Doe No. 1 v. Backpage: In Balancing the First Amendment and Preventing Sex Trafficking, First Circuit Holds in Favor of Free Speech

Digest Commentary First Amendment

On March 14, 2016, Judge Selya, writing for a unanimous bench on the United States Court of Appeals for the First Circuit, affirmed the District Court of Massachusetts’ decision dismissing the complaint filed by three victims of child sex trafficking against online forum Backpage.com. Former Supreme Court Associate Justice Souter serves as a judge by designation.

The First Circuit Court opinion can be found here, and the District Court of Massachusetts’ opinion can be found here.

The three anonymous plaintiffs, victims of child sex trafficking, alleged that they were molested and repeatedly raped after being advertised as sexual wares on Backpage.com. They sued Backpage.com, a website that hosts online classified adds, alleging that it had violated the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), 18 U.S.C. §1595, which applies to anyone that “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.” The defendant invoked Section 230 of the Communications Decency Act of 1996 (“CDA”), which shields online service providers from liability for material posted by users of the site, and allows website operators to engage in blocking and screening of third-party content free from liability for such good-faith efforts. 47 U.S.C. §230. In addition, the CDA includes an immunity clause that exempts enforcement of a federal criminal statute, which plaintiffs argued applicable in a civil case such as this one.

This case highlights the need to balance two important social policies: online freedom of speech and prevention of child sex trafficking. Both the District Court and the Circuit Court held that the congressional intent and legal precedents compel that balance to be tilted in favor of online free speech in this case. Judge Selya’s opinion held that the advertisements posted by users of the site, despite financially benefitting Backpage.com, still fit the criteria for protection under CDA §230,  shielding Backpage.com from being treated as publisher or speaker of the material, and the webpage’s screening effort count as editorial functions that also would immunize it from liability.

In an effort to supplement the seemingly weak TVPRA claim, the plaintiffs added a state-law unfair trade practices claim and intellectual property infringement claims. In response to the defendant’s Rule 12(b)(6) motion, the court quickly dismissed the state-law unfair trade practices claim for a lack of causation between the harm suffered by the plaintiffs and Backpage.com’s practices. Judge Selya even stated that such a claim hinted “Machiavellian manipulation.” Plaintiffs also included a copyright infringement claim and an unauthorized use of picture claim. The copyright claim failed because actual damages could not be shown since one plaintiff only registered her picture after the litigation began, at which point Backpage.com had already removed it. The court also was not convinced by the claim that Backpage.com deliberately used the pictures of commercial gain, since it is not the entity that benefits from the misappropriation.

This opinion has aroused diverse public reaction. Advocates for online free speech, such as Electronic Frontier Foundation and Prof. Eric Goldman, cheered the decision. On the other hand, some commentators find the decision reached a distasteful but necessary conclusion, since First Amendment’s guarantee of free speech exists in spite of morality, emotion and social norms. Both Judge Selya and District Court judge Stearns wrote that the decision was hard, because the law requires a denial of relief to plaintiffs despite the abhorrent harms they suffered. In any case, the importance of this opinion is beyond doubt – it sets a strong precedent from a well-cited judge in a federal appellant court.

Yaping Zhang is a 3L at Harvard Law School.