Backpage Can’t Challenge the SAVE Act–Backpage v. Lynch

I never had a chance to blog the 2015 SAVE Act, but I always meant to. It’s one of the rare times that Congress intentionally circumscribed Section 230. However, instead of amending Section 230 directly, Congress added a federal criminal law that fits into Section 230’s exclusion of federal criminal prosecutions. Thus, Section 230’s scope was reduced by the expansion of federal crime.

The SAVE Act supplemented existing anti-sex trafficking laws. It criminalizes knowingly running advertisements that cause prostitution by force/coercion or underage prostitution. The restrictions on advertising obviously target Backpage’s publication of prostitution ads, but the scienter requirement, plus the force/coercion or underage requirements, limit the crime in crucial ways.

Because Congress deliberately targeted Backpage in its crosshairs with the SAVE Act, I’ve been puzzling over the California AG’s prosecution of Backpage executives for pimping. As I mentioned before, if a pimping prosecution works, then the SAVE Act wasn’t needed–and pimping should have been pursued years ago. Otherwise, why did state prosecutors use an ill-fitting old crime when Congress provided federal prosecutors with a crime manufactured exactly for that purpose?

The SAVE Act’s current inconsequentiality can be partially explained by this lawsuit. Backpage sought a pre-enforcement challenge to the statute. Knowing the law targeted it, Backpage took the fight to the courts. Of course the government could have, at any time, converted this lawsuit to a live controversy by initiating a prosecution. Instead, it appears Backpage’s proactive litigation helped keep the DOJ in abeyance.

The lawsuit itself goes nowhere. The court says it lacks subject matter jurisdiction because Backpage can’t show an injury-in-fact from the unenforced law. The court says the First Amendment doesn’t protect ads for “illegal sex trafficking of a minor or a victim of force, fraud, or coercion.” (The court just assumes, without analysis, that the First Amendment doesn’t apply, and I wonder if the issues are as clear-cut as that). And Backpage says it doesn’t want those ads, so it screens, blocks, and removes such ads and “takes numerous steps to prevent such misuse, especially to guard against human trafficking or child exploitation.”

In effect, the court squeezed Backpage into a no-win situation. Because Backpage tries to comply with the law, the court eliminates its standing; and if Backpage wants to suggest it might run afoul of the law by accepting verboten ads, it will do so without any First Amendment protection. Backpage argued that it has won First Amendment cases before, including the Dart, McKenna and Cooper cases, but the court distinguishes those: has not presented evidence that Congress sought to eliminate all advertisements of a sexual nature from its website through the adoption of the SAVE Act; rather, the legislation is directed only at those advertisements concerning illegal sex trafficking, which do not constitute constitutionally protected speech…. while it might be true that some Congressional members had in mind when enacting the SAVE ACT, the statute is “aimed” at individuals who knowingly advertise or benefit from advertising sex trafficking.

So the lawsuit flames out, but the court’s interpretation of the SAVE Act’s high scienter requirement (Backpage’s violation must be “knowing”) likely deters the DOJ from enforcing it any time soon. So who won this lawsuit? Let’s call it a tactical draw but a strategic loss for Backpage because intervening developments have put Backpage and its executives at extreme risk.

Case citation: v. Lynch, 2016 WL 6208368 (D.C. D.C. Oct. 24, 2016).

Prior posts on Craigslist/Backpage

* Some Comments on the CA/TX Attorneys’ General Prosecution of Backpage’s Executives
* Big Win For Free Speech Online In Backpage Lawsuit
* Backpage Gets Bummer Section 230 Ruling in Washington Supreme Court–J.S. v. Village Voice
* Backpage v. Cooper
* Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads
* Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230
* Backpage Gets 47 USC 230 Defense for Prostitution Ads–M.A. v. Village Voice
* Craigslist Isn’t Liable for Erotic Services Ads–Dart v. Craigslist
* Cook County Sheriff Sues Craigslist for Erotic Services Category