Backpage Gets 47 USC 230 Defense for Prostitution Ads–M.A. v. Village Voice
By Eric Goldman
M.A. v. Village Voice Media Holdings LLC, 2011 WL 3607660 (E.D. Mo. Aug. 15, 2011)
M.A. was the victim of a convicted sexual trafficker, Latasha Jewell McFarland. M.A. alleges that McFarland created child pornography of M.A., posted the photos on Backpage as part of advertising M.A. for prostitution, and then acted as a pimp for M.A. M.A. sued Backpage for its role in the tragedy.
The court starts with an interesting discussion about Article III standing. M.A. took the position that she’s suing Backpage for running its website, not for the content of McFarland’s post. This distinction doesn’t make any sense, and the court uses Article III standing to collapse it. M.A.’s real complaint is about McFarland’s crimes against her, and the only way M.A. has standing against Backpage for those crimes is based on McFarland’s posts to Backpage. Framed this way, Backpage is primed for a 47 USC 230 defense.
M.A. took a comprehensive approach to trying to dislodge the immunity:
* Backpage created an adult category. The court cites Dart v. Craigslist in concluding this is irrelevant.
* Backpage takes steps to increase its revenues. Backpage allegedly “tout[ed] its website as a ‘highly tuned marketing site’ and instruct[ed] posters of ads on how to best increase the impact of those ads.” The court responds: “to find Backpage to be not immune from suit based on M.A.’s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to § 230’s broad grant of immunity. This the Court may not do.”
* Backpage allegedly knew prostitution was advertised on the site. The court cites several cases for the proposition that knowledge is irrelevant to 230’s immunity.
* Backpage “developed” the ads. This was just a rehash of the notice + profit argument. The court says “neither notice or profit make Backpage liable for the content and consequences of the ads posted by McFarland.” The court expressly rejects the direct Roommates.com attack on the immunity, distinguishing Roommates and a few other cases by saying ” In the instant case, there is no allegation that Backpage was responsible for the development of any portion of the content of McFarland’s posted ads or specifically encouraged the development of the offensive nature of that content.” The court also notes: “however horrific the consequences to M.A. of McFarland’s posted ads were, the ads were created by McFarland.”
* Giving Backpage a 230 immunity is “indefensible.” This is basically a policy argument, and the court tells M.A. to take it up with Congress.
* Backpage “aided and abetted” a criminal violation. Backpage lacked the specific intent to satisfy the prima facie case. It appears the court also says that 230 preempts aiding-and-abetting liability.
* 230 doesn’t apply to criminal prosecutions. This is a civil case premised on a criminal statute, and the court cites Doe v. Bates for the proposition that 230 preempts the civil claims. M.A. argued that Bates was “flawed,” but the court responds “[Bates] is supported, however, by other cases applying the broad reach of § 230’s immunity to websites that, whatever they did to increase their profitability and visibility, did not create the content of the offensive posted information.” The court continues: “this does not lead M.A. without a remedy under § 2255. She may still pursue a civil remedy against McFarland.” (And, in fact, McFarland has been required to make restitution and pay other amounts as part of her criminal sentence).
* The “Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography” trumps 230. This treaty wasn’t self-executing. Plus, when the Senate ratified it, it declared existing law–which included 230 already on the books–satisfied the treaty.
The court neatly sums things up:
Plaintiff artfully and eloquently attempts to phrase her allegations to avoid the reach of § 230. Those allegations, however, do not distinguish the complained-of actions of Backpage from any other website that posted content that led to an innocent person’s injury. Congress has declared such websites to be immune from suits arising from such injuries.
You have to give M.A. credit for effort. The lawsuits tried virtually every trick in the book to overcome the 230 immunity. But you also have to give the judge credit, both for keeping a cool head and for the skillful references to a couple dozen 230 precedent cases.
Combined with Dart v. Craigslist, it seems entirely clear to me that plaintiffs are wasting their time suing classified ad websites for prostitution ads. M.A.’s situation is tragic, but the blame against Backpage is misdirected.