Backpage Can't Be Sued by Trafficked Victims, Judge Says

By Chanda Marlowe - Visitors to Backpage.com can look for jobs and shop for appliances, but as of January 9 they can’t shop for sex. The classified ad website closed its adult ads section in the United States, citing government pressure. Clicking on links to body rubs, escorts and strippers takes the user to a screen that reads, “The government has unconstitutionally censored this content.”

For their part, law enforcement officials, including the National Association of Attorneys General, had long accused Backpage of providing an outlet for sex trafficking of minors. And it has been the target of multiple lawsuits.

In one case, a federal appeals court ruled on March 14, 2016 that three teenagers who were trafficked for sex through classified advertisements on Backpage.com could not sue the website—despite the fact the judge said the ads “evoke outrage.”

The US Court of Appeals for the First Circuit affirmed a trial court’s finding that Backpage.com is protected by Section 230 of the Communications Decency Act (CDA), which immunizes websites from criminal and civil liability for content posted on the sites by third parties. The US Supreme Court announced in January it would not hear an appeal from the three sex trafficking victims, leaving in place the First Circuit’s ruling.

The case stems from a lawsuit filed in 2014 on behalf of three victims of sex trafficking against the online classified advertisement provider Backpage.com. In some instances, sex traffickers placed the ads on Backpage.com; other times the sex traffickers forced the victims to place the ads.

In their lawsuit, the victims alleged that “Backpage, with an eye to maximizing its profits, engaged in a course of conduct designed to facilitate sex traffickers’ efforts to advertise their victims on the website.” They argued that Backpage’s practices of removing all metadata such as date and location from uploaded photos, allowing the use of terms such as “brly legal,” and not requiring phone number or email verification for ad placements aided sex traffickers’ endeavors.

Two of the victims estimated that they each were raped approximately 1,000 times as a result of the Backpage advertisements.

The sex trafficking victims sued under the federal Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) and other state and federal laws. The TVPRA enables sex trafficking victims to sue anyone who “knowingly benefits, financially or by receiving anything of value from” human trafficking (18 U.S.C. 1595(a)). The victims alleged that Backpage participated in sex trafficking by operating as it did.

The court said Section 230 of the CDA immunized Backpage from all the legal claims because the escort advertisements were posted by third parties, not by Backpage. (Note: Journalists might recall that Village Voice Media, the owners of Backpage, seized the opportunity to expand online advertising in 2010 when Craigslist shut down its Adult Services section. Craigslist was the focus of a Congressional hearing on domestic minor sex trafficking and castigated by anti-trafficking groups for facilitating sexual exploitation with its “erotic services” ads.) The CDA grants broad protections to internet publishers, and the court reasoned that “[a] publisher like Backpage is ‘merely the conduit through which the advertising and publicity matter of customers’ is conveyed.” The judge said, however, “If the evils that the appellants have identified are enough to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation.”

Legislation may be in the works. The Senate Permanent Subcommittee on Investigations scrutinized Backpage and published a report on its concealment of criminal activity. Backpage shut down its adult section on the eve of its Senate hearing and just hours after the Senate subcommittee released the report. The report will likely to be used as a foundation for legislation aimed at narrowing the sweeping legal immunity that the CDA provides.

Coincidentally, the law that has infuriated many of those engaged in anti-trafficking work is the same one that prevents sites like Huffington Post from being sued every time a blogger or commenter crosses the line. Without Section 230, provocative bloggers—such as those who have sounded the alarm about trafficking—might be discouraged from confronting unpopular issues or ideas.

Case citation: Jane Doe No. 1 v. Backpage.com, LLC, 2016 WL 963848 (1st Cir. March 14, 2016).

Chanda Marlowe

By Chanda Marlowe
cdmarlow@live.unc.edu

Chanda Marlowe is an MA/JD Candidate at the UNC School of Media & Journalism and the UNC School of Law.