Case Document 25 Filed 09/24/18 Page 1 of 29

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Woodhull Freedom Foundation, et (11., 

Plaintiffs, 

v. Civil Case No. 18-cv?01552 (RJL)

United States of America, et al., 

Defendants. I 
SEP 24 2018
Clerk. US. District 8. Bankruptcy
MEMORANDUM OPINION 10f the District Of Columbia

 

September 2018 [Dkt. 5, 16]

On June 28,? 2018, plaintiffs ?led their complaint challenging the constitutionality
of the Allow States and Victims to Fight Online Sex Traf?cking Act of 2017, Pub. L. No.
115-164, 132 Stat. 1253 (2018) or ?the Act?). See Comp1.1l 1 [Dkt. The
same day, plaintiffs ?led a motion for preliminary injunction, asking this Court to enjoin
the enforcement of the Act pending the resolution of this litigation. See Motion for
Preliminary Injunction 1 (?Mot for Prelim. 1nj.?) [Dkt. Plaintiffs, ?advocacy and
human rights organizations, two individuals and the leading archival collection of Internet
content,? raise a bevy of claims. Id. at 2. They assert that OSTA violates the First and
Fifth Amendments to the US. Constitution, as well as the Ex Post Facto clause of Article
1, Section 9. See Compl. 126-74. From plaintiffs? perspective, FOSTA offends the
Constitution in a variety of ways: it is overbroad, vague, impermissibly targets speech

based on viewpoint and content, pares back immunity from certain state law claims, erodes

Case Document 25 Filed 09/24/18 Page 2 of 29

the scienter requirement, and wrongly criminalizes conduct that was lawful at the time
committed. See id. Defendants, United States and Attorney General Jefferson B. Sessions
(hereinafter ?defendants? or ?the Government?), disagree. They argue that plaintiffs lack
standing to challenge the Act?s constitutionality and that, in all respects, FOSTA passes
constitutional muster on the merits. For the reasons discussed below, I agree with the
defendants and will DENY plaintiffs? Motion for Preliminary Injunction [Dkt. and
GRANT defendants? Motion to Dismiss (?Mot to Dismiss?) [Dkt. 
1. Statutory Scheme

The Allow States and Victims to Fight Online Sex Trafficking Act of2017, Pub. L.
No. 115?164, 132 Stat. 1253 (2018) or ?the Act?) passed the House of
Representatives and the Senate on February 27, 2018 and March 21, 2018, respectively.
President Donald J. Trump signed the bill into law on April 11, 2018, and FOSTA took
immediate effect. 132 Stat. 1253, 

FOSTA adds one section to the US. Code, and amends three others. The Act
implements the ?sense of Congress? that the Communications Decency Act of 1996,
codified in 47 U.S.C. 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 traf?cking victims.? 132 Stat. 1253, 
Indeed, ?websites that promote and facilitate prostitution have been reckless in
allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking

ofchildren and victims of force, fraud, and coercion.? Id. For this reason, the Act

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continues, ?clarification of [Section 230] is warranted? in order to ensure that that section
does not shield ?such websites? from appropriate liability. Id. 

Section 2421A is the centerpiece and this case. There, the Act creates a
federal criminal offense for owning, managing, or operating ?an interactive computer
service . . . 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). This offense is punishable by
fine or up to ten years? imprisonment. Id. A defendant facing this charge may avail himself
of an af?rmative defense, namely that ?the promotion or facilitation of prostitution is legal
in the jurisdiction where the promotion or facilitation was targeted.? Id. 2421A(e). The
burden for establishing the af?rmative defense lies with the defendant, who must establish
this fact by a preponderance of the evidence. 1d.

Section 2421A further provides for an ?aggravated? version of the same offense,
punishable by fine or up to twenty?five years? in prison. See id. 2421A(b). The
aggravated offense layers additional elements on top ofthe Section 2421A(a) base offense.
Thus, Section 2421A(b) imposes criminal liability on anyone who owns, manages. or
operates an interactive computer service with the intent to promote or facilitate the
prostitution of another person and either (1) ?promotes or facilitates the prostitution of five
or more persons,? see id. 2421A(b)(i), or (2) ?acts in reckless disregard of the fact that
such conduct contributed to sex traf?cking[] in violation of 18 U.S.C. see id.

2421A(b)(ii). Section 1591(a), a preexisting provision ofthe criminal law, prohibits sex

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trafficking. See id. Under Section 2421A(c), victims ofviolations of Section
2421A(b) may bring civil suits in federal court to ?recover damages and reasonable
attorneys fees.? Id. 2421A(c). FOSTA also directs the court to order restitution for any
violation of subsection 

Next, FOSTA amends 47 U.S.C. 230, the ?safe harbor? of the Communications
Decency Act of 1996 Section 230 has two key functions. First, it immunizcs
interactive computer services from criminal and civil liability for content created by third
parties. See 47 U.S.C. 230(c)(1) (providing that 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?); id. 230(c)(3) (preempting con?icting state
and local law); see also Bennett 12. Google, LLC, 882 F.3d 1163, 1165 (DC. Cir. 2018)
(?The intent of the [Communications Decency Act] is thus to promote rather than chill
internet speech?); see also Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d
398, 406-07 (6th Cir. 2014) (?Section 230 marks a departure from the common?law rule
that allocates liability to publishers or distributors oftortious material written or prepared
by others?). At the same time, however, Section 230 ?encourage[s] service providers to
self?regulate the dissemination of offensive material over their services.? Bennett, 882

F.3d at 1165 (quoting Zeran 1). Am. Onlz'ne, Inc., 129 F.3d 327, 331 (4th Cir. 1997)). With

 

1 Because sex trafficking of minors and sex traf?cking ?by force, fraud, or coercion? are unlawful
in the United States, see 18 U.S.C. 1591, the fact that prostitution is legal in thejurisdiction where the
promotion or facilitation is targeted is not an affirmative defense as to subsection See id. 2421 

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these two grants of immunity, Section 230 ?incentivize[s] companies to neither restrict
content nor bury their heads in the sand in order to avoid liability.? Id.

clari?es the scope of Section 230?s preemptive effect. The Act states that
?nothing in? Section 230(c)(1) the provision immunizing providers of interactive
computer services from liability for the speech of third parties 2 ?shall be construed to
impair or limit? three categories ofcivil claims and criminal prosecutions. Id. 230(c)(5).
First, FOSTA makes clear that Section 230 does not preclude civil claims by victims
against perpetrators and persons who ?receiv[ed] anything of value from participation in a
[sex traf?cking] venture? under 18 U.S.C. 1595 ifsuch participation was ?knowing" as
defined in 18 U.S.C. 1591. Id. Second, Section 230 does not foreclose
state criminal prosecution if the conduct underlying the charge would have violated 18
U.S.C. 1591. Id. And third, Section 230 does not preclude state criminal
prosecution if the conduct would constitute a violation of 18 U.S.C. 2421A, the newly-
created FOSTA criminal offense. Id. 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.?2 132 Stat. 1253, 

 

2 As worked its way through the legislative process, the Department of Justice wrote to
Rep. Bob Goodlatte, one ofthe Act?s sponsors. See 164 Cong. Rec. H1297 (daily ed. Feb. 27, 2018). The
letter began by raising some prudential concerns about the necessity of FOSTA and its effectiveness as a
law enforcement tool. After making these policy-based complaints, the DOJ expressed concern that the
retroactive application of amendment of Section 230 ran afoul ofthe Ex Post Facto Clause ofthe
U.S. Constitution. In particular, the DOJ wrote, ?insofar as would ?impose[] a punishment for
an act whichwas not punishable at the time it was committed? or ?imposeH additional punishment to that
then prescribed,? it would offend the Ex Post Facto clause. Id. (quoting Cummings 1). Missouri, 4 Wall.
277, 325-26 (I 867)).

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Next, FOSTA adds a de?nition to 18 USC. 1591, the provision of the code that
prohibits sex traf?cking. There, FOSTA clari?es that the term ?participation in a venture?
means ?knowingly assisting, supporting, or facilitating? sex traf?cking. Id. 1591(e)(4).
The term ?participation in a venture? appears elsewhere in the same section, but had
previously been unde?ned. See id. 1591(a)(2) (criminalizing the knowing ?participation
in a venture? to cause sex traf?cking of an adult by ?force, fraud, or coercion? or of a
minor).

Fourth, and ?nally, OSTA amends Section 1595 of the same title to authorize state
attorneys general to bring civil actions in parenspairiae on behalfof residents of the state
who have been ?threatened or adversely affected by any person who violates? 18 U.S.C. 
1591. See 18 U.S.C. 1595(d). 1n layman?s terms, Section 1595 allows state attorneys
general to step into the shoes ofvictims and bring civil suits on their behalf. Id.

11. Parties

The Woodhull Freedom Foundation (?Woodhull?) is an advocacy and lobbying
organization focused on ?af?rming and protecting the fundamental human right to sexual
freedom.? Declaration of Ricci Levy in Support of Motion for Preliminary Injunction 
Levy Deck?) ll 3 [Dkt It provides ?support for the health, safety, and protection of
sex workers, which include adult ?lm performers, live webcam models, sexual wellness
instructors, exotic dancers, escorts, and prostitutes.? Id. ll 5. Woodhull ?strongly opposes
sex traf?cking or sexual assault in any form, while advocating for the right to engage in
consensual sexual activity.? Id. The organization maintains a website, id. 11 8, blog, id. ll

9, and social media accounts, id. 11 12.

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Woodhull?s ?signature event? is the annual Sexual Freedom Summit, held in the
Washington, DC. area. See id. 16-26. The Summit ?brings together hundreds of
educators, therapists, legal and medical professionals,? id. ii 16, and features ?workshops
devoted to issues impacting sex workers, such as harm reductions, disability, age, health,
and personal safety,? id. ii 17. The most recent Summit took place while this litigation was
pending, from August 2-5, 2018 in Alexandria, Virginia.3 As part of the Summit,
Woodhull represented that it intended to use social media, such as Facebook Live and
Twitter, to reach individuals unable to attend in person. Id. ii 24. Livestreamed events
included titles such as ?Criminalization of Sex Work is a Human Rights Violation and a
Labor Rights Concern,? How Congress Broke the Internet,? and ?Sexual
Freedom in the Age of Trump.? See Woodhull?s
President, Ricei Levy, represents that the organization has ?a well founded fear? of
prosecution under FOSTA based on ?its efforts to promote information about sex workers
on the Internet.? Levy Decl. 37-38.4

The second named plaintiff, Human Rights Watch monitors potential

violations of human rights around the world. Declaration of Dinah PoKempner

 

3 As discussed below, plaintiffs requested a ruling from this Court on the motion for preliminary
injunction prior to the Summit. Nevertheless, the Summit took place and, so far as the Court is aware, no
prosecutions or civil suits have ensued against Woodhull for its sponsorship of the Summit.

4 Woodhull?s President, Ricei Levy, avers that the organization has taken precautionary steps to
avoid FOSTA liability. These prophylactic steps included refraining from publishing articles on the
Woodhull website concerning FOSTA and its effect on sex workers. Levy Decl. 28. Those planned
articles and blog posts would have advocated against the enforcement of FOSTA, and ?educated [sex
workers] about their rights, risks, and options under the new legal environment.? Id. In addition, Woodhull
initially decided to self-censor the promotion of workshops related to sex workers at the Summit, although
it eventually reversed this position and advertised for those events on its website and by way of social
media. 32-33, 36.

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(?PoKempner Decl.?) 2?3 [Dkt As part ofthis mission, HRW does research and
advocacy on behalf of sex workers, including in favor of decriminalization. Id. 2-5.
body of work includes reporting on such issues as ?police searches of women for
condoms as evidence of prostitution? in the United States. Id. 1i 5. Nevertheless, like
Woodhull, HRW is ?ercely opposed to ?[fjorced prostitution and traf?cking.? Id. 1i 7.
And, like Woodhull, HRW details its ?concern[]? about potential FOSTA liability
?[d]espite the[] clear distinctions in [its] policy? between advocacy for decriminalization
of consensual prostitution and opposition to forced prostitution and sex traf?cking. Id. fl
8.5

Plaintiffs also include two individuals. The ?rst, Eric Koszyk, is a licensed massage
therapist in Portland, Oregon, and the sole proprietor of Soothing Spirit Massage, a
massage parlor that he has run for over a decade. See Declaration of Eric Koszyk (Koszyk
Decl.) 1-2, 5 [Dkt. He uses Craiglist ads to attract over 90% of his customers,
and ?nds Craigslist to be the ?easiest and best way to reach clients? for his massage
business. Id. 1W 6, 9. Koszyk placed his ads in the ?Therapeutic Services? section of
Craigslist, and speci?ed that he was ?a man providing massage therapy? and that his
?services were professional and therapeutic.? Id. 7. Following passage of the Act,

Craigslist has taken down Koszyk?s ads, and has refused to allow him to post new ads. Id.

 

5 l-lRW also reports that ?it is concerned that social media platforms and websites that host,
disseminate, or allow users to spread [its] reports and advocacy materials? may be affected by Section
242 I A. PoKempnerDecl.1[9.

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22-23. As a result, Koszyk represents that he ?no longer [has] a place on the website to
advertise [his] services as a licensed massage therapist.? Id. ?ll 23.6

Jesse Maley is a self-described advocate for ?sex workers? health, safety, and human
rights.? Declaration ofJesse Maley (Maley Decl.) 1i 1 [Dkt. In her professional
life, Maley goes by the name ?Alex Andrews.? Id. 1i 2.7 Maley co-founded and continues
to manage a website entitled ratethatrescueorg (?Rate That Rescue?), a ?sex worker-led,
public, free community effort? intended to educate sex workers about organizations used
by sex workers. Id. ii 13. The term ?Rescue? refers to so?called rescue organizations,
which seek to ?assist or rescue sex workers.? Id. Ti 14. Some rescue organizations, at least
in Maley?s view, do more harm than good by failing to distinguish between consensual and
coerced sex work and ?treat[ing] all sex workers as victims.? Id. 1] 16.

With this in mind, Maley co-founded Rate That Rescue in order to inform and
educate sex workers about the nature and mission ofvarious rescue organizations. Since
its founding in 2015, the website has expanded to provide information on all manner of
organizations ?unrelated to . . . sex work,? but nevertheless relied on by sex workers. Id.

ii 17. Those include organizations that address substance abuse, health care, and child care.

 

Koszyk states in his declaration that ?other licensed and certified massage therapists experienced
similar problems with their advertisements on Craiglist.? Koszyk Dec]. 1] 26.

7 In addition to her work for Rate That Rescue, Maley is the treasurer and a member ofthe board
of directors ofthe Sex Workers Outreach Project USA the founder ofthe Orlando chapter
and the founder Behind Bars.? SWOP USA is a ?national socialjustice
network? that advocates for the decriminalization of sex work; it operates a national hotline and has local
chapters. Id. 3-6. SWOP Behind Bars has a more narrow focus, offering support to incarcerated sex
workers by way of a support line, an electronic newsletter, and a re-entry guide for those leaving prison.
Id. 8-10. Although SWOP is not a party to this case, Maley represents that SWOP has chosen not to
purchase a mobile application out of concern for liability under FOSTA. Id. 32-39.

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Id. 17, 22. Listings of organizations specify basic information a brief description of
the organization, contact information, the type of service offered - and include ratings on
a 1 to 5 scale by users, as well as comments by those users. Id. 21-22.

Rate That Rescue relies on ratings and reviews added by unpaid, volunteer third
parties. See id. 1] 25. It does so on the thinking that sex workers who have received services
from organizations will be in the best position to rate their effectiveness. Id. ll 18. Users,
acting by name or anonymously, can create listings for particular organizations and post
reviews on existing listings. Id. 'll 19. Rate That Rescue also allows the rated organizations
to modify existing listings, and respond to users? comments. Id. 1] 20.8 In her declaration,
Maley relays that, with FOSTA on the books, she is ?extremely worried that Rate That
Rescue is potentially criminally liable for the speech of [its] users.? Id. ll 26. Maley?s
declaration discusses this concern at length, reciting various legal theories under which
Rate That Rescue could be liable under FOSTA. See id. 24-31 .

The Internet Archive (?the Archive?) is an organization that archives internet
webpages. Declaration ofBrewster Kahle (Kahle [Dl<t. The Archive?s
mission is to preserve digital materials in order to prevent them from ?disappearing into
the pastfunction that ?crawl[s]? across webpages, mapping and storing
those pages in order to preserve them for future use. Id. 1] 7. The Archive collects and

stores 80 million pages per day, and includes 330 billion web pages from 1996 to the

 

3 Maley?s declaration records a 1993 conviction for ?aggravated promotion of prostitution in
violation of Texas law,? based on her operation of an escort service in San Antonio. Id. fl 1 l. The court
imposed ten years? probation; that probation period was terminated in 2001. Id. Maley represents that she
?no longer operate[s] the escort service,? and has not since her conviction. Id.

10

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present. Id. 7?8. It therefore comes as no surprise that ?[tilhe vast majority of the
material in the Internet Archive?s collection is authored by third parties.? Id. ll 4. In
addition, third parties can make their own contributions to this site, supplementing the
Archive?s collection by uploading stored webpages from the past. Id. 11 13. The general
public uploads roughly 20,000 items per day to the Archive. Id. Although the Archive
does ?at times? remove content, it has ?no practical ability to evaluate the legality of any
significant portion of the third-party content that it archives and makes available.? Id. 11
14. The Archive?s founder, Brewster Kahle, avers that he is ?afraid? that FOSTA will
result in criminal or civil liability for the Archive. Id. 1121.
Procedural History

Plaintiffs filed this complaint on June 28, 2018. See Compl. [Dkt The same
day, they moved for a preliminary injunction pursuant to Fed. R. Civ. P. 65(21). See Mot.
for Prelim. Inj. 1 [Dkt This Court set a hearing on July 19, 2018 for oral argument
on the Motion. See 7/5/2018 Min. Order. Prior to oral argument, the Court twice extended
brie?ng deadlines to afford the parties more time to develop their arguments. See 7/5/2018
Min. Order; 7/10/2018 Min. Order. On July 12, 2018, defendants filed their Opposition to
Plaintiffs? Motion for Preliminary Injunction [Dkt 15] and Motion to Dismiss (?Mot to
Dismiss?) [Dkt l6], and, on July 17, 2018, plaintiffs filed a Reply in support of their
Motion for Preliminary Injunction Reply?) [Dl<t. l7] and, on July 29, 2018, an
Opposition to defendants? Motion to Dismiss [Dkt. 19].

At the hearing, plaintiffs requested a ruling on their motion for preliminary

injunction prior to Woodhull?s Sexual Freedom Summit, scheduled for August 2-5, 2018.

11

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I advised the parties that, due to plaintiffs? decision to wait to challenge FOSTA until
months after its passage, as well as the novelty of the issues presented in plaintiffs?
complaint, this Court would not be in a position to rule and issue a opinion within
the two weeks remaining prior to the Summit. 7/19/2018 Hr?g Tr. 1325-1529 [Dkt. it 23].
Nevertheless, I pledged to issue an opinion as soon as practicable, and gave the parties the
opportunity to supplement their brie?ng within seven days of the publication ofthe hearing
transcript. Id. 41 42: 16-19. The briefing was finalized on August 6, 2018. See Defs.?
Reply in Support of Motion to Dismiss and Supp. Mot. Hearing Br. [Dkt. 21]; Supp. Br.
in Support of Pls.? Mot. for Prelim. In]. [Dkt. 22].
IV. Standard of Review

Plaintiffs ask this Court to issue a preliminary injunction blocking the enforcement
of FOSTA. The test for this ?extraordinary remedy? is well known. Pursuing America ?s
Greatness v. Fed. Election Comm 831 F.3d 500, 505 (DC. Cir. 2016) (quoting Winter
v. Nat. Res. Def. Council, Inc, 555 US. 7, 22 (2008)). In order to receive a preliminary
injunction, plaintiffs must make a ?clear showing? that four factors, taken together, warrant
relief. 1d. These factors are likely success on the merits, likely irreparable harm
in the absence ofpreliminary relief, a balance of the equities in [their] favor, and 
accord with the public interest.? (citing Winter, 555 US. at 20); see also Davis 12.
Pension Benefit Guar. Corp, 571 F.3d 1288, 1291?92 (DC. Cir. 2009).

Defendants, for their part, assert that the case should be dismissed for want of
subject?matter jurisdiction. See Fed. R. Civ. P. In particular, defendants assert

that plaintiffs have failed to satisfy the requirements of Article standing to sue. It is, of



1.:

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course, black-letter law that the jurisdictional requirements of Article 111 must be present
before this Court may proceed to the merits. See Steel Co. 12. Citizens for a Better
Env?t, 523 US 83, 94-95 (1998). Indeed, the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.? Fed. R. Civ. P.


Plaintiffs bear the burden of establishing, by preponderance of the evidence, that
this Court has subject-matterjurisdiction over their claims. See Spa/ceo Inc. v. Robins, 136
Ct. 1540, 1547 (2016). At the pleading stage, this means that plaintiffs must ?clearly . .
. allege facts demonstrating? each element of Article 11] standing. Id. (quoting Wartli v.
Seldin, 422 US. 490, 518 (1975)). When reviewing a Rule 12(b)(1) motion to dismiss on
jurisdictional grounds, ?the Court must accept as true all of the factual allegations
contained in the complaint.? US. ex rel. Digital Healtlteare, Af?liated C(m-ipiiter
Sela/s, 778 F. Supp. 2d 37, 43 (BBC. 2011). That said, I need not ?accept inferences
unsupported by the facts alleged or legal conclusions that are cast as factual allegations.?
Rat/m v. Chem, 154 F. Supp. 2d 61, 64 (D.D.C. 2001).

Defendants also move for dismissal pursuant to Fed. R. Civ. P. on the
grounds that plaintiffs have failed to state a claim upon which relief can be granted. As
with the Rule 12(b)(1) motion, for purposes of Rule this Court must ?assume the
truth of all material factual allegations in the complaint and construe the complaint
liberally, granting plaintiff the bene?t of all inferences that can be derived from the facts
alleged? without crediting unsupported inferences from those factual allegations, or legal

conclusions couched as facts. See Am. Nat?llns. Co. v. Fed. Deposit Ins. Corp, 642 F.3d

13

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1137, 1139 (DC. Cir. 2011) (citation and quotation marks omitted); Rarm, 154 F. Supp.
2d at 64.9
V. Discussion

Article 111 limits the jurisdiction of the federal courts to the adjudication of?Cases?
and ?Controversies? that is, ?cases and controversies of the sort traditionally amenable
to, and resolved by, thejudicial process.? Steel Co., 523 U.S. at 95. ??One element of the
case-or-controversy requirement? is that plaintiffs ?must establish that they have standing
to sue.? Clapper v. Amnesty [nt?l USA, 568 U.S. 398, 408 (2013) (quoting Rairzes v. Byrd,
521 U.S. 811, 818 (1997)). Standing ??serves to prevent thejudicial process from being
used to usurp the powers of the political branches,? and con?nes the federal courts to a
properly judicial role.? Spokeo, 136 S. Ct. at 1547 (quoting Clapper, 568 U.S. at 
Given these separation of powers concerns, the Supreme Court has emphasized that the
?standing inquiry has been especially rigorous when reaching the merits of the dispute

would force us to decide whether an action taken by one of the other two branches of the

 

9 Some cases suggest a discrepancy in the standard of review between Rule 12(b)(1) and Rule
12(b)(6) motions, with the former requiring more searching scrutiny on the part ofthe Court than the latter.
See, cg, Grand Lodge ofFralermil Order ofPollce v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001)
factual allegations in the complaint. . . will bear closer scrutiny in resolving a 12(b)(1) motion
than in resolving a l2(b)(6) motion for failure to state a claim?). Because plaintiffs fail adequately to allege
Article 11] standing to sue, I need not determine what daylight, if any, exists between the 12(b)(1) and
l2(b)(6) standards.

?0 Article 111 standing also helps to ensure that the plaintiff maintains ?a ?personal stake in the
outcome ofthe controversy.? Susan B. Anthony List 12. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting
Worth, 422 U.S. at 498). For this reason, in order to show standing, plaintiffs must ??allegeli] such a
personal stake in the outcome of the controversy? as to warrant [their] invocation of federal-court
jurisdiction and to justify exercise ofthe court's remedial powers on [their] behalf.? Wart/7, 422 U.S. at
498?99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

14

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Federal Government was unconstitutional.? Clapper, 568 US. at 408 (quoting Rallies, 521
US. at 819-20).

The ?irreducible constitutional minimum? of Article 111 standing contains three
elements. Spa/(ea, 136 S. Ct. at 1547 (quoting Ldjarz, 504 US. at 560). The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision. 1d.
(citing Lajarz, 504 US. at Of these elements, the ?[?flirst and foremost? is the
injury in fact requirement. Id. (quoting Steel Co, 523 US. at 103).

As the Supreme Court has explained, in order to establish injury in fact, ?a plaintiff
must show that he or she suffered ?an invasion of a legally protected interest? that is
?concrete and particularized? and ?actual or imminent, not conjectural or hypothetical.?
Id. at 1548 (quoting Lujan v. Defenders 504 US. 555, 560 (1992)). Imminence,
the element most relevant here, ?is concededly a somewhat elastic concept.? Clapper, 568
US. at 409 (quoting Lajcm, 504 US. at 565 Nevertheless, imminence ?cannot be
stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative
for Article purposes that the injury is certainly impending.? Id. (quoting Llljal/l, 504

US. at 565 112) (emphasis in original). Thus, mere allegations future injury?

 

There is some confusion as to whether the Court may fold the Article 11] standing inquiry, in the
context ofa preliminary injunction, into its assessment ofthe likelihood of success on the merits. See, 
Park Civic/13s ?n v. Gray, 956 F. Supp. 2d 230, 241 (D.D.C. 2013) (analyzing standing as part of
the ?likelihood of success on the merits? prong to the preliminary injunction test). Article 111 standing,
however, is a component ofsubject-matterjurisdiction; as such, it does not go to the merits, but to the very
authority this Court has to entertain the case before it. See Steel Co, 523 US. at 89-90. For this reason, I
will address the question of Article 111 standing to sue before considering the four-factor preliminary
injunction test.

15

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cannot suf?ce for purposes of the injury in fact requirement. Id. (quoting Wltitmore v.
Arkansas, 495 149, 158 1990)) (allegations in original); see also Susan B. Anthony
List 12. Drielzazts, 134 S. Ct. 2334, 2342 (2014) have permitted pre-enforcement
review under circumstances that render the threatened enforcement suf?ciently
imminent?).

The concept of imminence has been particularly important in the context of pre-
enforcement challenges. The Supreme Court has held that plaintiff who challenges a
statute must demonstrate a realistic danger of sustaining a direct injury as a result of the
statute?s operation or enforcement.? Babbitt v. United Farm Workers Nat?l Union, 442
U.S. 289, 298 (1979). A credible threat ofprosecution exists when the challenged law ?is
aimed directly at plaintiffs, who, if their interpretation ofthe statute is correct, will have to
take signi?cant and costly compliance measures or risk criminal prosecution.? Virginia v.
Am. Booksellers Ass Inc, 484 U.S. 383, 392 (1988). Thus, fear of prosecution cannot
be ?imaginary or wholly speculative,? Babbitt, 442 U.S. at 302, and ?[ajllegations of a
subjective ?chill? are not an adequate substitute for a claim of speci?c present objective
harm or a threat of speci?c future harm,? Laird v. Tatum, 408 U.S. 1, 13-14 (1972).

Our Circuit Court has stated that the question whether ?a threat of prosecution
adequate to satisfy the requirements of justiciability [exists] in any particular
preenforcement challenge is a factual and case-speci?c one.? Navegar, Inc. v. United
States, 103 F.3d 994, 999 (DC. Cir. 1997). As such, 1 must look to the ?full panoply of
circumstances relevant to the plaintiffs" claim of an imminent threat ofprosecution.? Id.

Those factors ?may include the history of enforcement of the challenged statute to like

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Case Document 25 Filed 09/24/18 Page 17 of 29

facts [andl any threats of enforcement.? Johnson v. Dist. ofColurn, 71 F. Supp. 3d 155,
160 2014); see also Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir. 2005)
(summarizing analysis of pre?enforcement standing); Blunt v. Holder, 744 F.3d 790, 798
(lst Cir.), cert. denied, 135 S. Ct. 477 (2014) (applying Clapper to First Amendment


Plaintiffs assert that they face a credible threat ofprosecution under FOSTA. Reply
at 2. They claim that the statute?s broad sweep places them in criminal and civil jeopardy
for their educational and advocacy efforts concerning ?sex work.? See id. The mere threat
ofprosecution, plaintiffs maintain, itself works an injury by chilling their speech. See id.
at 2-3. The Government, for its part, contends that plaintiffs? conduct, as described in the
declarations accompanying plaintiffs? Motion for Preliminary Injunction, would not fall
within ambit. As such, it contends that plaintiffs lack standing to challenge the
Act?s constitutionality, because, without a credible threat of prosecution, they have
suffered no cognizable injury. For the following reasons, I agree with the Government.

Plaintiffs have the burden of establishing that their conduct is arguably ?proscribed
by [the challenged] statute,? Susan B. Anthony List, 134 S. Ct. at 2342. As such, I must
compare the terms of POST A with plaintiffs? actual and proposed conduct in order to

ascertain whether plaintiffs have adequately alleged standing. Although plaintiffs?

 

'2 To be sure, I ?cannot construe a criminal statute on the assumption that the Government will ?use
it responsibly?? McDonnell v. United States, 136 S. Ct. 2355, 2372-73 (2016) (quoting United Siales 12.
Stevens, 559 US 460, 480 (2010)). As explained below, however, the Government presents a strong
textual case, along with a persuasive body of evidence concerning prosecution under an analogous statute,
in support of its reading of FOSTA. Those sources are the basis for this Court?s holding not the
representations ofthe Government as to its intended exercise of prosecutorial discretion.

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declarations each contain pro?packaged assertions as to the legality of their proposed
conduct, those legal conclusions are not binding on this Court. See Doe v. Rumsfeld, 683
F.3d 390, 391 (DC. Cir. 2012). Therefore, the following is a plaintiff?by-plaintiff review
of the alleged conduct and claimed bases for prosecution.

A. Woodhull Freedom Foundation

What is it that plaintiffs plan to do Woodhull?s Motion for Preliminary Injunction
cited its annual Sexual Freedom Summit, scheduled to take place in Virginia from August
2?5, as the primary basis for standing. That event has now taken place. The Summit, the
Court is told, featured workshops on topics such as ?Sex and Disability: Shifting the Focus
to Disabled Sex Workers? and ?Capitalism is not Consensual: Sex Workers and the Shaky
Foundations of Consent.? Levy Decl. ll 22. As part of the summit, Woodhull used social
media, such as Facebook Live and Twitter, to reach individuals unable to attend in person.
Id. 24?26. Livestreamed events included titles such as ?Criminalization of Sex Work is
a Human Rights Violation and a Labor Rights Concern,? How Congress Broke
the Internet,? and ?Sexual Freedom in the Age of Trump.?


Woodhull does not assert that, by livestreaming or promoting its workshops, or
publishing biographies and contact information ofsex workers, it intends to facilitate acts
of prostitution by those sex workers. Compl. 74, 80-81. Nevertheless, Woodhull
believes that federal, state, or local authorities could wield ?the broad, vague, and
undefined prohibitions contained in against it for having sponsored the Sexual

Freedom Summit. Reply at 3. That is so because, under Woodhull?s reading ofthe statute,

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Case Document 25 Filed 09/24/18 Page 19 of 29

POSTA does not ?suggest discernable limits for what might constitute promotion or
facilitation of prostitution or traf?cking.? Mot. for Prelim. Inj. at 20.

Woodhull is particularly concerned with Section 2421A?s use of the terms
?promoting? and ?facilitating.? See, eg, 7/19/2018 Hr?g 6:16-22 (stating that Woodhull
?provide[s:  workshops for sex workers, again, to provide safety information, to advocate


.

on their behalf . . . [T]hey are concerned that that would be considered by some to be
promotion or facilitation of prostitution, in violation of the law?); 568 also id. 723-5
(complaining that Woodhull has been ?hampered in promoting? the Summit due to
FOSTA). FOSTA does not define those terms, and plaintiffs believe that they could sweep
broadly so broadly, in fact, that they could place any activity that arguably ?make[s]
prostitution easier? within the sweep of the statute. Mot. for Prelim. Inj. at 21. Indeed,
plaintiffs assert that Section 2421A can be construed to criminalize any conduct that
?make[s] prostitution easier? or more likely. Id.

Unfortunately for Woodhull, plaintiffs marshal precious little authority in support
of this construction. First, plaintiffs cite one case from the Northern District and
two Seventh Circuit opinions. They do so in support of the proposition that merely
providing a platform for speech of someone who might commit illegal acts ?does not
satisfy the ordinary understanding of culpable assistance to a wrongdoer.? Doe v. GTE
Corp, 347 F.3d 655, 659 (7th Cir. 2003); see also In re Aimster 334 F.3d
643, 651 (7th Cir. 2003); Dart v. 665 F. Supp. 2d 961, 967 (ND. 111. 2009).
That line ofcases, however, only reaffirms the Government?s position That is so because

those opinions reaffirm that, for platforms said to promote or facilitate particular illegal

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acts, the law imposes a heightened mens rea requirement. See GTE Corp, 347 P.3d at 659
(stating that the activity of the internet service provider ?does not satisfy the ordinary
understanding of culpable assistance to a wrongdoer, which requires a desire to promote
the wrongful venture?s success? (emphasis added)). Indeed, Section 2421A contains just
such a heightened mens rea requirement, demanding that the Government prove intent 
rather than knowledge, or even recklessness 2 to promote or facilitate. 18 U.S.C. 


Then, in a footnote, plaintiffs cite the Oxford English Dictionary?s de?nition of
?promote? as ?to advance or actively support,? see Oxford English Dictionary (3d ed.
2007), and Black?s Law Dictionary?s definition of ?to facilitate? as ?to make the
occurrence of(something) less difficult," see Black?s Law Dictionary (10th ed. 2014). See
Mot. for Prelim. Inj. at 24 11.9. Those definitions, however, do not shed light on Section
2421A as a whole. Instead, they strip ?promote? and ?facilitate? from the rest of Section
2421A(a), ignoring both the mens rea requirement and the language ?prostitution of
another person,? which denotes specific unlawful acts. Plaintiffs? preferred method of
statutory interpretation turns a blind to ?the specific context in which that language is

39

used, and the broader context of the statute as a whole. Nat 7 Veterans Legal Servs.
Program United States, 291 F. Supp. 3d 123, 138-39 (D.D.C. 2018) (quoting United

States 12. Wilson, 290 F.3d 347, 352-53 (DC. Cir. 2002)).

 

'3 Plaintiffs attempt to make much ofthe fact that Section 242 aggravated offense punishes
conduct based on a scienter of recklessness. But the subsection aggravated offense requires both intent
as to the promotion or facilitation of particular acts ofprostitution, as well as recklessness with respect to
whether that conduct constitutes sex trafficking as defined in l8 U.S.C. 159 I. Thus, it cannot be said that
the aggravated offense punishes conduct solely on the basis ofa mens rea of recklessness.

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Woodhull?s construction of Section 2421A is flawed for additional reasons. First,
Section 2421A mirrors an existing federal criminal law, the ?Travel Act,? 18 U.S.C. 
1952. The history of enforcement of the Travel Act gives a sense both of the meaning of
the plain text of Section 2421A, and of the likelihood of enforcement for speci?c conduct.
The Travel Act bars the use of?any facility in interstate or foreign commerce? (such as the
Internet) with the intent to ?promote, manage, establish, carry on, or facilitate the
promotion, management, establishing, or carrying on, of any unlawful activity,? including
?prostitution offenses in violation of the laws of the State in which they are committed or
ofthe United States.? 18 U.S.C. 1952(a)(3), 

Woodhull does not present the Court with any example of prosecution under the
Travel Act that tracks its own theory of vast sweep. In United States v. Bennett,
the Ninth Circuit affirmed the district court?s jury instruction, in a prosecution under the
Travel Act, that promote? or ?facilitate the promotion oi? any illegal activity means to
do an act that would cause the activity to be accomplished or to assist in the activity.? 95
F.3d 1158 (9th Cir. 1996). This definition, with language like ?cause the activity to be
accomplished,? or ?assist in the activity,? re?ects the close causal connection required for
prosecution under the Travel Act. Not surprisingly, recent prosecutions re?ect the close
connection between ?promoting? and ?facilitating? and the underlying, particular criminal
act. See, United States v. Reiner, 500 F.3d 10, 12-19 (lst Cir. 2007); United States v.
Seals, (TLB), 2014 WL 3847916, at *7-8 (WD. Ark. Aug. 5,2014).

To be sure, plaintiffs attempt to distinguish Section 2421A from the Travel Act.

They maintain that the Travel Act, unlike Section 2421A, proscribes specific acts of

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prostitution as de?ned in state law. Those state law violations are thus a predicate to a
Travel Act offense. By contrast, plaintiffs say, FOSTA criminalizes ?anything that
promotes or facilitates prostitution, and not a speci?c crime.? 7/19/2018 Hr?g Tr. 16:10?
13. This is particularly problematic because prostitution ?is an area where there has been
significant advocacy, both by government entities and by private citizens.? Id. at 16:14-
16. As plaintiffs see it, that advocacy places them in crosshairs.

In pressing this argument, however, plaintiffs ignore key textual indications that
make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic
of prostitution or sex work. See United States v. Williams, 553 US. 285, 294 (2008); of.
Soul/2 Carolina 12. Catawba Indian Tribe, Inc, 476 U.S. 498, 510 n.22 (1986) (?It is an
elementary canon of construction that a statute should be interpreted so as not to render
one part inoperative.? (citation omitted)). First, the text of Section 2421A criminalizes the
conduct of owning, operating, or managing an interactive computer service with the intent
to promote or facilitate ?the prostitution of another person.? 18 U.S.C. 2421A(a)
(emphasis added). The reference to ?the prostitution of another person? is plainly
calculated to ensnare only specific unlawful acts with respect to a particular individual, not
the broad subject-matter ofprostitution. This reading ofSection 2421A(a) is con?rmed by
Section 2421A(e), which states that the fact that prostitution is legal ?in the jurisdiction
where the promotion or facilitation was targeted? is an affirmative defense. Id. 2421A(e).
By making reference to the laws of specific Section 
af?rmative defense tethers subsection prohibition on acts intended to promote or

facilitate ?the prostitution of another person? to specific crimes much in the way that the

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Travel Act does. l?ut differently, the Government may prosecute under Section 2421A
only for acts that are otherwise illegal under existing federal or state law.

Plaintiffs also insist that, by virtue of the language ?own, manage, or operate an
interactive computer service,? Section 2421A impermissibly targets speech. I disagree. It
is black-letter law that speech that ?is intended to induce or commence illegal activities? is
not protected by the First Amendment. Williams, 553 U.S. at 297; see also Pittsburgh
Press Co. 1). Pittsburgh Comm ?n on Human Relations, 413 U.S. 376, 388?89 (1973) (?We
have no doubt that a newspaper constitutionally could be forbidden to publish a want ad
proposing a sale of narcotics or soliciting prostitutes?). As the Supreme Court has
explained, ?offers to give or requests to receive what it is unlawful to possess have no
social value? and thus are not entitled to the protections of the First Amendment. lcl.
Indeed, the statute upheld against an over-breadth challenge in Williams which imposed
a criminal penalty for knowingly ?advertis[ing], present[ing], 
or solicit[ing]? child pornography bears resemblance to prohibition on
?promot[ing]? or ?facilitate[ing]? unlawful prostitution. 553 U.S. at 289-90.

And that is to say nothing of Section 2421A?s mens rea requirement, which only
further narrows that provision?s scope. Section 2421A will require the Government to
show not simply that the defendant was aware ofa potential result ofthe criminal offense,
but instead that the defendant intended to ?explicitly further[]? a specified unlawful act.
See United States v. Brown, 186 F.3d 661, 670 (5th Cir. 1999). Woodhull?s Sexual
Freedom Summit shares, at most, a ?weak . . . nexus? with illegal prostitution, and does

not approach the high bar required under Section 2421A?s mens rea standard. la?. All told,

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Woodhull has failed to meet its burden in persuading the Court that it faces any credible
threat of prosecution. Nor has it identi?ed any other cognizable injury in fact necessary
for standing to pursue this case.14
B. Human Rights Watch

The second plaintiff, Human Rights Watch, shares similar concerns to those of
Woodhull. HRW advocates for sex worker rights and safety across the globe, and
documents ?abuses against sex workers in the United States, Lebanon, and South Africa.?
PoKempner Decl. ii 5. In addition, HRW has reported on ?police searches of women for
condoms as evidence ofprostitution in four US. cities.? M. This advocacy and reporting,
HRW asserts, make sex work ?safer and thus easier.? Reply at 5. For instance, 
reporting on policing methods ?forewarn sex workers about methods police use to discover
and shut down sex work, thus making it easier for sex workers to avoid detection by law
enforcement.? But, again, the record contains no indication that HRW, through its
advocacy and educational work, intends to promote or facilitate specific acts of prostitution
in violation of state or federal law. Without that mews rea, there is no credible threat of
prosecution, and thus no standing to bring this pre-enforcement challenge.

C. Jesse Maley a/k/a Alex Andrews

Next, Jesse Maley, a/k/a Alex Andrews, the creator and operator of

ratethatrescueorg (?Rate That Rescue?), fears prosecution for her efforts to use that

 

In arguing that Section 2421A sweeps broadly, plaintiffs lean on statements made in legislative
history. But it is beyond dispute that legislative history is useful only when the text itself is ambiguous. in
this case, my ?inquiry ceases? because ?the statutory language is unambiguous and the statutory scheme is
coherent and consistent.? Salve/ins v. C/ocr, 569 US. 369, 380 (2013) (quoting Barn/tart v. Sigimm Coal
(30., 534 US. 438, 450 (2002)).

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website to ?make sex work safer and thus easier.? 1d. at 4-5 11.5. As I noted earlier, Rate
That Rescue aggregates reviews and ratings by third parties. Those third parties provide,
as counsel explained at oral argument, ?information about bad dates? and ?dangerous
situations? in order to ?keep women safe.? 7/19/2018 Hr?g 5:17-24. In addition, Maley
states that Rate That Rescue maintains a forum for information on organizations that,
although not directly related to sex work as such, provide services used by sex workers,
such as ?housing, childcare, counseling, [and] education.? Maley Decl. 1i 22.

Under Maley?s reasoning, because providing housing or childcare services to sex
workers ?make[s] sex work easier,? Rate That Rescue could be said to promote or facilitate
prostitution. Reply at 4-5. For this reason, Maley fears that amendments to
Section 230 2 which clarify that immunity does not extend to conduct made unlawful by
Section 2421A could expose her to prosecution for the speech of third parties on Rate
That Rescue. See id. As a precaution, Maley has ?put on hold her acquisition of an in-
development reporting application? for mobile devices, although she continues to maintain
the website itself. 1d. at 4. Her concerns, however, are unwarranted.

Put simply, Maley has failed to show that Section 230 amendments
expose her to a credible threat of prosecution. That is so because Maley, on the current
record, lacks the mens rea to violate any of the provisions specified in Section 230(c)(5).
As I noted earlier, FOSTA amends Section 230 by adding Section 230(e)(5), which
clari?es that Section 23 0(b) does not preclude liability under certain provisions of the US.
Code. Section 230(e) mentions three provisions in particular: state law prosecutions for

conduct banned by the newly-created Section state law prosecutions for conduct

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Case Document 25 Filed 09/24/18 Page 26 of 29

banned by 18 U.S.C. 1591, which forbids the sex trafficking of adults by ?force, fraud,
or coercion? and of minors categorically; and 18 U.S.C. 1595, which supplies a civil
remedy for victims of the criminal conduct described in Section 1591.

In managing Rate That Rescue, Maley cannot possibly be said to act ?with the intent
to promote or facilitate the prostitution of another person? in violation of Section 2421A.
Maley?s declaration concedes as much, repeatedly expressing concern that law
enforcement could determine that ?the user-generated content on Rate That Rescue
promotes or facilitates prostitution,? id. 1129; see also id. 11 30. But those formulations lack
the critical mens rea element of the Section 2421A offense. Indeed, Maley herself does
not even assert that law enforcement could credibly contend that, in managing Rate That
Rescue, she acts ?with the intent to promote or facilitate? the prostitution of another person.
18 U.S.C. 2421A(a). Of course, the mere promotion or facilitation of prostitution is not
enough: Maley must intend that her conduct produce the specific result. Id. Maley, not
surprisingly, does not represent that she has any such intent in managing Rate That Rescue,
and the record befOre this Court presents no basis for inferring that mews rea. Cf id. i] 18
(explaining Rate That Rescue?s goal of helping ?sex workers get information about . . .
organizations based on the experiences ofother sex workers?), 19-24 (summarizing Rate
That Rescue posting and editing process), il 25 (stating that Rate That Rescue has ?no
revenue,? ?is run by volunteers,? and is ?unable to actively or comprehensively review,
edit, or moderate user~generated content?).

Nor do Sections 1591 and 1595 furnish a basis for holding Maley criminally or

civilly liable, at least based on the record before this Court. The record is barren of (my

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evidence suggesting that Rate That Rescue has ever hosted content assisting the sex
trafficking of minors, such that Andrews could be liable for ?knowingly? participating in
a venture that ?recruits, entices, harbors, transports, provides, obtains, advertises,
maintains, or solicits by any means a person . . . knowing . . . that means of force . . .
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.?
18 U.S.C. 1591; see id. 1595 (providing civil cause of action for victims of conduct
unlawful pursuant to 18 U.S.C. 1591).
D. Eric Koszyk

Next, Eric Koszyk, a licensed therapist, maintains that he has standing to sue
because Craigslist eliminated its Therapeutic Services section ?as a direct response to
Reply at 6. Koszyk represents that he cannot operate his business without
Craigslist. That injury traces to enactment, and can be redressed by a ruling
invalidating the Act and ?leading? Craiglist to re-open its Therapeutic Services webpage.
Reply at 6-7; Compl. 11 101; D?Amato Decl. 11 10.

Unfortunately for Koszyk, he cannot establish redressability under the relevant
precedents. That is so because Koszyk has not established that a victory ?will likely
alleviate the particularized injury alleged.? West 12. 845 F.3d 1228, 1235 Cir.
2017). It is well established that a plaintiff lacks standing when the ?redress for its injury
depends entirely on the occurrence ofsome other, future event made no more likely by its
victory in court.? Telon Historic Aviation Found. US. Dep ?t ofDefense, 785 F.3d 719,

726 (DC. Cir. 2015). When, as here, a third party ?can exercise ?broad and legitimate

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Case Document 25 Filed 09/24/18 Page 28 of 29

discretion the courts cannot presume either to control or to predict,? a court is generally
unable to redress the alleged injury and, accordingly, standing is found wanting.? Nyambal
v. 245 F. Supp. 3d 217, 224 (BBC. 2017) (citation omitted); see also Simon 
E. Ky. Welfare Rig/118 Org, 426 US. 26, 42-43 (1976).
E. The Internet Archive

Finally, the Internet Archive ?intentionally stores and displays a vast amount ofboth
historical website data and third-party content that it has no ?practical ability to evaluate
the legality of.m Reply at 6 (quoting Kahle Decl. ll 14). Although the Internet Archive
represents that it does not intend to promote sex traf?cking or prostitution, it believes that
the Section 230 amendments 2 and the ambiguity of their scope may expose it to liability.
Once again, however, there are no facts in the record supporting an inference of the mens
rea standard necessary to peel back Section 230?s protections. The Internet Archive?s
practice of sweeping up vast amounts of content from the web for inde?nite storage, Kahle
Decl. 1] 7-8, and its attested practical inability to review the legality of that third?party
content, id. 14, mean that that entity simply cannot meet the stringent mans rea standard

required for liability under Sections 2421A, 1591, or 1595.

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CONCLUSION
Thus, for all the above reasons, plaintiffs have each failed to adequately allege
standing. As such, this Court lacks subject matter jurisdiction over their claims, Fed. R.
Civ. P. and must GRANT defendants? Motion to Dismiss [Dkt. l6] and DENY
as moot plaintiffs? Motion for Preliminary Injunction [Dkt. A separate order

consistent with this opinion will be issued this day.

 

gm. '1 
RICHARJ J. on
United States strict Judge

29