United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 11, 2023 Decided July 7, 2023 No. 22-5105 WOODHULL FREEDOM FOUNDATION, ET AL., APPELLANTS v. UNITED STATES OF AMERICA AND MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-01552) Robert Corn-Revere argued the cause for appellants. With him on the briefs were Lawrence G. Walters, Adam S. Sieff, Caesar Kalinowski IV, David Greene, Aaron Mackey, Corynne McSherry, and Daphne Keller. Christopher T. Bavitz was on the brief for amicus curiae Transgender Law Center in support of appellants. Lauren Gallo White and Brian M. Willen were on the brief for amicus curiae Center for Democracy & Technology in support of appellants. 2 Catherine Sevcenko was on the brief for amici curiae COYOTE-RI, et al. in support of appellants. Rebecca Cleary was on the brief for amici curiae Decriminalize Sex Work, et al. in support of appellants. Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Mark B. Stern, Attorney. Before: MILLETT and WALKER, Circuit Judges, and EDWARDS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge MILLETT. MILLETT, Circuit Judge: In 2018, Congress enacted the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (commonly referred to as “FOSTA”). Pub. L. No. 115- 164, 132 Stat. 1253 (2018) (codified as amended in 18 U.S.C. §§ 1591(e), 1595, 2421A and 47 U.S.C. § 230(e)(5)). Section 2421A(a) of FOSTA makes it a felony to “own[], manage[], or operate[]” an interactive computer service—for example, a website, chat room, or search engine—“with the intent to promote or facilitate the prostitution of another person[.]” 18 U.S.C. § 2421A(a). Section 2421A(b), in turn, denominates as an aggravated offense a violation of Section 2421A(a) that either “promotes or facilitates the prostitution of 5 or more persons” or is “in reckless disregard of the fact that such conduct contributed to sex trafficking” in violation of Section 1591(a) of the Trafficking Act. Id. § 2421A(b). FOSTA also subjects the providers of those computer services to liability in civil and state-law criminal actions for 3 any third-party content they publish that violates 18 U.S.C. § 2421A or the Trafficking Victims Protection Act of 2000 (“Trafficking Act”), Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended in various Sections of 8, 18, and 22 of the United States Code), denying them an immunity from lawsuits that is otherwise generally accorded to computer service providers under 47 U.S.C. § 230. FOSTA withholds immunity regardless of whether the outlawed conduct occurred before, on, or after FOSTA’s enactment. 47 U.S.C. § 230(e)(5) & note. Finally, FOSTA adds a new definitional provision to the Trafficking Act, 18 U.S.C. § 1591(e)(4), and authorizes parens patriae suits by States against persons who violate that same Act’s prohibition of sex trafficking, …
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