FOSTA withholds immunity 

regardless of whether the outlawed conduct occurred before, 

on, or after FOSTA’s enactment. 47 U.S.C. § 230(e)(5) &

note.

Finally, FOSTA adds a new definitional provision to the 

Trafficking Act, 18 U.S.C. § 1591(e)(4), and authorizes parens 

patriae suits by States against persons who violate that same 

Act’s prohibition of sex trafficking, id. § 1595(d). 

The Woodhull Freedom Foundation and four other

plaintiffs challenged the constitutionality of FOSTA on 

numerous grounds, but the district court upheld FOSTA in full. 

We affirm. Neither Section 2421A of FOSTA nor

FOSTA’s amendments to the Trafficking Act are overbroad or 

unconstitutionally vague. FOSTA’s clarification that Section 

230 withholds immunity for violations of federal sex 

trafficking laws comports with the First Amendment. And the 

district court correctly dismissed the challenge to Section 

230(e)(5)’s retroactive application.

 

I

A

For decades, Congress has worked to protect minors online 

while promoting free speech over the Internet. In 1996, 

Congress enacted the Communications Decency Act, Pub. L. 

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No. 104-104, Title V, 110 Stat. 56, 133–143 (codified in 

various Sections of 18 and 47 of the United States Code), which 

prohibited the online transmission of obscene and indecent 

speech. See 47 U.S.C. § 223(a); see generally Reno v. ACLU, 

521 U.S. 844, 858–861 (1997). 

As relevant here, the Communications Decency Act had 

twin aims. On the one hand, it sought to protect minors by 

shielding them from exposure to sexually explicit materials

posted online. See Woodhull Freedom Found. v. United States, 

948 F.3d 363, 367 (D.C. Cir. 2020) (“Woodhull II”). The

Supreme Court ultimately struck down that portion of the Act 

on overbreadth grounds because it “lack[ed] the precision that 

the First Amendment requires when a statute regulates the 

content of speech.” Reno v. ACLU, 521 U.S. at 874.

At the same time, the Act shields interactive computer 

services from liability for speech posted on their sites. 

Congress did so to “promote the continued development of the 

Internet and other interactive computer services” and to 

“preserve the vibrant and competitive free market that 

presently exists for the Internet and other interactive computer 

services[.]” 47 U.S.C. §§ 230(b)(1)–(2). To that end, Section 

230 of the Act immunizes providers of such computer 

services—like YouTube, Facebook, and Craigslist—from 

liability for content that is posted on their sites by third parties. 

Id. § 230(c)(1).1

Congress, though, limited Section 230’s grant of immunity 

to conduct that does not independently violate federal criminal 

1

 Section 230 also immunizes users of those same computer services. 

47 U.S.C. § 230(c)(1). The immunity shield, as applied to users, is 

not at issue in this case.

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law. 47 U.S.C. § 230(e)(1). One such law is the Trafficking 

Act, which broadly outlaws sex trafficking. In 2003, Congress 

authorized survivors of sex trafficking to file civil actions for 

violations of the Trafficking Act. Trafficking Victims 

Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 

117 Stat. 2875 (codified as amended in 18 U.S.C. § 1595). 

Nevertheless, when sex-trafficking survivors attempted to 

sue the publishers of online classified advertising that allegedly 

helped their traffickers avoid detection, the lawsuits failed 

because courts found the publishers to be immune from 

liability under Section 230 for the third-party speech posted on 

their sites. See Woodhull II, 948 F.3d at 367–368 (detailing 

Section 230’s role in preventing lawsuits by survivors of sex 

trafficking). 

B

Congress enacted FOSTA to strengthen protections 

against online sex trafficking. In doing so, Congress 

underscored that Section 230 of the Communications Decency 

Act “was never intended to provide legal protection to websites 

that unlawfully promote and facilitate prostitution” or to 

“websites that facilitate traffickers in advertising the sale of 

unlawful sex acts with sex trafficking victims[.]” 47 U.S.C. 

§ 230 note. Congress added that “websites that promote and 

facilitate prostitution have been reckless in allowing the sale of 

sex trafficking victims and have done nothing to prevent the 

trafficking of children and victims of force, fraud, and 

coercion[.]” Id. FOSTA, Congress explained, was designed to 

make clear that Section 230 does not cloak “such websites” 

with immunity. Id.

As relevant here, FOSTA changed the law in four ways. 

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First, FOSTA amended Section 1591 of the Trafficking 

Act to define what it means to “participat[e] in a venture.” 18 

U.S.C. § 1591(e)(4). Since 2015, Section 1591(a)(2) of the 

Trafficking Act has proscribed knowingly “benefit[ing], 

financially or by receiving anything of value, from 

participation in a venture which has engaged in” recruiting, 

enticing, harboring, transporting, providing, obtaining, 

advertising, maintaining, patronizing, or soliciting a person,

while 

knowing, or, except where the act * * * is

advertising, in reckless disregard of the fact, that 

means of force, threats of force, fraud, [or] coercion

* * * will be used to cause the person to engage in a 

commercial sex act, or that the person [is under] the 

age of 18 and will be caused to engage in a 

commercial sex act[.]

Id. § 1591(a)(2).

FOSTA clarified Section 1591(a)(2)’s reach by defining 

“participation in a venture” as “knowingly assisting, 

supporting, or facilitating a violation of subsection (a)(1)[,]”

which criminalizes active participation in sex trafficking. 18 

U.S.C. § 1591(e)(4). Putting the two together, Section 

1591(a)(2) now provides: 

Whoever knowingly— * * * benefits, financially or 

by receiving anything of value, from [knowingly 

assisting, supporting, or facilitating a violation of 

subsection (a)(1)] knowing, or, except where the act 

constituting the violation of paragraph (1) is 

advertising, in reckless disregard of the fact, that 

means of force, threats of force, fraud, coercion 

described in subsection (e)(2), or any combination 

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of such means will be used to cause the person to 

engage in a commercial sex act, or that the person 

has not attained the age of 18 years and will be 

caused to engage in a commercial sex act, shall be 

punished as provided in subsection (b). 

See id. §§ 1591(a)(2), (e)(4). 

Second, FOSTA amended Section 1595 of Title 18 by 

authorizing States’ attorneys general to bring civil actions 

against those who violate Section 1591. 18 U.S.C. § 1595(d). 

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

(a) In General.—Whoever, using a facility or means 

of interstate or foreign commerce or in or affecting 

interstate or foreign commerce, owns, manages, or 

operates an interactive computer service (as such 

term is defined in * * * 47 U.S.C. 230(f))[], or 

conspires or attempts to do so, with the intent to 

promote or facilitate the prostitution of another 

person shall be fined under this title, imprisoned 

for not more than 10 years, or both.

(b) Aggravated Violation.—Whoever, using a 

facility or means of interstate or foreign 

commerce or in or affecting interstate or foreign 

commerce, owns, manages, or operates an 

interactive computer service (as such term is 

defined in * * * 47 U.S.C. 230(f))[], or conspires 

or attempts to do so, with the intent to promote or 

facilitate the prostitution of another person and—

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(1) promotes or facilitates the prostitution of 

5 or more persons; or

(2) acts in reckless disregard of the fact that 

such conduct contributed to sex 

trafficking, in violation of 1591(a),

shall be fined under this title, imprisoned for not more 

than 25 years, or both.

18 U.S.C. §§ 2421A(a)–(b). 

As used in Section 2421A, “interactive computer 

service[s]” are online platforms that “provide[] or enable[] 

computer access by multiple users to a computer server[.]” 47 

U.S.C. § 230(f)(2). (Going forward, we will refer to interactive 

computer services more colloquially as “online platforms.”) 

Section 2421A(a) makes it a felony, punishable by up to 

ten years of imprisonment, to “own[], manage[], or operate[]

an interactive computer service, * * * or conspire[] or attempt[]

to do so” if done “with the intent to promote or facilitate the 

prostitution of another person[.]” 18 U.S.C. § 2421A(a). 

Section 2421A(b) separately creates an aggravated 

offense, punishable by up to 25 years of imprisonment, for 

anyone who both violates Section 2421A(a) and also 

“promotes or facilitates the prostitution of 5 or more persons” 

or “acts in reckless disregard of the fact that such conduct 

contributed to sex trafficking” in violation of Section 1591(a) 

of the Trafficking Act. 18 U.S.C. § 2421A(b). 

Fourth, FOSTA clarifies that Section 230’s immunity 

shield does not impair or limit liability for (i) civil actions 

brought under Section 1595 of the Trafficking Act if the 

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underlying conduct violates Section 1591 of the Trafficking 

Act, or (ii) criminal charges brought under state law if the 

underlying conduct violates Section 1591 of the Trafficking 

Act or Section 2421A of Title 18. 47 U.S.C. § 230(e)(5). 

FOSTA adds that its amendments to Section 230 “shall 

apply regardless of whether the conduct alleged occurred, or is 

alleged to have occurred, before, on, or after [FOSTA’s] 

enactment.” 47 U.S.C. § 230 note.

 

C

In response to FOSTA’s enactment, several online 

platforms removed content and deleted entire sections of their 

websites. Woodhull II, 948 F.3d at 368–369. For example, two

days after Congress passed the Act, Craigslist eliminated all 

personal ads, including those in non-sexual categories, and

named FOSTA as the reason for doing so. Other websites 

followed suit, and many blamed the Act’s broad criminal 

prohibitions and severe penalties. See COYOTE-RI, et al., 

Amicus Br. A. 15 (“FOSTA changes [liability] in a way that 

makes sites operated by small organizations * * * much riskier 

to operate. [The Act] essentially says that if we facilitate the 

prostitution of another person we’re liable. * * * [T]he problem 

is that ‘or facilitate’ is ill-defined.”). 

The plaintiffs in this case similarly allege that FOSTA has 

chilled or halted their constitutionally protected speech. 

Plaintiff Woodhull Freedom Foundation is an advocacy 

organization that supports the health, safety, and protection of 

sex workers. Because of the Act, Woodhull has censored its 

publication of information that might, in its view, be 

considered to promote or facilitate sex work. 

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Plaintiff Alex Andrews is the cofounder and organizer of 

several advocacy groups for sex workers. Andrews created

Rate That Rescue, a website that allows sex workers to report 

and warn others about violence and other harmful behavior by 

clients. Rate That Rescue also shares information about 

products and services that sex workers can use, including 

online payment processors and contact information for rescue 

organizations. See Woodhull II, 948 F.3d at 369. Because Rate 

That Rescue has thousands of users, and because Andrews has 

alleged that she intends to use Rate That Rescue to host 

discussions that in her view “facilitate” sex trafficking, 

Andrews’s conduct is arguably proscribed by FOSTA. Id. at 

372. In addition, an organization of which Andrews is a board 

member canceled its acquisition and development of an 

electronic tool for sex workers to report violent and harmful 

behavior because of FOSTA. 

Plaintiff Human Rights Watch is an advocacy organization 

that, among other things, advocates for the human rights of sex 

workers. In so doing, Human Rights Watch chronicles rights 

violations committed against sex workers and describes police 

tactics targeted at their work. Human Rights Watch alleges that 

the Act endangers its human rights advocacy work, especially 

its documentation of abuses against sex workers. 

Plaintiff the Internet Archive captures, displays, and stores

all types of historical website data and third-party material. It

fears prosecution for its preservation of web pages that may 

later be found to violate FOSTA, and for the third-party 

material it hosts. 

Finally, plaintiff Eric Koszyk is a licensed massage 

therapist. Before FOSTA, Koszyk advertised his business on 

Craigslist. But Craigslist removed its “therapeutic services” 

section after FOSTA’s enactment and took down his ads, 

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allegedly causing Koszyk to lose revenue and a substantial 

number of clients.

II

A

In June 2018, Woodhull Freedom Foundation, Human 

Rights Watch, the Internet Archive, Andrews, and Koszyk 

(collectively, “Woodhull”) filed a pre-enforcement facial 

challenge to FOSTA. Woodhull mounts several First 

Amendment attacks on the Act, including that it is an 

overbroad, content-based restriction on speech that fails strict 

scrutiny. Woodhull also alleges that the Act is 

unconstitutionally vague in violation of the Fifth Amendment 

and that it imposes an unconstitutional retroactive criminal 

penalty in violation of the Ex Post Facto Clause of Article I, 

Section 9 of the Constitution. 

The district court originally dismissed the case and denied 

Woodhull’s preliminary injunction for lack of standing. 

Woodhull Freedom Found. v. United States, 334 F. Supp. 3d 

185, 203 (D.D.C. 2018) (“Woodhull I”), rev’d and remanded, 

948 F.3d 363 (D.C. Cir. 2020). 

This court reversed, holding that at least some plaintiffs

had established standing, and remanded the case for further 

proceedings. See Woodhull II, 948 F.3d at 371–374. We held 

that, at a minimum, Andrews had standing because she 

“operates a website that allows sex workers to share 

information” that arguably violates Section 2421A. Id. at 372. 

The court noted that the Act could be read one of two ways. 

First, because Section 2421A does not define “promote” or 

“facilitate,” and the terms are listed disjunctively, the Act could

separately proscribe promoting prostitution and facilitating 

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prostitution. Id. Given that the ordinary meaning of 

“facilitate” is “to make easier,” this court concluded that 

FOSTA may criminalize any behavior that makes unlawful sex 

work easier. See id. (quoting United States v. Rivera, 775 F.2d 

1559, 1562 (11th Cir. 1985)) (further citation omitted). On the 

other hand, FOSTA could be read to use “facilitate” in its 

criminal law context, which would outlaw only conduct that

aids and abets unlawful sex work. Id. 

Because Andrews’s website allows sex workers to share 

information about payment processors, the court reasoned that 

it faced regulation under either reading of the statute.

Woodhull II, 948 F.3d at 372–373. For that reason, this court 

held that Andrews had standing to bring a pre-enforcement 

First Amendment challenge to FOSTA.

This court also held that Koszyk had standing because 

Craigslist’s removal of his advertisements is traceable to 

FOSTA. Woodhull II, 948 F.3d at 374. In addition, his injury 

is redressable because a favorable ruling invalidating the Act 

would likely result in the reinstatement of personalized ads. Id.

Because Andrews and Koszyk established standing, the court 

did not evaluate whether the three institutional plaintiffs also 

had standing. Id. at 371.2

 

B

On remand, the district court granted the Government’s 

motion for summary judgment and denied Woodhull’s crossmotion, holding that the Act is not unconstitutional under the 

First or Fifth Amendments. Woodhull Freedom Found. v. 

United States, No. CV 18-1552 (RJL), 2022 WL 910600, at *1 

2

 Judge Katsas filed an opinion concurring in part and concurring in 

the judgment. 

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(D.D.C. March 29, 2022) (“Woodhull III”). The district court 

found that FOSTA is not overbroad if “promote or facilitate” is 

read in its criminal law context. Id. at *5–6 (quoting 18 U.S.C. 

§ 2421A(a)). When read that way, the court reasoned, FOSTA 

does not target advocacy, but instead is narrowly tailored to

target “services that are owned, operated, or managed with the 

intent to aid, abet, or assist” acts of prostitution. Id. at *6. On 

that same basis and in light of FOSTA’s scienter requirements, 

the district court rejected Woodhull’s vagueness challenge. Id.

at *8–9. 

As for the amendment of Section 230, the district court 

found no constitutional basis for the immunity Woodhull 

claimed, and it rejected Woodhull’s challenge based on content

and viewpoint discrimination on the ground that FOSTA does 

not regulate speech. Woodhull III, 2022 WL 910600, at *9. 

Finally, the district court dismissed Woodhull’s Ex Post Facto

Clause challenge to FOSTA’s effective date. Id. at *11. That 

provision allows civil liability under Section 1595 of the 

Trafficking Act and state criminal liability against online 

platforms for conduct that violates FOSTA and applies even if 

the conduct occurred before FOSTA’s enactment. 47 U.S.C. 

§ 230 note. The only actors who can enforce that provision are 

private plaintiffs and state law enforcement officers. Id.

§ 230(e)(5)(C). Because the named defendants in this preenforcement challenge are all federal officials who cannot 

bring lawsuits under Section 230(e)(5)(C), the district court 

ruled that it could not provide Woodhull with a remedy for its 

Ex Post Facto Clause claim. Woodhull III, 2022 WL 910600, 

at *11.

III

Woodhull timely filed a notice of appeal. We have 

jurisdiction under 28 U.S.C. § 1291. We review the district 

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court’s grant of summary judgment de novo. See Edwards v. 

District of Columbia, 755 F.3d 996, 1000 (D.C. Cir. 2014). 

Questions of statutory interpretation and constitutional law are 

likewise reviewed de novo. See Blackman v. District of 

Columbia, 456 F.3d 167, 176 (D.C. Cir. 2006); United States 

v. Bronstein, 849 F.3d 1101, 1106 (D.C. Cir. 2017). 

IV

Woodhull levels multiple First and Fifth Amendment 

challenges to FOSTA. None of them succeeds. 

A

Woodhull argues that FOSTA’s amendment of Section 

1591(e)(4) of the Trafficking Act to define “participation in a 

venture” is unconstitutionally overbroad under the First 

Amendment. We disagree.

“[A] statute is facially invalid [under the overbreadth 

doctrine] if it prohibits a substantial amount of protected 

speech.” United States v. Williams, 553 U.S. 285, 292 (2008). 

Invalidation for overbreadth is “strong medicine” that is not to 

be “casually employed.” Id. at 293 (citations and quotation 

marks omitted). Accordingly, courts “vigorously enforce[]” 

the requirement that any “overbreadth be substantial, not only 

in an absolute sense, but also relative to the statute’s plainly 

legitimate sweep.” Id. at 292 (citations omitted); see United 

States v. Stevens, 559 U.S. 460, 473 (2010); Initiative & 

Referendum Inst. v. United States Postal Serv., 417 F.3d 1299, 

1312–1313 (D.C. Cir. 2005).

To determine if Section 1591(e)(4) is overbroad, we must 

first construe the provision’s meaning, for “it is impossible to 

determine whether a statute reaches too far without first 

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knowing what the statute covers.” Williams, 553 U.S. at 293;

see United States v. Hansen, No. 22-179, slip op. at 5 (U.S. 

June 23, 2023) (same). So we start, as we must, with the 

statutory text. See Republic of Sudan v. Harrison, 139 S. Ct. 

1048, 1055–1056 (2019). 

Recall that Section 1591(a) outlaws knowingly benefiting 

from “participation in a venture” that one knows has engaged 

in sex trafficking. 18 U.S.C. § 1591(a)(2). FOSTA defines 

“participation in a venture” as “knowingly assisting, 

supporting, or facilitating [sex trafficking].” Id. § 1591(e)(4). 

Woodhull argues that Section 1591(e)(4) is overbroad because 

the operative verbs—assisting, supporting, or facilitating—are 

broad and potentially sweeping in their reach. That is incorrect.

Standing alone, verbs like “assisting” and “facilitating” 

can be broad in their reach. But we read statutory terms in 

context, not in isolation. See Williams, 553 U.S. at 294. When 

read together, with each word drawing meaning from the other, 

the string of verbs “assisting, supporting, or facilitating” is 

most naturally understood to refer to aiding and abetting sex 

trafficking. After all, the word assist means “to lend aid; to 

help.” See Assist, WEBSTER’S NEW INTERNATIONAL 

DICTIONARY 167 (2d ed. 1954) (def. 2); see also OXFORD 

ENGLISH DICTIONARY 715 (2d ed. 1989) (def. 1) (“An act of 

assistance; aid, help.”); AMERICAN HERITAGE DICTIONARY 108 

(5th ed. 2018) (def. 1) (“To give help or support to[.]”). 

Similarly, “support” commonly means “assist” or “help[.]” 

Support, MERRIAM-WEBSTER DICTIONARY 1256 (11th ed. 

2014) (def. 2 b (1)); OXFORD ENGLISH DICTIONARY 257 (2d ed. 

1989) (def. 1. a.) ([A]ssistance[.]”). 

In addition, “assist” is commonly used by Congress as part 

of aiding-and-abetting language. See, e.g., 8 U.S.C.

§ 1227(a)(1)(E) (“Any alien who * * * knowingly has 

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encouraged, induced, assisted, abetted, or aided any other alien 

to enter or to try to enter the United States in violation of law 

is deportable.”); 15 U.S.C. § 3057(a)(2)(K) (“Assisting, 

encouraging, aiding, abetting, conspiring, covering up, or any 

other type of intentional complicity involving a safety, 

performance, or anti-doping and medication control rule[.]”); 

18 U.S.C. § 3014(a) (special assessment for persons who aid 

and abet immigration violations unless “the person induced, 

assisted, abetted, or aided” a child, spouse, or parent); 26 

U.S.C. § 6701(a) (applying to “[a]ny person—(1) who aids or 

assists in, procures, or advises with respect to, the preparation 

or presentation of any portion of a return, affidavit, claim, or 

other document”); 43 U.S.C. § 1064 (punishing any person 

“who shall aid, abet, counsel, advise, or assist in any violation 

hereof”). 

Given the company it keeps in Section 1591(e)(4), 

“facilitating” similarly connotes helping to make sex

trafficking happen—that is, aiding and abetting the offense. 

See Facilitation, BLACK’S LAW DICTIONARY (10th ed. 2014) 

(def. 2) (“The act or an instance of aiding or helping; esp., in 

criminal law, the act of making it easier for another person to 

commit a crime.”). 

The Supreme Court has come to the same conclusion. 

Most recently, the Court explained that “[f]acilitation—also 

called aiding and abetting—is the provision of assistance to a 

wrongdoer with the intent to further an offense’s commission.” 

Hansen, slip op., at 6. Likewise, in Abuelhawa v. United 

States, 556 U.S. 816 (2009), the statute at issue made it “a 

felony ‘to use any communication facility in committing or in 

causing or facilitating’ certain felonies prohibited by” the 

Controlled Substances Act, id. at 818 (quoting 21 U.S.C. 

§ 843(b)). There the Court held that, when used that way, the 

term “facilitate” had “comparable scope” to aid and abet. Id.

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at 821. As the Second Circuit has explained, when Congress 

uses “‘facilitate’ * * * to describe an action distinct from 

‘committing’ a crime, its meaning is commonly limited to 

actions taken to assist someone else’s crime.” United States v. 

Desposito, 704 F.3d 221, 228 n.8 (2d Cir. 2013) (emphasis 

omitted); see id. (citing Abuelhawa, 556 U.S. at 821, for the 

proposition that “‘facilitate’ has an ‘equivalent meaning’ to 

‘aid,’ ‘abet,’ and ‘assist’”).

Likewise, here, Section 1591(e)(4) uses “facilitates” to 

describe a criminal act distinct from a direct violation of the 

law. Compare 18 U.S.C. § 1591(a)(1), with id. §§ 1591(a)(2) 

& (e)(4). And by placing “facilitate” alongside “assist” and 

“support,” Congress framed it in a manner that indicates an 

aiding-and-abetting offense.

In sum, reading Section 1591(e)(4)’s definition of 

“participation in a venture” in light of its context and placement 

in the statutory scheme, the definition permissibly prohibits

aiding and abetting a venture that one knows to be engaged in 

sex trafficking while knowingly benefiting from that venture. 

We thus hold that the provision does not have the expansive 

scope that Woodhull fears, but instead, proscribes only speech 

that falls within the traditional bounds of aiding-and-abetting 

liability, which is not a form of speech protected by the First 

Amendment. See Stevens, 559 U.S. at 468 (First Amendment 

allows restrictions on the content of “speech integral to 

criminal conduct”) (citations omitted); National Org. for 

Women v. Operation Rescue, 37 F.3d 646, 656 (D.C. Cir. 1994)

(“That ‘aiding and abetting’ of an illegal act may be carried out 

through speech is no bar to its illegality.”); see also Hansen, 

slip op. at 17 (“Section 1324(a)(1)(A)(iv) reaches no further 

than the purposeful * * * facilitation of specific acts known to 

violate federal law. So understood, the statute does not 

‘prohibi[t] a substantial amount of protected speech’ relative to 

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its ‘plainly legitimate sweep.’”) (quoting Williams, 553 U.S. at 

292).

B

Woodhull also argues that Sections 2421A(a) and (b)(1) of 

FOSTA are overbroad because the phrase “promote or 

facilitate” has a variety of meanings, many of which include 

protected speech, such as general advocacy and the provision 

of safety and health information. The Government, on the 

other hand, contends that “promote or facilitate” should be read 

to mean aid or abet. The Government is correct. Sections 

2421A(a) and (b)(1) of FOSTA are not unconstitutionally 

overbroad under the First Amendment. 

1

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

Whoever, using a facility or means of interstate or foreign 

commerce or in or affecting interstate or foreign 

commerce, owns, manages, or operates an interactive 

computer service (as such term is defined in * * * 47 

U.S.C. § 230(f))[], or conspires or attempts to do so, with 

the intent to promote or facilitate the prostitution of 

another person shall be fined under this title, imprisoned 

for not more than 10 years, or both. 

18 U.S.C. § 2421A(a).

Section 2421A(a)’s mens rea is clear: An intent to 

promote or facilitate the prostitution of another person. As we 

have already held, “‘promote’ and ‘facilitate,’ when considered 

in isolation, ‘are susceptible of multiple and wide-ranging 

meanings.’” Woodhull II, 948 F.3d at 372 (quoting and citing 

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Williams, 553 U.S. at 294). But contrary to Woodhull’s 

assertion, when read in context, Section 2421A(a)’s mens rea

requirement is constitutional.

Section 2421A is a criminal statute and, as the district 

court noted, “promoting prostitution” has a distinct meaning in 

criminal law. Woodhull III, 2022 WL 910600, at *6. For 

example, Black’s Law Dictionary defines “promoting 

prostitution” as “[t]he act or offense of recruiting a prostitute, 

finding a place of business for a prostitute, or soliciting 

customers for a prostitute.” Promoting Prostitution, BLACK’S 

LAW DICTIONARY (10th ed. 2014).3 

That specialized meaning is important because, “when 

Congress ‘borrows terms of art in which are accumulated the 

legal tradition and meaning of centuries of practice, it 

presumably knows and adopts the cluster of ideas that were 

attached to each borrowed word.’” Hansen, slip op. at 9–10

(quoting Morissette v. United States, 342 U.S. 246, 263 

(1952)). So when read within its traditional criminal law 

context, Section 2421A(a)’s prohibition on promoting the 

prostitution of another person proscribes owning, managing, or 

operating an online platform with the intent to recruit, solicit, 

3

 The definition of “promoting prostitution” directs the reader to the 

first definition of pandering. Promoting Prostitution, BLACK’S LAW

DICTIONARY (10th ed. 2014). The first definition of pandering 

states: “[t]he act or offense of recruiting a prostitute, finding a place 

of business for a prostitute, or soliciting customers for a prostitute. 

— Also termed promoting prostitution.” Pandering, BLACK’S LAW 

DICTIONARY) (10th ed. 2014) (def. 1). 

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or find a place of business for a sex worker—that is, to aid and 

abet prostitution.4

 

While “facilitating prostitution” has not been so defined, 

the context in which it is used in Section 2421A(a) similarly 

narrows its reach to additional forms of aiding and abetting that 

go beyond the recruitment, solicitation, or finding of a place of 

business, which “promote” already covers.

As a preliminary matter, the Supreme Court explained in 

Hansen that the word “facilitate” is a synonym for aiding and 

abetting when that word is used in the context of criminal 

statutes. See Hansen, slip op. at 6 (“Facilitation—also called 

aiding and abetting[.]”). The Court further observed that 

facilitation is a “longstanding criminal theor[y] targeting those 

who support the crimes of a principal wrongdoer.” Id. So it 

seems clear that, in this statute, “facilitating prostitution” is 

most naturally read to mean aiding and abetting prostitution. 

4 That is also the sense in which “promoting prostitution” is used in 

several state criminal statutes and the Model Penal Code. See, e.g., 

18 PA. CONS. STAT. § 5902(b) (2022) (defining “promoting 

prostitution” as, among other things, “owning * * * a house of 

prostitution,” “procuring an inmate for a house of prostitution[,]” and 

“inducing or otherwise intentionally causing another to become or 

remain a prostitute”); OHIO REV. CODE ANN. § 2907.22(A) (West 

2023) (To “promote prostitution” is, among other things, to 

“establish * * * a brothel,” to “[s]upervise, manage, or control the 

activities of a prostitute in engaging in sexual activity for hire,” or to 

“induce or procure another to engage in sexual activity for hire”); 

720 ILL. COMP. STAT. ANN. 5/11-14.3(a)(2) (West 2023) (A person 

“commits promoting prostitution” by, among other things, 

“profit[ing] from prostitution by: compelling a person to become a 

prostitute; [or] arranging or offering to arrange a situation in which a 

person may practice prostitution[.]”); MODEL PENAL CODE § 251.2 

(similar). 

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Notably, elsewhere in FOSTA, “facilitate” appears in the 

company of other aiding-and-abetting verbs, suggesting that 

Congress meant to carry that sense forward into Section 

2421A. See Section IV.A., supra. So too here: “[F]acilitate” 

appears alongside “promote” and is directly tied to the criminal 

offense of prostituting another person, so reading “facilitate” to 

mean aiding and abetting makes textual sense. See National 

Postal Policy Council v. Postal Regul. Comm’n, 17 F.4th 1184, 

1191 (D.C. Cir. 2021) (“[A] standard principle of statutory 

construction provides that identical words and phrases within 

the same statute should normally be given the same meaning.”) 

(quoting Powerex Corp. v. Reliant Energy Servs., Inc., 551 

U.S. 224, 232 (2007)), cert. denied, 142 S. Ct. 2868 (2022).

What is more, the phrase “promote or facilitate” is often 

used as the mens rea for accomplice liability in the Model Penal 

Code and state aiding-and-abetting statutes. For example, the 

Model Penal Code defines an accomplice as a person who aids 

or agrees with another in planning or committing a crime “with 

the purpose of promoting or facilitating the commission of the 

offense[.]” MODEL PENAL CODE § 2.06(3)(a). 

State aiding-and-abetting statutes mirror this language by 

defining aiding and abetting as engaging in a circumscribed act 

with the purpose of “promoting or facilitating” a crime. See, 

e.g., ALASKA STAT. § 11.16.110(2)(B) (2022); COLO. REV.

STAT. § 18-1-603 (2023); DEL. CODE. ANN. tit. 11, § 271 

(2023); 720 ILL. COMP. STAT. 5/5-2 (2022); N.J. STAT. ANN. 

§ 2C:2-6 (West 2023); 18 PA. CONS. STAT. § 306 (2023). 

Federal criminal law also employs a similar phrase in the 

Travel Act, which in part outlaws traveling with the intent to 

“promote or * * * facilitate the promotion” of unlawful 

activity. 18 U.S.C. § 1952(a)(3); cf. Urena-Ramirez v. 

Ashcroft, 341 F.3d 51, 54 (1st Cir. 2003) (conduct underlying 

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promotion of unlawful activity was tantamount to aiding and 

abetting).5

 

2

In addition to employing “promotes or facilitates” in an 

aiding-and-abetting context, Section 2421A(a) uses a very 

specific criminal object that itself narrows the reach of 

“facilitates.” Congress, after all, did not use “facilitate” or 

“facilitate prostitution” in isolation. Instead, the statute 

outlaws “facilitat[ing] * * * the prostitution of another person.” 

18 U.S.C. § 2421A(a). By placing both “facilitate” and

“promote” in relation to the same object—namely “the 

prostitution of another person”—Congress signaled that 

“facilitate” should carry the same criminal-law meaning of 

aiding and abetting the prostitution of another as the 

companion phrase “promotes” prostitution does, with 

“facilitates” capturing those forms of aiding and abetting not 

covered by the verb “promotes.” See Woodhull II, 948 F.3d at 

5 The Model Penal Code and state statutes also employ the phrase 

“promote or facilitate” to define the mens rea in other criminal 

offenses such as solicitation and conspiracy. See, e.g., MODEL

PENAL CODE § 5.02(1) (solicitation occurs if a person commands, 

encourages, or requests another person to commit a crime “with the 

purpose of promoting or facilitating its commission”); id.

§ 5.03(1)(a) (conspiracy is the act of agreeing to aid another in the 

planning or commission of a crime “with the purpose of promoting 

or facilitating its commission”); ARIZ. REV. STAT. ANN. § 13-1002

(2023) (mirroring the Model Penal Code’s definition of solicitation); 

KY. REV. STAT. ANN. § 506.030 (West 2023) (solicitation); PA.

CONS. STAT. § 902(a) (2023) (solicitation); KAN. STAT. ANN. § 21-

5303 (2022) (solicitation); 18 PA. CONS. STAT. § 903(a) (2023)

(mirroring the Model Penal Code’s definition of conspiracy); N.J.

STAT. § 2C:5–2(a) (West 2023) (conspiracy); MO. REV. STAT.

§ 562.014(1) (2023) (conspiracy); HAW. REV. STAT. § 702-222 

(2023) (conspiracy). 

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372 (“‘[F]acilitate’ could be interpreted as a synonym for terms 

like ‘aid,’ ‘abet,’ and ‘assist,’ in which case the term’s meaning 

would be limited by the background law of aiding and 

abetting.”) (formatting modified); see also Williams, 553 U.S. 

at 295 (the meaning of “facilitate” can be narrowed by 

neighboring words). In that way, “promote or facilitate 

prostitution of another person” encompasses both actions that 

count as promoting prostitution—like running a “prostitution 

business,” or “procur[ing] a prostitute for a patron,” see N.J.

STAT. ANN. § 2C:34–1(a)(4) (West 2023)—and other actions 

that aid and abet prostitution, like getting someone addicted to 

drugs, stealing their money or passports, or threatening them 

against leaving.

Section 2421A(a)’s object—“the prostitution of another 

person”— also focuses the otherwise potentially broad reach of 

“facilitates.” 18 U.S.C. § 2421A(a). Notably, that statutory 

phrasing does not proscribe facilitating prostitution more 

generally, which could extend to speech arguing for the 

legalization of prostitution or that discusses, educates, or 

informs about prostitution. The person “being prostituted” (in 

Congress’s words) is the object of the facilitation and the 

offense of being prostituted. See Williams, 553 U.S. at 298–

299 (“[T]here remains an important distinction between a 

proposal to engage in illegal activity and the abstract advocacy 

of illegality.”). The language bespeaks something done to a 

particular person—aiding their prostitution by someone else or 

some force independent of the person being prostituted. 

Prostitution, MERRIAM-WEBSTER DICTIONARY (11th ed. 2014) 

(def. 2) (“The state of being prostituted.”); see also Williams, 

553 U.S. at 300 (While the First Amendment does not allow 

criminalizing “abstract advocacy,” it does permit outlawing 

“the recommendation of a particular piece of purported child 

pornography with the intent of initiating a transfer.”). That 

understanding also maps onto Congress’s intent in FOSTA to 

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deny protection to “websites that facilitate traffickers in 

advertising the sale of unlawful sex acts with sex trafficking 

victims[.]” 47 U.S.C. § 230 note.

This understanding of “facilitate the prostitution of another 

person” likewise parallels the definition of “promote 

prostitution” employed in the Model Penal Code and state 

statutes, adopting it as actions that “encourag[e], induc[e] or 

otherwise purposely caus[e] another to become or remain a 

prostitute[.]” MODEL PENAL CODE § 251.2(2)(c); see also note 

4, supra. In that way, “facilitate the prostitution of another 

person” encompasses actions that cause a specific person to “be 

prostituted” or helps to orchestrate their prostitution.

We therefore hold that Section 2421A(a)’s mental state 

requirement does not reach the intent to engage in general 

advocacy about prostitution, or to give advice to sex workers 

generally to protect them from abuse. Nor would it cover the 

intent to preserve for historical purposes webpages that discuss 

prostitution. Instead, it reaches a person’s intent to aid or abet 

the prostitution of another person. That reading also makes 

sense in a statute that targets prostitution alongside sex 

trafficking, and seeks to eradicate the use of online platforms 

when they contribute to sex work that is compelled by “force, 

fraud, and coercion[.]” 47 U.S.C. § 230 note. 

Undoubtedly, the term “facilitate” could be read more 

broadly. See Woodhull II, 948 F.3d at 372. But nothing in 

Section 2421A(a) compels us to read “facilitate” that way. 

Doubly so when a more expansive reading could raise grave 

constitutional concerns. See Judicial Watch, Inc. v. United 

States Secret Serv., 726 F.3d 208, 226 (D.C. Cir. 2013) (canon 

of constitutional avoidance requires courts to “interpret[] 

statutes to avoid deciding difficult constitutional questions 

where the text fairly admits of a less problematic construction”) 

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(quoting Public Citizen v. Department of Justice, 491 U.S. 440, 

455 (1989)). Rather, as the Supreme Court emphasizes, we 

must adopt any “fairly possible” reading that assures the 

constitutionality of the text. Hansen, slip op. at 16 (quoting 

Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)). And that 

reading is plainly available here, especially when “facilitate” is 

read as a companion to the verb “promote,” and with the very 

specific object of “the prostitution of another person.”

3

Woodhull also argues that Section 2421A(b)(1) is 

substantially overbroad, just like Section 2421A(a). Because 

we have already concluded that the provision’s mens rea

clause, which is identical to that in subsection (a), can be read 

narrowly to fall within constitutional bounds, see Sections

IV.B.1–2., supra, that challenge fails. 

C

Woodhull separately argues that certain portions of 

FOSTA are void for vagueness. In particular, Woodhull 

objects to Section 1591(e)(4)’s definition of “participation in a 

venture,” Section 2421A’s mens rea clause, Section 

2421A(b)(2)’s aggravated offense provision, and Section 

230(e)(5)(A)’s scienter requirement. All of Woodhull’s 

challenges fail.

“Vagueness doctrine is an outgrowth not of the First 

Amendment, but of the Due Process Clause of the Fifth 

Amendment.” Williams, 553 U.S. at 304. A law is 

unconstitutionally vague if it “fails to provide a person of 

ordinary intelligence fair notice of what is prohibited, or is so 

standardless that it authorizes or encourages seriously 

discriminatory enforcement.” Id. “What renders a statute 

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vague is not the possibility that it will sometimes be difficult to 

determine whether the incriminating fact it establishes has been 

proved; but rather the indeterminacy of precisely what that fact 

is.” Id. at 306. That concern takes no root here.

First, there is no relevant indeterminacy in Section 

1591(e)(4)’s definition of “participation in a venture[,]” or in

Section 2421A’s mens rea clause. Instead, as explained above, 

conventional tools of statutory construction show that both 

provisions capture traditional aiding-and-abetting liability. See 

Bronstein, 849 F.3d at 1106 (“A statute’s vagueness is either 

susceptible to judicial construction or is void for vagueness 

based on the application of traditional rules for statutory 

interpretation.”). That long-settled standard for criminal 

liability puts persons on fair notice that aiding and abetting a 

group engaged in sex trafficking or acting with the intent to aid 

and abet the prostitution of another person is prohibited. See 

Hansen, slip op. at 6 (concept of facilitation is a “longstanding 

criminal theor[y]”). Nothing in Section 1591(e)(4)’s definition 

of participating in a venture or in Section 2421A’s mens rea 

depends on the type of subjective or wholly discretionary or 

indiscernible judgments that courts have struck down as 

unconstitutionally vague. See Williams, 553 U.S. at 306 (terms 

like “annoying” or “indecent” lack sufficient objective content 

to provide fair notice). 

Second, Woodhull argues that Section 2421A(b)(2) is 

unconstitutionally vague because it imposes liability on anyone 

who acts in “reckless disregard” of the fact that their conduct 

“contributed to sex trafficking” in violation of Section 1591 of 

the Trafficking Act without defining those phrases. Woodhull 

is incorrect. 

For one, “reckless disregard” is a commonly used mens 

rea with a settled criminal law meaning. See Borden v. United 

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States, 141 S. Ct. 1817, 1824 (2021) (“A person acts recklessly, 

in the most common formulation, when he ‘consciously 

disregards a substantial and unjustifiable risk’ attached to his 

conduct, in ‘gross deviation’ from accepted standards.”) 

(quoting MODEL PENAL CODE § 2.02(2)(c)). 

In addition, while “contributes to” sex trafficking can 

range from helping to bring about sex trafficking to aiding and 

abetting sex trafficking, the breadth of the standard does not 

make it vague. See Williams, 553 U.S. at 304; see also 

Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 

(1998) (“[T]he fact that a statute can be ‘applied in situations 

not expressly anticipated by Congress does not demonstrate 

ambiguity. It demonstrates breadth.’”) (quoting Sedima, 

S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)). Nor does its 

operation turn on wholly discretionary and unpredictable 

judgments. See Contribute, AMERICAN HERITAGE DICTIONARY

399 (5th ed. 2016) (def. 2) (“[T]o help bring about a result; act 

as a factor[.]”); WEBSTER’S NEW WORLD 324 (5th ed. 2014) 

(def. 3) (“[T]o give or furnish (knowledge, ideas, etc.)—to 

have a share in bringing about (a result); be partly responsible 

for[.]”); Williams, 553 U.S. at 304. As such, the provision is 

not unconstitutionally vague.

 

Third, Section 230(e)(5)(A)’s scienter requirement

likewise passes constitutional muster. Recall that Section 1595 

of the Trafficking Act allows survivors of sex trafficking to 

bring a civil action against a perpetrator or anyone who 

“knowingly benefits, * * * from participation in a venture 

which that person knew or should have known has engaged in 

[sex trafficking].” 18 U.S.C. § 1595(a). At the same time, 

Section 230 broadly immunizes providers of online platforms

from civil liability for content posted on their platforms by third

parties. 47 U.S.C. § 230(c). 

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In FOSTA, Congress clarified that online platforms sued 

in civil actions under Section 1595 do not enjoy Section 230 

immunity “if the conduct underlying the claim constitutes a 

violation of section 1591”—that is, conduct that involves either 

directly engaging in sex trafficking or knowingly benefiting 

from participation in a venture that one knows has engaged in 

sex trafficking, 18 U.S.C. § 1591. See 47 U.S.C. 

§ 230(e)(5)(A). 

While both Sections 1591 and 1595 prohibit “participation 

in a venture” that has engaged in sex trafficking, Section 

1595’s civil liability provision does not explicitly specify a 

mens rea for “participation in a venture[.]” While the statutory 

text is not explicit and a few initial rulings were contradictory, 

court rulings are now consistent that Section 1595 requires an 

actual knowledge mens rea for participation in a venture.6 

Woodhull points to that evolution in case law as evidence 

that the provision is unconstitutionally vague. But the fact that 

6 Initially, while two courts required actual knowledge, two others 

had held that constructive knowledge sufficed. Compare Doe v. Kik 

Interactive, Inc., 482 F. Supp. 3d 1242, 1249–1251 (S.D. Fla. 2020)

(actual knowledge), and J.B. v. G6 Hosp., LLC, No. 19-CV-07848-

HSG, 2021 WL 4079207, at *5 (N.D. Cal. 2021), aff’d sub nom. J.B. 

v. Craigslist, Inc., No. 22-15290, 2023 WL 3220913 (9th Cir. May 

3, 2023) (actual knowledge), with Doe v. Mindgeek USA Inc., 558 F. 

Supp. 3d 828, 836 (constructive knowledge), adhered to on denial of 

reconsideration, 574 F. Supp. 3d 760 (C.D. Cal. 2021), and Doe v. 

Twitter, Inc., 555 F. Supp. 3d 889, 920 (N.D. Cal. 2021)

(constructive knowledge), aff’d in part, rev’d in part and remanded 

sub nom. Doe #1 v. Twitter, Inc., No. 22-15103, 2023 WL 3220912 

(9th Cir. May 3, 2023), and abrogated by Does 1-6 v. Reddit, Inc., 

51 F.4th 1137 (9th Cir. 2022). The Ninth Circuit has since ruled that 

actual knowledge is required, Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 

1141, 1145 (9th Cir. 2022), and so all courts to have decided the issue 

thus far are now in alignment.

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a statutory construction question may be difficult or unresolved

does not make the law unconstitutionally vague. Otherwise,

countless laws would be invalidated. “[P]erfect clarity and 

precise guidance have never been required even of regulations 

that restrict expressive activity.” Williams, 553 U.S. at 304

(quoting Ward v. Rock Against Racism, 49 U.S. 781, 794 

(1989)). Rather, a statute is unconstitutionally vague only “if, 

applying the rules for interpreting legal texts, its meaning 

specifies no [determinable] standard of conduct at all.”

Bronstein, 849 F.3d at 1107 (formatting modified). 

Section 230(e)(5)(A) suffers from no such problem. 

Principles of statutory construction have proven up to the task 

of interpreting that provision. And whatever mens rea is 

required, it does not turn on subjective, unascertainable, or 

wholly discretionary judgments, or on the absence of any 

standard at all. See Williams, 553 U.S. at 304. That suffices to 

foreclose Woodhull’s vagueness challenge. See Bronstein, 849 

F.3d at 1107 (“[A] statutory term is not rendered 

unconstitutionally vague because it ‘do[es] not mean the same 

thing to all people, all the time, everywhere.’”) (quoting Roth 

v. United States, 354 U.S. 476, 491 (1957)); see also United 

States v. Kernell, 667 F.3d 746, 754 (6th Cir. 2012) (“[T]he fact 

that different courts have interpreted a statute differently does 

not make the statute vague—if that were true, a circuit split 

over the interpretation of a criminal statute would by definition 

render the statute unconstitutional.”). 

V

Woodhull also argues that Section 4(b) of FOSTA runs 

afoul of the Constitution’s prohibition of ex post facto laws. 

See U.S. CONST. Art. I, § 9, cl. 3. Section 4(b) provides that 

the amendments to Section 230(e)(5)’s immunity provision, 

which exclude criminal sex trafficking conduct, “shall apply 

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regardless of whether the conduct alleged occurred, or is 

alleged to have occurred, before, on, or after” FOSTA’s 

enactment. 47 U.S.C. § 230 note. Woodhull argues that

Section 4(b) violates the Ex Post Facto Clause because it 

allows private parties and States to prosecute online platforms

for third parties’ speech on their sites even when that speech 

predated FOSTA’s enactment. Woodhull seeks a declaration 

that the Act violates the Ex Post Facto Clause and a permanent 

injunction forbidding the defendants to enforce that provision. 

Compl. at 50–51, J.A. 61–62.

Woodhull’s argument does not get out of the starting gate. 

The only persons who could even arguably violate the Ex Post 

Facto Clause by prosecuting the state-law actions authorized 

by Section 230(e)(5)(C) are state officials and private parties. 

None of the federal defendants whom Woodhull has sued have 

any ability or authority to bring the state-law actions that 

Section 230(e)(5)(C) authorizes. So there is no possible 

conduct by these federal defendants that a court could declare

unconstitutional or enjoin as unlawful on ex post facto grounds. 

Nor does the complaint name any state or private defendants. 

A pre-enforcement declaratory judgment cannot be issued 

against defendants who do not enforce the challenged provision 

of law. See California v. Texas, 141 S. Ct. 2104, 2116 (2021) 

(denying declaratory relief when “[t]here is no one, and 

nothing, to enjoin[]”); see also Haaland v. Brackeen, No. 21-

376, slip op. at 30–31 (U.S. June 15, 2023) (declining request 

for injunctive relief and declaratory judgment against federal 

officials where “‘[t]here is no federal official who administers 

[the statute] or carries out its mandates’ * * * [and] state 

officials are nonparties who would not be bound by the 

judgment”) (quoting Brief for Individual Pet’rs at 63, Haaland 

v. Brackeen (No. 21-376)).

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Usually, dismissal with prejudice for failure to name a

proper defendant is granted only if “the allegation of other facts 

consistent with the challenged pleading could not possibly cure 

the deficiency.” Jarrell v. United States Postal Serv., 753 F.2d 

1088, 1091 (D.C. Cir. 1985) (quoting Bonanno v. Thomas, 309 

F.2d 320, 322 (9th Cir. 1962)). But Woodhull never asked the 

district court (or this court) for the opportunity to amend the 

complaint and add a proper defendant for the ex post facto 

claim. With Woodhull having made no effort to substitute in a 

proper party, the district court did not abuse its discretion in 

dismissing the ex post facto claim without allowing leave to 

amend. See Atchinson v. District of Columbia, 73 F.3d 418, 

426 (D.C. Cir. 1996) (“[W]e review district court decisions 

under Rule 15(a) for abuse of discretion.”). 

VI

Woodhull brings an additional challenge to the Act’s 

amendment of Section 230. Prior to FOSTA, Section 230 

withheld immunity for online platform owners, managers, and 

operators if the content posted on the platform violated federal 

criminal law. See 47 U.S.C. § 230(e)(1). FOSTA clarified that

Section 230’s immunity carve-out includes civil liability in 

private actions under Section 1595 of the Trafficking Act, 18 

U.S.C. § 1595, and state criminal liability if the underlying 

conduct violates Section 1591 of the Trafficking Act, id.

§ 1591, or Section 2421A of FOSTA, id. § 2421A. 47 U.S.C.

§ 230(e)(5).

Woodhull argues that selective withdrawal of Section 230 

immunity only for those who speak on disfavored subjects like 

the promotion of prostitution and sex trafficking violates the 

First Amendment. Once again, Woodhull’s argument fails.

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To start, FOSTA does not criminalize promoting 

prostitution broadly. It only punishes aiding or abetting the 

“prostitution of another person,” which has a much narrower 

reach. See Section IV.B., supra.

As for Woodhull’s argument that Section 230(e)(5) 

selectively withdraws immunity on the basis of speech’s 

content or viewpoint, that misunderstands the law. Sections 

230(e)(5)(A)–(B) withhold immunity only for content that 

violates the federal criminal prohibition on sex trafficking in 

Section 1591, and Woodhull makes no argument that Section 

1591 itself is unconstitutional under the First Amendment or 

otherwise. Neither does Woodhull explain how denying 

immunity for speech integral to criminal conduct would trench 

on the First Amendment.

Nor did the amendment make a material or selective 

change in the scope of immunity. Section 230’s text has always 

withheld immunity for speech that violates federal criminal 

law. 47 U.S.C. § 230(e)(1). Woodhull brings no constitutional 

challenge to Section 230(e)(1)’s original withholding of 

immunity for violations of all federal criminal laws, including 

Section 1591. And Woodhull does not argue that Section 

230(e)(1)’s original withholding applies only to federal laws in 

effect at the time of Section 230’s enactment. That means that 

Section 230(e)(1)’s withholding of immunity automatically 

applies to new criminal laws such as Section 2421A as a textual 

matter. That automatic inclusion of all new criminal laws 

belies Woodhull’s claim of selective targeting based on 

content.

Congress was explicit in FOSTA that Section 230’s 

immunity provision “was never intended to provide legal 

protection” to websites that unlawfully promote prostitution or 

assist traffickers, and accordingly determined that 

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“clarification * * * [wa]s warranted to ensure that such section 

does not provide such protection to such websites.” 47 U.S.C. 

§ 230 note. Congress amended Section 230 in response to the 

many court decisions immunizing websites hosting unlawful 

speech in a manner that was deemed to be contrary to 

Congress’s original design. See Woodhull II, 948 F.3d at 367–

368 (explaining that courts frequently held that Section 230 

prevented liability for violations of federal law). So all FOSTA 

does is clarify and reinforce the prior exclusion of immunity 

within the specific context of sex trafficking, and explain that 

the limit on immunity extends to civil liability as well. 

Nothing in the First Amendment required Congress to 

confer Section 230 immunity on speech that violates federal 

criminal laws in the first place, and nothing in the First 

Amendment ossifies such immunity once granted against any 

later clarification. 

VII

In addition to its overbreadth and vagueness challenges, 

Woodhull asserts that, as regulations of speech, Sections 

2421A and 1591(e)(4) do not survive strict scrutiny. But those 

Sections, as we have interpreted them in response to the 

challenges raised, only cover speech integral to criminal 

conduct, which does not receive First Amendment protection. 

See Hansen, slip op. at 18 (“Speech intended to bring about a 

particular unlawful act has no social value; therefore, it is 

unprotected.”); Stevens, 559 U.S. at 468 (First Amendment 

allows restrictions on the content of “speech integral to 

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criminal conduct”). Thus, Woodhull’s strict scrutiny challenge 

must be rejected. 

VIII

For all of the foregoing reasons, the district court’s

judgment is affirmed. 

So ordered.

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