Backpage Gets Bummer Section 230 Ruling in Washington Supreme Court–J.S. v. Village Voice

I have conflicting feelings about the legal efforts to eliminate online prostitution advertising. I’m aware of the critical role that online advertising can play in human sex trafficking and other associated crimes. However, it’s less clear to me whether shutting down online prostitution advertising has a net positive effect on human trafficking victims. Are the victims’ benefits offset by other deleterious consequences? For example, some sex workers may prefer online advertising over the alternatives (recall the sex worker concerns when the feds shut down MyRedbook). Further, law enforcement can and does use online prostitution ads to expedite finding and prosecuting criminals, something that has apparently happened hundreds or thousands of times. Finally, if online publishers are liable for third party online prostitution ads, will their efforts to shut down the ads actually reduce the number of ads or just scatter them like the chopped-up broom from Fantasia? Note that many of these questions could be empirically studied, and the results of those empirical studies could inform smart policy resolutions. Too bad we aren’t taking that approach.

Because human sex trafficking is so horrific, judges’ concerns about the problem may trump Section 230’s also-strong policy interests in judges’ eyes. Thus, online prostitution ads have been a constant source of friction for Section 230 jurisprudence. Yet, in spite of the difficult fact patterns, first Craigslist and then Backpage have had extraordinary success using Section 230 to avoid liability (see, e.g., this post).

The Ruling

Backpage’s courtroom luck finally ran out, and unfortunately it did so in a state supreme court sitting en banc, setting the law for Washington, and doubly unfortunately the case produced a weakly articulated opinion that potentially undermines Section 230 jurisprudence everywhere.

The court did an inappropriately brief legal analysis before summarizing why it was denying Backpage’s motion to dismiss:

Viewing J.S.’s allegations in the light most favorable to J.S., as we must at this stage, J.S. alleged facts that, if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content. Those allegations include that (1) “Backpage.com … has intentionally developed its website to require information that allows and encourages … illegal trade to occur through its website, including the illegal trafficking of underage girls,” (2) “Backpage.com has developed content requirements that it knows will allow pimps and prostitutes to evade law enforcement,” (3) “Backpage.com knows that the foregoing content requirements are a fraud and a ruse that is aimed at helping pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false] appearance that Backpage.com does not allow sex trafficking on its website,” (4) “the content requirements are nothing more than a method developed by Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law enforcement for illegal sex trafficking, including the trafficking of minors for sex,” (5) Backpage’s “content requirements are specifically designed to control the nature and context of those advertisements so that pimps can continue to use Backpage.com to traffic in sex, including the trafficking of children, and so Backpage.com can continue to profit from those advertisements,” and (6) Backpage has a “substantial role in creating the content and context of the advertisements on its website.” According to J.S., Backpage’s advertisement posting rules were not simply neutral policies prohibiting or limiting certain content but were instead “specifically designed … so that pimps can continue to use Backpage.com to traffic in sex.”

A concurring judge exhibited such extreme hostility to Section 230 that he would reject Section 230 in many cases. A dissent would have found Section 230 applied.

Implications

Section 230 and Motion to Dismiss/Summary Judgment. Over the years, we’ve seen judges occasionally get weak-kneed about granting a motion to dismiss on Section 230 grounds. After all, the plaintiff typically hasn’t gotten any discovery and hasn’t had a chance to fully develop its arguments, so judges can be nervous about ruling against a plaintiff so quickly. In situations like this, the judges weigh the risk of an erroneous dismissal more highly than the risk of an erroneous decision to proceed, because the latter can be fixed at the next stage of the case (say, summary judgment) while an erroneous dismissal ends the case. In my opinion, the majority expressly gave into this temptation. Indeed, in the opinion’s introduction, the majority emphasizes the case’s discovery implications (the court says the plaintiffs “brought this suit in part to bring light to some of those shadows: to show how children are bought and sold for sexual services online on Backpage.com”).

On the surface, this judicial approach to error avoidance sounds logical. Unfortunately, it creates at least two problems:

First, judges who give into this temptation often undervalue the defendant’s interests in quick adjudication. Defense costs mount substantially after a motion to dismiss, and avoiding those defense costs is one reason we often see defendants more willing to settle after a motion to dismiss is denied. Plaintiffs may get their day in court, but it comes at a high private cost borne by the defendant.

This is especially true in Section 230 jurisprudence, where one of Section 230’s signature benefits is to reduce defense costs (reducing “duck bites” as Judge Kozinski described it in Roommates.com). Perhaps a company like Backpage can afford its substantial defense costs, but smaller online intermediaries can’t. As a result, deferring Section 230 motions to dismiss in favor of summary judgment or trial can substantially undermine Section 230’s social value. In my opinion, the majority was insufficiently attentive to that countervailing consideration.

Second, when judges are trying to help plaintiffs survive motions to dismiss, they often bend the law in a way that threatens future defendants in unrelated cases. The majority is certainly guilty of this, as I’ll explain in a moment.

In practice, Section 230 defendants face a tactical choice: should the defendant go for a motion to dismiss based on Section 230 or jump ahead to try to win a quick summary judgment? Given Section 230 defendants’ successes with motions to dismiss, the answer used to be obvious–go for the motion to dismiss because it was likely to work and would cost less. But in a case like this, where the court didn’t rigorously scrutinize the plaintiff’s unspecific allegations, the plaintiffs were substantially helped by the procedural inferences in favor of plaintiffs on motions to dismiss. (It remains to be seen how the plaintiffs will prove the allegations they made in the complaint, something I think will be difficult if not impossible). Thus, another defense option would be to pursue a quick summary judgment, perhaps getting the judge to restrict discovery just to the merits of a Section 230 defense. I think there are pros and cons to each approach, but it’s a discussion worth having early in the case.

“Neutral Policies.” It’s easy to see where this court took a wrong turn. The court says that the plaintiffs sufficiently alleged “Backpage did more than simply maintain neutral policies prohibiting or limiting certain content” (emphasis added). But when did that become an exception to Section 230?

The court drew this emphasis on “neutrality” from ambiguous language in the Roommates.com en banc opinion. In that opinion, Kozinski used the term “neutral tools” five times, but he never defined the term or explained if online tool ever can be “neutral” (protip: the answer is no). Neutral tools were supposed to be distinguished from online services that incrementally add illegality to third party content, like Roommates.com’s services allegedly did by asking illegal questions and requiring users to provide illegal answers (even though nothing about Roommates.com was ever illegal, as Kozinski himself later explained). It seems like something got lost in translation from Roommates.com to this case’s majority opinion, which doesn’t explain how the service provider *added* illegality to third party content (as opposed to, say, facilitating illegal activity, which all UGC websites, including Backpage do in one way or another).

More generally, the majority’s implication that Section 230 is available only when a defendant “simply maintain[s] neutral policies prohibiting or limiting certain content” is ludicrous. Almost every user-generated content website articulates standards for acceptable content in its TOS, but most UGC sites do far more to generate and organize UGC than just following the TOS’s terms. So when do those shaping and organizing activities become Section 230 disqualifiers? One of the beauties of Section 230 is that it applies even when sites exercise “editorial” functions over UGC, and by definition, exercising editorial control over content NEVER can be neutral. The court’s articulation of this legal standard takes Section 230 jurisprudence (at least in Washington) to a seemingly dark place; and the application of the legal standard to these alleged facts is incoherent.

The Future of Online Prostitution Advertising. What’s most exasperating to me is that the court didn’t need to hork Section 230 law to express disapproval of online prostitution advertising. Already, the battle over online prostitution advertising spans multiple fronts. Most obviously, earlier this year Congress enacted the SAVE Act (the “Stop Advertising Victims of Exploitation Act of 2015”), which amended 18 USC 1591(a)(1) to include “advertising” in a list of prohibited activities related to human sex trafficking. I’m not sure what effect the SAVE Act will have because it does have a high mens rea requirement for criminal liability. Advertising defendants must know that the ad pertains to a person being coerced into sex or is underage. While that knowledge could arise in the ordinary course of the advertising process, it seems unlikely. Still, the specter of criminal liability has to send chills through the online publisher and advertiser communities.

Even if the SAVE Act won’t kill online prostitution advertising, the credit card companies might. Cook County Sheriff Dart, who lost a key ruling against Craigslist, has jawboned Mastercard, Visa and American Express to stop processing funds for Backpage. Dart has undertaken this latest effort despite the fact that “Cook County Sheriff’s police have made more than 800 arrests since 2009 stemming from Backpage ads, Dart’s office said.” Backpage fought back by suing Dart to get him to stop agitating the credit card companies. In July, Backpage won an impressive TRO against Dart’s efforts, but the court subsequently declined to extend the injunction because, in part, the credit card companies may not resume service to Backpage no matter what Dart does. See Backpage.com, LLC v. Dart, 2015 WL 5025470 (N.D. Ill. August 24, 2015) and Backpage.com, LLC v. Dart, 2015 WL 5174008 (N.D. Ill. Sept. 2, 2015). It’s hard for me to applaud the credit card companies’ self-designated roles as Internet censors, but they can play a powerful role in dictating online activity. If the credit cards continue to blackball Backpage, online prostitution ads may be functionally dead no matter what the Washington Supreme Court does.

Venkat’s comments: It is commonly said that Washington state courts employ a ridiculously low standard for pleadings. But even this does not adequately explain the court’s ruling. When reading the majority opinion, you’re on the lookout for those allegations that take Backpage out of intermediary-land into content creator-land, but there is no big reveal. The sum total of the court’s discussion of plaintiffs’ allegations is below:

(1) “Backpage.com … has intentionally developed its website to require information that allows and encourages … illegal trade to occur through its website, including the illegal trafficking of underage girls,” (2) “Backpage.com has developed content requirements that it knows will allow pimps and prostitutes to evade law enforcement,” (3) “Backpage.com knows that the foregoing content requirements are a fraud and a ruse that is aimed at helping pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false] appearance that Backpage.com does not allow sex trafficking on its website,” (4) “the content requirements are nothing more than a method developed by Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law enforcement for illegal sex trafficking, including the trafficking of minors for sex,” (5) Backpage’s “content requirements are specifically designed to control the nature and context of those advertisements so that pimps can continue to use Backpage.com to traffic in sex, including the trafficking of children, and so Backpage.com can continue to profit from those advertisements,” and (6) Backpage has a “substantial role in creating the content and context of the advertisements on its website.”

These “content requirements” are Backpage’s rules that prohibit certain types of content and its policies that say that ads should not be used for solicitation. These rules, plaintiffs allege, allow users to evade law enforcement. And the court says this is sufficient. Eric discusses the language of Roommates, but this seems like it goes well beyond anything envisioned by that case. It doesn’t even pass the common sense test in my view.

Maybe, Eric notes, summary judgment is the answer for Backpage here. Perhaps the ruling is not so problematic in that it just delays the inevitable for plaintiffs. But I’m not so sure. Merits aside (and I was curious about how those would play out) plaintiffs do not have to show much to get around Section 230 as the court articulates it.

[NB: I helped (although others did most of the heavy lifting) EFF and CDT file an amicus brief in this case. Here’s EFF’s blog post on the ruling: “Court Ruling Against Backpage.com is a Setback for Online Speech in Washington State“.]

Case citation: J.S. v. Village Voice Media Holdings, 2015 WL 5164599 (Wash. Sup. Ct. Sept. 3, 2015)