EXHIBIT INDEX TO MOTION TO DISMISS

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

2:18-cr-00422-PHX-DJH

Exhibit Description

A Woodhull Freedom Found’n v. United States, Case No. 22-5105, at 28-30

(D.C. Cir., Nov. 2, 2022)

B January 11, 2023 Transcript of Oral Argument Before the D.C. Circuit

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EXHIBIT A

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ORAL ARGUMENT NOT SCHEDULED

No. 22-5105

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

WOODHULL FREEDOM FOUNDATION, et al,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA and MERRICK B. GARLAND, in his 

official capacity as Attorney General of the United States,

Defendants-Appellees.

On Appeal from the United States District Court

for the District of Columbia

BRIEF FOR APPELLEES

BRIAN M. BOYNTON

Principal Deputy Assistant 

Attorney General

MARK B. STERN

JOSEPH F. BUSA

Attorneys, Appellate Staff

Civil Division, Room 7537

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530

(202) 305-1754

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 

CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel 

certifies as follows:

A. Parties and Amici

Plaintiffs in district court, and appellants here, are the Woodhull 

Freedom Foundation, Human Rights Watch, Eric Koszyk, Jesse Maley 

(also known as Alex Andrews), and the Internet Archive. 

Defendants in district court, and appellees here, are the United 

States of America and Merrick B. Garland, in his official capacity as 

Attorney General of the United States. (William P. Barr and Jefferson 

B. Sessions, III, were formerly defendants in district court in their thenofficial capacities as Attorneys General of the United States. When they 

left office, their successors were automatically substituted under 

Federal Rule of Civil Procedure 25(d) and Federal Rule of Appellate 

Procedure 43(c)(2).)

There were no amici or intervenors in district court. At the time of 

filing, amici supporting plaintiffs-appellants included: Call Off Your Old 

Tired Ethics of Rhode Island (COYOTE-RI); Black and Pink MA; The 

Community United for Safety and Protection; DeCrim PA; The Erotic 

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Service Providers Legal, Education and Research Project; Helping 

Individual Prostitutes Survive (HIPS); International Sex Worker 

Foundation for Art, Culture, and Education; The Ishtar Collective; The 

National Council for Incarcerated and Formerly Incarcerated Women 

and Girls; The Sex Workers Outreach Project (SWOP) Behind Bars; 

SWOP Sacramento; SWOP Tucson; Valued Existence of Northeastern 

and Ubiquitous Sex Workers (VENUS); Transgender Law Center; 

Center for Democracy & Technology; Decriminalize Sex Work; The Sex 

Workers Project (SWP) of the Urban Justice Center; Freedom Network; 

Brooklyn Defender Services; Erotic Laborers Alliance Of New England

(ELA-ONE); Old Pros; National Coalition for Sexual Freedom (NCSF); 

New York Transgender Advocacy Group (NYTAG); Free Speech 

Coalition; SWOP Brooklyn; Gays and Lesbians Living in a Transgender 

Society (GLITS); and St. James Infirmary.

B. Rulings Under Review

Plaintiffs-Appellants seek review of the March 29, 2022, Order 

and Memorandum Opinion in Woodhull Freedom Foundation v. United 

States, No. 1:18-cv-01552, 2022 WL 910600 (D.D.C.) (Leon, J.). The 

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order is reproduced at page 745 of the Joint Appendix (JA), and the 

memorandum opinion is reproduced at pages 717 to 744.

C. Related Cases

This case has previously been before this Court. See No. 18-5298.

There are no related cases involving substantially the same parties and 

the same or similar issues currently pending in this Court, any other 

United States court of appeals, or any other court (whether federal or 

local) in the District of Columbia.

/s/ Joseph F. Busa

JOSEPH F. BUSA

Counsel for Defendants-Appellees

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.....................................................................vi

GLOSSARY ............................................................................................xiv

INTRODUCTION ...................................................................................... 1

STATEMENT OF JURISDICTION.......................................................... 2

STATEMENT OF THE ISSUES............................................................... 3

PERTINENT STATUTES AND REGULATIONS ................................... 3

STATEMENT OF THE CASE .................................................................. 3

A. Statutory Background............................................................. 3

1. Federal criminal statutes addressing sex 

trafficking and prostitution ........................................... 3

2. The Communications Decency Act of 1996 and 

the protections of Section 230........................................ 5

3. Section 230 thwarts state criminal prosecutions 

of, and victims’ civil suits against, Backpage.com ........ 6

4. The Allow States and Victims to Fight Online Sex 

Trafficking Act of 2017 (FOSTA)................................. 10

B. Plaintiffs’ First Amendment, Fifth Amendment, and Ex 

Post Facto Challenges...........................................................13

C. Prior Proceedings ..................................................................15

1. Dismissal for lack of standing; first appeal.................15

2. Summary judgment in the government’s favor on 

remand .........................................................................18

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SUMMARY OF ARGUMENT.................................................................20

STANDARD OF REVIEW.......................................................................23

ARGUMENT ...........................................................................................23

I. FOSTA Is Consistent With The First Amendment.......................23

A. To Act With The “Intent To Promote Or Facilitate The 

Prostitution Of Another Person” Is To Aid Or Abet A 

Crime. ....................................................................................23

1. The phrase “promote or facilitate” as used in 

criminal statutes is equivalent to “aid or abet.”..........24

2. FOSTA uses that term of art. ......................................29

3. Plaintiffs’ arguments to the contrary are 

unavailing.....................................................................37

B. The First Amendment Does Not Provide Immunity For 

Those Who Intentionally Aid And Abet The Crimes At 

Issue Here Under Traditional Principles Of Criminal

Law. .......................................................................................48

II. FOSTA Is Consistent With The Fifth Amendment In 

Providing Adequate Notice Of What Is Unlawful. ........................56

III. Plaintiffs’ Pre-Enforcement Ex Post Facto Challenge Also 

Fails. ...............................................................................................64

CONCLUSION ........................................................................................67

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

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TABLE OF AUTHORITIES

Cases: Page(s)

Abuelhawa v. United States,

556 U.S. 816 (2009) ...................................................................... 27, 40

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002) ............................................................................ 40

Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) ........................................................................ 34

Bennett v. Google, LLC,

882 F.3d 1163 (D.C. Cir. 2018) ...................................................... 6, 55

California v. Texas,

141 S. Ct. 2104 (2021) ........................................................................ 65

City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

142 S. Ct. 1464 (2022) ........................................................................ 51

Doe ex rel. Roe v. Backpage.com, LLC,

104 F. Supp. 3d 149 (D. Mass. 2015) ................................................... 9

Elonis v. United States,

575 U.S. 723 (2015) ............................................................................ 62

FAA v. Cooper,

566 U.S. 284 (2012) ............................................................................ 41

Farmer v. Brennan,

511 U.S. 825 (1994) ............................................................................ 62

Garrison v. Louisiana,

379 U.S. 64 (1964) .............................................................................. 63

Geiss v. Weinstein Co. Holdings LLC,

383 F. Supp. 3d 156 (S.D.N.Y. 2019) ................................................. 34

George v. McDonough,

142 S. Ct. 1953 (2022) ........................................................................ 29

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Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ................................................................ 48, 49, 51

Grayned v. City of Rockford,

408 U.S. 104 (1972) ............................................................................ 59

Grimes v. District of Columbia,

794 F.3d 83 (D.C. Cir. 2015) .............................................................. 23

Hall v. Hall,

138 S. Ct. 1118 (2018) ........................................................................ 29

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ................................................................................ 58

Jane Doe No. 1 v. Backpage.com, LLC,

817 F.3d 12 (1st Cir. 2016) ............................................................ 9, 10

Johnson v. United States,

576 U.S. 591 (2015) ............................................................................ 61

M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC,

809 F. Supp. 2d 1041 (E.D. Mo. 2011) ................................................. 9

Marshall v. United States,

355 F.2d 999 (9th Cir. 1966) .............................................................. 28

Milavetz, Gallop & Milavetz, P.A. v. United States,

559 U.S. 229 (2010) ............................................................................ 32

National Ass’n of Mfrs. v. Taylor,

582 F.3d 1 (D.C. Cir. 2009) .......................................................... 59, 60

New York v. Ferber,

458 U.S. 747 (1982) ............................................................................ 38

Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 

413 U.S. 376 (1973)..............................................................................49

Reed v. Town of Gilbert, 

576 U.S. 155 (2015)..............................................................................51

Reno v. Koray,

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515 U.S. 50 (1995) .............................................................................. 61

Rice v. Paladin Enters.,

128 F.3d 233 (4th Cir. 1997) .............................................................. 48

Rosemond v. United States,

572 U.S. 65 (2014) .............................................................................. 26

State v. White,

484 A.2d 691 (N.J. 1984) .................................................................... 24

Stogner v. California,

539 U.S. 607 (2003) ............................................................................ 66

Stokeling v. United States,

139 S. Ct. 544 (2019) .......................................................................... 41

Sturgeon v. Frost,

577 U.S. 424 (2016) ............................................................................ 41

Susan B. Anthony List v. Driehaus, 

573 U.S. 149 (2014)..............................................................................16

United States v. Baker,

611 F.2d 961 (4th Cir. 1979) .............................................................. 28

United States v. Bennett,

95 F.3d 1158 (9th Cir. 1996) .............................................................. 28

United States v. Bronstein,

849 F.3d 1101 (D.C. Cir. 2017) .................................................... 56, 57

United States v. Hansen, 

25 F.4th 1103 (9th Cir. 2022) ..............................................................45

United States v. Heilmann,

235 F.3d 1146 (8th Cir. 2001) ............................................................ 28

United States v. Hernandez-Calvillo,

39 F.4th 1297 (10th Cir. 2022) .......................................................... 45

United States v. Manzo,

712 F.3d 805 (3d Cir. 2013) ............................................................... 28

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United States v. Miselis,

972 F.3d 518 (4th Cir. 2020) ........................................................ 46, 47

United States v. Nino,

967 F.2d 1508 (11th Cir. 1992) .......................................................... 28

United States v. Riquelmy,

572 F.2d 947 (2d Cir. 1978) ............................................................... 28

United States v. Ruiz,

386 F. App’x 530 (6th Cir. 2010) ........................................................ 28

United States v. Rundo,

990 F.3d 709 (9th Cir. 2021) ........................................................ 46, 47

United States v. Salerno,

481 U.S. 739 (1987) ............................................................................ 65

United States v. Sineneng-Smith,

910 F.3d 461 (9th Cir. 2018), vacated on other grounds,

140 S. Ct. 1575 (2020) ........................................................................ 45

United States v. Stevens,

559 U.S. 460 (2010) ............................................................................ 49

United States v. Taylor,

44 F.4th 779 (8th Cir. 2022) .............................................................. 34

United States v. Wahl,

290 F.3d 370 (D.C. Cir. 2002) ............................................................ 27

United States v. Welch,

327 F.3d 1081 (10th Cir. 2003) .......................................................... 28

United States v. Williams, 

553 U.S. 285 (2008).........................39, 40, 47, 49, 50, 56, 57, 58, 59, 61

Urena-Ramirez v. Ashcroft,

341 F.3d 51 (1st Cir. 2003) .......................................................... 28, 29

Virginia v. Black,

538 U.S. 343 (2003) ............................................................................ 52

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Waddington v. Sarausad,

555 U.S. 179 (2009) ............................................................................ 26

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ...................................................................... 51, 57

Woodhull Freedom Found. v. United States:

334 F. Supp. 3d 185 (D.D.C. 2018) .................................................... 15

948 F.3d 363 (D.C. Cir. 2020) ................................... 15, 16, 17, 18, 23,

24, 30, 31, 38, 39, 43

U.S. Constitution: 

Art. I, § 9, cl. 3 ....................................................................................... 63

Federal Statutes: 

Allow States and Victims to Fight Online Sex Trafficking Act of 2017, 

Pub. L. No. 115-164, 132 Stat. 1253 (2018).........................................10

§ 2, 132 Stat. at 1253........................................................................10

§ 3(a), 132 Stat. at 1253-54 .........................................................10-11

§ 4(a), 132 Stat. at 1254 (codified at 47 U.S.C. § 230(e)(5)).............11

§ 4(b), 132 Stat. at 1254-55 ........................................................ 12, 63

§ 5, 132 Stat. at 1255 (codified at 18 U.S.C. § 1591(e)(4) ...............13,

Communications Decency Act of 1996:

47 U.S.C. § 230 ................................................................................. 1, 5

47 U.S.C. § 230(c)(1) ............................................................................. 5

47 U.S.C. § 230(c)(2) ................................................................. 6, 53, 55

47 U.S.C. § 230(e)(1) ...................................................................... 6, 52

47 U.S.C. § 230(e)(3) ............................................................................ 6

47 U.S.C. § 230(e)(5) ........................................................ 12, 53, 63, 64

47 U.S.C. § 230(e)(5)(A) ..................................................................... 60

47 U.S.C. § 230(f)(2) ........................................................................... 11

Travel Act:

18 U.S.C. § 1952 ................................................................................ 3-4

18 U.S.C. § 1952(a) ............................................................................ 28

18 U.S.C. § 1952(a)(3) .................................................................... 4, 53

18 U.S.C. § 1952(b) ........................................................................ 4, 53

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Model Penal Code § 2.02(c) ................................................................... 63

Model Penal Code § 2.06(3)(a) ............................................................... 25

8 U.S.C. § 1324 (a)(1)(A)(iv) .................................................................. 44

8 U.S.C. § 1324 (a)(1)(A)(v)(II) .............................................................. 45

18 U.S.C. § 2 (a)...................................................................................... 43

18 U.S.C. § 924(c)(1) .............................................................................. 27

18 U.S.C. § 982(a)(8)(A) ......................................................................... 26

18 U.S.C. § 1591 ............................................................ 4, 5, 9, 12, 33, 52

18 U.S.C. § 1591(a) ................................................................................ 11

18 U.S.C. § 1591(a)(1) .............................................................................. 4

18 U.S.C. § 1591(a)(2) ............................................................ 5, 13, 33, 34

18 U.S.C. § 1591(e)(4) ...................................................................... 33, 60

18 U.S.C. § 1595 ............................................................................ 5, 9, 11

18 U.S.C. § 2101(a) ................................................................................ 46

18 U.S.C. § 2252A .................................................................................. 47

18 U.S.C. § 2421A ............................................................................ 10, 12

18 U.S.C. § 2421A(a) ................................................ 1, 11, 14, 17, 19, 20,

23, 30, 31, 50, 59

18 U.S.C. § 2421A(b) ....................................................................... 11, 59

18 U.S.C. § 2421A(b)(1) ......................................................................... 31

18 U.S.C. § 2421A(b)(2) .......................................................... 59, 61-62, 6

18 U.S.C. § 2421A(c) ........................................................................ 11, 32

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18 U.S.C. § 2421A(e) .................................................................. 11, 30, 32

19 U.S.C. § 1401(k)(1) ........................................................................... 26

19 U.S.C. § 1586 .................................................................................... 25

19 U.S.C. § 1587(a) ................................................................................ 25

19 U.S.C. § 1703 .................................................................................... 25

19 U.S.C. § 1709 .................................................................................... 26

21 U.S.C. § 843(b) .................................................................................. 27

28 U.S.C. § 1291 ...................................................................................... 3

28 U.S.C. § 1331 ...................................................................................... 2

State Statutes: 

Alaska Stat. § 11.16.110(2)(B) .............................................................. 25

Ariz. Rev. Stat. Ann. § 13-1002 ............................................................. 25

Colo. Rev. Stat. § 18-1-603 .................................................................... 25

Del. Code Ann. tit. 11, § 271 ................................................................. 25

720 Ill. Comp. Stat. 5/5-2 ....................................................................... 25

N.J. Stat. Ann. § 2C:2-6 (West).............................................................. 25

18 Pa. Cons. Stat. § 306 ......................................................................... 25

Rule: 

Fed. R. App. P. 4(a)(1)(B) ........................................................................ 2

Legislative Materials: 

164 Cong. Rec. H1293 (daily ed. Feb. 27, 2018) 

(statement of Rep. Wagner) ................................................ 9, 12, 36, 37

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164 Cong. Rec. H1302 (daily ed. Feb. 27, 2018) 

(statement of Rep. Walters) .......................................................... 35, 36

164 Cong. Rec. S1851 (daily ed. Mar. 21, 2018) ......................... 12, 36, 37

164 Cong. Rec. S1860 (daily ed. Mar. 21, 2018) 

(statement of Sen. Durbin) ............................................................ 35, 37

H. Rep. No. 115-572, pt. 1 (2018)...................................................... 35, 36

Staff of S. Permanent Subcomm. on Investigations, 

Comm. on Homeland Sec. & Governmental Affairs, 

114th Cong., Backpage.com’s Knowing Facilitation 

of Online Sex Trafficking (2017), 

https://perma.cc/XQ44-C52V ........................................................... 7, 8

Other Authorities: 

Aid and Abet, Black’s Law Dictionary (11th ed. 2019).................... 24, 44

Richard Burn, A New Law Dictionary 4 (1792) .................................... 24

Felix Frankfurter, Some Reflections on the Reading of Statutes, 

47 Colum. L. Rev. 527 (1947)...............................................................41

Wayne R. LaFave, 2 Substantive Criminal Law § 13.2 

(3d ed.), Westlaw (database updated Oct. 2022) ......................... 25, 26

Pandering, Black’s Law Dictionary (11th ed. 2019)...............................31

Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3d ed. 1982)......44

Antonin Scalia & Bryan A. Garner, Reading Law: 

The Interpretation of Legal Texts (2012) .............................................42

U.S. Dep’t of Justice, The National Strategy for Child 

Exploitation Prevention and Interdiction (Apr. 2016), 

https://perma.cc/RN5J-3WT2 ........................................................... 6, 7

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GLOSSARY

JA Joint Appendix

FOSTA The Allow States and Victims to Fight

Online Sex Trafficking Act of 2017

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INTRODUCTION

Plaintiffs bring this pre-enforcement First and Fifth Amendment 

challenge to a statute that prohibits aiding and abetting a crime. The 

Allow States and Victims to Fight Online Sex Trafficking Act of 2017 

(FOSTA) proscribes managing certain computer services “with the 

intent to promote or facilitate the prostitution of another person.” 18 

U.S.C. § 2421A(a). FOSTA also removes any impediment under 47 

U.S.C. § 230 to state criminal prosecutions of such crimes and the

related crime of aiding and abetting sex trafficking. The district court 

correctly interpreted the statute to encompass only conduct in aid of a 

criminal transaction and granted the government summary judgment 

on that basis.

Plaintiffs contend that the statute sweeps beyond traditional 

principles of aiding and abetting a crime and impermissibly prohibits 

protected speech, such as advocacy for the decriminalization of 

prostitution, or efforts to provide sex workers with information about 

housing or avoiding abusive clients. That interpretation is at odds with 

the text of the statute, which invokes a canonical formulation of aidingand-abetting liability—acting with the “intent to promote or facilitate” a 

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crime—and prohibits certain actions taken with the specific intent to 

bring about a specific type of crime. 

Rejecting plaintiffs’ statutory interpretation makes quick work of 

their constitutional claims. There is no First Amendment right to 

engage in a course of criminal conduct that, under traditional principles 

of accomplice liability, intentionally aids and abets the commission of 

the crimes at issue here, even if that conduct involves speech. The 

statute’s invocation of aiding-and-abetting liability draws on settled 

legal concepts that provide adequate notice of what the statute 

prohibits, consistent with the Fifth Amendment. And plaintiffs cannot 

bring a facial Ex Post Facto challenge to a statute that is plainly 

capable of being applied prospectively. The judgment should be 

affirmed.

STATEMENT OF JURISDICTION

Plaintiffs invoked the district court’s federal-question jurisdiction 

under 28 U.S.C. § 1331. JA20 (complaint). The district court granted

the government’s motion for summary judgment on March 29, 2022. 

JA745 (order); JA717-44 (opinion). Plaintiffs filed a timely notice of 

appeal on April 25, 2022. JA746; see Fed. R. App. P. 4(a)(1)(B). This 

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Court has jurisdiction over this appeal from a final decision of the 

district court under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

The questions presented are:

1. Whether FOSTA encompasses only criminal aiding and 

abetting and is thus consistent with the First Amendment.

2. Whether FOSTA provides adequate notice of what is unlawful

and is thus consistent with the Fifth Amendment.

3. Whether plaintiffs have standing to bring their Ex Post Facto 

challenge to FOSTA and whether FOSTA, on its face, violates the Ex 

Post Facto clause.

PERTINENT STATUTES AND REGULATIONS

Pertinent statutes and regulations are reproduced in the 

addendum to this brief.

STATEMENT OF THE CASE

A. Statutory Background

1. Federal criminal statutes addressing sex 

trafficking and prostitution

Several federal criminal statutes can be used to prosecute sex 

trafficking and prostitution in certain circumstances. The Travel Act, 18 

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U.S.C. § 1952, for example, makes it a federal crime to use a “facility in 

interstate or foreign commerce”—including the mail and, today, the 

internet—“with intent to,” among other things, “promote, manage, 

establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any unlawful activity.” Id. § 1952(a)(3). 

The “unlawful activity” included within the Travel Act’s prohibition 

includes “prostitution offenses in violation of the laws of the State in 

which they are committed or of the United States.” Id. § 1952(b).

Congress has also created a more specific crime of the sex 

trafficking of children and the sex trafficking of adults by force, fraud, 

or coercion. That provision of the federal criminal code, 18 U.S.C. 

§ 1591, proscribes “knowingly” performing certain actions, such as

“provid[ing], obtain[ing], ... or solicit[ing] by any means a person,”

“knowing” that force, fraud, or coercion “will be used to cause the person 

to engage in a commercial sex act” or that the person was a minor “and 

will be caused to engage in a commercial sex act.” Id. § 1591(a)(1). The 

statute also prohibits “advertis[ing]” a person for a commercial sex act 

“in reckless disregard of the fact” that force, fraud, or coercion will be 

used or that the person is a minor. Id. And the statute prohibits 

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“knowingly” benefitting financially from “participation in a venture” 

that engages in such prohibited acts. Id. § 1591(a)(2).

A related provision, 18 U.S.C. § 1595, allows victims to bring civil 

actions against, and recover damages from, perpetrators for violations 

of, among other things, 18 U.S.C. § 1591, the criminal prohibition on 

sex trafficking of children and sex trafficking of adults by force, fraud, 

or coercion.

2. The Communications Decency Act of 1996 

and the protections of Section 230

In a portion of the Communications Decency Act of 1996 codified 

at 47 U.S.C. § 230, and commonly known as Section 230, Congress 

provided for certain limitations on the liability of interactive computer 

services, such as certain websites, that allow other people to post 

information online. Section 230 provides that “[n]o provider or user of 

an interactive computer service shall be treated as the publisher or 

speaker of any information provided by another information content 

provider.” 47 U.S.C. § 230(c)(1).

Congress further provided that liability may also not be based on 

“any action voluntarily taken in good faith to restrict access to or 

availability of material that the provider or user considers to be 

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obscene, lewd, lascivious, filthy, excessively violent, harassing, or 

otherwise objectionable.” 47 U.S.C. § 230(c)(2). That provision allows 

service providers “to establish standards of decency without risking 

liability for doing so.” Bennett v. Google, LLC, 882 F.3d 1163, 1168 (D.C. 

Cir. 2018) (quotation marks omitted). 

Congress also provided that “[n]o cause of action may be brought 

and no liability may be imposed under any State or local law that is 

inconsistent with this section.” 47 U.S.C. § 230(e)(3). And Congress 

provided that Section 230 does not “impair the enforcement” of any 

“Federal criminal statute.” Id. § 230(e)(1).

3. Section 230 thwarts state criminal 

prosecutions of, and victims’ civil suits 

against, Backpage.com

In the decades since Section 230 was enacted, the internet has 

grown and changed. One extremely disturbing feature of that growth is 

that certain “[w]ebsites ... emerged as a primary vehicle for the 

advertisement of children to engage in prostitution.” U.S. Dep’t of 

Justice, The National Strategy for Child Exploitation Prevention and 

Interdiction 10, 76 (Apr. 2016), https://perma.cc/RN5J-3WT2. 

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Backpage.com was prominent among those websites, id., until it was 

brought down by federal prosecutors. 

As an in-depth Senate investigation found in 2017, Backpage was 

“the leading online marketplace for commercial sex” and a “hub” for 

“human trafficking, especially the trafficking of minors.” Staff of S.

Permanent Subcomm. on Investigations, Comm. on Homeland Sec. & 

Governmental Affairs, 114th Cong., Backpage.com’s Knowing 

Facilitation of Online Sex Trafficking 1 (2017), https://perma.cc/XQ44-

C52V (Senate Report) (quotation marks omitted). Indeed, Backpage 

“reportedly net[ted] more than 80% of all revenue from online 

commercial sex advertising in the United States” and was “involved in 

73% of all child trafficking reports that the National Center for Missing 

and Exploited Children ... receive[d] from the general public.” Id. at 1, 

6. 

The Senate’s investigation found that Backpage “kn[ew] that it 

facilitate[d] prostitution and child sex trafficking.” Senate Report 3. 

Indeed, Backpage had taken intentional measures to help sex 

traffickers avoid detection when posting advertisements online for 

commercial sex. See id. at 23-41. Backpage, for example, would remove 

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“terms indicative of criminality,” such as “lolita” and “little girl,” from 

online ads for commercial sex transactions before publishing them, thus 

making those ads look “clean[]” without changing “the true nature of 

the advertised transaction or the real age of the person being sold for 

sex.” Id. at 2 (quotation marks omitted). Backpage took such steps to 

“put[] lipstick on a pig, because when it came down to it, it was what 

the business was about”: “moderating ads for prostitution.” Id. at 37

(quotation marks omitted).

Nevertheless, when state prosecutors and victims sought to hold 

Backpage accountable, courts held that Section 230 shielded Backpage 

from liability. To thwart state criminal prosecution, “Backpage ... 

successfully invoked Section 230 in federal-preemption challenges to 

state laws in Washington, Tennessee, and New Jersey criminalizing the 

advertisement of minors for sex.” Senate Report 9. A California state 

court also “dismissed felony pimping and conspiracy charges against 

Backpage” executives and founders as inconsistent with Section 230. Id.

In response to these losses in court, in 2017, “50 State attorneys general 

called on Congress to untie their hands to allow them to bring justice to 

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the websites that sell our children.” 164 Cong. Rec. H1293 (daily ed. 

Feb. 27, 2018) (statement of Rep. Wagner).

Civil suits brought by child sex-trafficking victims against 

Backpage faced similar hurdles. Victims brought such suits under 

various state and federal laws, including 18 U.S.C. § 1595, the provision 

of the criminal code that allows victims to bring civil actions for 

violating 18 U.S.C. § 1591’s prohibition on the sex trafficking of children 

and the sex trafficking of adults by force, fraud, or coercion. See, e.g., 

Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 

2015); see also M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC, 

809 F. Supp. 2d 1041, 1053 (E.D. Mo. 2011). Courts dismissed these 

claims, reasoning that they sought to hold Backpage liable as the 

publisher of the unlawful advertisements and were thus barred by 

Section 230. The courts further concluded that civil suits brought under 

18 U.S.C. § 1595 for violation of the criminal prohibitions on sex 

trafficking in Section 1591 did not fall within the exception in Section 

230(e)(1) for actions to enforce a federal criminal statute. See, e.g., Jane 

Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18-24 (1st Cir. 2016). In 

affirming the dismissal of such a suit, the First Circuit explained that, 

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to the extent that child victims of sex trafficking wished to bring civil 

suits against internet publishers such as Backpage that “engaged in a 

course of conduct designed to facilitate sex traffickers’ efforts to 

advertise their victims on the website,” their “remedy is through 

legislation” to amend Section 230, “not through litigation.” Id. at 16, 29.

4. The Allow States and Victims to Fight 

Online Sex Trafficking Act of 2017 (FOSTA)

Congress responded to the obstacles faced by state prosecutors 

and victims in seeking to hold Backpage and websites like it 

accountable by enacting the Allow States and Victims to Fight Online 

Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) 

(FOSTA). FOSTA sets forth “the sense of Congress that” Section 230 

“was never intended to provide legal protection to websites that 

unlawfully promote and facilitate prostitution and websites that 

facilitate traffickers in advertising the sale of unlawful sex acts with sex 

trafficking victims” and that “clarification” of Section 230 was 

“warranted to ensure that such section does not provide such protection 

to such websites.” FOSTA § 2, 132 Stat. at 1253.

FOSTA made two primary statutory changes. First, it added 18 

U.S.C. § 2421A to the criminal code. See FOSTA § 3(a), 132 Stat. at 

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1253-54. Section 2421A(a) proscribes “own[ing], manag[ing], or 

operat[ing] an interactive computer service,” as defined in Section 230 

(47 U.S.C. § 230(f)(2)), “with the intent to promote or facilitate the 

prostitution of another person” (or attempting or conspiring to do so). 18 

U.S.C. § 2421A(a). Section 2421A(b) provides a longer punishment if 

someone commits a violation of the base offense and also either (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 [18 U.S.C. §] 1591(a).” Id. § 2421A(b). A

person injured by an aggravated violation may recover civilly. Id.

§ 2421A(c). Section 2421A(e) sets forth an affirmative defense: a person 

is not criminally or civilly liable under the statute if “the promotion or 

facilitation of prostitution is legal in the jurisdiction where the 

promotion or facilitation was targeted.” Id. § 2421A(e).

Second, FOSTA established that Section 230 does not bar certain 

cases involving conduct that violates certain federal criminal laws. See

FOSTA § 4(a), 132 Stat. at 1254 (codified at 47 U.S.C. § 230(e)(5)). It 

clarified that Section 230 does not bar: (1) “any claim in a civil action 

brought under” 18 U.S.C. § 1595, “if the conduct underlying the claim 

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constitutes a violation of section 1591,” the federal criminal prohibition

on sex trafficking a child or sex trafficking an adult by force, fraud, or 

coercion; (2) “any charge in a criminal prosecution brought under State 

law if the conduct underlying the charge would constitute a violation of” 

the federal criminal prohibition on sex trafficking in 18 U.S.C. § 1591; 

or (3) “any charge in a criminal prosecution brought under State law if 

the conduct underlying the charge would constitute a violation of” 18 

U.S.C. § 2421A, the new criminal prohibition added by FOSTA. 47 

U.S.C. § 230(e)(5).

FOSTA provided that these amendments to Section 230 “shall 

apply regardless of whether the conduct alleged occurred, or is alleged 

to have occurred, before, on, or after such date of enactment.” FOSTA 

§ 4(b), 132 Stat. at 1254-55. While FOSTA was being considered by 

Congress, the Department of Justice sent a letter to Congress stating 

that this provision “raises a serious constitutional concern” under “the 

Constitution’s Ex Post Facto Clause.” 164 Cong. Rec. H1297. But see

164 Cong. Rec. S1856-57 (daily ed. Mar. 21, 2018) (providing analysis by 

the American Law Division of the Congressional Research Service 

concluding the bill would not violate the Ex Post Facto Clause).

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The statute also added a new definition to the federal criminal 

prohibition on sex trafficking. That pre-existing statute, among other 

things, made it a crime to knowingly benefit from “participation in a 

venture” that violates the prohibition on sex trafficking in Section 

1591(a)(1). 18 U.S.C. § 1591(a)(2). FOSTA defined the phrase 

“participation in a venture” to mean “knowingly assisting, supporting, 

or facilitating a violation” of Section 1591(a)(1). FOSTA § 5, 132 Stat. at 

1255 (codified at 18 U.S.C. § 1591(e)(4)).

B. Plaintiffs’ First Amendment, Fifth Amendment, 

and Ex Post Facto Challenges

Plaintiffs are the Woodhull Freedom Foundation, an organization 

that advocates for sexual freedom; Human Rights Watch, an 

organization that advocates for human rights; and the Internet Archive,

an organization that archives webpages. JA18-19 (complaint). Plaintiffs 

also include two individuals. Eric Koszyk is a massage therapist who 

allegedly lost business when Craigslist, subsequent to FOSTA’s 

enactment, stopped allowing a certain type of classified ad that he had 

previously used to find clients. JA19. Alex Andrews runs a website 

dedicated to advocating for sex workers’ health, safety, and human 

rights. JA19. Their suit against the Attorney General and the United 

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States seeks a declaratory judgment and injunction preventing the 

government from enforcing FOSTA against them or anyone else in any 

circumstances. JA19, 62.

Plaintiffs contend that they “advocate for the legalization of sex 

work, both domestically and internationally, provide education, health 

and safety resources, and more broadly work to support sex workers.”

JA13. They are “concerned that continuing their advocacy and 

assistance efforts will be considered ‘promoting or facilitating’ 

prostitution” within the meaning of the new criminal prohibition 

created by FOSTA, 18 U.S.C. § 2421A(a). JA13. Plaintiffs contend that

FOSTA’s criminal prohibition is a content-based restriction on protected 

speech that fails strict scrutiny and is facially overbroad in violation of 

the First Amendment. JA47-54. They also contend that the First 

Amendment prohibits Congress from modifying Section 230 to allow 

state prosecution and victims’ suits against those who violate certain 

federal criminal statutes. They contend that the scope of FOSTA’s 

restrictions is impermissibly vague in violation of the Fifth 

Amendment. JA54-56. And they argue that FOSTA is impermissibly 

retroactive under the Ex Post Facto Clause. JA60-62.

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C. Prior Proceedings

1. Dismissal for lack of standing; first appeal

The district court initially dismissed the complaint, concluding 

that plaintiffs lacked Article III standing because FOSTA did not reach 

the advocacy and archival activities in which some plaintiffs engage. 

The court also concluded that the massage therapist’s loss of the ability 

to post on an online classified ad service was not remediable by a court 

order insofar as it depended on the actions of third parties not before 

the Court. See Woodhull Freedom Found. v. United States, 334 F. Supp. 

3d 185, 198-204 (D.D.C. 2018).

On appeal, this Court reversed and remanded, concluding that at 

least the two individual plaintiffs had standing. See Woodhull Freedom 

Found. v. United States, 948 F.3d 363 (D.C. Cir. 2020). Judge Rogers, 

joined by Judge Griffith, explained that, to separate the standing

inquiry from the merits, “in a pre-enforcement challenge,” such as this 

one, a plaintiff can establish the injury requirement for Article III 

standing by demonstrating, among other things, an “‘imminent threat’ 

that a statute will be enforced against the plaintiff” where the 

plaintiff’s conduct is “‘arguably ... proscribed by a statute.’” Id. at 371 

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(alteration in original) (emphasis added) (quoting Susan B. Anthony 

List v. Driehaus, 573 U.S. 149, 159 (2014)). 

The majority concluded that FOSTA “arguably” proscribed some of 

plaintiff Alex Andrews’ conduct in running a website on which sex 

workers can rate and review rescue and harm-reduction resources for 

sex workers. 948 F.3d at 372-74. The majority noted that the statutory 

terms “promote” and “facilitate” were “susceptible of multiple and wideranging meanings,” including “to make easier,” in general, or “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.” Id. at 372 (quotation marks omitted). The majority concluded 

that it “need not read FOSTA to encompass advocacy or educational 

activities to hold that Andrews has standing” because her website 

“allows sex workers to share information about online payment 

processors like PayPal,” which the majority concluded could arguably be 

proscribed by FOSTA under at least one of its arguable interpretations. 

Id. at 373. The majority also concluded that plaintiff Eric Koszyk, the 

masseuse, had injuries that would be redressable if he were to prevail 

because Craigslist stated publicly that it had removed the relevant 

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section of its website “in response to FOSTA’s passage” and that it 

hoped to “bring [it] back some day.” Id. at 374.

Judge Katsas concurred in part and in the judgment. See 948 F.3d 

at 374-76. He agreed with the majority’s reasoning regarding plaintiff 

Koszyk’s standing. Id. at 376. And he agreed with the conclusion that 

plaintiff Andrews had standing. Id. at 375-76. He wrote separately to 

reject the notion that the statutory phrase “promote or facilitate the 

prostitution of another,” as used in FOSTA, could even arguably cover 

“advocating for decriminalization; educating prostitutes about rights 

and risks; helping prostitutes obtain housing, medical attention, child

care, or other essential services; and even internet archiving that 

incidentally sweeps up content related to prostitution.” Id. at 375

(quoting 18 U.S.C. § 2421A(a)). Judge Katsas noted that his colleagues 

in the majority, in concluding that this was “at least one possible 

reading of FOSTA,” did not actually “adopt this construction of FOSTA.” 

Id. And he explained that he would “reject the plaintiffs’ proposed 

construction.” Id.

Judge Katsas explained that “FOSTA focuses not on prostitution 

as an abstract legal or policy matter, but on ‘the prostitution of another 

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person’—a widely criminalized act involving the exchange of sex for 

money.” 948 F.3d at 375. In the criminal-law context, he explained, 

“FOSTA’s requirement of action with an ‘intent to promote or facilitate’

prostitution ... track[s] almost verbatim the canonical formulation for 

the offense of aiding and abetting.” Id. In Judge Katsas’ view, FOSTA 

thus “require[s] that the defendant own, manage, or operate a website 

with the specific intent to pander or otherwise abet the exchange of sex 

for money—not simply to advocate for, educate, or provide general 

assistance to persons who prostitute.” Id. He agreed with the majority’s 

conclusion that plaintiff Alex Andrews had standing because her 

website “provides prostitutes with information about online payment 

processors like PayPal, which directly assists the exchange of sex for 

money” and which “might support an inference that Andrews has the 

requisite intent to ‘promote or facilitate the prostitution’ of someone 

besides herself.” Id. at 376 (citation omitted) (quotation marks omitted).

2. Summary judgment in the government’s 

favor on remand

On remand, the district court granted the government’s motion for 

summary judgment. JA717-44 (opinion). The court adopted the 

construction of the statute that Judge Katsas set forth in his 

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concurrence and which the majority left open in the first appeal. The 

court concluded that the criminal prohibition on operating an 

interactive computer service with the intent to “promote or facilitate the 

prostitution of another person,” 18 U.S.C. § 2421A(a), is “narrowly 

tailored” to cover only such operation “with the intent to aid, abet, or 

assist specific instances of prostitution,” JA731. The court explained 

that “FOSTA’s scope is limited to legitimately criminal activity” and

that there was thus no basis for plaintiffs’ First Amendment 

overbreadth argument. JA731. The court rejected plaintiffs’ argument 

that the court’s interpretation was precluded by this Court’s decision in 

the first appeal, noting that the panel majority concluded only that a 

broader construction was “arguably” possible, not that the statute must

be construed more broadly. JA733.

The court noted that many of plaintiffs’ other claims “depend in 

large part on the same overbroad reading of FOSTA” and rejected those 

claims on similar grounds. JA735. The court explained that FOSTA is 

not a content-based regulation of speech and is instead “narrowly 

targeted at a band of conduct that materially advances specific 

instances of illegal prostitution.” JA739 & n.10. The court held that 

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plaintiffs’ Fifth Amendment vagueness claim fails for similar reasons 

because, “[p]roperly construed,” FOSTA “provides clear notice of the 

type of conduct prohibited.” JA735-36. The court observed that 

“plaintiffs’ vagueness concerns are further undercut by the presence of 

the heightened scienter requirements throughout FOSTA’s 

prohibitions,” such as the specific-intent requirement of the new crime 

codified at Section 2421A. JA736; see also JA740-41. The court rejected 

plaintiffs’ Ex Post Facto challenge to the retroactive clarification of

Section 230’s scope because any state criminal prosecutions based on 

conduct occurring before FOSTA’s passage “would be undertaken by 

parties not before the Court.” JA743.

SUMMARY OF ARGUMENT

In enacting FOSTA, Congress made it a crime to operate certain 

computer services “with the intent to promote or facilitate” a criminal 

transaction: “the prostitution of another person” in a jurisdiction in 

which such conduct is unlawful. 18 U.S.C. § 2421A(a). Congress sought

to hold accountable operators of certain computer services that, like 

Backpage, knowingly take actions specifically intended to aid in the 

commission of certain statutory violations, such as the illegal sale of sex 

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for money—a quintessentially transactional crime. The statute’s terms 

“promote or facilitate” are longstanding terms of art in criminal law, 

often used interchangeably with “aiding or abetting.”

Plaintiffs do not dispute that Congress may permissibly draw on 

traditional notions of accomplice liability and punish those who aid and 

abet the crimes at issue here, even if that criminal course of conduct 

involves speech. And their First and Fifth Amendment arguments 

depend entirely on the assertion that the statute extends far more 

broadly than aiding or abetting the conduct of a criminal offense. 

Plaintiffs insist that the terms “facilitate” and “promote” should not be 

read in accordance with their traditional meaning in criminal law and 

that they should instead be understood to encompass any activity that 

endorses the prohibited conduct or in some attenuated way makes that 

conduct easier. The district court correctly rejected that interpretation, 

and plaintiffs’ arguments to the contrary are at odds with the 

established meaning of the terms employed by Congress, as well as with 

the legislative history that confirms that the statute is concerned only 

with traditional aiding-and-abetting accomplice liability for the 

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criminal transactions at issue here. Plaintiffs’ pre-enforcement, facial 

challenge seeks to create constitutional infirmities that do not exist. 

Plaintiffs’ arguments depend on their mistaken reading of the 

statute and collapse when that reading is corrected. If the statute 

covers only conduct or speech so integral to criminal conduct that it falls 

within traditional principles of accomplice liability, it does not violate 

the First Amendment. Nor is there a First Amendment obstacle to 

removing any preexisting statutory protection from state prosecution or 

civil liability from anyone, like Backpage, who aids and abets such 

crimes. Congress’s reliance on well-known legal principles governing 

the scope of aiding-and-abetting liability ensures that the statute gives 

proper notice of what is prohibited, as required by the Fifth 

Amendment. And plaintiffs’ Ex Post Facto challenge fails as well. 

Plaintiffs cannot obtain judicial relief against state prosecutors or 

trafficking victims because those people are not parties to this case. 

There is no indication that plaintiffs face any imminent prosecution for 

aiding and abetting prostitution before FOSTA was enacted. And the 

statute does not violate the Ex Post Facto clause on its face because it 

can be applied prospectively. The judgment should be affirmed.

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STANDARD OF REVIEW

This Court “review[s] de novo a district court’s grant of a motion 

for summary judgment.” Grimes v. District of Columbia, 794 F.3d 83, 

88-89 (D.C. Cir. 2015).

ARGUMENT

I. FOSTA Is Consistent With The First Amendment.

A. To Act With The “Intent To Promote Or Facilitate 

The Prostitution Of Another Person” Is To Aid Or 

Abet A Crime.

In the key portion of FOSTA at issue here, Congress created a 

criminal prohibition on “own[ing], manag[ing], or operat[ing] an 

interactive computer service,” such as certain types of websites, “with 

the intent to promote or facilitate the prostitution of another person.” 18 

U.S.C. § 2421A(a). FOSTA thus “focuses not on prostitution as an 

abstract legal or policy matter, but on ‘the prostitution of another 

person’—a widely criminalized act involving the exchange of sex for 

money.” Woodhull Freedom Found. v. United States, 948 F.3d 363, 375 

(D.C. Cir. 2020) (Katsas, J., concurring in part and in the judgment).

And, in that criminal-law context, “FOSTA’s requirement of action with 

an ‘intent to promote or facilitate’ prostitution ... track[s] almost 

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verbatim the canonical formulation for the offense of aiding and 

abetting.” Id.

1. The phrase “promote or facilitate” as used 

in criminal statutes is equivalent to “aid or 

abet.”

The terms “aid or abet” and “promote or facilitate” have been 

understood to have the same meaning since at least the 17th century. 

Aid and Abet, Black’s Law Dictionary (11th ed. 2019). To “aid and abet” 

is “[t]o assist or facilitate the commission of a crime, or to promote its 

accomplishment.” Id.; see also Richard Burn, A New Law Dictionary 4 

(1792) (defining “abettor” as “one who promotes or procures a crime”).

Consistent with that longstanding definition, case law and statutes

routinely refer to the “intent to promote or facilitate the commission of a 

crime” as incorporating the concept of aiding-and-abetting liability. 

Indeed, that is one of the most common definitions of an accomplice in 

American law: “By definition an accomplice [is] a person who acts with 

the purpose of promoting or facilitating the commission of the 

substantive offense for which he is charged as an accomplice.” State v. 

White, 484 A.2d 691, 694 (N.J. 1984) (emphases omitted). 

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The Model Penal Code, for example, defines an accomplice, in 

relevant part, as a person who takes certain actions “with the purpose 

of promoting or facilitating the commission of” an offense by another 

person. Model Penal Code § 2.06(3)(a). Numerous states do the same. 

See, e.g., Alaska Stat. § 11.16.110(2)(B); Ariz. Rev. Stat. Ann. § 13-1002; 

Colo. Rev. Stat. § 18-1-603; Del. Code Ann. tit. 11, § 271; 720 Ill. Comp. 

Stat. 5/5-2; N.J. Stat. Ann. § 2C:2-6 (West); 18 Pa. Cons. Stat. § 306.

The influential LaFave treatise similarly defines accomplice liability as

“giv[ing] assistance or encouragement ... with the intent thereby to 

promote or facilitate commission of the crime” by another person. 

Wayne R. LaFave, 2 Substantive Criminal Law § 13.2 (3d ed.), Westlaw 

(database updated Oct. 2022).

Consistent with that understanding, federal statutes also employ 

the phrase to “promote or facilitate” to denote the aiding or abetting of a 

criminal act. The federal customs statutes, for example, provide that a 

“hovering vessel” may be boarded, its cargo seized and forfeited, and its 

master subjected to penalties, see 19 U.S.C. §§ 1586, 1587(a), 1703, 

where such vessel is used to “introduce or promote or facilitate the 

introduction ... of merchandise into the United States in violation of the 

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laws of the United States,” id. §§ 1401(k)(1), 1709. A criminal forfeiture 

statute similarly requires that a court sentencing a defendant for the 

commission of certain offenses must order forfeiture of any property 

used “to commit, to facilitate, or to promote the commission of such 

offense.” 18 U.S.C. § 982(a)(8)(A).

The Supreme Court expressly relied on the promote-or-facilitate

definition of aiding and abetting in the LaFave treatise to explain the 

scope of aiding-and-abetting liability at common law and in state 

statutes in Rosemond v. United States, 572 U.S. 65, 71 (2014)

(explaining that “an accomplice is liable as a principal when he gives 

‘assistance or encouragement ... with the intent thereby to promote or 

facilitate commission of the crime’” (alteration in original) (quoting 

LaFave, supra § 13.2)); see also Waddington v. Sarausad, 555 U.S. 179, 

191 (2009) (discussing a jury instruction that “requir[ed] that an 

accomplice in the commission of the crime take action with knowledge 

that it will promote or facilitate the commission of the crime” (emphases 

omitted) (quotation marks omitted)).

The Supreme Court also expressly relied on the promote-orfacilitate definition of aiding and abetting from Black’s Law Dictionary

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to reject an expansive reading of “facilitate” in another federal criminal 

statute in Abuelhawa v. United States, 556 U.S. 816 (2009). In that 

case, the Court interpreted the scope of a federal statute that prohibits 

the intentional use of a communication facility in committing or 

“facilitating the commission” of a controlled-substance offense. 21 

U.S.C. § 843(b). The Court refused to adopt an interpretation of 

“facilitate” that would have encompassed any act that would make the 

offense easier to commit. Abuelhawa, 556 U.S. at 819. Instead, relying 

in part on the same definition of “aid and abet” in Black’s Law 

Dictionary quoted above, the Court held that “the term ‘facilitate’” as 

used in that criminal statute had an “equivalent meaning” to 

specialized “terms like ‘aid,’ ‘abet,’ and ‘assist’” and thus included some 

“traditional judicial limitation[s]” on aiding-and-abetting liability that 

come along with those legal terms of art. Id. at 821. And this Court has 

similarly interpreted the criminal prohibition in 18 U.S.C. § 924(c)(1) on 

the possession of a firearm “in furtherance of” certain crimes to require 

proof that the firearm “promote[s] or facilitate[s] the crime.” United 

States v. Wahl, 290 F.3d 370, 376 (D.C. Cir. 2002) (quotation marks 

omitted).

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Courts have also frequently had occasion to interpret the terms 

“promote” or “facilitate” with regard to criminal acts in decisions 

involving the Travel Act, which makes it a crime for anyone to “travel[]” 

or use “any facility in interstate or foreign commerce, with intent to ... 

promote, manage, establish, carry on, or facilitate the promotion, 

management, establishment, or carrying on, of any unlawful activity” 

specified by the statute. 18 U.S.C. § 1952(a). In discussing the statute, 

courts often compress the litany of words to “promote or facilitate” the 

commission of an unlawful act. Marshall v. United States, 355 F.2d 999, 

1002 (9th Cir. 1966); see also, e.g., United States v. Manzo, 712 F.3d 

805, 808 (3d Cir. 2013); United States v. Ruiz, 386 F. App’x 530, 531, 

532, 534 (6th Cir. 2010) (unpublished); United States v. Welch, 327 F.3d 

1081, 1095 (10th Cir. 2003); United States v. Heilmann, 235 F.3d 1146, 

1147 (8th Cir. 2001); United States v. Bennett, 95 F.3d 1158 (9th Cir. 

1996) (unpublished); United States v. Nino, 967 F.2d 1508, 1509 (11th 

Cir. 1992); United States v. Baker, 611 F.2d 961, 963 (4th Cir. 1979); 

United States v. Riquelmy, 572 F.2d 947, 948 (2d Cir. 1978). The First 

Circuit observed in Urena-Ramirez v. Ashcroft, 341 F.3d 51, 54 (1st Cir. 

2003), that the phrase “promote or facilitate,” as used in the Travel Act,

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is equivalent to “aid or abet.” Addressing the drug-related offense at 

issue in that case, the First Circuit explained that “the promotion of” a 

business enterprise involving cocaine was “tantamount to aiding and 

abetting the distribution of narcotics.” Id.

In sum, whatever meaning “promote” or “facilitate” might have in 

everyday speech, their meaning as terms of art in criminal statutes, 

invoking traditional principles of accomplice liability, is established. 

2. FOSTA uses that term of art.

FOSTA uses the phrase “promote or facilitate” in the same way as 

the other authorities discussed above: to denote aiding-and-abetting 

liability under traditional principles of criminal law. By selecting a term 

of art in criminal law “with a legal lineage stretching back” centuries,

Hall v. Hall, 138 S. Ct. 1118, 1125 (2018), Congress also “adop[ted] the 

cluster of ideas that were attached to each borrowed word,” George v. 

McDonough, 142 S. Ct. 1953, 1963 (2022) (quotation marks omitted). 

The phrase “promote or facilitate,” as used in FOSTA, thus extends no 

further than the traditional understanding of accomplice liability 

developed in the criminal law context. 

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As Judge Katsas correctly explained in the first appeal in this 

case, the offense specified in Section 2421A(a) thus applies only where 

“the defendant own[s], manage[s], or operate[s] a website with the 

specific intent to pander or otherwise abet the exchange of sex for 

money—not simply to advocate for, educate, or provide general 

assistance to persons who prostitute.” Woodhull, 948 F.3d at 375 

(Katsas, J., concurring in part and in the judgment). “This is not to 

suggest that FOSTA requires proof of a specific, completed act of 

prostitution, as would the offense of aiding and abetting prostitution.” 

Id. But it does limit the sweep of the phrase “promote or facilitate” to 

the kinds of intentional acts that would make an accomplice criminally 

liable for the prostitution of another person.

a. That is the best reading of Section 2421A’s text and structure. 

FOSTA uses the phrase “promote or facilitate” to describe the specific 

“intent” the criminal defendant must have with respect to the 

commission of a specific underlying criminal act: “the prostitution of 

another person,” in a jurisdiction in which such prostitution is 

“[il]legal.” 18 U.S.C. § 2421A(a), (e). FOSTA thus “focuses not on 

prostitution as an abstract legal or policy matter, but on ‘the 

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prostitution of another person’—a widely criminalized act involving the 

exchange of sex for money,” and “promote or facilitate” is properly 

construed in the context of that criminal transaction. Woodhull, 948 

F.3d at 375 (Katsas, J.). And, in that context, the statute thus “track[s]

almost verbatim the canonical formulation for the offense of aiding and 

abetting” the commission of a crime by another person, id., paralleling 

the definition of aiding and abetting in legal dictionaries, treatises, the 

Model Penal Code, numerous state statutes, and several federal 

statutes, including the Travel Act. Indeed, the term “promoting 

prostitution” itself has a longstanding, specific meaning: “[t]he act or 

offense of recruiting a prostitute, finding a place of business for a 

prostitute, or soliciting customers for a prostitute.” Pandering, Black’s 

Law Dictionary (11th ed. 2019) (noting that “pandering” is “[a]lso 

termed promoting prostitution”).

That Congress used “facilitate” and “promote” with their usual 

meaning in the criminal law context is underscored by the inclusion in 

Section 2421A not only of the base offense of promoting or facilitating

“the prostitution of another person” but of the aggravated offense of 

promoting or facilitating “the prostitution of 5 or more persons.” 18 

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U.S.C. § 2421A(a), (b)(1). The statute distinguishes between aiding and 

abetting in the prostitution of one and several persons; it is not 

concerned with generic advocacy or information about housing services 

or harm-reduction strategies. That is also clear from the statute’s 

provision that individuals “injured” as a result of a violation of the 

statute may “recover damages.” Id. § 2421A(c). Plaintiffs identify no 

theory by which someone could be “injured” by abstract advocacy or the 

provision of harm-reduction information. See Milavetz, Gallop & 

Milavetz, P.A. v. United States, 559 U.S. 229, 245 (2010) (interpreting 

bankruptcy provision that prohibits certain means of causing harm to 

debtors as not covering “prudent advice” that “should cause no harm”).

The anomaly of plaintiffs’ position is further underscored by the 

affirmative defense in Section 2421A(e), which applies where “the 

promotion or facilitation of prostitution is legal in the jurisdiction where 

the promotion or facilitation was targeted.” 18 U.S.C. § 2421A(e). 

Plaintiffs’ reading posits that Congress sought to criminalize a 

spectrum of otherwise legal activities, including advocacy, in Section 

2421A(a) and (b), only to then exclude such otherwise legal activities 

from liability in Section 2421A(e). No canon of construction or exercise 

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of common sense permits reading the statute as pitting one provision

against the other.

b. Plaintiffs are on no firmer ground in attempting to ascribe a 

sweeping meaning to FOSTA’s amendment to 18 U.S.C. § 1591, the 

federal criminal prohibition on sex trafficking. Section 1591(a)(1) sets 

out the principal offense of trafficking a child for a commercial sex act 

or trafficking an adult for a commercial sex act by means of force, fraud, 

or coercion. In addition to that principal offense, Section 1591(a)(2) 

provides for criminal liability for those who “knowingly ... benefit[] ... 

from participation in a venture which has engaged in an act described 

in” the paragraph setting out the principal offense. 18 U.S.C. 

§ 1591(a)(2).

FOSTA defined “participation in a venture” (which was previously 

undefined) to mean “knowingly assisting, supporting, or facilitating a 

violation of” the principal offense. 18 U.S.C. § 1591(e)(4). Like the 

phrase “promote or facilitate” in Section 2421A, the phrase “knowingly 

assisting, supporting, or facilitating” in Section 1591 has a 

transactional meaning. It defines the scope of criminal liability for those 

who financially benefit from their own knowing participation in a 

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venture that makes money by engaging in sex trafficking. In urging 

that this phrase should encompass abstract advocacy or providing 

information about social services or harm-reduction, plaintiffs would 

interpret “participation in a venture” without regard to the proscribed 

sex-trafficking “venture” in which the defendant “participat[es]” and 

thereby “knowingly ... benefits.” Id. § 1591(a)(2). Plaintiffs’ broad 

interpretation is thus foreclosed by the statute’s transactional text. And 

it ignores the precept that where “Congress uses a term in multiple 

places within a single statute,” as with the term “facilitate” in Section 

2421A(a) and (b) and “facilitating” in Section 1591(e)(4), “the term bears 

a consistent meaning throughout.” Azar v. Allina Health Servs., 139 S. 

Ct. 1804, 1812 (2019).

Courts applying the amended version of Section 1591 have thus 

correctly recognized that the definition of “participation in a venture” 

added by FOSTA encompasses conduct that makes criminal defendants 

“aiders and abettors of sex trafficking.” Geiss v. Weinstein Co. Holdings 

LLC, 383 F. Supp. 3d 156, 169 (S.D.N.Y. 2019); see United States v. 

Taylor, 44 F.4th 779, 789 (8th Cir. 2022) (affirming conviction of a 

defendant who “provided lingerie,” “drove” the victims “to his house for 

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the purpose of performing ‘happy-ending’ massages,” “set the rates for 

the massages, and received a portion of the clients’ payments”).

c. FOSTA’s legislative history confirms that the statute was 

“narrowly crafted” to target “websites like Backpage that knowingly 

facilitate sex trafficking,” to hold them “accountable for their 

exploitative, criminal actions.” 164 Cong. Rec. S1860 (daily ed. Mar. 21, 

2018) (statement of Sen. Durbin during floor debates). The purpose of 

the statute was to enable increased enforcement against “[w]ebsites like 

Backpage, which are essentially storefronts for the facilitation of sex 

trafficking.” 164 Cong. Rec. H1302 (daily ed. Feb. 27, 2018) (statement 

of Rep. Walters). Accordingly, FOSTA targets “criminal actor websites” 

that “have gone beyond merely hosting advertisements” and have 

“purposely created platforms designed to facilitate prostitution and sex 

trafficking.” H. Rep. No. 115-572, pt. 1, at 3 (2018). That is the type of 

conduct that falls within the statutory prohibition on “facilitation.” The 

fact that “Backpage had knowingly concealed evidence of criminality by 

systematically editing” ads for sex with children demonstrated that 

“Backpage knew it facilitated prostitution and child sex trafficking.” Id.

at 5. Under existing law, Backpage had not faced state criminal 

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consequences for “actively engag[ing] in content creation and purposely 

concealing illegality in order to profit off of advertisements.” Id. FOSTA 

“aim[ed] to remedy” that situation. Id.

That remedy, as the bill’s sponsors explained, would permit state

prosecution of accomplices to the underlying crimes of prostitution and 

sex trafficking. Senator Blumenthal noted that FOSTA would make 

sure that certain websites would not have “a free pass to aid and abet

sex trafficking,” 164 Cong. Rec. S1851, and Senator Heitkamp similarly 

observed that the new prohibitions were directed at persons who “were 

complicit and, in fact, abetted these crimes,” id. at S1853. Emphasizing 

that “[a]nyone who aids, assists, facilitates or promotes such behavior 

must be held accountable,” 164 Cong. Rec. H1303, Representative 

Jackson Lee explained that FOSTA would permit enforcement against 

“bad actor[s] who participate[] in, facilitate[], contribute[] to, or profit[]

from this modern-day form of slavery,” id. at H1293. Representative 

Smith likewise stressed that permitting prosecution of the operators of 

interactive computer services who intend to promote or facilitate the 

prostitution would bring justice to “traffickers and their accomplices,” 

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id. at H1294, including “the middleman who facilitated and profited 

from their slavery,” id. at H1295.

The legislative history thus confirms that FOSTA does not 

criminalize plaintiffs’ advocacy, harm-reduction, or archival work.

Indeed, Senator Blumenthal addressed that point explicitly. He

explained that FOSTA “would not criminalize the so-called harm 

reduction communication—information designed to ensure that women 

and men wrapped up in commercial sex trade can avoid violence, 

prevent HIV, and access community and support services.” 164 Cong. 

Rec. S1852. Senator Schumer observed that he had “heard concerns 

that this legislation could be misused or abused to penalize websites 

that promote important health and safety information ... and provide 

access to community and peer support services.” Id. at S1860. He 

emphasized that these concerns were unfounded: “the use of this 

legislation to create any liability for this important work would be an 

impermissible misreading of the statutory language.” Id.

3. Plaintiffs’ arguments to the contrary are

unavailing.

Plaintiffs urge the Court to adopt a construction of FOSTA that 

would create constitutional concerns where none exist. Even if 

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plaintiffs’ interpretation were plausible, it is axiomatic that “[w]hen a 

federal court is dealing with a federal statute challenged as overbroad, 

it should, of course, construe the statute to avoid constitutional 

problems, if the statute is subject to such a limiting construction.” New 

York v. Ferber, 458 U.S. 747, 769 n.24 (1982).

a. Plaintiffs first invite the Court to conclude that its prior 

decision in the first appeal established that Section 2421A(a) reaches all 

actions by interactive computer services that could be said to make 

prostitution easier in any way or to encourage prostitution as a general 

concept and that “FOSTA is not susceptible” to a narrower aiding-andabetting reading. Br. 28-29.

The district court correctly rejected that contention. JA733. The 

issue before this Court in the first appeal was whether plaintiffs had 

standing to bring a pre-enforcement challenge to the statute. The Court 

stated that the relevant inquiry for this purpose was whether plaintiffs’ 

conduct would “arguably” be proscribed by FOSTA. Woodhull, 948 F.3d 

at 371. The panel did not purport to resolve the merits of plaintiffs’ 

arguments, and it did not suggest that FOSTA, as properly construed, 

would actually proscribe such conduct. Instead, the panel majority 

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noted that “[t]he terms ‘promote’ and ‘facilitate,’ when considered in 

isolation, ‘are susceptible of multiple and wide-ranging meanings.’” Id.

at 372 (quoting United States v. Williams, 553 U.S. 285, 294 (2008)). 

One such meaning might include generic advocacy and educational 

activities. Another such meaning, “limited by the background law of 

aiding and abetting,” would not. Id. And the majority held that it “need 

not read FOSTA” as broadly as plaintiffs urged. Id. at 373. 

The majority also concluded that plaintiff Andrews had standing 

because her conduct was “arguably” proscribed by FOSTA. “Even 

reading the term ‘facilitate’ narrowly” to encompass only aiding-andabetting accomplice liability, 948 F.3d at 372, plaintiff Andrews had 

alleged facts that could arguably fall within the narrow scope of such 

liability because she allegedly operated a website that “allows sex 

workers to share information about online payment processors,” id. at 

373; accord id. at 376 (Katsas, J., concurring in part and in the 

judgment). Here, too, the panel did not purport to determine whether 

Andrews’ conduct actually fell within the statute’s prohibition. 

In a similar vein, plaintiffs urge that the Court should apply the 

same standards appropriate to a standing analysis in evaluating the 

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merits, an argument based on a fundamental misunderstanding of the 

relevant standards in addressing a facial overbreadth claim. Plaintiffs 

declare that the relevant question is only what the words in a statute 

“could” mean and not what they actually mean in context. Br. 28; see

also Br. 29 (“[T]he district court’s narrowed construction of FOSTA 

makes sense only if the terms ‘promote’ and ‘facilitate’ can be 

interpreted as aiding and abetting in the criminal law sense and no 

other way.”). 

Plaintiffs get matters backwards. “The first step in overbreadth 

analysis is to construe the challenged statute,” Williams, 553 U.S. at

293, by applying all the normal tools of statutory construction to arrive 

at the statute’s meaning, see id. at 293-97. Courts thus decide what a 

statute “prohibits,” Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 

(2002)—not what it could prohibit.

In engaging in that inquiry, courts adhere to the “rule” that 

“statutes are not read as a collection of isolated phrases.” Abuelhawa, 

556 U.S. at 819-20. “[A] word in a statute,” read in isolation, “may or 

may not extend to the outer limits of its definitional possibilities.” Id. at 

820 (quotation marks omitted). To decide which meaning Congress 

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actually used, “the words of a statute must be read in their context,” 

Sturgeon v. Frost, 577 U.S. 424, 438 (2016) (quotation marks omitted), 

and with attention to Congress’s frequent practice, as here, of 

“transplant[ing]” a word with an established legal meaning into a 

statute and, thereby, “bring[ing] the old soil with it,” Stokeling v. United 

States, 139 S. Ct. 544, 551 (2019) (quoting Felix Frankfurter, Some 

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 

(1947)).

b. Plaintiffs’ attempt to defend their reading of the statute 

disregards the pertinent tools of construction. They assert first that 

“facilitate” and “promote,” as used in FOSTA, must invoke the broadest

possible definitions of those terms found in non-legal dictionaries 

because those definitions are assertedly the “ordinary meaning” of those 

terms. Br. 29-30. But, as explained above, “promote and facilitate” is a 

longstanding and well-established legal term of art in American 

criminal law. And “when Congress employs a term of art, it presumably 

knows and adopts the cluster of ideas” associated with that term of art, 

not the definition offered by “standard general-purpose dictionaries.” 

FAA v. Cooper, 566 U.S. 284, 291-92 (2012) (quotation marks omitted). 

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“[W]hen the law is the subject” of interpretation, “ordinary legal 

meaning is to be expected, which often differs from common meaning” 

and includes legal “terms of art.” Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 73 (2012).

Plaintiffs also err in suggesting that the scope of FOSTA’s 

criminal prohibitions cannot be read in light of “criminal law concepts”

like aiding and abetting because the statute provides for civil remedies 

for violations of those criminal prohibitions. Br. 30. The scope of conduct 

that is covered by a criminal provision is not enlarged by the inclusion 

of a civil remedy, and the decisions on which plaintiffs rely do not 

suggest otherwise. Those cases did not involve civil remedies for 

criminal prohibitions. And the courts in those cases did not avoid giving 

criminal law terms their established criminal law meanings in a 

criminal provision by, as plaintiffs urge here, merely noting the 

availability of a civil remedy. Rather, those cases involved conduct that 

was itself only “civilly unlawful.” Br. 30 (quotation marks omitted). The 

underlying conduct at issue here, by contrast—the prostitution of 

another and sex trafficking—is criminal. 

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Nor does the aiding-and-abetting construction of the statute 

“violate[] the canon against superfluity.” Br. 31. Plaintiffs note that 

Section 2421A(a) is disjunctive: it applies where a defendant engages in 

certain conduct with the intent to facilitate “or” promote the 

prostitution of another. Plaintiffs contend that the district court 

interpreted “facilitate” to mean “aiding and abetting” and that, on that 

understanding, “promote” would either be surplusage or mean 

“something more than ‘aiding and abetting.’” Id. But the district court 

did not interpret “facilitate,” standing alone, to mean “aid and abet”; it 

interpreted the entire phrase “promote or facilitate” as duplicating “the 

canonical formulation for the offense of aiding and abetting.” JA730 

(quoting 948 F.3d at 375 (Katsas, J.)).

In any event, “promote” is not surplusage any more than “abet” is, 

or any of the other many words typically used to invoke aiding-andabetting liability. See 18 U.S.C. § 2(a) (providing for general accomplice 

liability for anyone who “aids, abets, counsels, commands, induces or 

procures” the commission of a crime); Br. 39 n.9 (noting, in 

contradiction of the surplusage argument made just pages earlier in the 

same brief, that legal sources often use “many more verbs and gerunds” 

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to describe aiding-and-abetting liability). The phrase “aid and abet” is 

sometimes thought to be “unnecessarily verbose” to the extent that 

“[a]ny aid given with mens rea is abetment.” Aid and Abet, Black’s Law 

Dictionary (11th ed. 2019) (quoting Rollin M. Perkins & Ronald N. 

Boyce, Criminal Law 724-25 (3d ed. 1982)). But any such overlap would 

never cause a court to conclude that “abet” in the phrase “aid and abet” 

must therefore be read according to a more general dictionary definition 

to sweep beyond the criminal law concept of aiding-and-abetting

accomplice liability. The same is true with “promote or facilitate” as an 

established term of art.

c. The Immigration and Naturalization Act and the Anti-Riot Act 

cases that plaintiffs cite (Br. 29-33, 35-36) offer no support for their 

reading of FOSTA. The immigration cases addressed 8 U.S.C. 

§ 1324(a)(1)(A)(iv), which makes it a crime to “encourage[] or induce[] 

an alien” to come to or remain in the United States, knowing that the 

alien would thereby violate federal law. In holding that statute 

overbroad under the First Amendment, the Ninth and Tenth Circuits

have declined to read the terms “encourage[] or induce[]” as invoking 

traditional criminal-law concepts of facilitating or soliciting unlawful 

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activity. See United States v. Hansen, 25 F.4th 1103, 1108-09 (9th Cir. 

2022); United States v. Hernandez-Calvillo, 39 F.4th 1297, 1303-07 

(10th Cir. 2022). Those decisions are incorrect, and the government is 

seeking Supreme Court review in Hansen. See No. 22-179 (docketed 

Aug. 29, 2022). The Supreme Court previously granted certiorari to 

review a decision of the Ninth Circuit adopting the same incorrect 

construction of Section 1324(a)(1)(A)(iv), and the Court vacated that 

decision, on other grounds. United States v. Sineneng-Smith, 910 F.3d 

461, 481-83 (9th Cir. 2018), vacated on other grounds, 140 S. Ct. 1575 

(2020). Even taking the recent Ninth and Tenth Circuit decisions at 

face value, those courts construed the term “encourage[]” in Section 

1324(a)(1)(A)(iv) expansively for reasons that do not apply here, 

including because a neighboring provision in Section 1324 expressly 

prohibits some forms of “aid[ing] or abet[ting].” 8 U.S.C. 

1324(a)(1)(A)(v)(II); Hernandez-Calvillo, 39 F.4th at 1305 (identifying 

the existence of that separate “aid[] or abet[]” provision as “crucial[]” to 

that court’s broader interpretation of “encourage[]”); Hansen, 25 F.4th 

at 1108-09 (same).

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The cases addressing the Anti-Riot Act are similarly inapposite.

That statute criminalizes, among other things, interstate travel with 

intent to “incite a riot,” to “organize, promote, encourage, participate in, 

or carry on a riot,” or to “aid or abet any person in inciting or 

participating in or carrying on a riot.” 18 U.S.C. § 2101(a). The Fourth 

and Ninth Circuits, in the course of determining that the Anti-Riot Act 

was overbroad in part, have concluded that to “promote” or “encourage” 

a riot, within the meaning of that statute, includes “abstract advocacy” 

in favor of rioting. United States v. Miselis, 972 F.3d 518, 536-37 (4th 

Cir. 2020); United States v. Rundo, 990 F.3d 709, 717 (9th Cir. 2021)

(per curiam). In so holding, those courts emphasized that a definitional 

provision of the same Act, as they interpreted it, expressly provided 

that “promoting” and “encouraging” a riot in the underlying criminal 

offense “shall ... be deemed to mean the mere ... advocacy of any act or 

acts of violence or assertion of the rightness of, or the right to commit, 

any such act or acts.” Miselis, 972 F.3d at 539 (alterations in original) 

(emphases omitted) (quoting 18 U.S.C. § 2102(b)); Rundo, 990 F.3d at 

718. FOSTA contains no similar provision, and the Anti-Riot Act cases 

are readily distinguishable on that basis alone.

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The courts interpreting the Anti-Riot Act also recognized that 

“promote” can bear different meanings in different contexts, and they 

further recognized that the Supreme Court had construed “promote” in 

another criminal statute, 18 U.S.C. § 2252A, to have a narrow, 

“transactional connotation” of “the recommendation of a particular piece 

of purported child pornography with the intent of initiating a transfer.”

Miselis, 972 F.3d at 537 (quoting Williams, 553 U.S. at 294, 299-300). 

The courts concluded that such a limiting construction was not 

available for the Anti-Riot Act because, in their view, a riot is “wholly 

non-transactional” and “can’t materialize until a sufficient number of 

people are persuaded to show up.” Id. “In this statutory context,” the 

courts concluded, “‘promote’ refers to abstract advocacy.” Id.; see also

Rundo, 990 F.3d at 717. FOSTA, by contrast, addresses promoting and 

facilitating a quintessentially transactional crime—the exchange of sex 

for money in jurisdictions where that is prohibited. The district court 

here thus correctly concluded that, regardless of whether the out-ofcircuit Anti-Riot Act cases were correctly decided, the reasoning of those 

cases, on their own terms, would not apply here, where “[a] limiting 

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construction” encompassing “only such aiding and abetting of specified 

instances of criminal conduct” is “readily available.” JA732-33.

B. The First Amendment Does Not Provide 

Immunity For Those Who Intentionally Aid And 

Abet The Crimes At Issue Here Under 

Traditional Principles Of Criminal Law.

Plaintiffs recognize that the kind of speech that they filed this 

lawsuit to protect—e.g., answering prostitutes’ health questions or 

sharing information about abusive clients—“cannot be said to be ‘aiding 

or abetting’ the crime of prostitution.” Br. 33. And they offer no 

argument as to why the statute should be held to violate the First 

Amendment if it reaches only traditional aiding-and-abetting

accomplice liability. 

“[L]ong-established caselaw provides that speech ... that 

constitutes criminal aiding and abetting” under traditional principles of 

accomplice liability “does not enjoy the protection of the First 

Amendment.” Rice v. Paladin Enters., 128 F.3d 233, 242-43 (4th Cir. 

1997). Plaintiffs do not dispute that point. And rightly so. It “has never 

been deemed an abridgement of freedom of speech ... to make a course 

of conduct illegal merely because the conduct was in part initiated, 

evidenced, or carried out by means of language, either spoken, written, 

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or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 

(1949). “[T]he constitutional freedom for speech” does not “extend[] its 

immunity to speech or writing used as an integral part of conduct in 

violation of a valid criminal statute.” Id. at 498. “Many long established 

criminal proscriptions—such as laws against conspiracy, incitement, 

and solicitation—criminalize speech (commercial or not) that is 

intended to induce or commence illegal activities.” Williams, 553 U.S. at 

298. Such “‘prevention and punishment’” of “speech integral to criminal 

conduct” has “‘never been thought to raise any Constitutional 

problem.’” United States v. Stevens, 559 U.S. 460, 468-69 (2010) 

(citation omitted). There is thus “no doubt that a newspaper 

constitutionally could be forbidden to publish a want ad proposing a 

sale of narcotics or soliciting prostitutes,” or that it could be forbidden to 

publish sex-segregated job ads that “aid” employers in indicating illegal 

sex preferences in hiring. Pittsburgh Press Co. v. Pittsburgh Comm’n on 

Human Relations, 413 U.S. 376, 388-89 (1973).

1. Plaintiffs’ facial overbreadth claim thus fails on the merits.

“[I]nvalidating a law that in some of its applications is perfectly 

constitutional—particularly a law directed at conduct so antisocial that 

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it has been made criminal—has obvious harmful effects.” Williams, 553 

U.S. at 292. For that reason, the Supreme Court has “vigorously 

enforced the requirement that a statute’s overbreadth be substantial, 

not only in an absolute sense, but also relative to the statute’s plainly 

legitimate sweep.” Id.

FOSTA is not overbroad at all, much less substantially so. Indeed, 

plaintiffs offer no argument that the statute would be substantially 

overbroad if “promote or facilitate” were read consistent with traditional 

criminal law concepts. The district court thus correctly concluded that 

FOSTA’s “legitimate sweep, encompassing only conduct or unprotected 

speech integral to criminal activity, predominates any sweep into 

protected speech.” JA734. “[I]ndeed,” the court concluded, in the 

circumstances presented here, FOSTA does not “prohibit any such 

protected speech, much less a sufficient amount so as to render the Act 

overbroad.” JA734.

2. Plaintiffs’ argument that FOSTA is a content-based or 

viewpoint-based regulation of speech that is subject to strict scrutiny is 

similarly without merit. “FOSTA, on its face, is not a direct regulation 

of speech.” JA738. It prohibits owning, managing, or operating an 

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interactive computer service with a specific intent to aid or abet a 

specific crime under traditional principles of accomplice liability. 18 

U.S.C. § 2421A(a). That the government has permissibly rendered this 

“course of conduct” a criminal act, even if it may in some circumstances 

be “carried out by means of language,” does not render the statute a 

content-based regulation of speech subject to any First Amendment 

scrutiny. Giboney, 336 U.S. at 502. 

As the district court correctly noted, “[p]laintiffs’ contention to the 

contrary rests, again, primarily on their overreading of” FOSTA as 

regulating “the use of the internet to host the generalized ‘promotion’ of 

prostitution as a concept.” JA739. Because the statute does not regulate 

generalized advocacy, “FOSTA does not enact a government regulation 

of speech that takes a ‘pro-prostitution’ stance.” JA739. It does not 

“target[] speech based on its communicative content”—that is, based on 

“the topic discussed or the idea or message expressed.” City of Austin v. 

Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022)

(quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)). Moreover,

FOSTA’s prohibition on criminal aiding and abetting in the 

circumstances presented here is “clearly justified by purposes wholly 

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[un]related to any expressive content” of language used to effectuate 

that criminal course of conduct. JA739; see Ward v. Rock Against 

Racism, 491 U.S. 781, 791 (1989). Congress enacted FOSTA to ensure 

that criminal facilitators like Backpage could no longer attempt to 

invoke Section 230 to escape justice for their crimes. And “[t]he First 

Amendment permits” the government to outlaw that “particularly 

virulent form” of criminal conduct. Virginia v. Black, 538 U.S. 343, 363 

(2003).1

3. Plaintiffs’ contention that FOSTA violates the First 

Amendment by “selective[ly] remov[ing]” Section 230’s protections

(Br. 2) is similarly without basis. Just as there is no First Amendment 

right to aid and abet a crime, there is no First Amendment right to 

retain a statutory protection against being held accountable for aiding 

and abetting a crime.

Even before FOSTA was enacted, Section 230 allowed the federal 

government to enforce any “Federal criminal statute.” 47 U.S.C. 

§ 230(e)(1). The federal government could thus, before the enactment of 

1 Plaintiffs forfeited in district court any argument that FOSTA 

would be subject to or fail any form of First Amendment scrutiny below 

strict scrutiny. JA739 n.10.

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FOSTA and notwithstanding any other provision of Section 230, 

criminally prosecute anyone who sexually trafficked a child or an adult 

by force, fraud, or coercion in violation of 18 U.S.C. § 1591. And the 

federal government could also already prosecute anyone who used a 

facility in interstate commerce, such as the internet, “with intent to ... 

promote” or “facilitate” the “unlawful activity” of “prostitution” in 

violation of the Travel Act, 18 U.S.C. § 1952(a)(3), (b). Moreover, Section 

230 allowed for such federal criminal prosecutions while, at the same 

time, protecting under Section 230(c)(2) any service provider against 

liability predicated on actions voluntarily taken in good faith to restrict 

access to material that the provider considers to be “objectionable.” 47 

U.S.C. § 230(c)(2). Plaintiffs recognize this pre-existing state of the law

before FOSTA and correctly raise no argument that it violated anyone’s 

First Amendment rights.

FOSTA did not alter Section 230 in any way relevant to the First 

Amendment. FOSTA only amended Section 230 so that it would no 

longer stand in the way of state criminal enforcement of state laws for 

conduct that would also violate the same federal criminal laws 

discussed above (sex trafficking in violation of Section 1591 and 

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promoting or facilitating prostitution under the Travel Act) that the 

federal government could already enforce, or thwart the ability of 

victims to recover civilly for sex trafficking. See 47 U.S.C. § 230(e)(5). In 

this way, Section 2421A serves as a convenient way for Congress to 

cross-reference in Section 230 a subset of conduct that was already 

subject to federal criminal prosecution under the Travel Act in order to 

ensure that such conduct (and only such conduct, not all other conduct 

covered by the Travel Act) could be the basis for state criminal 

enforcement alongside preexisting federal criminal enforcement.

That is far from the “sweeping” change that plaintiffs suggest,

Br. 54, and it poses no First Amendment concerns. Congress was not 

compelled by the First Amendment to enact Section 230 in the first 

place. And, when it enacted Section 230, Congress was not forbidden by 

the First Amendment from carving out certain things, such as federal 

prosecution of certain crimes, from Section 230’s protections, while also 

maintaining protections for service providers who, in good faith,

establish and police their own standards of decency. That much is 

common ground between the parties. See, e.g., JA12 (challenging 

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FOSTA, not Section 230 as originally enacted in the Communications 

Decency Act).

Congress is also not forbidden from amending Section 230 to

further clarify or expand the set of prosecutors and victims who may

bring a narrow set of specified actions against criminal actors such as 

Backpage. As the district court correctly noted, “plaintiffs cannot point 

to a First Amendment principle” that would prevent Congress from 

doing so. JA737. Allowing states to apply traditional principles to 

punish criminal accomplices and allowing victims to recover damages 

from sex traffickers and their accomplices does not create a “heckler’s 

veto,” Br. 55, or “threaten lifestyle choices,” Br. 40. And allowing such 

legal actions, while keeping in place the protections for those service 

providers who take actions in good faith to restrict material they deem 

“objectionable,” 47 U.S.C. § 230(c)(2), does not incentivize 

“unconstitutional collateral censorship,” Br. 55. As this Court has 

already explained, the good-faith protections of Section 230(c)(2) merely 

allow a service provider to permissibly “establish” its own “standards of 

decency.” Bennett v. Google, LLC, 882 F.3d 1163, 1168 (D.C. Cir. 2018) 

(quotation marks omitted). And no First Amendment principle compels 

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a service provider to keep material on its service that aids and abets a 

crime. Indeed, plaintiffs do not argue that FOSTA’s modification of 

Section 230, construed in the manner that the government and district 

court interpret it, would violate the First Amendment.

Plaintiffs’ claim instead turns entirely on plaintiffs’ other 

arguments that FOSTA is an impermissibly overbroad and vague 

regulation of protected speech. See Br. 2 (arguing that FOSTA’s “broad 

and poorly defined restrictions on Internet speech and selective removal 

of immunity” violate the First Amendment); Br. 52 (arguing that 

FOSTA’s amendments to Section 230 “combined with its other 

provisions” violate the First Amendment (initial capitalizations 

omitted)); Br. 54 (arguing that a constitutional infirmity arises from 

“the intersection of FOSTA’s amendments to Section 230 and its 

sweeping new liability provisions”). As plaintiffs concede, this claim will 

thus “collapse” if the Court affirms the district court’s judgment as to 

plaintiffs’ other First and Fifth Amendment claims. Br. 54 n.13.

II. FOSTA Is Consistent With The Fifth Amendment In 

Providing Adequate Notice Of What Is Unlawful.

“Vagueness doctrine is an outgrowth not of the First Amendment, 

but of the Due Process Clause of the Fifth Amendment.” Williams, 553 

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U.S. at 304. It requires that a statute “provide a person of ordinary 

intelligence fair notice of what is prohibited.” Id. Determining whether 

a statute provides fair notice depends on “the application of traditional 

rules for statutory interpretation.” United States v. Bronstein, 849 F.3d 

1101, 1106 (D.C. Cir. 2017). In conducting that analysis, it does not 

present a constitutional problem that “[e]ven trained lawyers may find 

it necessary to consult legal dictionaries, treatises, and judicial opinions 

before they may say with any certainty what some statutes may compel 

or forbid.” Id. at 1107 (quotation marks omitted). A statute is thus not 

unconstitutionally vague where, as here, terms that may be potentially 

ambiguous in isolation come with “narrowing context, or settled legal 

meanings.” Williams, 553 U.S. at 306.

1. FOSTA provides adequate notice of what it prohibits. All of the 

conduct prohibited by FOSTA was already unlawful before FOSTA, and 

plaintiffs correctly do not contend that the Travel Act or the prohibition 

on sex trafficking in Section 1591, before FOSTA, were impermissibly 

vague. Neither is FOSTA. As explained above, applying the usual tools 

of statutory construction demonstrates that FOSTA prohibits operating 

an interactive computer service with the specific intent of aiding and 

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abetting the crime of prostitution of another, or knowingly benefiting 

from participating in a venture by knowingly aiding and abetting sex 

trafficking. That the statute does not set out exhaustively all the 

specific conduct that would constitute aiding and abetting crimes is not 

a constitutional defect. “[P]erfect clarity and precise guidance have 

never been required even of regulations that restrict expressive 

activity.” Ward, 491 U.S. at 794. The “settled legal meaning[],”

Williams, 553 U.S. at 306, of aiding and abetting liability in criminal 

law, combined with the criminal law of the relevant jurisdictions that 

makes the prostitution of another person unlawful, and the other 

elements of the sex trafficking offense in Section 1591, provide more 

than enough guidance to allow ordinary people to avoid becoming, like 

Backpage, criminally complicit.

Indeed, plaintiffs do not even contend that the statute, interpreted 

narrowly as the district court did, would be unconstitutionally vague. 

Plaintiffs’ vagueness challenge instead rests on their incorrectly broad

reading of the statutory phrases “promote or facilitate” and “assisting, 

supporting, or facilitating.” Br. 37-38. By focusing on the alleged 

breadth of FOSTA rather than its clarity, plaintiffs attempt to 

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improperly “merge[]” their “vagueness challenge with their First 

Amendment claims.” Holder v. Humanitarian Law Project, 561 U.S. 1, 

19 (2010). Plaintiffs’ vagueness challenge fails because FOSTA’s 

invocation of terms with settled legal meanings provides adequate 

notice.

Plaintiffs further contend that FOSTA is impermissibly vague in 

providing for an aggravated offense in Section 2421A(b)(2) where a 

service provider’s intentional aiding and abetting of the prostitution of 

another person also “contributes to sex trafficking.” Br. 38 (quoting 18 

U.S.C. § 2421A(b)(2)). But the statute does not end where plaintiffs stop 

quoting. It provides for enhanced criminal punishment where aiding 

and abetting the prostitution of another person also “contribute[s] to sex 

trafficking, in violation of [Section] 1591(a).” 18 U.S.C. § 2421A(b)(2)

(emphasis added). The aggravated offense thus applies where the 

commission of the base offense also helped cause a violation of another 

well-defined criminal prohibition on aiding and abetting sex trafficking. 

Plaintiffs cite no authority for the proposition that such a provision fails 

to provide adequate notice of what is prohibited.

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2. The statute’s mens rea requirements further “dispel[]” any

remaining vagueness concerns. Grayned v. City of Rockford, 408 U.S.

104, 113 (1972). The base and aggravated offenses in Section 2421A 

both require that the defendant specifically “inten[d]” to aid and abet 

the prostitution of another person. 18 U.S.C. § 2421A(a), (b). And “the 

‘every day’ task of assessing intent” is not “inherently vague.” National 

Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 27 (D.C. Cir. 2009) (quoting 

Williams, 553 U.S. at 306). The definition that FOSTA added for 

“participation in a [sex-trafficking] venture,” as used in Section 1591, 

requires that the criminal defendant “knowingly” assist, support, or 

facilitate a violation of the prohibitions on sex trafficking in Section 

1591(a). 18 U.S.C. § 1591(e)(4). And “the Supreme Court has found a 

‘knowing’ requirement sufficient to ameliorate vagueness concerns.” 

National Ass’n of Mfrs., 582 F.3d at 28.

Plaintiffs note (Br. 42) that there is disagreement among some 

courts about the standards that apply to certain types of civil suits 

brought under Section 1595 against interactive computer services. That 

disagreement centers on whether such suits must satisfy the 

“knowingly assisting, supporting, or facilitating” sex trafficking

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standard that FOSTA added to Section 1591 (but not to Section 1595) in 

order to fall within FOSTA’s amendments to Section 230. As amended

by FOSTA, Section 230 allows Section 1595 civil suits “if the conduct 

underlying the claim constitutes a violation of section 1591.” 47 U.S.C. 

§ 230(e)(5)(A). 

Regardless of which side of that dispute is ultimately determined 

to be correct, plaintiffs’ vagueness challenge fails. Deciding which side 

of that dispute is correct does not turn on an impermissibly vague 

“subjective judgment,” Williams, 553 U.S. at 306, but on the proper 

application of the traditional tools of statutory construction. Plaintiffs 

identify no authority for their implicit proposition that a statute is 

unconstitutionally vague simply because some lower courts so far have 

disagreed as to its meaning. See Johnson v. United States, 576 U.S. 591, 

600-01 (2015) (finding a statute impermissibly vague, not because of 

numerous “division[s]” among courts about whether the statute applied 

in certain circumstances, but because “pervasive disagreement about 

the nature of the inquiry” made application of the statute no more than 

“guesswork”); cf. Reno v. Koray, 515 U.S. 50, 64 (1995) (holding that a 

“statute is not ambiguous for purposes of lenity merely because there is 

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a division of judicial authority over its proper construction” and that 

“[t]he rule of lenity applies only if, after seizing everything from which 

aid can be derived, we can make no more than a guess as to what 

Congress intended” (quotation marks and citations omitted)).

Plaintiffs are also mistaken in arguing that Section 2421A(b)(2)’s 

aggravated offense imposes liability based only on “a generalized 

notion” that some speech “may be construed to ‘promote or facilitate’ 

prostitution or to ‘contribute to sex trafficking.’” Br. 41 (quoting 18 

U.S.C. § 2421A(b)(2)). To the contrary, Section 2421A(b)(2) requires 

that the defendant (i) operate an interactive computer service with the 

specific “inten[t]” to thereby aid and abet the prostitution of another in 

violation of Section 2421A(a), and (ii) do so in “reckless disregard” that 

such intentionally criminal conduct also “contributed to sex trafficking, 

in violation of [Section] 1591(a).” 18 U.S.C. § 2421A(b)(2). The first 

requirement supplies “the crucial element separating legal innocence 

from wrongful conduct.” Elonis v. United States, 575 U.S. 723, 737 

(2015) (quotation marks omitted). 

The second requirement adds an additional mens rea element that 

further separates criminal conduct from aggravated criminal conduct. 

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Liability for that aggravated offense does not turn on any “generalized 

notion” of how speech “may be construed.” Br. 41. It turns on the 

defendant himself knowing the facts necessary to realize, and actually 

realizing, that—like Backpage deleting “Lolita” when posting ads for 

sex in exchange for money—the defendant’s conduct in aiding and 

abetting the prostitution of another person has also created a 

substantial and unjustifiable risk of criminal sex trafficking. See 

Farmer v. Brennan, 511 U.S. 825, 836-37 (1994) (noting that criminal 

recklessness requires that “a person disregard[] a risk of harm of which 

he is aware”); Model Penal Code § 2.02(c). Plaintiffs identify no 

authority for the extraordinary proposition that, where a criminal 

defendant knows the facts of his intentionally aiding and abetting 

prostitution and realizes that those criminal actions also created a 

substantial and unjustifiable risk of enabling sex trafficking as 

prohibited by another well-defined statute, he cannot be held criminally 

liable without some greater degree of culpability. Cf. Garrison v. 

Louisiana, 379 U.S. 64, 74 (1964) (allowing criminal punishment for 

defamation where public official knew a statement was false or acted 

“in reckless disregard” of its falsity).

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III. Plaintiffs’ Pre-Enforcement Ex Post Facto Challenge 

Also Fails.

Plaintiffs note that the amendments to Section 230 brought about 

by FOSTA Section 4(a) (codified at 47 U.S.C. § 230(e)(5)) “shall apply 

regardless of whether the conduct alleged occurred, or is alleged to have 

occurred, before, on, or after” FOSTA was enacted. FOSTA § 4(b), 132 

Stat. at 1254-55. Plaintiffs contend that FOSTA thereby violates the Ex 

Post Facto Clause, which provides that no “ex post facto Law shall be 

passed.” U.S. Const, art. I, § 9, cl. 3. The district court correctly held 

that, regardless of whether applying FOSTA’s changes to Section 230 to 

conduct occurring before the date of FOSTA’s enactment would violate 

the Ex Post Facto Clause, the court could not “provide the plaintiffs 

with any relief” because plaintiffs had not brought suit against anyone 

who “could even hypothetically undertake enforcement of FOSTA in a 

manner that would violate the Ex Post Facto Clause.” JA743.

FOSTA Section 4(a) amended Section 230 to permit state 

prosecutors to bring certain criminal charges under state law (where 

the underlying conduct would also constitute a violation of specified 

federal criminal laws) and to permit the victims of sex trafficking to 

bring civil suits against perpetrators for violations of the federal 

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criminal prohibition on sex trafficking. 47 U.S.C. § 230(e)(5). But 

plaintiffs did not name as defendants the people who could bring such 

actions: state prosecutors or victims of sex trafficking. They named as 

defendants only the United States and the Attorney General. JA19.

Accordingly, even if plaintiffs had violated the prohibition on sex 

trafficking or aiding and abetting the prostitution of another before 

FOSTA had passed, plaintiffs’ asserted injury would not be remediable 

in this suit. Judicial remedies “do not simply operate on legal rules in 

the abstract”; they “operate with respect to specific parties.” California 

v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation marks omitted). That 

is true even for declaratory judgments, which, just like injunctions,

cannot be issued in the absence of a remediable and concrete case or 

controversy between the relevant parties. Id.

In any event, plaintiffs’ facial Ex Post Facto challenge fails on the 

merits. Plaintiffs would have to show that “no set of circumstances 

exists under which the Act would be valid.” United States v. Salerno, 

481 U.S. 739, 745 (1987). Yet FOSTA’s modification of Section 230 has 

numerous applications that would not, in plaintiffs’ view, violate the Ex 

Post Facto clause, such as state prosecutions for conduct occurring after 

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the enactment of FOSTA. No authority supports plaintiffs’ bare 

assertion (Br. 56-57) that facial Ex Post Facto Clause challenges receive 

the relaxed “overbreadth” treatment available for facial claims brought 

under the First Amendment.

Nor do plaintiffs say that, if FOSTA is construed in the narrow 

way in which the district court interpreted it, they will be imminently 

subject to criminal prosecution for sex trafficking or aiding and abetting 

the prostitution of another based on conduct occurring before FOSTA 

was enacted. Plaintiffs identify no such attempted prosecution since 

FOSTA was enacted in April 2018, and such hypotheticals become 

increasingly unlikely over time. If a state prosecutor were to bring 

criminal charges against plaintiffs or anyone else for violating specific 

state laws against sex trafficking or aiding and abetting the 

prostitution of another for conduct pre-dating FOSTA, the defendant in 

such a criminal proceeding would have every incentive and opportunity 

to fully litigate an Ex Post Facto Clause argument in that as-applied 

setting. E.g. Stogner v. California, 539 U.S. 607 (2003).

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CONCLUSION

For the foregoing reasons, the judgment of the district court 

should be affirmed.

Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant 

Attorney General

MARK B. STERN

/s/ Joseph F. Busa

JOSEPH F. BUSA

Attorneys, Appellate Staff

Civil Division

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530

(202) 305-1754

Joseph.F.Busa@usdoj.gov

NOVEMBER 2, 2022

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because it contains 12,686 words. This 

brief also complies with the typeface and type-style requirements of 

Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was 

prepared using Microsoft Word 2016 in Century Schoolbook 14-point 

font, a proportionally spaced typeface.

/s/ Joseph F. Busa

JOSEPH F.BUSA

Counsel for Defendants-Appellees

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CERTIFICATE OF SERVICE

I hereby certify that on November 2, 2022, I electronically filed the 

foregoing brief with the Clerk of the Court for the United States Court 

of Appeals for the District of Columbia Circuit by using the appellate 

CM/ECF system. Service will be accomplished by the appellate CM/ECF 

system.

/s/ Joseph F. Busa

JOSEPH F.BUSA

Counsel for Defendants-Appellees

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ADDENDUM

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TABLE OF CONTENTS

18 U.S.C. § 1591 ..................................................................................... A1

18 U.S.C. § 1595 ..................................................................................... A3

18 U.S.C. § 1952 ..................................................................................... A4

18 U.S.C. § 2421A................................................................................... A5

47 U.S.C. § 230 ....................................................................................... A6

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A1

18 U.S.C. § 1591. Sex trafficking of children or by force, fraud, or 

coercion

(a) Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the 

special maritime and territorial jurisdiction of the United States, 

recruits, entices, harbors, transports, provides, obtains, advertises, 

maintains, patronizes, or solicits by any means a person; or

(2) benefits, financially or by receiving anything of value, from 

participation in a venture which has engaged in an act described in 

violation of paragraph (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 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).

(b) The punishment for an offense under subsection (a) is—

(1) if the offense was effected by means of force, threats of force, 

fraud, or coercion described in subsection (e)(2), or by any 

combination of such means, or if the person recruited, enticed, 

harbored, transported, provided, obtained, advertised, patronized, or 

solicited had not attained the age of 14 years at the time of such 

offense, by a fine under this title and imprisonment for any term of 

years not less than 15 or for life; or

(2) if the offense was not so effected, and the person recruited, 

enticed, harbored, transported, provided, obtained, advertised, 

patronized, or solicited had attained the age of 14 years but had not 

attained the age of 18 years at the time of such offense, by a fine

under this title and imprisonment for not less than 10 years or for 

life.

(c) In a prosecution under subsection (a)(1) in which the defendant had 

a reasonable opportunity to observe the person so recruited, enticed, 

harbored, transported, provided, obtained, maintained, patronized, or 

solicited, the Government need not prove that the defendant knew, or 

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recklessly disregarded the fact, that the person had not attained the age 

of 18 years.

(d) Whoever obstructs, attempts to obstruct, or in any way interferes

with or prevents the enforcement of this section, shall be fined under 

this title, imprisoned for a term not to exceed 25 years, or both.

(e) In this section:

(1) The term “abuse or threatened abuse of law or legal process” 

means the use or threatened use of a law or legal process, whether 

administrative, civil, or criminal, in any manner or for any purpose 

for which the law was not designed, in order to exert pressure on 

another person to cause that person to take some action or refrain 

from taking some action.

(2) The term “coercion” means—

(A) threats of serious harm to or physical restraint against any 

person;

(B) any scheme, plan, or pattern intended to cause a person to 

believe that failure to perform an act would result in serious harm 

to or physical restraint against any person; or

(C) the abuse or threatened abuse of law or the legal process.

(3) The term “commercial sex act” means any sex act, on account of 

which anything of value is given to or received by any person.

(4) [Added by FOSTA] The term “participation in a venture” 

means knowingly assisting, supporting, or facilitating a violation of 

subsection (a)(1).

(5) The term “serious harm” means any harm, whether physical or 

nonphysical, including psychological, financial, or reputational 

harm, that is sufficiently serious, under all the surrounding 

circumstances, to compel a reasonable person of the same 

background and in the same circumstances to perform or to continue 

performing commercial sexual activity in order to avoid incurring 

that harm.

(6) The term “venture” means any group of two or more individuals 

associated in fact, whether or not a legal entity.

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18 U.S.C. § 1595. Civil remedy

(a) An individual who is a victim of a violation of this chapter may 

bring a civil action against the perpetrator (or whoever knowingly 

benefits, financially or by receiving anything of value from participation 

in a venture which that person knew or should have known has 

engaged in an act in violation of this chapter) in an appropriate district 

court of the United States and may recover damages and reasonable 

attorneys fees.

(b)

(1) Any civil action filed under subsection (a) shall be stayed during 

the pendency of any criminal action arising out of the same 

occurrence in which the claimant is the victim.

(2) In this subsection, a “criminal action” includes investigation and 

prosecution and is pending until final adjudication in the trial court.

(c) No action may be maintained under subsection (a) unless it is 

commenced not later than the later of—

(1) 10 years after the cause of action arose; or

(2) 10 years after the victim reaches 18 years of age, if the victim 

was a minor at the time of the alleged offense.

(d) [Added by FOSTA] In any case in which the attorney general of a 

State has reason to believe that an interest of the residents of that 

State has been or is threatened or adversely affected by any person who 

violates section 1591, the attorney general of the State, as parens 

patriae, may bring a civil action against such person on behalf of the 

residents of the State in an appropriate district court of the United 

States to obtain appropriate relief.

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18 U.S.C. § 1952 [Travel Act]. Interstate and foreign travel or 

transportation in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign commerce or uses the mail 

or any facility in interstate or foreign commerce, with intent to—

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the 

promotion, management, establishment, or carrying on, of any 

unlawful activity,

and thereafter performs or attempts to perform—

(A) an act described in paragraph (1) or (3) shall be fined under 

this title, imprisoned not more than 5 years, or both; or

(B) an act described in paragraph (2) shall be fined under this 

title, imprisoned for not more than 20 years, or both, and if death 

results shall be imprisoned for any term of years or for life.

(b) As used in this section (i) “unlawful activity” means (1) any business 

enterprise involving gambling, liquor on which the Federal excise tax 

has not been paid, narcotics or controlled substances (as defined in 

section 102(6) of the Controlled Substances Act), or prostitution offenses 

in violation of the laws of the State in which they are committed or of 

the United States, (2) extortion, bribery, or arson in violation of the 

laws of the State in which committed or of the United States, or (3) any 

act which is indictable under subchapter II of chapter 53 of title 31, 

United States Code, or under section 1956 or 1957 of this title and (ii) 

the term “State” includes a State of the United States, the District of 

Columbia, and any commonwealth, territory, or possession of the 

United States.

...

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18 U.S.C. § 2421A. [Added by FOSTA] Promotion or facilitation 

of prostitution and reckless disregard of sex trafficking

(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 defined in section 230(f) the Communications Act of 

1934 (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 defined in section 230(f) the Communications 

Act of 1934 (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—

(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 [18 U.S.C.] 1591(a),

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

both.

(c) Civil Recovery.—Any person injured by reason of a violation of 

section 2421A(b) may recover damages and reasonable attorneys’ fees in 

an action before any appropriate United States district court.

(d) Mandatory Restitution.—Notwithstanding sections 3663 or 

3663A [of title 18 of the U.S. Code] and in addition to any other civil or 

criminal penalties authorized by law, the court shall order restitution 

for any violation of subsection (b)(2). The scope and nature of such 

restitution shall be consistent with section 2327(b).

(e) Affirmative Defense.—It shall be an affirmative defense to a 

charge of violating subsection (a), or subsection (b)(1) where the 

defendant proves, by a preponderance of the evidence, that the 

promotion or facilitation of prostitution is legal in the jurisdiction where 

the promotion or facilitation was targeted.

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47 U.S.C. § 230. Protection for private blocking and screening of 

offensive material

(a) Findings. The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive 

computer services available to individual Americans represent an 

extraordinary advance in the availability of educational and 

informational resources to our citizens.

(2) These services offer users a great degree of control over the 

information that they receive, as well as the potential for even 

greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a 

forum for a true diversity of political discourse, unique opportunities 

for cultural development, and myriad avenues for intellectual 

activity.

(4) The Internet and other interactive computer services have 

flourished, to the benefit of all Americans, with a minimum of 

government regulation.

(5) Increasingly Americans are relying on interactive media for a 

variety of political, educational, cultural, and entertainment 

services.

(b) Policy. It is the policy of the United States—

(1) to promote the continued development of the Internet and other 

interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that 

presently exists for the Internet and other interactive computer 

services, unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize 

user control over what information is received by individuals, 

families, and schools who use the Internet and other interactive 

computer services;

(4) to remove disincentives for the development and utilization of 

blocking and filtering technologies that empower parents to restrict 

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their children’s access to objectionable or inappropriate online 

material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter 

and punish trafficking in obscenity, stalking, and harassment by 

means of computer.

(c) Protection for “Good Samaritan” blocking and screening of 

offensive material

(1) Treatment of publisher or speaker. No provider or user of an 

interactive computer service shall be treated as the publisher or 

speaker of any information provided by another information content 

provider.

(2) Civil liability. No provider or user of an interactive computer 

service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to 

or availability of material that the provider or user considers to be 

obscene, lewd, lascivious, filthy, excessively violent, harassing, or 

otherwise objectionable, whether or not such material is 

constitutionally protected; or

(B) any action taken to enable or make available to information 

content providers or others the technical means to restrict access 

to material described in paragraph (1).

...

(e) Effect on other laws.

(1) No effect on criminal law. Nothing in this section shall be 

construed to impair the enforcement of section 223 or 231 of this 

title, chapter 71 (relating to obscenity) or 110 (relating to sexual 

exploitation of children) of title 18, or any other Federal criminal 

statute.

...

(3) State law. Nothing in this section shall be construed to prevent 

any State from enforcing any State law that is consistent with this 

section. No cause of action may be brought and no liability may be 

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imposed under any State or local law that is inconsistent with this 

section.

...

(5) [added by FOSTA] No effect on sex trafficking law. 

Nothing in this section (other than subsection (c)(2)(A)) shall be 

construed to impair or limit—

(A) any claim in a civil action brought under section 1595 of title 

18, if the conduct underlying the claim constitutes a violation of 

section 1591 of that title;

(B) any charge in a criminal prosecution brought under State 

law if the conduct underlying the charge would constitute a 

violation of section 1591 of title 18; or

(C) any charge in a criminal prosecution brought under State 

law if the conduct underlying the charge would constitute a 

violation of section 2421A of title 18, and promotion or 

facilitation of prostitution is illegal in the jurisdiction where the 

defendant’s promotion or facilitation of prostitution was targeted.

(f) Definitions. As used in this section:

...

(2) [cross-referenced by FOSTA] Interactive computer 

service. The term “interactive computer service” means any 

information service, system, or access software provider that 

provides or enables computer access by multiple users to a computer 

server, including specifically a service or system that provides access 

to the Internet and such systems operated or services offered by 

libraries or educational institutions.

(3) Information content provider. The term “information content 

provider” means any person or entity that is responsible, in whole or 

in part, for the creation or development of information provided 

through the Internet or any other interactive computer service.

...

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EXHIBIT B

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Deposition Services, Inc.

P.O. Box 1040

Burtonsville, MD 20886

Tel: (301) 881-3344 Fax: (301) 881-3338

info@DepositionServices.com www.DepositionServices.com

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

- - - - - - - - - - - - - - - X

 :

WOODHULL FREEDOM FOUNDATION, : 

et al., :

:

Appellants, :

:

v. : No. 22-5105

:

UNITED STATES OF AMERICA AND : 

MERRICK B. GARLAND, in his : 

official capacity as Attorney : 

General of the United States, :

:

Appellees. :

 :

- - - - - - - - - - - - - - - X

Wednesday, January 11, 2023

Washington, D.C.

The above-entitled matter came on for oral

argument pursuant to notice.

BEFORE:

CIRCUIT JUDGES MILLETT AND WALKER, AND SENIOR

CIRCUIT JUDGE EDWARDS

APPEARANCES:

ON BEHALF OF THE APPELLANTS:

ROBERT CORN-REVERE, ESQ.

ON BEHALF OF THE APPELLEES:

JOSEPH F. BUSA, ESQ.

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C O N T E N T S

ORAL ARGUMENT OF: PAGE

ROBERT CORN-REVERE, Esq.

On Behalf of the Appellants 3; 70

 

JOSEPH F. BUSA, Esq.

On Behalf of the Appellees 24

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P R O C E E D I N G S

THE CLERK: Case No. 22-5105, Woodhull Freedom 

Foundation et al., appellants, versus United States of 

America and Merrick B. Garland, in his official capacity as 

Attorney General of the United States. Mr. Corn-Revere for 

the appellants. Mr. Busa for the appellees. 

ORAL ARGUMENT OF ROBERT CORN-REVERE, ESQ.

ON BEHALF OF THE APPELLANTS

MR. CORN-REVERE: Good morning, Your Honors, and 

may it please the Court. When it comes to regulating 

speech, courts don't uphold laws simply because the 

Government promises to apply them --

JUDGE EDWARDS: Can you pull that microphone a 

little --

MR. CORN-REVERE: Yes. Would you like me to --

JUDGE EDWARDS: That's better. 

MR. CORN-REVERE: Okay. 

JUDGE EDWARDS: That's better. Thank you. 

MR. CORN-REVERE: When it comes to regulating 

speech, courts don't uphold laws simply because the 

Government has promised to apply them responsibly. As the 

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

First Amendment protects against the Government; it does not 

leave us at the mercy of noblesse oblige.

This principle was implemented in a couple of 

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ways: first, laws regulating speech must be drafted with 

narrow specificity; and, second, courts exercise extreme 

caution when examining laws regulating what the Supreme 

Court has called the vast democratic forums of the Internet. 

Various laws intended to regulate online speech have been 

invalidated facially, applying these principles. These 

include the Communications Decency Act, the Child Online 

Protection Act, and the Child Pornography Prevention Act.

It also represents the latest attempt to regulate 

Internet speech since these seminal cases, and yet,

remarkably, with one minor exception I hope to get to later, 

neither the Government nor the district court even cites 

these cases. Instead, the Government treats FOSTA as a 

garden-variety aiding and abetting law without regard to 

whether or not it regulates speech. Now, there are a couple 

of problems with this: first, FOSTA is not a garden-variety 

aiding and abetting law and the Government tries to defend 

the statute principally by rewriting it; and, secondly, even 

if FOSTA could be so characterized, it is nonetheless 

constitutionally deficient because its terms are overly 

broad, undefined, and chill a vast amount of protected 

speech, and that's the other remarkable thing about this 

case.

FOSTA chilling effects were protected, they were 

immediate, and they were widespread across the Internet, and 

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this impact has never been disputed by the Government. In 

fact, the district court agreed that appellants' claims 

encapsulate the incentives created by this section of 

FOSTA --

JUDGE MILLETT: Well, how do we know -- your 

briefs and amicus briefs talk about a lot of speech that is 

stopped in reaction to the statute, but how do we know how 

much of that speech is in fact covered by the statute as 

opposed to, you know, risk averseness on the part of a lot 

of these businesses, because if it is -- if the statute is 

read as an, essentially, aiding and abetting provision, then 

I assume you would say your clients' conduct doesn't fall --

the PayPal account, the massage business ads do not fall 

under this statute.

Does -- has Craigslist said that all of its speech 

that it shut down did fall within the statute, because 

that's part of the question here, is whether, for 

overbreadth at least, whether there's substantial 

overbreadth, and I'm not sure we can equate substantial 

overbreadth with substantial reactions to a statute without 

more, and that's where I'm really struggling to understand 

what is -- what is covered. If it's read as an aiding and 

abetting provision, what is covered that shouldn't be 

covered? 

MR. CORN-REVERE: Right, and that's the problem 

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with using broad and expansive language that relates to 

speech but then doesn't define what speech is covered, and 

there are three reasons why trying to interpret FOSTA as an 

aiding and abetting law --

JUDGE MILLETT: Can we just get more to the 

practical question of -- is it your view that you had two 

individuals here, the one who does the date and the one with 

a massage business, is it your position that their speech is 

perfectly lawful under the First Amendment yet is covered by 

this statute or they're afraid is covered by the statute? 

MR. CORN-REVERE: I think that because of the 

indeterminate language, they can't be sure that their speech 

isn't covered.

JUDGE MILLETT: And if it's read as an aiding and 

abetting statute, criminal aiding and abetting, would their 

conduct be covered? 

MR. CORN-REVERE: I believe they would be 

acquitted, but that's part of the problem with FOSTA.

JUDGE MILLETT: No, no, no, not acquitted. Would 

they --

MR. CORN-REVERE: Yes, but you --

JUDGE MILLETT: -- as a matter of law -- not 

acquitted. Would it be, you know, you dismiss the 

indictment on its face right away, Judge, because this is 

not aiding and abetting? 

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MR. CORN-REVERE: I do not believe their conduct 

amounts to aiding and abetting, but because of the way FOSTA 

is structured, both by using expansive language for 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 

regulation of speech by censoring that speech, and that's 

what the platforms have done in response to the modification 

of section 230 --

JUDGE MILLETT: I know, but to demonstrate --

MR. CORN-REVERE: -- combined.

JUDGE MILLETT: -- substantial overbreadth, so 

just --

MR. CORN-REVERE: That's right.

JUDGE MILLETT: -- we'll have discussions about 

whether it should be read this way -- but let's just assume 

it is read narrowly as all sort of aiding and abetting 

conduct consistent with sort of traditional criminal law 

definitions of that, and to decide that it's overbroad, we 

can't go, well, you had big words that you've narrowed down 

to aid and abet. You'd have to go -- 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.

So if we're in that world, where it's treated as 

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an aiding and abetting statute, how do I know that this 

statute would nonetheless --

MR. CORN-REVERE: Okay. 

JUDGE MILLETT: -- be overbroad because it would 

nonetheless capture protected speech? 

MR. CORN-REVERE: Well, Your Honor, let me 

respectfully push back on the notion of assuming that it can 

be interpreted as an aiding and abetting statute. Therein 

lies the problem because --

JUDGE MILLETT: No, no, but I -- I know you want 

to push back on that, but then you're not going to answer my 

question, which is, I really do want to know that if we're 

in that world --

MR. CORN-REVERE: Because --

JUDGE MILLETT: -- 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? 

MR. CORN-REVERE: The way in which statutes are 

interpreted gives latitude to apply beyond what is the 

criminal concept of aiding and abetting, and that's what's 

true of FOSTA, and as you compare it to all of the other 

statutes that have been cited by -- actually, both sides, 

frankly, that this is substantially different from an aiding 

and abetting statute, and that's clear from even the 

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language of FOSTA in section 2421A when you compare it to 

that section of the Criminal Code into which it was 

inserted.

It was part of Chapter 117 of the Criminal Code,

covering transportation of illegal activity or related --

the Mann Act, which has been on the books since 1910, and in 

every other provision you have language that expresses what 

the crime is that is being prosecuted. So, for example, 

section 2422(b) criminalizes using the mail or facility or 

means of interstate commerce in a way that knowingly

persuades, induces, entices, or coerces any individual. 

Similarly, section 2422(a) applies to anyone who knowingly 

persuades, induces, entices, or coerces any individual to 

travel in interstate commerce.

What's missing from FOSTA in section 2421A is that 

language of what the crime is that puts people on notice of 

what they would be aiding and abetting. 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, 

and you know, it doesn't define what speech, what actions by 

that interactive computer service would violate the law. 

It's that indeterminacy which says that this can't be 

treated like the aiding and abetting laws that the 

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Government cites and that, frankly, we cite.

We give seven examples of aiding and abetting laws 

at footnote 9 in our brief. Every one of them includes that 

language that defines what the crime is, and here it's 

basically speaking with bad intent, and for that reason this 

isn't a garden-variety aiding and abetting law. It simply 

makes no sense to interpret it in that way.

That's also true of the laws that the Government 

cites under the Model Penal Code. If you look at any of 

those laws, they include the description of what it is that 

constitutes a violation, and that's the problem with overly 

broad or indeterminate laws that purport to regulate speech, 

and it's the reason why the Supreme Court has always 

required that those laws be drafted with narrow specificity, 

and that's absolutely what's lacking here.

The Government suggests that we should interpret 

these laws using the rules of statutory construction, and 

we've done that, and when you apply the particular rules of 

statutory construction, none of those support the 

Government's reading of FOSTA. The plain-meaning rule --

the plain meaning of FOSTA in case law and in legal 

dictionaries means to make easier, not the aiding and 

abetting.

And getting back to, I believe, your original 

question of why this is substantially overbroad, the 

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Government has defined what FOSTA's, quote, plainly 

legitimate sweep is by constantly talking about classified 

ad websites and talking about Backpage.com, but as 

apparently this Court made clear the last time this case was 

before it, FOSTA is not limited to classified advertising 

and it's not limited to bad-actor websites. Congress 

specifically chose broader language that applies to a broad 

range of protected speech --

JUDGE WALKER: How would you -- this is not a 

rhetorical question; I'm curious -- how would you write a 

law that does what you just said? To say we're going to 

outlaw bad-actor websites sounds awfully vague. So maybe 

we'll start with this: Do you think it's possible for 

Congress to ban Backpage.com, constitutionally possible? 

MR. CORN-REVERE: I think it is possible to write 

a constitutional statute, and Judge Walker, let me say, not 

my job to do Congress's work, and the Supreme Court made 

that clear in United States v. Playboy --

JUDGE WALKER: There was a footnote in your brief 

where you seemed awfully sympathetic to Backpage.com, which 

was a pretty nefarious website, and so I'm -- I guess I'm 

glad to hear you say that you think Congress can ban 

Backpage.com, and I wonder how that law would read -- would 

read different than this law. 

MR. CORN-REVERE: Right, and I think it would come 

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closer to a constitutional enactment if Congress had 

employed the language of, say, the Travel Act or the PROTECT 

Act, where it includes these transactional verbs that were

expressly missing from FOSTA. So, for example, the Travel 

Act applies to acts that promote, manage, establish, carry 

on, or facilitate the promotion of unlawful activity. 

Those --

JUDGE MILLETT: Sorry. So if they amended 2421A, 

capital A, that way, that --

MR. CORN-REVERE: I'm sorry. I misunderstood your 

question.

JUDGE MILLETT: If you -- if they had a longer 

list of verbs and the sort of act-type language that they 

have in the companion provisions in this section, then it 

would be constitutional? It's simply because we've only got 

promote or facilitate, that is the constitutional problem? 

MR. CORN-REVERE: Well, again, we'd have to -- we 

would have to look at the final product that Congress came 

up with, but that was the analysis that the Supreme Court 

did in Williams when it looked at the PROTECT Act and it --

JUDGE WALKER: I know you just said we'd have to 

look at the language they came up with, but Judge Millett 

gave you -- Judge Millett gave you the language.

MR. CORN-REVERE: There's an echo.

JUDGE WALKER: No problem, and I think I might 

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(indiscernible). I don't know. 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 --

MR. CORN-REVERE: I think --

JUDGE WALKER: -- be constitutional? 

MR. CORN-REVERE: I think that would come closer,

because it would at least serve to narrow those terms, and 

the Supreme Court said, if you look at those --

JUDGE MILLETT: Coming closer isn't 

constitutionally --

MR. CORN-REVERE: The ones that were -- the 

PROTECT Act was held to be constitutional --

JUDGE MILLETT: Yes.

MR. CORN-REVERE: -- and it was held to be 

constitutional because of those additional verbs. It didn't 

-- it went beyond promote and facilitate.

JUDGE WALKER: So if we were to read this statute 

as no broader -- in terms of the verbs -- than that statute, 

then I guess there would be no constitutional problem here.

MR. CORN-REVERE: Well, there would be the problem 

that the Court would be rewriting the statute.

JUDGE WALKER: I know, but assume that -- I know 

you don't agree with the Government's statutory 

interpretation argument, but if we were to interpret the 

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statute that way, then there would be no First Amendment 

problem, correct? 

MR. CORN-REVERE: 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 and --

JUDGE WALKER: 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? 

MR. CORN-REVERE: Well, again, Congress did have 

the option, when it adopted this law -- the Government has 

spent a lot of time talking about how we have to read the 

law in light of -- read the statute in light of the 

background law, and here what Congress adopted was adopting 

FOSTA. It was reading it with a background of law under 

Williams that said the terms promote and facilitate stand 

alone, in isolation, are capable of widespread meanings. 

They then adopted to leave out those words --

JUDGE WALKER: I know. I -- this is a 

hypothetical, but I want to be sure we're fair to you, 

whoever writes -- whoever writes the opinion. 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.

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MR. CORN-REVERE: 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 constitutional law.

JUDGE WALKER: That --

JUDGE MILLETT: You're going to put an intent 

requirement in there too, aren't you? 

MR. CORN-REVERE: With intent, yes --

JUDGE MILLETT: Thank you. 

MR. CORN-REVERE: -- but I assumed that --

JUDGE WALKER: But Backpage.com wasn't running the 

prostitution business. It was a board. It was the 

equivalent of a bulletin board for sex traffickers to 

advertise.

MR. CORN-REVERE: That is the allegation that has 

yet to be proven at trial. The allegations that are 

contained in the Government's brief contain all sorts of 

allegations about trafficking that Backpage was not charged 

with, but that -- apart from that, the question is whether 

or not a law could be drafted, and I think it could.

The transactional terms in the Travel Act talk 

about basically getting involved in the business or, for 

purposes of the First Amendment, for speech that is integral 

to that criminal activity, but that's not what Congress 

adopted in FOSTA.

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JUDGE WALKER: I understand your argument there. 

Let me pivot to the ex post facto claim and the question of 

standing.

MR. CORN-REVERE: And after I answer that 

question, I see that I'm sort of -- I'm intruding on my time 

for rebuttal.

JUDGE MILLETT: We'll give you time for rebuttal. 

So you can --

MR. CORN-REVERE: Oh, okay.

JUDGE MILLETT: -- keep answering questions.

MR. CORN-REVERE: Happy to answer all your 

questions.

JUDGE WALKER: The only defendants in this suit 

are federal defendants, and the only parties that can bring 

a prosecution or a civil suit against your clients, using 

the ex post facto language -- in other words, for the 

conduct that your clients engaged in before FOSTA, the only 

people who can hold them accountable for that are state 

prosecutors and private civil litigants. Since the federal 

defendants are the only defendants in this case, how do you 

-- how could issuing an injunction against the federal 

defendants help you in this area? 

MR. CORN-REVERE: 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 

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injunctive relief portion but we, in our complaint, sought 

both declaratory and injunctive relief.

JUDGE WALKER: Aha. 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 --

let's see. The court cannot -- okay. It said, no standing 

if the only relief requested is a declaration that the 

statutory provisions the plaintiffs attack is 

unconstitutional. How do you get around that? 

MR. CORN-REVERE: I think under Stogner v. 

California, which says that ex post facto laws shall not be 

passed, and that is the express provision of the 

Constitution, Article I, section 9, and combined with the 

language of the Declaratory Judgment Act that says that any 

court in the United States may declare the rights and other 

legal relations of any interested party seeking such 

declaration, whether or not such further relief is or could 

be sought, still leaves the court latitude to grant 

declaratory relief with respect to the ex post facto claim. 

JUDGE WALKER: Imagine that -- I mean, it's almost 

a truism that an ex post facto law can't be passed, that the 

Constitution says it can't be passed, but the question is, 

who can you sue and have standing to sue to challenge an 

ex post facto law? And, you know, if you picked a random 

name in the phone book and then sued them and then argued in 

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court correctly that you've been injured by the ex post 

facto law, 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 law.

MR. CORN-REVERE: By the same token, Congress 

adopted a law that simply said that states can now pass 

ex post facto criminal laws, and you know, you had to wait 

for a state then to adopt an ex post facto law. You have 

simply allowed Congress to adopt a law that is expressly 

forbidden by Congress. 

JUDGE MILLETT: I don't know that that law is 

expressly forbidden, because it's not an ex post facto law, 

and what is the harm in waiting for someone to actually do 

something to hurt you? 

MR. CORN-REVERE: Because of the chilling effect 

that this has had on platforms across the Internet. FOSTA 

doesn't operate just in isolation. 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, and 

you can impose those, all of those conditions on 

intermediaries for the maximum chilling effect.

So the very existence of the law has created the 

chilling effect. You don't have to wait for a prosecution, 

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and civil cases have already gone forward alleging 

violations of FOSTA under actions that took place before the 

law was adopted. So --

JUDGE MILLETT: Have any -- have any -- because I 

know one of the amicus briefs said there's only been one 

federal prosecution under FOSTA. I see --

MR. CORN-REVERE: That's right.

JUDGE MILLETT: -- what you mean by that 2421A, or 

do you even mean 1591 or 1519? Is it -- do you mean --

MR. CORN-REVERE: The Martono case.

JUDGE MILLETT: Sorry? 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, you know, 1591? 

MR. CORN-REVERE: I don't recall the facts of the 

other prosecution.

JUDGE MILLETT: Okay. Have there been any state 

prosecutions under FOSTA that you're aware of? 

MR. CORN-REVERE: Not that I'm aware of --

JUDGE MILLETT: Okay. 

MR. CORN-REVERE: -- 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 

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means, and the question of whether or not it is 

substantially overbroad, because it is more broad than 

necessary, the fact that those other laws preexisted.

JUDGE MILLETT: And more broad than necessary gets 

us back to the how -- what Congress could write, and there I 

just want to make sure I'm clear. The main complaint with 

2421A is that by using the verbs promote or facilitate 

prostitution, those do not have the same narrowing language 

as something like, you know, 2422 with the, you know, 

persuades, induces, entices, coerces, those types of verbs,

or more transactional verbs like Williams? That's the 

problem? 

MR. CORN-REVERE: That's the problem with 2421A. 

It lacks those transactional verbs, and we've identified the 

overbreadth and vagueness of the other provisions as well, 

and then on top of that, by simultaneously stripping away 

immunities from intermediaries --

JUDGE MILLETT: Yes.

MR. CORN-REVERE: -- that carry third-party 

speech --

JUDGE MILLETT: Right.

MR. CORN-REVERE: -- then it broadens the chilling 

effect.

JUDGE MILLETT: So for 2421A, I just want to make 

clear, the objection is just to, you would say, the breadth 

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of the verbs promote or facilitate and it's not an objection 

that there -- that the only actus reus is operating an 

interactive computer service? 

MR. CORN-REVERE: Well, that's right, and it's 

basically, the law constitutes operating an online computer 

service with bad intent, and --

JUDGE MILLETT: Right. That's why I thought your 

-- that's why I thought your response would have been, no, 

we want more verbs and we actually would like a criminal 

actus reus.

MR. CORN-REVERE: Well, we want the actus reus to 

be defined --

JUDGE MILLETT: Yes.

MR. CORN-REVERE: -- certainly, and --

JUDGE MILLETT: Well, it's defined here in 2421A. 

It's defined as own, manage, or operate an interactive 

computer service or attempting or conspiring to do that. So 

there is a defined actus reus. It's just like, as you 

said --

MR. CORN-REVERE: And --

JUDGE MILLETT: -- it's operating a computer with 

a bad intent.

MR. CORN-REVERE: And, Your Honor, this is -- this 

is why the Supreme Court has always required statutes that 

regulate speech to be defined with precision, because 

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essentially this is -- amounts to saying that you are 

speaking online with bad intent, and the intent is defined

by using the words --

JUDGE MILLETT: You might not even be speaking. 

You might just be owning a computer service with bad intent 

under this statute.

MR. CORN-REVERE: 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. All of that gets it 

further and further removed from actually defining what kind 

of speech is being regulated here, and that is the vice in 

these kinds of laws, particularly when you are regulating a 

medium as widespread, with as many participants as the 

Internet.

Both those vague terms, both in terms of direct 

action and their impact on the intermediaries, make for a 

vast chilling effect, which has occurred, and it's not just 

people overreacting or hallucinating that they are at risk. 

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, and that's the problem of a law that 

attempts to regulate speech with the breadth and imprecision 

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of a law like FOSTA. 

JUDGE MILLETT: 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 aiding and abetting statute? I 

wanted to make sure you had a chance to do that.

MR. CORN-REVERE: I apologize again, Your Honor. 

There's an echo. So I --

JUDGE MILLETT: Oh, I wanted to make sure you got 

the opportunity, because you had said you wanted to address 

the Government's argument that this should be read as aiding 

and abetting language or what are traditional criminal 

understandings of promote prostitution or facilitate, I just 

wanted to make sure you got a chance to because I had cut 

you off trying to get another question -- answer in. 

MR. CORN-REVERE: I think at this point I said 

what I wanted to say in response to your questions and in 

addition to what we've said in the briefs, and I look 

forward to seeing what Mr. Busa has to say, because I'm sure 

I'll have a few words to add at that point.

JUDGE MILLETT: Any questions? Thank you very 

much. We will give you some time for rebuttal.

MR. CORN-REVERE: Thank you. 

ORAL ARGUMENT OF JOSEPH F. BUSA, ESQ.

ON BEHALF OF THE APPELLEES

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MR. BUSA: Good morning and may it please the 

Court. Joe Busa on behalf of the Government. As the case

is now narrowed, there is agreement between all the parties 

that there's no constitutional problem with a statute that 

prohibits aiding and abetting the underlying transactional 

crime of prostitution --

JUDGE MILLETT: Yes.

MR. BUSA: -- where that is a crime in the 

jurisdiction in which it takes place. So the only question 

for this Court --

JUDGE WALKER: Where did you get that concession, 

because I will say, I read the plaintiffs' brief to sort of 

imply that but, when the plaintiff was pushed today, I think 

he refused to concede that and said, even if it's an aiding 

and abetting law, it still chills too much. 

MR. BUSA: I guess I'm sorry, Your Honor. I took 

the opposite meaning from the colloquy this morning. I 

thought he had said if it was aiding and abetting, then it 

can permissibly be prohibited by a 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. He's provided no argument saying why that 

line of cases wouldn't resolve the case if the statute 

covers only --

JUDGE WALKER: I'll ask him on rebuttal.

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MR. BUSA: No, of course. 

JUDGE EDWARDS: I don't know what you mean when 

you say even if it's an aiding and abetting law. Isn't that 

the question? 

MR. BUSA: I completely agree.

JUDGE EDWARDS: To my mind, it's not an aiding and 

abetting law. We know how to write them when we want to. 

This doesn't look like anything that I understand to be an 

aiding and abetting law. So when I'm preparing this, that 

immediately tells me the Government's got great concerns 

that the statute as actually written has problems, so let's 

make it something that it's not, let's call it aiding and 

abetting and maybe we can cause the Court to believe that 

the reach of the statute is limited because we've called it 

something that it's not.

There's nothing to suggest that it's aiding and 

abetting. It doesn't look like an aiding and abetting law. 

There's no legislative history that says it's an aiding and 

abetting law, 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, but it's not what 

the statute says. 

MR. BUSA: Respectfully, Your Honor, we do 

disagree and for several reasons.

JUDGE EDWARDS: With what? That that's what the 

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statute says, or you disagree --

MR. BUSA: We disagree that -- so, yes, we 

disagree with the position you just laid out that this is 

not an aiding and abetting statute, and so if I can just lay 

out the key features that we think show that this statute is 

limited to traditional principles of accomplice liability.

So first, if you just take the canonical 

definitions of aiding and abetting from Black's Law 

Dictionary, it's to facilitate the commission of a crime or 

to promote its accomplishment, the same with LaFave and the 

Model Penal Code, and the Supreme Court in Abuelhawa said 

that the term facilitate has an equivalent meaning to terms 

like aid and abet.

So first, just starting from the definitions of 

those words --

JUDGE EDWARDS: What did the Supreme Court say 

about promote in Williams? Had a real --

MR. BUSA: So in Williams --

JUDGE EDWARDS: -- problem, the Supreme Court 

said, right? 

MR. BUSA: Right. So in Williams the Supreme 

Court says --

JUDGE EDWARDS: So already we're falling away from 

where you'd like to be in aiding and abetting. The Supreme 

Court has flatly said promoting is, if that's what you've 

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got -- and that's all we essentially have here, promote and 

facilitate -- the Supreme Court has said that's not enough, 

that's a problem.

MR. BUSA: Well, the Supreme Court said --

JUDGE EDWARDS: That's all you've got. 

MR. BUSA: I'm sorry, Your Honor. 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. The Supreme Court there said look to the statute 

in context, quote, unquote. There the context was a string 

of verbs --

JUDGE EDWARDS: No. They looked at the context in 

whole --

MR. BUSA: I agree, you would have to look at the 

entire statute.

JUDGE EDWARDS: -- and that is, are there other 

words that limit the scope of the offense?

MR. BUSA: Oh, there --

JUDGE EDWARDS: The Supreme Court said in Williams

there are other limiting words, and so therefore, even 

though promote would be a problem if that's all was there, 

it's not a problem here because we can -- in context means 

there are other words which limit the sweep of the statute.

MR. BUSA: So, Your Honor, the Supreme Court in 

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Williams didn't say the only contextual feature that could 

limit a word like promote to its narrow definition would 

bear the noscitur a sociis canon, didn't say only that 

context would limit the word, just said it looks at context, 

and that was the relevant context there.

Here we do have important textual and contextual 

indications that we're talking about transactional crimes, 

not general, you know, advocacy in favor of prostitution. 

So first I start with the idea that we're talking about a 

criminal statute; we're talking about criminal intent. Then 

I turn to the phrase in the statute promote the prostitution 

of another person, not promoting the concept of 

prostitution. Then there's the aggravated offense of 

promoting the prostitution of five or more persons. That's 

clearly transactional, and lastly --

JUDGE EDWARDS: Of what? What did you just say? 

I'm sorry. 

MR. BUSA: I'm sorry. In the -- in the aggravated 

offense, in 2421A, paragraph (b), the statute speaks of 

promoting the prostitution of five or more persons. That 

just further underlines that we're talking about underlying 

criminal transactions, not the concept of prostitution as a 

whole.

And lastly -- and I don't think the plaintiffs 

have ever given a response to this -- is the --

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JUDGE MILLETT: Sorry --

MR. BUSA: -- affirmative defense in paragraph 

(e).

JUDGE MILLETT: -- before you -- sorry, please 

hold that. I do want you -- I'm sorry, but I just --

JUDGE EDWARDS: No. Go ahead.

JUDGE MILLETT: -- want to make sure I understand 

something here. General promotion of prostitution is not 

here, but if someone actively promotes on their website the 

legalization of prostitution for the State of California --

MR. BUSA: Yes.

JUDGE MILLETT: -- how is that not promoting the 

prostitution of five or more persons in California? 

JUDGE EDWARDS: Right.

MR. BUSA: Because it's just promoting 

prostitution in general as a concept. It's not --

JUDGE MILLETT: No, it's not. It says, I want --

here's all my friends who are prostitutes in California, 

here's 20 of them, I want to make it legal for them to 

engage in prostitution, so I'm advocating for this law. How 

does that not promote the prostitution lawfully --

JUDGE EDWARDS: And I'm going to list --

JUDGE MILLETT: -- of five or more people?

JUDGE EDWARDS: -- all hundred of my friends who 

are prostitutes.

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JUDGE MILLETT: Yes, here's the list of their 

names. How is that not -- just a straightforward reading of 

the text. 

JUDGE EDWARDS: I feel very strongly they should 

have a right to prostitute if they want to.

JUDGE MILLETT: They want to do it more. They'll 

be able to do it more if it's lawful.

MR. BUSA: So under a traditional dictionary 

definition, where promote could just, you know, be 

encouragement in the least or sort of any degree of 

promotion, maybe one could consider that being promotion of 

the prostitution of a large number of people, but it's not 

focused --

JUDGE MILLETT: Okay. I don't think you need to 

stretch it to say that under a dictionary definition --

MR. BUSA: But --

JUDGE MILLETT: -- that means promote. It's not a 

maybe. It does. 

MR. BUSA: No, but I guess my core point, though, 

is that --

JUDGE MILLETT: You want the super-narrow Black's 

Law Dictionary.

MR. BUSA: Well, it's not that I want that. I 

think it's pretty clearly what Congress was intending, but 

even if you disagree with me about that --

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JUDGE MILLETT: Wait. How do we know Congress 

intended the Black's Law Dictionary definition? 

MR. BUSA: Oh, because contrary to some discussion 

I was having with Judge Edwards, there actually is 

legislative history saying that we're invoking traditional 

notions of accomplice liability, and we lay --

JUDGE MILLETT: Who's we? What was that 

legislative history? 

MR. BUSA: So we lay that out in our brief --

JUDGE MILLETT: Yes.

MR. BUSA: -- and we quote the specific pages 

where they talk about, if you use words --

JUDGE MILLETT: Who's they? Are we talking about 

a House report? Are you talking about members of Congress? 

MR. BUSA: Floor debates during --

JUDGE MILLETT: Floor debates.

MR. BUSA: -- the passage of the bill --

JUDGE MILLETT: Okay. 

MR. BUSA: -- where key sponsors of the bill say 

this covers aiding and abetting, we're talking about 

accomplice liability, and specifically, Senators Blumenthal 

and Schumer say, we are not talking about general promotion 

of prostitution or legalization advocacy --

JUDGE EDWARDS: Is there some conference report 

that says this? 

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MR. BUSA: I'm sorry, Your Honor? 

JUDGE EDWARDS: Is there some conference report 

that says this? 

MR. BUSA: I don't believe there's a conference 

report that gets into that issue --

JUDGE MILLETT: Is there a House or Senate report, 

committee report that says that? 

MR. BUSA: I don't think any of the committee 

reports get into --

JUDGE EDWARDS: So you're in the land in which 

most courts now are loathed to say, legislative history, 

that works --

MR. BUSA: We're --

JUDGE EDWARDS: -- no question.

MR. BUSA: So, Your Honor, I want to be clear, we 

are not saying you should resolve this case on the basis of 

legislative history. 

JUDGE EDWARDS: Okay. 

MR. BUSA: I'm just trying to respond to the point 

that, is there any indication of what Congress was doing 

here? Yes, there is.

JUDGE WALKER: Is there any indication in the 

text, structure, context, precedents, canons of 

construction? 

MR. BUSA: That's exactly where I want to focus, 

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Your Honor, and so if I can keep going through the text of 

the statute and the context of the statute that we think 

provides the narrowing features for a word like promote 

here.

JUDGE MILLETT: Okay. Then we have to put aside 

the first canon, which is that plain language means -- a 

couple canons -- plain language means Congress means what it 

says for promotes instead of the narrower meaning; and two, 

when Congress has used -- when Congress knows how to say it 

and uses different words in another section, we assume 

there's different -- that they intended a different meaning.

I mean, when they -- 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, and we don't have the string of 

transactional verbs. I also -- I just think promote is 

different from facilitate. I mean, they just naturally have 

different meanings. I understand why they used two words.

So this is -- I understand your point, and this is 

the criminal statute, so it makes sense, let's look at what 

these criminal meanings are, but then where I'm struggling 

is because Congress in criminal laws knows how to say aid 

and abet and didn't use a single one of those verbs, knew 

after Williams that, if it meant sort of transactional 

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meanings, to have sort of a related string of verbs and,

again, didn't choose a string of verbs that suggests 

transactionalism; in fact, promote doesn't suggest 

transactionalism.

And so that's, to be -- I mean, I understand your 

job and what you're doing. I'm just struggling with what to 

do with those two canons, and even if we can debate whether 

Black's Law Dictionary trumps ordinary meaning in a 

plain-language analysis, what do I do with that Congress 

knows how to say it and it didn't do it here? 

MR. BUSA: So on ordinary legal meaning, the 

Supreme Court has said that the ordinary legal -- the 

ordinary meaning should be taken to be the ordinary legal 

meaning. And so we're discussing a criminal statute; you 

might look first to the ordinary meaning of that word as 

using criminal law.

To address the question of what Congress said 

in 18 --

JUDGE MILLETT: Wait. Before you -- that's great. 

That's great. So can you assure me that everywhere else 

that the word promote is used in 18 U.S.C. or in criminal 

provisions 21 U.S.C. it only means -- well, it surely can't 

mean promote prostitution. So it only means what? 

MR. BUSA: I think, in general, we would start 

from the presumption that it's using the word promote as 

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it's used in any number of states' accomplice liability 

statutes, Model Penal Code --

JUDGE MILLETT: Oh, wait. I thought we were going 

to assume -- we don't assume -- do we know how often promote 

appears elsewhere in --

MR. BUSA: So --

JUDGE MILLETT: -- the Criminal Code? 

MR. BUSA: -- 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. 

Here's how you can resolve this narrowly --

JUDGE MILLETT: Or even multiple times, multiple 

times that it's -- I mean, are there other places in the 

Criminal Code -- I keep wanting to say 18 U.S.C., but I know 

it's broader than that --

MR. BUSA: Right.

JUDGE MILLETT: -- where promote has that meaning? 

MR. BUSA: I'm sorry, Your Honor. I just --

JUDGE MILLETT: Okay. 

MR. BUSA: -- I don't have that information for 

you. I wish I did, but here's how I think you can resolve 

the case narrowly: Promoting prostitution is its own 

special legal term of art, as noted the first time this case 

came on appeal and as defined in Black's Law Dictionary. 

Promoting prostitution is pandering, has a very specific 

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legal meaning in this context, and we think that's the legal 

meaning you should ascribe to the statute.

And if I could just turn to the affirmative 

defense in paragraph (e) of 2421A --

JUDGE MILLETT: Yes. I'm sorry. I cut you off.

MR. BUSA: -- because I think this is a very 

strong contextual and structural indication that we have the 

right construction of the statute. 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.

On the one hand, in paragraph (a), it would have 

criminalized that conduct despite the constitutional 

concerns that might arise, but then 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. Plaintiffs have 

certainly identified no such jurisdiction. That would be an 

exceedingly odd --

JUDGE MILLETT: Well, hang on a second. So if 

Congress passed a statute that says it's unlawful to promote 

prostitution, (b) it's an affirmative defense to show that 

your promotion of constitution -- of prostitution was 

lawful, under that theory that would be perfectly fine. So 

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Congress can ban speech as long as it makes an affirmative 

defense to show that this is constitutionally protected 

speech.

MR. BUSA: I am not making that argument, Your 

Honor, to be clear.

JUDGE MILLETT: I thought that -- you just -- it's 

unlawful to promote prostitution, affirmative defense, 

unless you can show promoting prostitution was lawful in 

that state. How is that different from this statute? 

MR. BUSA: I must have misunderstood your 

question, Your Honor. I'm not sure what you're driving at. 

I --

JUDGE MILLETT: The statute -- my -- it's just, 

it's more concise.

MR. BUSA: Okay. 

JUDGE MILLETT: Okay. It is unlawful to promote 

prostitution. If you want me to add computer -- it's 

unlawful to use a computer service to promote prostitution, 

one --

MR. BUSA: Can I just clear up that question? 

JUDGE MILLETT: Yes.

MR. BUSA: Do you intend the hypo to include 

promotion to mean general advocacy, not as limited by 

traditional notions of accomplice liability? I'm trying to 

get the hypo correct in my mind. 

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JUDGE MILLETT: I'm Congress. Who knows what I 

intend? 

MR. BUSA: Okay. 

JUDGE MILLETT: All right? So -- right? There'll 

be a couple floor statements that say that, though.

MR. BUSA: Okay. 

JUDGE MILLETT: All right? So it is unlawful --

MR. BUSA: Yes.

JUDGE MILLETT: -- to use a computer service to

promote prostitution --

MR. BUSA: Yes.

JUDGE MILLETT: -- it is an affirmative defense to 

demonstrate that promoting prostitution is lawful where you 

did it --

MR. BUSA: Yes.

JUDGE MILLETT: -- that's constitutional? 

MR. BUSA: Well, yes, of course --

JUDGE WALKER: Oh, no.

MR. BUSA: -- I mean, provided that promotion 

there would be limited to aiding and abetting the 

transactional crime.

JUDGE MILLETT: Just said promoting prostitution? 

Okay.

MR. BUSA: And so we know that --

JUDGE MILLETT: Judge Walker has a different 

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answer here.

MR. BUSA: I'm sorry, Your Honor, please.

JUDGE WALKER: The statute just says it's illegal 

to promote prostitution.

MR. BUSA: Of another person --

JUDGE WALKER: No, it's not that.

MR. BUSA: -- against prostitution. 

JUDGE WALKER: I think --

MR. BUSA: Oh, I had missed --

JUDGE WALKER: -- the hypothetical is just that 

it's illegal to promote prostitution, period, full stop. 

That would ban someone from running a website that says, I 

think -- I think this -- I think the State of Maryland 

should decriminalize prostitution. You would have made that 

a federal felony --

MR. BUSA: I am not here saying that it's 

constitutional, no, of course not.

JUDGE MILLETT: Okay. So now if I change it to 

say is illegal to use a computer system to promote 

prostitution of another person, no further definition of 

promote --

MR. BUSA: Yes.

JUDGE MILLETT: -- and then had your affirmative 

defense, you think that's perfectly fine? 

MR. BUSA: It's just --

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JUDGE MILLETT: There's no other verbs.

MR. BUSA: And facilitate is not in there? It's 

just the promoting?

JUDGE MILLETT: I've -- no. I've given you the 

full text. 

MR. BUSA: I think we'd say, look, it's certainly 

a permissible construction to say promoting prostitution has 

a specific meaning, a long-standing meaning going back 

centuries, meaning pandering; and, if you limit it to that, 

it would clearly be constitutional and, because it can be so 

limited, it must be.

JUDGE MILLETT: Just want to make sure.

JUDGE WALKER: What does facilitate and promote 

add to your argument that your argument lacks in the last 

hypothetical? 

MR. BUSA: So we already know from the Supreme 

Court in Abuelhawa that facilitate has an equivalent meaning 

to aid and abet, and then you'd start thinking, well, if 

that has the equivalent meaning, maybe Congress would have 

had to chose the narrower definition of promote.

Secondly, facilitate and promote frequently go 

together in defining what accomplice liability is -- I mean, 

again, Black's Law Dictionary, facilitate the commission of 

a crime or promote its accomplishment; the Model Penal Code, 

you know, aiding the commission of a crime with the purpose 

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of promoting or facilitating the commission of the offense; 

LaFave, to give assistance or encouragement with the intent 

to thereby promote or facilitate the commission of the 

crime.

JUDGE WALKER: And all that reads, promote and 

facilitate, the same way we might read the phrase rise and 

shine --

MR. BUSA: Exactly. I just can't remember the 

specific vernacular.

JUDGE WALKER: -- it's one thing. 

MR. BUSA: Yes, and maybe it's a diptych, might be 

the right --

JUDGE WALKER: (Indiscernible.)

MR. BUSA: -- I don't know what the technical term 

is, but that's exactly right, Your Honor, and it carries 

with it the old soil --

JUDGE MILLETT: Well, the difference here --

here's what I'm worried about, too, with -- I'm talking 

about 2421 capital A. If Congress passed a statute that 

says it's illegal in interstate commerce to own, manage, or 

operate a library with the intent to promote the 

prostitution of another person, that's okay? 

MR. BUSA: Of another person is in there? 

JUDGE MILLETT: With the intent to promote -- yes, 

it's --

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MR. BUSA: And facilitate or promote? 

JUDGE MILLETT: No. I'm not --

MR. BUSA: I'm sorry. I must have missed it.

JUDGE MILLETT: -- let me try it one more time. 

Mine is very -- okay. 

MR. BUSA: I'm sorry. I must have missed the --

JUDGE MILLETT: Sorry. Well, it sounds like our 

sound system is not working so well today. So --

MR. BUSA: No, and I'm sure it's my fault. 

JUDGE MILLETT: Okay. I'm giving you the 

interstate commerce def. So it is illegal to own, manage, 

or operate a library --

MR. BUSA: Yes.

JUDGE MILLETT: -- with the intent to promote the 

prostitution of another person, and you can have affirmative 

defense.

MR. BUSA: Sure. Sure. I guess if we read 

promote as carrying the traditional notion of pandering, 

that specific meaning in that context, then yes, it's been 

widely prohibited.

JUDGE MILLETT: So the only actus reus that's 

needed is owning a -- owning, managing, or operating a 

library, and if you do it with a bad intent, Congress can 

ban that --

MR. BUSA: That --

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JUDGE MILLETT: -- no action has happened, no 

actual promote -- this is what the statute says: It is 

illegal to own, operate, or manage a library with the intent 

to promote the prostitution of another person. It doesn't 

say, and some step is taken towards the prostitution of 

another person. It says it is illegal to own the library 

with a bad intent, or manage. You're just hired as the lead 

librarian, and you have a bad intent, but you don't do 

anything, and you say the First Amendment says that's fine? 

MR. BUSA: So, Your Honor, if 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 --

JUDGE MILLETT: This -- no, no. That --

MR. BUSA: -- like pandering --

JUDGE MILLETT: No, no, no. Your -- see, the 

problem is, the aid and abet --

JUDGE EDWARDS: Right.

JUDGE MILLETT: -- definition you want to use is 

all a -- is the actus reus --

JUDGE EDWARDS: Yes.

JUDGE MILLETT: -- of aiding and abetting.

JUDGE EDWARDS: That makes it a narrower case. 

You'd love to be there.

JUDGE MILLETT: Right. You'd love to have that 

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actus reus, but the only --

JUDGE EDWARDS: It's not there.

JUDGE MILLETT: -- actus reus in 2421A is owning a 

computer system, and I don't know why it would change, and 

I'm going to change it to -- or, sorry, own, manage, or 

operate -- own, manage, or operate a library with a bad 

intent, and that bad intent is, I intend or I would attempt 

to intend or whatever, conspire to intend to do this bad 

thing, that's why I'm here, but in fact, it's all legitimate 

library stuff --

MR. BUSA: So it's not --

JUDGE MILLETT: -- it is the Fairfax County 

Library content, but I have a bad intent, I'm just really 

inept or really stupid, but I have owned, operated, or 

managed a library with this criminalized intent. Congress 

can't do that, can it? 

MR. BUSA: Your Honor, my apologies. I've always 

read this statute with the actus reus being --

JUDGE MILLETT: Can Congress do what I said? 

JUDGE EDWARDS: Yes, let's get that one --

JUDGE MILLETT: Just answer that.

JUDGE EDWARDS: -- behind us.

JUDGE MILLETT: Right, and then I'll -- you can --

if I'm misreading the statute, I definitely want to hear.

JUDGE EDWARDS: I know counsel don't always like 

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our hypotheticals, but I'm curious to your answer. Can 

Congress do that, yes or no, in your view? I'm not saying, 

in my mind, that ends the case, but can -- I'm curious to 

hear your answer.

MR. BUSA: And so just to be clear, the actus reus 

in the hypothetical is owning, managing, or operating --

JUDGE MILLETT: A library.

MR. BUSA: -- a library --

JUDGE MILLETT: In interstate commerce.

JUDGE EDWARDS: With the intent.

MR. BUSA: -- in interstate commerce with the 

intent to --

JUDGE MILLETT: Promote --

MR. BUSA: -- pander?

JUDGE MILLETT: -- to promote -- with the intent 

-- you can make the intent as bad as you want --

MR. BUSA: Sure.

JUDGE MILLETT: -- with the intent to murder a 

prostitute --

MR. BUSA: Sure.

JUDGE MILLETT: -- give me your bad intent. All 

right? 

MR. BUSA: Yes.

JUDGE MILLETT: That's my intent --

MR. BUSA: Yes.

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JUDGE MILLETT: -- but all I've done is own, 

operate, or manage an interactive computer service, 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.

MR. BUSA: And so in this hypothetical, just to be 

very clear, nothing about the library service is actually 

pandering? It's just the intent? 

JUDGE MILLETT: I'm owning, managing, or operating 

a library with a really bad intent but no other actus reus.

MR. BUSA: I have to apologize, Your Honor. That 

is not a question I've considered before. I don't think 

it's something I'm prepared to take a definitive stance on 

in the absence of briefing or research on that --

JUDGE MILLETT: It's worrisome, isn't it? Can we 

at least agree it's worrisome? 

MR. BUSA: Well, it's confusing at the least, 

because --

JUDGE MILLETT: Just confusing? 

JUDGE EDWARDS: Why is it confusing? 

MR. BUSA: Because I've always --

JUDGE EDWARDS: I don't know why you wouldn't have 

thought about it.

MR. BUSA: Because plaintiffs have raised --

JUDGE EDWARDS: This is your opportunity. Those 

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are the kinds of questions in this First Amendment arena. 

You came in very confidently saying this is only aid and 

abet. Well, you might assume a judge would push back with 

exactly the kind of question that my colleague is raising, 

and I would have supposed that you would have an answer for 

it.

MR. BUSA: So, Your Honor, I have always read the 

statute, when it says the actus reus being owning and 

managing and operating an interactive computer service with 

the intent to promote -- or facilitate or promote the 

prostitution of another purpose -- of another person, I've 

always read the owning, management, and operation as 

promoting and facilitating the prostitution of another 

purpose.

JUDGE MILLETT: Well, but that's not -- wait. 

Then it just says with the intent to --

MR. BUSA: Yes.

JUDGE MILLETT: -- and then there's nothing after 

it.

JUDGE WALKER: What --

JUDGE MILLETT: -- I mean, just grammatically help 

-- this is something I've -- I don't mean to cut you off. 

I'm sorry.

JUDGE WALKER: No, please. 

JUDGE MILLETT: I've just been -- I've been 

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struggling with this, but it uses with the intent to promote 

or facilitate the prostitution of another person as the 

mens rea, just like it's used --

JUDGE EDWARDS: Right.

JUDGE MILLETT: -- in the Travel Act. That's just 

a mens rea --

MR. BUSA: So --

JUDGE MILLETT: -- the same thing in the Travel 

Act, but then the Travel Act, of course, has bad actus reus 

too --

MR. BUSA: But here the statute also covers 

attempt and conspiracy, and I would assume that because --

JUDGE MILLETT: Those all come before the intent 

statement.

MR. BUSA: Right, but if attempt itself or if 

conspiracy would require some sort of action towards the 

commission of the crime --

JUDGE MILLETT: The action is owning, managing --

MR. BUSA: -- then I would assume the base would 

have also then had a potential --

JUDGE MILLETT: Can we pull up the statute and 

look at it together, because --

MR. BUSA: Yes.

JUDGE MILLETT: -- the problem here is, it begins 

whoever and then it has the actus reus: owns, manage, or 

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operates, or conspires or attempts to do so. So that refers 

back to owns, manages, or operates.

JUDGE EDWARDS: Right.

JUDGE MILLETT: It's operating on -- the conspires 

or attempts is on those verbs, and then we have a comma, and 

then we have an intent language -- which is much like the 

intent language in the Travel Act; it's just the intent 

language -- shall be fined. That's what I'm worried about 

with this statute. It doesn't -- the only actus reus, 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 service. 

MR. BUSA: Your Honor, I don't think the 

plaintiffs here had brought this suit to cover the fanciful 

hypothetical in which someone does their best to aid and 

abet the prostitution of another person but somehow fails --

JUDGE MILLETT: 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 -- he said this during his opening 

argument -- that that violates the First Amendment. I don't 

-- fanciful? It's what Congress wrote here unless you can 

tell me how to diagram this sentence to move part of the 

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intent up into -- two or three lines up into the actus reus. 

MR. BUSA: I think I would start from the fact 

that Congress here is writing a criminal statute that's 

targeted at the prostitution of another person. It's using 

words that invoke core concepts of aiding and abetting 

liability, and one of those core concepts, of course, is 

taking an actus reus that would in fact facilitate or 

promote the commission of the crime. So if it's inartful 

drafting --

JUDGE MILLETT: I guess if you tell me Backpage --

they wanted to get Backpage, and what Backpage did, as you 

allege and describe -- and I'm not obviously making any 

definitive --

MR. BUSA: Of course.

JUDGE MILLETT: -- determinations on this -- is 

set up, own, manage, or operate an interactive computer 

service --

MR. BUSA: So, Your Honor, the way they were --

JUDGE MILLETT: -- designed it in their heads, 

planning for it to promote prostitution. That's at least 

the allegations you're making in your brief.

MR. BUSA: And, in fact, taking steps --

JUDGE MILLETT: And, in fact, doing it. Tell me 

where --

MR. BUSA: Yes.

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JUDGE MILLETT: -- 2421A says, and in fact, they 

do it. 

MR. BUSA: Right. Obviously the statute doesn't 

say that, Your Honor. I guess what I would say, just to 

continue, is, you start with the core concepts of aiding and 

abetting liability and you think Congress is acting 

reasonably in importing those concepts here.

Secondly, I would focus on the affirmative 

defense, where it says that it's an affirmative defense if 

the promotion or facilitation of prostitution is legal. 

They're talking about the actual promotion or facilitation, 

not just acting with an intent to do something, but in fact, 

doing enough of to promote or facilitate.

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, and more to the point --

JUDGE MILLETT: Sorry, I'm just -- I'm still just 

struggling grammatically. So tell me how you read this 

sentence: conspires or -- so owns, operate, or manage with

attempt to do so, comma, with the intent -- is to promote --

with the intent to promote or facilitate part of that intent 

language? 

JUDGE EDWARDS: You would have had a great case --

MR. BUSA: I'm sorry. The question was whether --

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JUDGE EDWARDS: -- you would have had a great case 

if the heading in the statute that you're pushing, instead 

of saying promoting or facilitating, said aiding and 

abetting.

MR. BUSA: So, Your Honor --

JUDGE EDWARDS: It doesn't say that --

MR. BUSA: -- many, many --

JUDGE EDWARDS: -- 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 them.

MR. BUSA: So, Your Honor, many state statutes 

provide for accomplice liability, aiding and abetting, 

without using that phrase. We cite them in our brief. They 

say anyone who aids the commission of a crime with the 

intent to promote or facilitate the commission of that crime 

shall be held liable. They don't use the word, magic words 

of aiding and abetting.

JUDGE MILLETT: States might, but Congress has a 

definition of aiding and abetting, and sometimes they will 

still put aiding and abetting language in a substantive 

statute as well. I give you that. Are you aware -- does 

Congress commonly, when creating a new substantive crime and 

wanting to have wrapped aiding and abetting into that, not 

just rely on the existing 18 U.S.C. definition, do they 

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commonly use words that have no relationship to the 

statutory definition of aiding and abetting already in 18 

U.S.C.? Like, do they pull at least one of them out most of 

the time? 

MR. BUSA: I can't give you an intelligent answer 

to that, as to, like, a fair characterization of, in the 

broad statement Congress does this, what sorts of words does 

it use? All I know is the words they've used here are in 

the canonical definitions of aiding and abetting 

liability --

JUDGE MILLETT: Well, promote is not. Promote is 

not. You're relying --

MR. BUSA: No --

JUDGE MILLETT: -- on the promote prostitution.

MR. BUSA: Yes, of course it is, Your Honor. 

No --

JUDGE MILLETT: Yes.

MR. BUSA: -- to be clear, facilitate and promote 

are both in Black's Law Dictionary, the Model Penal Code --

JUDGE MILLETT: Well, this is promote or 

facilitate --

MR. BUSA: -- LaFave.

JUDGE MILLETT: -- not and. This is or. So 

they're --

MR. BUSA: And --

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JUDGE MILLETT: -- doesn't that mean they have 

different meanings? 

MR. BUSA: So Black's Law Dictionary actually says 

that -- here's the definition of aid or abet -- by the way, 

there's a separate definition for aid and abet that says, 

see aid or abet --

JUDGE MILLETT: Yes.

MR. BUSA: -- and then Black's Law Dictionary also 

talks about how the terms aid and abet are often thought as 

having overlapping meanings --

JUDGE MILLETT: Yes.

MR. BUSA: -- although sometimes they can have 

slightly different sentences, but they all invoke core 

concepts --

JUDGE MILLETT: Yes.

MR. BUSA: -- of criminal law. The key point is 

that all of those core concepts of criminal law limit the 

statute so that it presents no constitutional defects, and 

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. 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. That's -- and I think that would be the simplest 

grounds on which to resolve this case.

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And the last parting thought I want to leave you 

with --

JUDGE MILLETT: Wait a minute. So does Black's 

Law Dictionary -- actually has promoter. I'm not seeing 

promote.

MR. BUSA: Well, it says --

JUDGE MILLETT: Promoter, a person who encourages 

or incites, encourages --

MR. BUSA: So, Your Honor, I --

JUDGE MILLETT: -- I'd like to make prostitution 

lawful in California for my friends, and then it has 

promoting prostitution, and then we go over to pandering. 

Well, pander is one who engages in pandering, and then you 

have the pandering definition that I think you probably 

want, like recruiting a prostitute, right, or the act or 

offense of distributing or selling textual or visual 

materials openly advertised to appeal to the recipient's 

sexual interest. That's another definition of pandering.

MR. BUSA: So, Your Honor, the definition I'm 

working with here is the Black's Law Dictionary 

definition --

JUDGE MILLETT: That's a First Amendment --

MR. BUSA: -- available on the online Westlaw 

version, where it says -- I can quote from it --

JUDGE MILLETT: Okay. All right. 

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MR. BUSA: -- because I don't -- I don't know what 

version you're -- and I apologize. There might be different 

versions. Here's the exact quote --

JUDGE MILLETT: Well, it's the same one that was 

in effect at the time they passed the statute.

MR. BUSA: So here's the exact quote that I 

have --

JUDGE MILLETT: That was in effect at the time 

they passed the statute, the one you're quoting from? 

MR. BUSA: It would have been extremely close. It 

was the 2018 statute. I think this is the most recent 

version of Black's Law. So it might be off by a couple of 

years. I can't imagine the definition has evolved radically 

in that time, but here's the exact definition, quote: 

aiding and abetting is, quote, to assist or facilitate the 

commission of a crime or to promote its accomplishment --

JUDGE MILLETT: Yes.

MR. BUSA: -- and that's the exact definition in 

the Model Penal Code, promote and facilitate, both there 

together --

JUDGE MILLETT: Yes.

MR. BUSA: -- LaFave, both there together; the 

Supreme Court citing, I believe it's the Black's Law 

Dictionary case --

JUDGE MILLETT: Yes.

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MR. BUSA: -- authority in that case says, yes, 

facilitate, just relying on that, has an equivalent meaning 

to words like aid and abet. The exact same reasoning 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.

JUDGE MILLETT: Are they talking there about the 

action verb? 

MR. BUSA: So I believe that sometimes accomplice 

liability statutes will use promote and facilitate in the 

verb component or the actions necessary and sometimes 

they'll use it in the intent component and frequently have 

used it, both together.

JUDGE MILLETT: Yes.

MR. BUSA: The last thought I want to leave you 

with -- unless, of course, there's any questions, which I'm 

happy to take -- is that if, as is true, general accomplice 

liability statutes throughout United States say it is a 

crime to promote the crime of another person and if 

prostitution is widely criminalized throughout the United 

States, then if promote had the widest possible meaning and 

-- that plaintiffs want to ascribe to it, it would seem by 

their logic that all of those statutes would have been 

constitutional in the First Amendment. They've cited no 

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cases at all of any court ever saying so, and by the way, 

the general statutes are all about, you know, general, like, 

aiding the commission of a crime. Here we're talking about 

a much more specific thing: operating an interactive 

computer service.

We think that we have the best interpretation of 

the statute, but at a minimum, it is feasible, and for that 

reason --

JUDGE MILLETT: So they're aiding or abetting --

they're aiding -- they're not aiding or abetting the owning, 

managing, or operating. That's not what they're doing. 

They're --

MR. BUSA: It's --

JUDGE MILLETT: -- intending to aid or abet the 

own, manage, or operate. I bet you there aren't still a lot 

of state statutes like that.

MR. BUSA: I guess I would -- I'm sorry, Your 

Honor? 

JUDGE MILLETT: I bet you there aren't a lot of 

state statutes like that that --

MR. BUSA: Well, no. The state statutes are much 

more broad. They actually cover this already.

JUDGE MILLETT: Wait. Wait. They don't -- they 

don't -- they have -- the only actus reus is owning or 

operating a computer system with a bad intent?

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MR. BUSA: In those -- in those -- in those 

general statutes, so general accomplice liability statute, 

and it prohibits aiding --

JUDGE MILLETT: Oh, I see.

MR. BUSA: -- the commission of a crime --

JUDGE MILLETT: Okay. You're not --

MR. BUSA: -- which covers, of course, this plus 

anything else under the sun that falls within traditional 

notions of aiding and abetting liability. This statute 

doesn't criminalize anything new. It's already criminal 

under state statutes --

JUDGE MILLETT: So if I --

MR. BUSA: -- and --

JUDGE MILLETT: -- if I have a, what do they call 

it, Computer Geeks business --

MR. BUSA: A what, Your Honor? 

JUDGE MILLETT: Like a Computer Geeks, the people 

that help repair computers --

MR. BUSA: Okay. 

JUDGE MILLETT: -- and I have a contract with 

someone who owns a computer, interactive computer system, 

and I repair it -- you know, it breaks often; I'm sort of --

I'm on call, I'm on contract, and sort of --

MR. BUSA: Yes.

JUDGE MILLETT: -- every week I'm in there, 

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something's broken, I got to fix it up, it's a very popular 

interactive computer --

MR. BUSA: Yes.

JUDGE MILLETT: -- system -- 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 -- in fact, 

nothing on the computer system does that but the owner has 

this really bad intent --

MR. BUSA: Yes.

JUDGE MILLETT: -- and I know it, I'm the owner of 

the computer -- I'm the Computer Geek tech --

MR. BUSA: Okay. 

JUDGE MILLETT: -- I know it, but I've checked, 

there's nothing on this computer system that looks at all 

like promoting prostitution, 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? 

MR. BUSA: I'm not sure, Your Honor. I'd 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.

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JUDGE MILLETT: Well, I know he's got the bad 

intent -- or I know I've got the -- he knows I've got the 

bad intent. I forget who I am, but --

MR. BUSA: Sure.

JUDGE MILLETT: -- let's say I'm running it now

because I can't really compare -- I can't hardly turn a 

computer on. So -- I certainly can't be the repair person. 

Now, if we change the hypothetical and in fact the person 

with the bad intent has -- it's what you would allege 

Backpage has done, or let's -- since there's, I guess,

litigation about that, we'll just call it Badwebsite.com --

MR. BUSA: Sure.

JUDGE MILLETT: -- Badpromotingandfacilitatingprostitution.com. Okay? And so not only does -- I have 

that terrible intent but, in fact, the content of the 

website -- or interactive computer system is pretty bad, it 

looks -- it looks like a bulletin board to match people up, 

and it even has, here's how to get fake passports if you're 

interested in transporting girls, 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 work on 

and repair that system every week. That would be aiding and 

abetting with that knowledge, would it not? 

MR. BUSA: It sounds like it's in the zone. 

Again, before I can give a definitive answer, I of course 

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want to consult case law about how aiding and abetting 

applies in that circumstance.

JUDGE MILLETT: I thought aiding and abetting --

so you're not clear whether helping to keep the computer 

system going is, with knowledge --

MR. BUSA: I would think so, Your Honor --

JUDGE MILLETT: -- aiding and abetting? 

MR. BUSA: -- but again, I just -- I have to 

admit, I have not thought out that --

JUDGE MILLETT: If aiding and abetting is getting 

to be this ambiguous, then we've got another problem, I 

think. I should have thought that would be --

MR. BUSA: No. So I don't think so, Your Honor. 

You know, the Supreme Court in Humanitarian Law Project

says, look, the fact that there can be close cases, it 

doesn't mean that there's a facial constitutional problem 

with the statute. That's what as-applied challenges are 

for, and of course --

JUDGE MILLETT: I didn't think the tech repairing 

the computer system with full knowledge of what it was doing 

and what it was intending to do was a close case, but --

MR. BUSA: No, it could be well within. I just 

don't happen to know --

JUDGE MILLETT: Okay. 

MR. BUSA: -- I apologize, Your Honor, because I 

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haven't consulted the facts of -- I haven't consulted the 

case law with those facts in mind.

JUDGE MILLETT: What is an example of aiding and 

abetting, then? 

MR. BUSA: I apologize, Your Honor? 

JUDGE MILLETT: What is -- well, you're pretty 

confident that promoting or facilitating -- are you 

confident what counts as aiding and abetting the 

prostitution of another person? 

MR. BUSA: I am confident that what Backpage did 

and things like Backpage would count. I can also imagine 

hypotheticals --

JUDGE MILLETT: Okay. But that doesn't help us 

interpret a general statute. So, I mean, can you tell me --

MR. BUSA: Sure. So --

JUDGE MILLETT: -- golly, I had thought your whole 

argument was that aiding or abetting added clarity, but 

now --

MR. BUSA: Of course it does.

JUDGE MILLETT: -- I don't understand why -- I 

thought my tech hypo was easy.

MR. BUSA: So of course it adds 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, and 

of course, on those specific facts, in any given case, you 

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would consult that case law and come to a determination.

The only issue for this Court is whether this 

actually covers aiding and abetting or not, not what 

specific things actually constitute aiding and abetting or 

not. That can be handled in as-applied cases. This is 

really just about statutory interpretation: Does this 

statute cover aiding and abetting, an underlying crime of 

exchanging sex for money? And we've provided you all the 

reasons on both, just off the definitions of the words 

themselves and also textual and contextual indications, as 

to why we think that's true, but again, all you have to 

conclude is that's a permissible interpretation, and then 

under the canon of constitutional avoidance, we would win 

this case.

JUDGE MILLETT: I've asked you a lot of questions. 

Do my colleagues have --

JUDGE EDWARDS: No more.

JUDGE MILLETT: Do you have any more? 

JUDGE WALKER: No. Thank you.

JUDGE MILLETT: Do you mind if I ask you, sorry --

MR. BUSA: No, of course.

JUDGE MILLETT: -- one more? No, it was on 

this --

MR. BUSA: My train is not until 1:00.

JUDGE MILLETT: Yes. This -- oh, good, we have

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lots of time -- this -- the argument they make about the 

change to the scope of section 230, immunity --

MR. BUSA: Yes.

JUDGE MILLETT: -- and they have the sort of 

selective withdrawal --

MR. BUSA: Yes.

JUDGE MILLETT: -- argument, and what I'm a little 

confused about is that the prior immunity, by its terms,

didn't apply if it was a violation of federal law --

MR. BUSA: Correct.

JUDGE MILLETT: -- right, and promoting or 

facilitating -- well, aiding or abetting the prostitution in 

interstate -- the interstate commerce component was unlawful 

even before this FOSTA was enacted --

MR. BUSA: Correct.

JUDGE MILLETT: -- in fact, and you say in your 

brief and they say -- I keep getting confused about this --

that FOSTA didn't change what was illegal, it just sort of 

changed, I guess, who can prosecute or civil remedies.

MR. BUSA: That's absolutely correct, Your Honor, 

yes. Everything that's prosecutable, I believe, under 2421A 

was already prosecutable under the Travel Act. The main 

reason for enacting 2421A as a separate section is as an 

easy cross-reference to exempt only certain state crimes 

from section 230(c)'s protections, not everything under the 

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Travel Act, but of course, it does more than just that, and 

I don't want to, you know, discount that. Of course, it 

provides for civil liability. It provides for, I believe, 

higher punishments than were available in the Travel Act 

itself.

JUDGE MILLETT: And put aside the civil remedy. 

Then the same thing could have been accomplished by just 

amending 230 -- just as to the immunity withdrawal --

MR. BUSA: Yes.

JUDGE MILLETT: -- amending it to say it doesn't 

extend to anything contrary to federal or state law or 

violation -- I think it's violation of federal law or state 

law. That's effectively what's happened as to allowing --

MR. BUSA: As to this --

JUDGE MILLETT: -- 230 was an immunity, was --

before this was an immunity, not just civil suits, but 

criminal prosecutions by states.

MR. BUSA: That's correct with the qualification 

that it depends on the scope of 230(c), which of course is 

an active litigation in the U.S. Supreme Court.

JUDGE MILLETT: Right. Right.

MR. BUSA: Right. But what Congress was doing was 

clarifying that the First Circuit in the Backpage case had 

misunderstood the scope of 230(c) and it fixed that in 

230(e) to allow state prosecutions of state crimes, where 

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that constitutes --

JUDGE MILLETT: Well, I don't think they 

misunderstood. It does say federal law in here. So I think 

-- but if Congress decided it wanted to change that. So --

MR. BUSA: Well, Congress said it was clarifying, 

but I understand that that can be --

JUDGE MILLETT: That's a lot of clarifying, but --

and so that -- so certainly, then, as to federal law, there 

was no giving and then taking back of immunity --

MR. BUSA: No.

JUDGE MILLETT: -- and then what I'm -- what I --

I guess to be up front, what I'm worried about is sort of 

constitutionalizing the concept of granting immunity and 

then Congress can never amend it. Right? That's a big 

thing to do, but they do raise a sort of selectivity 

argument. What am I to do with -- you know, Congress can't 

sort of pick on somebody. Like, it couldn't, I assume, have 

amended it to say, and Backpage doesn't get it --

MR. BUSA: Right.

JUDGE MILLETT: -- or maybe it -- I don't know. 

Maybe I'll say it could.

MR. BUSA: I'm not here to defend -- I'm not here 

to defend --

JUDGE MILLETT: Right.

MR. BUSA: -- that proposition, no.

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JUDGE MILLETT: Right, but isn't that -- so how 

would you answer an argument that says, effectively,

Backpage and its relatives can't do this anymore, as to 

state, as to --

MR. BUSA: Sure.

JUDGE MILLETT: -- state criminal prosecution? 

MR. BUSA: Congress 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; we can't just have federal 

prosecution. This is the purpose behind the statute. I 

mean, I think all 50 state attorneys general sent a letter 

to Congress saying, please untie our hands, we need to go 

after these people that are sex trafficking children.

I think Congress is perfectly entitled to make a 

determination that, you know, in addition to federal 

prosecution, state prosecution for such things should be 

allowed. I don't know of any precedents that would call 

into question that judgment.

JUDGE MILLETT: Thank you. 

JUDGE WALKER: Well, now I do have a question.

JUDGE MILLETT: Sorry.

JUDGE WALKER: Just out of curiosity, the 

plaintiff mentioned that there haven't been any state 

prosecutions. Is that your sense as well? 

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MR. BUSA: I have no sense of that, Your Honor. I 

mean, it would depend on -- I just don't have that 

information at my fingertips. To my knowledge, there's no

reporting requirement that the states, when they prosecute 

somebody and invoke the succession to 230(c)'s immunity, 

that they then report it to us. So I just do not have 

information about that. I apologize. 

JUDGE MILLETT: May not know this either, but do 

you know if the civil remedies provision has been able to be 

used? I mean, this statute -- it's a little odd because 

this statute has been around since 2018 and it's -- usually, 

these First Amendment challenges happen pretty fast.

MR. BUSA: Right.

JUDGE MILLETT: I'm just curious as to, we're four 

years in, and do know if there's been civil remedy actions? 

MR. BUSA: I cannot recall coming across a

reported case in which I've read about that being invoked.

JUDGE MILLETT: Yes. Doesn't mean it hasn't 

happened, obviously.

MR. BUSA: It does not mean that it hasn't 

happened.

JUDGE MILLETT: Right. For sure. For sure. 

Okay. Thank you very much. 

MR. BUSA: Thank you very much, Your Honors. We 

ask that you affirm. 

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JUDGE MILLETT: We'll give you four minutes for 

rebuttal. 

ORAL REBUTTAL OF ROBERT CORN-REVERE, ESQ.

ON BEHALF OF THE APPELLANTS

MR. CORN-REVERE: Thank you, Your Honor. I'll try 

to be brief. 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, but I also noted that there was 

one small exception to that that I would hope to get back 

to, and that's what I want to talk about just for a minute 

now.

The only reference to any of those cases that I 

alluded to is at page 40 of the Government's brief where it 

cites Ashcroft v. Free Speech Coalition for the proposition 

that courts thus decide what a statute prohibits, not what 

it could prohibit. Now, leave aside for a minute that 

that's not what Ashcroft v. Free Speech Coalition says. I 

think it's important to recognize what that case did. It 

said that that law is a stark example of why we allow facial 

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, and on that basis it found 

the law to be overly broad.

The way that ties into this case specifically is 

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that the statute that was upheld in Williams was passed in 

reaction to Free Speech Coalition v. Ashcroft, and the 

language in Williams that was upheld was especially that 

string of verbs that explained what the crime was. So the 

backdrop for adopting FOSTA is that Congress, after FOSTA 

and after the Supreme -- 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 range of meanings, Congress had adopted a 

statute regulating Internet speech that simply uses those 

terms in isolation, which means it specifically undid what 

Congress had tried to do in saving the PROTECT Act.

Congress then added a provision to the Mann Act, 

which chose to exclude the verbs that had existed in that 

law, narrowing its scope, since 1910, and -- you know, in 

the midst of Supreme Court law that is unchallenged, that 

says that laws regulating speech must be drafted with 

precision, and on top of all of that, Congress focused on, 

in FOSTA, not only adopting these more harsh penalties but,

doing so now, it increases risks for online intermediaries,

creating a heckler's veto or, worse, a prosecutor's veto.

In the words of Professor Eric Goldman, FOSTA 

represents the worst of both worlds, and as a result, it's 

unconstitutional and should be enjoined.

JUDGE WALKER: Let me ask a couple questions. One 

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is, you set aside your ex post facto argument and if you set 

aside your 230 immunity being required argument -- so just 

put those aside for a second -- 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? 

MR. CORN-REVERE: Well, there's a constitutional 

problem in that there has to be the language in the statute 

to get to that understanding, and that was -- that was what 

the Supreme Court said in --

JUDGE WALKER: But don't fight -- don't -- if we 

read -- I know you think we shouldn't read that language in, 

maybe we won't read that language in, but if we read the 

statute, if we read it narrowly to only include aiding and 

abetting, do you concede that there's no constitutional 

problem? 

JUDGE MILLETT: You're asking about -- I'm sorry. 

Just so I understand, are you asking about the mens rea or 

an actus reus? 

MR. CORN-REVERE: Well, and --

JUDGE WALKER: I guess it would be --

JUDGE MILLETT: 2421A.

JUDGE WALKER: -- mainly the mens rea, but the 

whole -- actually, both, I guess.

JUDGE MILLETT: Right. Right. 

MR. CORN-REVERE: That gets to --

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JUDGE MILLETT: 1591.

JUDGE WALKER: I mean, the Government started his

argument -- you heard him -- 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, and do you agree? 

MR. CORN-REVERE: Well, what I'm struggling with 

-- I'm not trying to evade your question, Your Honor -- is 

that it seems like the question is, if we assume the law is 

constitutional, then it's constitutional.

JUDGE WALKER: No, no, no, if we assume that it's 

limited to aiding and abetting.

MR. CORN-REVERE: And that's where the disconnect 

that Judge Millett was focusing on between actus reus and 

mens rea becomes critical, because it doesn't define a 

criminal actus reus other than owning, operating, or 

managing an online -- an interactive computer service, and 

so trying to say it then constitutes aiding and abetting 

makes no sense because it's simply saying we are, in the 

hypothetical posed by Judge Millett, owning, managing, or 

operating a library with really bad intent.

JUDGE WALKER: Okay. Let me -- let me --

JUDGE MILLETT: Or aiding and abetting intent.

JUDGE WALKER: -- the -- I'm going to read the 

Mann Act or the key part of the Mann Act. I think this is 

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the text, and I'm going to stop when it gets to the 

mens rea. Okay? I'm going to stop when it gets to the 

intent: Whoever knowingly transports any individual in 

interstate or foreign commerce or in any territory or 

possession in the United States with intent, and then it 

defines the intent. So leaving out the interstate commerce 

hook, whoever knowingly transports any individual, that's 

the actus reus. Is that right? 

MR. CORN-REVERE: I'm not sure which section 

you're reading from. I was looking at the section of 

2422(a), which applies to anyone who knowingly persuades, 

induces, entices, or coerces any individual to travel in 

interstate commerce to engage in prostitution. Again, it's 

an example of where the law includes in the actus reus a 

more precise definition.

JUDGE WALKER: So I think this is --

JUDGE MILLETT: You're at 2421.

JUDGE WALKER: Yes. So --

JUDGE EDWARDS: Which are you referring to now? 

JUDGE MILLETT: 2421.

JUDGE WALKER: 18 U.S.C. --

JUDGE EDWARDS: That's not what it said.

JUDGE WALKER: -- 2421, the general provision --

JUDGE EDWARDS: Yes.

JUDGE WALKER: -- whoever knowingly transports any 

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individual --

JUDGE EDWARDS: Oh, that's not what it --

JUDGE WALKER: -- then there's the interstate 

commerce --

JUDGE EDWARDS: -- 2421A, small (a)?

JUDGE WALKER: Yes.

JUDGE MILLETT: No, no. 

JUDGE EDWARDS: Okay.

JUDGE WALKER: Whoever knowingly transports any

individual, then there's the interstate commerce hook and 

followed by the mens rea. So whoever knowingly transports 

any individual is the actus reus. Is that right? 

MR. CORN-REVERE: It is.

JUDGE WALKER: And you have a constitutional right 

to travel, the Supreme Court has said, right? 

MR. CORN-REVERE: Yes.

JUDGE WALKER: How is -- is the Mann Act 

constitutional? 

JUDGE MILLETT: Do you have a constitutional right 

to transport -- or First Amendment right or constitutional 

right to transport someone else?

MR. CORN-REVERE: 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, 

knowing whether or not your speech falls within that 

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category is a much more difficult and nuanced question than 

whether or not you have physically transported someone 

across state lines.

JUDGE WALKER: Okay. I appreciate that.

JUDGE MILLETT: Any other questions? 

JUDGE EDWARDS: No. We're fine.

JUDGE MILLETT: Thanks to both counsel.

MR. CORN-REVERE: Thank you very much.

JUDGE MILLETT: We kept you much longer than we 

anticipated, but we appreciate your help working through 

this complicated statute, and the case is submitted. 

(Whereupon, the proceedings were concluded.) 

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DIGITALLY SIGNED CERTIFICATE

I certify that the foregoing is a correct 

transcription of the electronic sound recording of the 

proceedings in the above-entitled matter.

__________________________ January 16, 2023_ 

WENDY CAMPOS

DEPOSITION SERVICES, INC.

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