J.S. v. Vill. Voice Media Holdings, LLC
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Opinion
NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. This opinion was fll~.r r~ /F·I-I:E\ at B tao fl1'Vl on ph ~~c ts- ~ :;;~ IN CLERKS OFFICE IUPReMe COURT, STATE OF W«\SSII«mltf DATE SEP 0 3 2Q15 . -:nu~.zry CHIEF JUSTICE : Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
J.S., S.L., and L.C., ) ) Respondents, ) No. 90510-0 ) v. ) ) VILLAGE VOICE MEDIA HOLDINGS, ) L.L.C., d/b/a/ Backpage.com and ) En Bane BACKPAGE.COM, L.L.C., ) ) Petitioners, ) ) and ) ) BARUTI HOPSON and NEW TIMES ) MEDIA, L.L.C., d/b/a/ Backpage.com, ) Filed SEP 0 3 2015 ) Defendants. ) ) ___________________________) GONZALEZ, J.--The plaintiffs before us have been the repeated victims of
horrific acts committed in the shadows of the law. They 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 in advertisements that, they allege, the
defendants help develop. Federal law shields website operators from state law JS., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0
liability for merely hosting content developed by users but does not protect those
who develop the content. The plaintiffs allege that the defendants did more than
just provide a forum for illegal content; the plaintiffs allege the defendants helped
develop it. Taking the complaint as true, as we must at this point, we find that the
plaintiffs have alleged sufficient facts that, if proved, would show that the
defendants helped to produce the illegal content and therefore are subject to
liability under state law. Accordingly, we affirm and remand to the trial court for
further proceedings consistent with this opinion.
FACTS
Advertisements featuring three minor girls, J.S., S.L., and L.C. (collectively
J.S.), allegedly were posted on a website owned and maintained by Village Voice
Media Holdings, d/b/a Backpage.com, Backpage.com LLC and New Times Media
LLC, d/b/a/ Backpage.com (collectively Backpage). J.S. allegedly was raped
multiple times by adult customers who responded to the advertisements.
J.S. filed a complaint alleging state law claims for damages against
Backpage and Baruti Hopson. 1 J.S. asserted claims for negligence, outrage, sexual
exploitation of children, ratification/vicarious liability, unjust enrichment, invasion
of privacy, sexual assault and battery, and civil conspiracy. Backpage moved to
1 Hopson was found guilty of raping, assaulting, and prostituting one of the plaintiffs. J.S. did not pursue its action against Hopson. Appellant's Opening Br. at 7 n.2.
2 JS.,S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0
dismiss on the theory that it is immune from suit in relation to J.S. 's state law
claims under the federal Communications Decency Act of 1996 (CDA), 47 U.S.C.
§ 230. 2 J.S. countered by arguing that Backpage is not immune from suit in part
because its advertisement pos.ting rules were "designed to help pimps develop
advertisements that can evade the unwanted attention of law enforcement, while
still conveying the illegal message." Clerk's Papers (CP) at 201. The trial court
denied the motion to dismiss, allowing J.S. 's case to proceed. Backpage moved for
discretionary review. The Court of Appeals granted review and certified the case
to this court for direct review. Order Certifying Case for Transfer, JS. v. Vill.
Voice Media Holdings, LLC, No. 44920-0-II (Wash. Ct. App. July 17, 2014).
J.S. allegedly was featured in Backpage advertisements posted in accordance
with instructions on Backpage's website without any special guidance from
Backpage personnel. J.S. alleges that all of the advertisements featuring J.S.
complied with Backpage's content requirements.
Backpage does not allow advertisements on its website to contain naked
images, images featuring transparent clothing, sexually explicit language,
suggestions of an exchange of sex acts for money, or advertisements for illegal
services. In addition to these rules, specifically for advertisements posted in the
2 Backpage removed this case to a federal district court based on diversity jurisdiction. That court remanded to state court.
3 JS., S.L., andL.C. v. Village VoiceMediaHoldingsetal.,No. 90510-0
'"escort"' section of its website, Backpage does not allow "any solicitation directly
or in 'coded' fashion for any illegal service exchanging sexual favors for money or
other valuable consideration," "any material on the Site that exploits minors in any
way," or "any material ... that in any way constitutes or assists in human
trafficking." CP at 9-10.
ANALYSIS
A. Standard ofReview
"A trial court's ruling to dismiss a claim under CR 12(b)(6) is reviewed de
novo." Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore
v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). At this
stage, "we accept as true the allegations in a plaintiffs complaint and any
reasonable inferences therein." Reidv. Pierce County, 136 Wn.2d 195,201, 961
P.2d 333 (1998) (citing Chambers-Castanes v. King County, 100 Wn.2d 275, 278,
669 P.2d 451 (1983); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959,
961, 577 P.2d 580 (1978)). "CR 12(b)(6) motions should be granted 'sparingly
and with care' and 'only in the unusual case in which plaintiff includes allegations
that show on the face of the complaint that there is some insuperable bar to relief."'
Cutler v. Phillips Petrol. Co., 124 Wn.2d 749,755, 881 P.2d 216 (1994) (quoting
Hoffer v.
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. This opinion was fll~.r r~ /F·I-I:E\ at B tao fl1'Vl on ph ~~c ts- ~ :;;~ IN CLERKS OFFICE IUPReMe COURT, STATE OF W«\SSII«mltf DATE SEP 0 3 2Q15 . -:nu~.zry CHIEF JUSTICE : Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
J.S., S.L., and L.C., ) ) Respondents, ) No. 90510-0 ) v. ) ) VILLAGE VOICE MEDIA HOLDINGS, ) L.L.C., d/b/a/ Backpage.com and ) En Bane BACKPAGE.COM, L.L.C., ) ) Petitioners, ) ) and ) ) BARUTI HOPSON and NEW TIMES ) MEDIA, L.L.C., d/b/a/ Backpage.com, ) Filed SEP 0 3 2015 ) Defendants. ) ) ___________________________) GONZALEZ, J.--The plaintiffs before us have been the repeated victims of
horrific acts committed in the shadows of the law. They 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 in advertisements that, they allege, the
defendants help develop. Federal law shields website operators from state law JS., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0
liability for merely hosting content developed by users but does not protect those
who develop the content. The plaintiffs allege that the defendants did more than
just provide a forum for illegal content; the plaintiffs allege the defendants helped
develop it. Taking the complaint as true, as we must at this point, we find that the
plaintiffs have alleged sufficient facts that, if proved, would show that the
defendants helped to produce the illegal content and therefore are subject to
liability under state law. Accordingly, we affirm and remand to the trial court for
further proceedings consistent with this opinion.
FACTS
Advertisements featuring three minor girls, J.S., S.L., and L.C. (collectively
J.S.), allegedly were posted on a website owned and maintained by Village Voice
Media Holdings, d/b/a Backpage.com, Backpage.com LLC and New Times Media
LLC, d/b/a/ Backpage.com (collectively Backpage). J.S. allegedly was raped
multiple times by adult customers who responded to the advertisements.
J.S. filed a complaint alleging state law claims for damages against
Backpage and Baruti Hopson. 1 J.S. asserted claims for negligence, outrage, sexual
exploitation of children, ratification/vicarious liability, unjust enrichment, invasion
of privacy, sexual assault and battery, and civil conspiracy. Backpage moved to
1 Hopson was found guilty of raping, assaulting, and prostituting one of the plaintiffs. J.S. did not pursue its action against Hopson. Appellant's Opening Br. at 7 n.2.
2 JS.,S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0
dismiss on the theory that it is immune from suit in relation to J.S. 's state law
claims under the federal Communications Decency Act of 1996 (CDA), 47 U.S.C.
§ 230. 2 J.S. countered by arguing that Backpage is not immune from suit in part
because its advertisement pos.ting rules were "designed to help pimps develop
advertisements that can evade the unwanted attention of law enforcement, while
still conveying the illegal message." Clerk's Papers (CP) at 201. The trial court
denied the motion to dismiss, allowing J.S. 's case to proceed. Backpage moved for
discretionary review. The Court of Appeals granted review and certified the case
to this court for direct review. Order Certifying Case for Transfer, JS. v. Vill.
Voice Media Holdings, LLC, No. 44920-0-II (Wash. Ct. App. July 17, 2014).
J.S. allegedly was featured in Backpage advertisements posted in accordance
with instructions on Backpage's website without any special guidance from
Backpage personnel. J.S. alleges that all of the advertisements featuring J.S.
complied with Backpage's content requirements.
Backpage does not allow advertisements on its website to contain naked
images, images featuring transparent clothing, sexually explicit language,
suggestions of an exchange of sex acts for money, or advertisements for illegal
services. In addition to these rules, specifically for advertisements posted in the
2 Backpage removed this case to a federal district court based on diversity jurisdiction. That court remanded to state court.
3 JS., S.L., andL.C. v. Village VoiceMediaHoldingsetal.,No. 90510-0
'"escort"' section of its website, Backpage does not allow "any solicitation directly
or in 'coded' fashion for any illegal service exchanging sexual favors for money or
other valuable consideration," "any material on the Site that exploits minors in any
way," or "any material ... that in any way constitutes or assists in human
trafficking." CP at 9-10.
ANALYSIS
A. Standard ofReview
"A trial court's ruling to dismiss a claim under CR 12(b)(6) is reviewed de
novo." Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore
v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). At this
stage, "we accept as true the allegations in a plaintiffs complaint and any
reasonable inferences therein." Reidv. Pierce County, 136 Wn.2d 195,201, 961
P.2d 333 (1998) (citing Chambers-Castanes v. King County, 100 Wn.2d 275, 278,
669 P.2d 451 (1983); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959,
961, 577 P.2d 580 (1978)). "CR 12(b)(6) motions should be granted 'sparingly
and with care' and 'only in the unusual case in which plaintiff includes allegations
that show on the face of the complaint that there is some insuperable bar to relief."'
Cutler v. Phillips Petrol. Co., 124 Wn.2d 749,755, 881 P.2d 216 (1994) (quoting
Hoffer v. State, 110 Wn.2d 415,420, 755 P.2d 781 (1988)). "Dismissal under CR
12(b)(6) is appropriate only if 'it appears beyond a reasonable doubt that no facts
4 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0
exist that would justify recovery."' In re Parentage of C.M.F., 179 Wn.2d 411,
418,314 P.3d 1109 (2013) (quoting Cutler, 124 Wn.2d at 755).
B. Federal Preemption
J.S. alleges that Backpage facilitated the violation of numerous Washington
laws, including violations of Washington's laws against trafficking, commercial
sexual abuse, and prostitution. 3
Federal law, however, preempts state law when state law "would stand 'as
an obstacle to the accomplishment of the full purposes and objectives of Congress'
in passing§ 230 of the CDA." Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1134
(E.D. Va. 1997) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S. Ct.
2270, 110 L. Ed. 2d 65 (1990)), aff'd, 129 F.3d 327 (4th Cir. 1997), cert. denied,
524 U.S. 937 (1998). Applicable here, the CDA provides that "[n]o cause of
action may be brought and no liability may be imposed under any State or local
law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).
3 RCW 9.68A.040 (sexual exploitation of a minor), .050 (dealing in depictions of minor engaged in sexually explicit conduct), .090 (communication with a minor for immoral purposes), .1 00 (commercial sexual abuse of a minor), .1 01 (promoting commercial sexual abuse of a minor), .1 03 (permitting commercial sexual abuse of a minor); RCW 9A.44.076 (rape of a child in the second degree), .079 (rape of a child in the third degree), .086 (child molestation in the second degree), .089 (child molestation in the third degree); RCW 9A.88.070 (promoting prostitution in the first degree), .080 (promoting prostitution in the second degree), .090 (permitting prostitution); RCW 9A.40.100 (trafficking); and RCW 9A.28.040 (criminal conspiracy); RCW 9A.82.060 (leading organized crime).
5 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0
Under the CDA, an "information content provider" 4 may be subject to state
law liability in relation to content that it develops but an "interactive computer
service" 5 is immune from suit for state law claims in relation to merely hosting
such content on a website. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,
1123 (9th Cir. 2003).
Accordingly, the CDA controls whether Backpage is immune from J.S. 's
state law claims. The scope of CDA immunity is a matter of first impression for
this court.
C. J.S. 's Claims Are Sufficient To Withstand the Motion To Dismiss
This case turns on whether Backpage merely hosted the advertisements that
featured J.S., in which case Backpage is protected by CDA immunity, or whether
Backpage also helped develop the content of those advertisements, in which case
Backpage is not protected by CDA immunity.
A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is "responsible, in whole or in part" for creating or developing, the website is also a content provider. Thus, a
4 An "information content provider" is "any person or entity responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3). 5 An "interactive computer service," however, is "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(f)(2).
6 JS., S.L., and L.C. v. Village Voice Media Holdings eta!., No. 90510-0
website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.
Fair Hous. Council v. Roomates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir.
2008) (citing Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal.
2006)). A website operator, however, does not "develop" content by simply
maintaining neutral policies prohibiting or limiting certain content. See, e.g., Dart
v. Craigslist, 665 F. Supp. 2d 961, 968-69 (N.D. Ill. 2009).
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,"
7 JS., S.L., and L.C. v. Village Voice Media Holdings eta!., No. 90510-0
( 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." CP at 6, 8, 10, 12, 13. 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." Id. at 12.
Given J. S. 's allegations, it does not appear "'beyond a reasonable doubt that
no facts exist that would justify recovery"' in this case, and, therefore, dismissal of
J.S.'s claims under CR 12(b)(6) is not appropriate. In re C.MF., 179 Wn.2d at 418
(quoting Cutler, 124 Wn.2d at 755). It is important to ascertain whether in fact
Backpage designed its posting rules to induce sex trafficking to determine whether
Backpage is subject to suit under the CDA because "a website helps to develop
unlawful content, and thus falls within the exception to section 230, if it
contributes materially to the alleged illegality of the conduct." Fair Hous. Council,
521 F.3d at 1168. Fact-finding on this issue is warranted.
8 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0
CONCLUSION
We find the plaintiffs have pleaded a case that survives the motion to
dismiss. Accordingly, we affirm the trial court and remand for further proceedings
consistent with this opinion.
9 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0
WE CONCUR:
10 J. S., S.L., and L. C. v. Village Voice Media Holdings eta!., No. 90510-0 (Wiggins, J., concurring)
No. 90510-0
WIGGINS, J. (concurring)-! fully concur in the majority opinion. CR 12(b)(6)
motions should be granted '"sparingly and with care' and 'only in the unusual case in
which plaintiff includes allegations that show on the face of the complaint that there is
some insuperable bar to relief."' Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-
30, 962 P.2d 104 (1998) (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781
(1988)). These procedural rules "are intended to facilitate the full airing of claims having
a legal basis." Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187 (1977). Here, plaintiffs
claim that Backpage.com 1 designed its posting rules to induce sex trafficking and to help
pimps and prostitutes evade law enforcement. Thus, I would affirm the trial court and
allow the plaintiffs to pursue their claims.
I write separately to emphasize that this holding implies that the plaintiffs' claims
do not treat Backpage.com as the publisher or speaker of another's information under
the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230(c). The dissent
misreads this statute to provide "immunity" to '"interactive service providers.'" Dissent at
1. This reading is irreconcilable with the actual language of the statute, which does not
include the term or any synonym of "immunity." Subsection 230(c)(1) instead provides a
narrower protection from liability: the plain language of the statute creates a defense
1 We refer to petitioners-Village Voice Media Holdings, d/b/a Backpage.com; Backpage.com LLC; and New Times Media LLC, d/b/a Backpage.com-collectively as Backpage.com. J.S., S.L., and L.C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
when there is (1) a provider or user of an interactive computer service (2) whom a plaintiff
seeks to treat, under a state law cause of action, as a publisher or speaker of information
(3) that is provided by another information content provider.
Thus, when the cause of action does not treat an intermediary as a publisher or
speaker, subsection 230(c)(1) cannot be read to protect that intermediary from liability.
Plaintiffs' claims that Backpage.com created ucontent rules" specifically designed to
induce sex trafficking and evade law enforcement do not treat Backpage.com as the
publisher or speaker of another's information. Accordingly, I join the majority opinion.
DISCUSSION
I. Plain language of the statute precludes web hosts from being treated as publishers and speakers of third-party information
We begin by considering the plain language of the statute. Though subsection
230(c) has two parts, Backpage.com relies entirely on subsection 230(c)(1 ), captioned
"Treatment of publisher or speaker." 2 (Boldface omitted.) Backpage.com ignores the
second part, captioned "Civil Liability." (Boldface omitted.) Subsection 230(c) provides in
full:
(c) Protection for "Good Samaritan" blocking and screening of offensive material
(1) Treatment of publisher or speaker
2 See Appellant's Reply Br. at 15 n.11 ("Regardless of whether Section 230(c)(2) also applies, Backpage.com moved to dismiss under Section 230(c)(1), which contains no good faith element.").
2 J.S., S.L., and L.C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.[3l
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of-
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1 ).
The plain language of subsection 230(c) does two things: it precludes treating an
interactive computer service provider as publisher or speaker of information provided by
another provider, and it limits two distinct types of potential liability: (1) a provider or user
cannot be subject to liability for any action taken in good faith to restrict access to
materials considered to be objectionable, and (2) a provider or user cannot be subject to
liability for any action taken to make it possible for any user to restrict access to material.
However, the plain language of subsection 230(c)(1) does not, as Backpage.com and
the dissent assert, create an "immunity."
3 The terms "interactive computer service" and "information content provider" are statutorily defined in subsection 230(f)(3): an "interactive computer service" is defined to include all online service providers and websites, and an "information content provider" is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."
3 v. Village Voice Media Holdings et at., No. 90510-0 J. S., S.L., and L. C. (Wiggins, J., concurring)
The plain language of subsection 230(c) permits liability for causes of action that
do not treat the user or Internet service provider (ISP) as a publisher or a speaker.
Backpage.com's argument that section 230 "provides broad immunity to online service
providers" is wholly unsupported by the statute's plain language-subsection 230(c)
says nothing about "broad immunity." R·ather, subsection 230(c)(1) simply precludes
treating the user or ISP "as the publisher or speaker of any information" if that information
was "provided by another information content provider." If the elements of a cause of
action include proof that an ISP is the publisher or speaker of information provided by
another information content provider, then the action cannot proceed. But subsection
230(c)(1) does not protect the ISP from liability for other causes of action.
The context of subsection 230(c)(1) also compels the conclusion that it does not
establish an immunity. We must consider the context of the statute in discerning its
meaning. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-12, 43 P.3d 4
(2002) (In interpreting a statute we '"tak[e] into account the statutory context, basic rules
of grammar, and any special usages stated by the legislature on the face of the
statute."'(quoting 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION §
48A: 16, at 809-10 (6th ed. 2000))). Subsection 230(c) includes two distinct subsections:
(c) Protection for "Good Samaritan" blocking and screening of offensive material
4 J.S., S.L., and L.C. v: Village Voice Media Holdings et at., No. 90510-0 (Wiggins, J., concurring)
The actual defenses against civil liability are found in subsection 230(c)(2). In other
words, subsection 230(c)(1) is neither an immunity nor a defense; it is a prohibition
against considering the provider as a publisher or speaker of content provided by
another. The main purpose of subsection 230(c) is not to insulate providers from civil
liability for objectionable content on their websites, but to protect providers from civil
liability for limiting access to objectionable content. Ironically, the dissent would turn
section 230 upside down, insulating plaintiffs from expanding access to objectionable
content.
Backpage.com's reading, adopted by the dissent, totally ignores subsection
230(c)(2); the dissent instead asserts that good faith is irrelevant to subsection 230(c)(1 ).
See dissent at 33-34. Whether or not that is correct, good faith is certainly relevant to
subsection 230(c)(2), which expressly requires "good faith." We cannot just ignore this
subsection-we read statutes in context and consider the statute's placement within the
entire statutory scheme. Campbell & Gwinn, 146 Wn.2d at 9. Subsection 230(c)(2)(A) of
the CDA protects providers from civil liability when they act in good faith to limit access
to objectionable content, regardless of their status as a publisher or speaker. As
discussed in more detail below, this provision clearly shows that Congress contemplated
defenses for good faith actions that do not rely on an ISP's status as a publisher or
speaker. But it would be absurd to ignore this language in order to protect the actions of
Backpage.com, taken in bad faith, that have nothing to do with publishing or speaking
another's content.
5 J. S., S.L., and L. C. v. Village Voice Media Holdings eta!., No. 90510-0 (Wiggins, J., concurring)
The purpose of the CDA provides further support for the conclusion that
subsection 230(c)(1) does not provide "absolute immunity" to providers. Congress set
forth its findings in subsection 230(a) and its resulting policies in subsection 230(b):
promoting "the continued development of the Internet"; preserving "the vibrant and
competitive free market that presently exists for the Internet and other interactive
computer services, unfettered by Federal or State regulation"; encouraging the
"development of technologies which maximize user control over what information is
received by individuals, families, and schools who use the Internet and other interactive
computer services"; removing "disincentives for the development and utilization of
blocking and filtering technologies that empower parents to restrict their children's
access to objectionable or inappropriate online material"; and ensuring "vigorous
enforcement of Federal criminal laws to deter and punish trafficking in obscenity,
stalking, and harassment by means of computer." 47 U.S.C. § 230(b).
Subsection 230(b) makes clear that Congress intended to remove disincentives
to technologies that would restrict Internet access to objectionable materials. But
Backpage.com would_ have us brush aside as irrelevant the subsection 230(c)(2)
defenses that accomplish the congressional intent. Instead of encouraging all ISPs to
incorporate restrictive technologies, this reading would absolutely immunize providers
who allow third parties freedom to post objectionable materials on the providers'
websites.
Rather than engaging with the plain language, structure, and purpose of section
230, Backpage.com relies on the opinions of various federal courts to conclude that the
6 J.S., S.L., and L.C. v. Village Voice Media Holdings eta!., No. 90510-0 (Wiggins, J., concurring)
statute "'provides broad immunity for publishing content provided primarily by third
parties."' Garbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1118 (W.O. Wash.
2004) (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)),
overruled on other grounds by Cosmetics Ideas, Inc. v. IAC!Interactivecorp, 606 F.3d
612 (9th Cir. 201 0). The dissent adopts this reading, asserting that it is following the
reasoning of a majority of the courts to consider the question. Dissent at 8-9 & nn. 3-4.
The dissent is correct that it is certainly not alone in taking this position-many courts,
particularly in the early years after the statute was enacted, followed these early
decisions in applying an expansive interpretation of the statute. Ryan J.P. Dyer,
Comment, The Communication Decency Act Gone Wild: A Case for Renewing the
Presumption Against Preemption, 37 SEATTLE U. L. REV. 837, 841-43 (2014); see also,
e.g., Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997); Green v. Am. Online, 318
F.3d 465 (3d Cir. 2003). But it is difficult to reconcile an expansive reading finding "broad
immunity" with the actual language of the statute, which uses specific terms and does
not include the words "immunity" or any synonym. Chi. Lawyers' Comm. for Civil Rights
under Law, Inc., v. Craigslist, Inc., 519 F.3d 666, 669 (7th Cir. 2008). Perhaps recognizing
this, the Ninth Circuit Court of Appeals has retreated from its earlier cases relied on by
the dissent, joining other circuits in refusing to treat section 230 as providing broad
immunity. Compare Carafano, 339 F.3d at 1123 (law "provides broad immunity for
publishing content provided primarily by third parties"), with Barnes v. Yahoo!, Inc., 570
F. 3d 1096, 1100 (9th Cir. 2009) ("[l]ooking at the text, it appears clear that neither
7 J. S., S.L., and L. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
[subsection 230(c)] nor any other declares a general immunity from liability deriving from
third-patiy content").
The dissent also supports its argument for broad immunity through repeated
references to other courts' interpretations of the congressional intent in enacting section
230, "but such noise ultimately signifies nothing. It is the language of the statute that
defines and enacts the concerns and aims of Congress; a particular concern does not
rewrite the language." Barnes, 570 F. 3d at 1105. I would hold that subsection 230(c)(1)
creates a defense to, not an immunity from, liability arising from a cause of action that
would treat the web host as a publisher or speaker.
II. Treatment as publisher or speaker
Wit~1 this approach in mind, we ask when subsection 230(c)(1) protects
Backpage.com from liability. Some of the claims asserted by the plaintiffs treat
Backpage.com as the publisher or original speaker of the pimps' offensive postings on
their message board. These claims must be dismissed: the plain language of the
subsection 203(c)(1) clearly protects Backpage.com from claims that would hold it liable
for publishing or speaking another's information. See, e.g., Zeran, 129 F. 3d at 333
(dismissal appropriate for both initial publication and delay in removal of defamatory
messages); Carafano, 339 F. 3d 1124-25 (dismissal appropriate for suit alleging invasion
of privacy and defamation, among other things, based on third-party submission of false
dating profile).
However, the plaintiffs also allege that Backpage.com's content rules were
adopted and intended to assist pimps in using ambiguous language to avoid police
8 J. S., S.L., and L. C. v. Village Voice Media Holdings et at., No. 90510-0 (Wiggins, J., concurring)
attention or to minimize the appearance that they are selling the sexual favors of their
prostitutes. Specifically, plaintiffs complain that these content rules "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." 4 Clerk's Papers at
10. Plaintiffs argue· that these content rules transform Backpage.com from a neutral
intermediary hosting another's information into an original speaker of that information.
See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir.
2008) (Roommates.com) ("By requiring subscribers to provide the information as a
condition of accessing its service, and by providing a limited set of prepopulated
answers, Roommate becomes much more than a passive transmitter of information
provided by others; it becomes the developer, at least in part, of that information."); see
a/so Felix T. Wu, Collateral Censorship and the Limits of Intermediary Immunity, 87
NOTRE DAME L. REV. 293, 297 (2011 ). Plaintiffs also assert that Backpage.com
specifically designed these rules to induce sex trafficking. These allegations require an
analysis of (1) whether they treat Backpage.com as the original speaker of the
information and (2) whether each cause of action inherently requires the court to treat
the defendant as the "publisher or speaker" of content provided by another.
4 Subsection 230(c)(2) protects ISPs who either (A) acting in good faith preclude access to objectionable material or (B) take action to allow others to preclude access to objectionable material. Content rules created in good faith fall within the protections of subsection 230(c)(2). However, plaintiffs allege that Backpage.com created these content restrictions in bad faith. Backpage.com does not rely on the defenses provided in subsection 230(c)(2). See note 2, supra.
9 J.S., S.L., and L.C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
The dissent would answer the first question by holding that the adoption of posting
rules designed to induce sex trafficking does not make Backpage.com a "content
developer" under the statute; i.e., Backpage.com is not the original speaker of the
information. Dissent at 20. This may be true; many courts have held that content rules
do not equal content development. See, e.g., Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 963 (N.D. Ill. 2009); Roommates. com, 521 F.3d at 1171. But the real question is
whether plaintiffs' allegations that Backpage.com developed posting rules to induce
prostitution require us to treat Backpage.com as the publisher or speaker of another's
information.
Backpage.com argues that plaintiffs' inducement theory clearly treats them as
publishers and that holding it liable would punish the company for publishing third party
content. To the contrary, plaintiffs have alleged a totally different theory-that
Backpage.com guided pimps to craft invitations to prostitution that appear neutral and
legal so that the pimps could advertise prostitution and share their ill-gotten gains with
Backpage.com. Plaintiffs are not claiming that Backpage.com itself is acting as their pimp
but that Backpage.com is promoting prostitution, which is a crime in Washington (RCW
9A.88.060) and should support a cause of action. The dissent does not analyze how
these claims treat Backpage.com as a publisher or a speaker, relying instead on
analogies to distinguishable cases. Unlike the cause of action in Chicago Lawyers'
Committee, which relied on 42 U.S.C. § 3604(c), 5 an inducement theory does not require
5 42 U.S.C. § 3604 provides in relevant part that
10 J. S., S.L., and L. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
the defendant to act as a publisher. Nor does plaintiffs' theory involve "decisions relating
to the monitoring, screening, and deletion of content"-actions that are "quintessentially
related to a publishers role." Green, 318 F.3d at 471.
Factually, the dissent finds the most support for its position in Dart, 665 F. Supp.
2d 961. But Dart recognized that Craigslist "could be held liable for 'causing'
discriminatory ads if that was in fact what it had done"; it simply disagreed with the
petitioner's assertion that the mere existence of an "'adult services"' section necessarily
induced others to provide unlawful content. 6 /d. at 968 (quoting Chi. Lawyers' Comm.,
519 F.3d at 671-72). Plaintiffs do not argue that Backpage.com necessarily induces the
posting of unlawful content by merely providing an escort services category. Instead,
plaintiffs allege that Backpage.com deliberately designed its posting rules in a manner
it shall be unlawful-
(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. 6The dissent also cites to Jane Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) for support. Dissent at 22-23. MySpace involved a girl, 13, who lied about her age (claiming to be 18) in order to create a social networking profile. By lying about her age, she was able to create a public profile. Another user, 19, viewed this profile, initiated contact with the girl, and sexually molested her. The parents of the girl sued MySpace for negligence for the failure to have an age verification system in place and for the failure to keep younger users' profiles hidden. The Fifth Circuit Court of Appeals held that section 230 barred the claim. However, the court never explained how an age verification requirement would treat MySpace as the speaker or publisher of third-party information. See Wu, supra, at 327-28, 344. Notably, the plaintiff's claim was not one that would treat MySpace as if it had been the one claiming that the girl was 18. Myspace, 528 F.3d at 416. Instead, the claim faulted MySpace for its actions as the recipient of the girl's assertion rather than in its capacity as a speaker or publisher of that assertion to others. See generallyWu, supra, at 327-28. Rather than analyze the plain language, the court relied on the grant of broad immunity that we should reject as inconsistent with the plain language of section 230 to reach its holding. Thus, the analysis employed in Myspace is inapplicable to this case.
11 J. S., S.L., and L. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
that would enable pimps to engage in sex trafficking, including in the trafficking of minors,
and to avoid law enforcement. These factual allegations do not suggest that
Backpage.com is being treated as a "publisher or speaker." Accordingly, the plaintiffs'
claim should not be dismissed under CR 12(b)(6).
The dissent further asserts that our interpretation of subsection 230(c)(2)
"basically eviscerates§ 230(c)(1) ... by arguing that§ 230(c)(2) provides the defendant
with the defense, while § 230(c)(1) essentially provides the defendant with nothing."
Dissent at 34. This is an empty rhetorical flourish and a strange one to make of this
concurring opinion, which straightforwardly acknowledges that to the extent plaintiffs'
claims treat Backpage.com as a publisher or original speaker, such claims "must be
dismissed." Supra at 8. The dissent's rhetoric reveals its unwillingness to acknowledge
that the plaintiffs make at least two claims: publishing advertisements treating the
plaintiffs as chattels to be bought and sold over the Internet and crafting bad faith
guidelines intended to create a plausible denial of the true nature of the services for
which the plaintiffs were bought and sold-that is, promoting prostitution or inducing sex
trafficking. Successfully defending against one of two claims does not "eviscerate" the
remaining claim.
A simple analogy shows that defending against the publication claim does not
defeat the bad faith guideline claim. A patient can bring a medical malpractice claim
against a treating physician for at least two different claims-failure to adhere to the
standard of care and failure to obtain informed consent to treatment. If the physician
defeats the claim based on standard of care, the informed consent claim would remain
12 J. S., S.L.., and L. C. v. Village Voice Media Holdings et at., No. 90510-0 (Wiggins, J., concurring)
to be resolved. No one would say that the successful defense of the standard of care
claim "provides the defendant with nothing," dissent at 34, or that the continued viability
of the informed consent claim "eviscerates" the standard of care claim. /d. So too here
the continued viability of the bad faith guidelines claim works no "evisceration."
Recognizing that the statute contains competing policy goals, recent circuit court
decisions have protected "Good Samaritan" and neutral behavior while asserting that
culpable behavior by websites is not protected under section 230. 7 Roommates.com,
521 F.3d at 1175 ("[t]he message to website operators is clear: if you don't encourage
illegal content[] or design your website to require users to input illegal content," you will
not be held liable for hosting third-party content). Courts specifically reject the subsection
230(c)(1) defense when the underlying cause of action does not treat the information
content provider as a "publisher or speaker" of another's information. See, e.g., City of
Chicago v. StubHub!, Inc., 624 F. 3d 363, 366 (7th Cir. 201 0) (subsection 230(c)(1)
defense inapplicable because suit to collected city's amusement tax "does not depend
on who 'publishes' any information or is a 'speaker"'). More analogous to the instant
case, the Ninth Circuit recently permitted a lawsuit against an ISP on a theory of
7 Contrary to Backpage~com's argument that section 230 "unequivocally bars ... claims seeking to impose liability on online service providers based on third-party content," courts do not uniformly immunize information content providers from suits based on unlawful content provided by third parties; currently eight circuits have explicitly left room for liability based on the inducement of illegal content. See, e.g., Chi. Lawyers' Comm., 519 F.3d at 671-72; Roominates.com, 521 F.3d at 1175; Fed. Trade Comm'n v. Accusearch, Inc., 570 F.3d 1187, 1199 (10th Cir. 2009); Johnson v. Arden, 614 F.3d 785, 792 (8th Cir. 2010); MySpace, 528 F.3d at 421-22; Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257 (4th Cir. 2009); Dimeo v. Max, 248 F. App'x 280, 282 (3d Cir. 2007); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 421 (1st Cir. 2007).
13 J. S., S.L., and L. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
promissory estoppel. Barnes, 570 F. 3d at 1106-09. 8 These cases provide meaningful
limitations on the defenses afforded by subsection 230(c)(1 ).
"The Communications Decency Act was not meant to create a lawless no-man's-
land on the Internet." Roommates.com, 521 F.3d at 1164. The CDA instead prevents
website hosts from being liable when they elect to block and screen offensive material,
and it encourages the development of the Internet by not permitting causes of action,
such as defamation, that would treat the web host as the publisher or speaker of
objectionable material. Neither of these directives requires us to blindly accept the early
premise of "broad immunity" in order to defeat potentially meritorious claims alleging
flagrantly criminal complicity or inducement by website hosts on the Internet. We should
interpret the statute to create a defense to, not an immunity from, liability arising from a
cause of action that would treat the web host as a publisher or speaker. Because the
plaintiffs' claims do not treat Backpage.com as a publisher or speaker, I join the majority
in affirming the trial court's decision to deny Backpage.com's motion to dismiss.
8 In Barnes, the plaintiff's former boyfriend posted nude photographs of the plaintiff on Yahool's social media website without her permission, along with open solicitations to engage in sexual intercourse. 570 F. 3d 1096. Barnes received numerous advances from unknown men in response to this profile and contacted Yahoo! to have the profile removed. Yahoo! did not remove the profile and Barnes filed a lawsuit alleging both the tort of negligent undertaking and a contract claim promissory estoppel for Yahool's failure to remove the photographs. The court dismissed Barnes' tort claim, finding that "the duty that Barnes claims Yahoo violated derives from Yahoo's conduct as a publisher-the steps it allegedly took, but later supposedly abandoned, to de-publish the offensive profiles." !d. at 1103. However, the court permitted her claim to go forward under a claim of promissory estoppel because that claim treated Yahoo! as a promisor rather than as a publisher.
14 J. S., S.L., and L. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring)
Accordingly, I concur in the majority opinion.
15 J.S., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
No. 90510-0 GORDON McCLOUD, J. (dissenting)-The question before us is whether
J.S. 's 1 civil lawsuit against these particular defendants can proceed or whether
federal law shields Backpage2 from suit. In 1996, Congress passed the
Communications Decency Act (CDA), 47 U.S.C. § 230, a statute that gives
"interactive service providers" such as Backpage immunity from lawsuits based on
the "content" of ads composed and posted on their sites by others. See 47 U.S.C. §
230(c)(l). Before it passed this statute, Congress weighed the competing policies of
fostering robust interactive service provider growth, promoting self-policing by the
interactive service provider industry, and protecting against victimization by Internet
advertisements. In the CDA, Congress struck the balance in favor of immunity for
"interactive service providers" but not for "content providers."
We must now decide whether Backpage fits within the CDA's broad
definition of an "interactive ... service ... provider" under subsection 230( c)(1 ),
1 Minor plaintiffs-J.S., S.L., and L.C. (collectively J.S.).
2 Village Voice Media Holdings, d/b/a Backpage.com; Backpage.com LLC; and New Times Media LLC, d/b/a Backpage.com (collectively Backpage). 1 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
entitled to immunity from suit for content published on its website, or whether it is,
instead, an "information content provider" that is not immune. The majority holds
that J.S.'s complaint would support a claim that Backpage functions as an
"information content provider" because it alleged that Backpage maintains content
requirements for advertisements posted on its website that surreptitiously guide
pimps on how to post illegal, exploitative ads. But J.S.'s complaint clearly alleges
that another content provider, not Backpage, provided the content for the
advertisements. J.S. thus seeks to hold Backpage liable as a publisher or speaker of
that information. Subsection 230(c)(l) therefore bars J.S.'s claims. Accordingly, I
would reverse the trial court's decision to deny the defendant's Civil Rule (CR)
12(b)(6) motion to dismiss the complaint. I respectfully dissent.
FACTUAL ALLEGATIONS 3
The complaint alleges that pimps posted advertisements displaying J.S. for
sale for prostitution on the "escort" section ofBackpage's website. Clerk's Papers
(CP) at 1-2. Adult customers then responded to these advertisements and raped J.S.
multiple times. CP at 2. The pimps posted these advertisements by using a
computer; they had no personal contact with Backpage personnel. CP at 12.
3 Because we review the trial court's denial of a CR 12(b)(6) motion, we presume that the complaint's factual allegations are true. Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998). 2 JS., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
The complaint further alleges that Backpage maintains content requirements
for advertisements posted on its website and removes ads that violate these
requirements. CP at 6. Backpage prohibits the use of sexually explicit language;
naked images; images using transparent clothing, graphic box, or pixelization to
cover bare breasts or genitalia; certain code words; suggesting an exchange of sex
acts for money; and advertising an illegal service. CP at 8.
Users must also agree to certain content requirements to post advertisements
on the "escort" section of the Backpage website. These requirements bar posting
"obscene or lewd and lascivious graphics or photographs which depict genitalia or
actual or simulated sexual acts"; "any solicitation directly or in 'coded' fashion for
any illegal service exchanging sexual favors for money or other valuable
consideration"; "any material on the Site that exploits minors in any way"; or "any
material on the Site that in any way constitutes or assists in human trafficking." CP
at 9-10. Backpage also requires users to agree that they are "at least 18 years of age
or older and not considered to be a minor in my state or residence." CP at 10.
J.S. alleges that all of the advertisements about J.S. complied with Backpage's
content requirements. CP at 16, 18, 20-21. We interpret this as an allegation that
those advertisements complied with Backpage's requirements for language and
images but failed to comply with Backpage's rules barring advertisements for illegal
3 JS., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
services and exploitation of minors-because Backpage' s alleged illegal
exploitation of minors forms the gravamen of the complaint.
PROCEDURAL BACKGROUND
On September 5, 2012, J.S. filed a first amended complaint, raising state law
claims for damages against the current defendants plus Baruti Hopson, an alleged
pimp. CP at 1-26. 4 J.S. asserted claims for negligence, outrage, sexual exploitation
of children, ratification/vicarious liability, unjust enrichment, invasion of privacy,
sexual assault and battery, and civil conspiracy. CP at 21-25. On March 25, 2013,
Backpage filed a CR 12(b)(6) motion to dismiss; it argued that the CDA provided it
with immunity from liability for Backpage's claims. CP at 155-84.
J.S. opposed, arguing, "Backpage engages in three distinct activities, each of
which independently excludes CDA immunity." CP at 194. J.S. asserted that
Backpage (1) "'created' its unlawful 'escort' heading," CP at 195-96 (formatting
omitted), (2) "developed the unlawful content by making it 'useable and available,'"
CP at 196-97 (formatting omitted), and (3) "encouraged unlawful content." CP at
197-204 (formatting omitted).
The trial court rejected J.S. 's first argument, explaining that a website could
not be held liable for advertising for escorts because that is a legal activity. Verbatim
4 Hopson is currently in prison for abusing and prostituting one of the plaintiffs. CP at 3-4, 2778. J.S. did not pursue its action against Hopson. Appellants' Opening Br. at 7. 4 J.S., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
Tr. ofProceedings (VRP) at 23. The trial court also rejected J.S.'s second argument
that B ackpage conspired with users. VRP at 15, 23, 50. But the court accepted J. S. 's
third argument-that Backpage's posting rules were "designed to help pimps
develop advertisements that can evade the unwanted attention of law enforcement,
while still conveying the illegal message." CP at 201. It therefore denied
Backpage's motion to dismiss, stating,
[T]he question is did Congress tell Superior Court trial judges that you have to -- that you are entitled to ignore the CDA or do you have to enforce it? This case is -- honestly, this is, I think, of all the cases in terms of the [CR] 12(b)(6) or summary judgment for that matter, is the closest that I've ever come. I mean, it's right on the line and with all due respect to the fabulous briefing and the great arguments, it really walks the line for me this case, it's right on the edge. . . . These are where I'm most concerned, this is what I highlighted over and over again and reread, it's the posting guidelines.
And, frankly, my note to myself in the sideline was Backpage doesn't know this is for prostitution and isn't assisting with the development? And despite the case law, I answer that question just on the side ofthe plaintiffs and I'm denying a [CR] 12(b)(6) [motion].
VRP at 49-50. The Court of Appeals granted Backpage's motion for discretionary review
and then certified the case to this court for direct review under RCW 2.06.030.
I. STANDARD OF REVIEW
This court reviews the denial of a CR 12(b)(6) motion to dismiss de novo.
Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). We presume that all 5 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
facts alleged in the plaintiffs complaint are true. Tenore v. AT&T Wireless Servs.,
136 Wn.2d 322, 330, 962 P.2d 104 (1998). But we are not required to accept the
complaint's legal conclusions as correct. Haberman v. Wash. Pub. Power Supply
Sys., 109 Wn.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987). Dismissal is proper
when it appears beyond a reasonable doubt that the plaintiff can prove no set of facts
that would justify relief. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922
n.9, 296 P.3d 860 (2013).
II. THE CDA PROVIDES IMMUNITY TO INTERACTIVE COMPUTER SERVICE PROVIDERS OR USERS
A. The Language and Context of Subsection 230(c)(1)
The resolution of this case depends on our interpretation of a federal statute,
47 U.S.C. § 230(c). It provides:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
No provider or user of an interactive computer service shall be held liable on account of-
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material 1s constitutionally protected; or
6 J.S., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1 ).
Subsection 230(c)(l)-the basis for Backpage's motion to dismiss-protects
defendants from claims if ( 1) the defendant is an "interactive computer service ...
provider" or "user," (2) the cause of action treats the defendant as a publisher or
speaker of information, and (3) a different information content provider provided the
information. 47 U.S.C. § 230(c)(l). An "interactive computer service" is defined
as "any information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet and such systems
operated or services offered by libraries or educational institutions." 47 U.S.C. §
230(£)(2). An "information content provider," on the other hand, is defined as any
person or entity "responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer
service." 47 U.S.C. § 230(£)(3).
Subsection 230( e) of the CDA, titled "Effect on other laws," then provides a
limited exception to the immunity described above for defendants in federal criminal
prosecutions, even those brought under inconsistent or conflicting laws, but not for
defendants in cases brought under inconsistent state laws:
7 J.S.; S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
(1) No effect on criminal law Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.
(3) State law Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. 47 U.S.C. § 230(e) (emphasis added). As the majority acknowledges, the
emphasized last sentence shows the limits of what is carved out, barring any state
lawsuit that is based on a theory of liability "'inconsistent with this section.'"
Majority at 5 (quoting 47 U.S.C. § 230(e)(3)). The "section" is section 230, whose
first subsection, as discussed above, prohibits treating interactive computer service
providers as "publisher[s] or speaker[s]," 47 U.S.C. § 230(c)(l). Its second
subsection bars liability based on certain good faith content restrictions. 47 U.S. C.
§ 230( c)(2).
Most courts characterize subsection 23 0( c)(1 )' s language treating Internet
service providers as "publisher[ s] or speaker[ s]" of the content that they display as
8 JS., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
providing an "immunity" from suit. 5 A few courts say that this language creates a
protection from suit, rather than an absolute immunity. 6
The concurrence finds the difference dispositive. Concurrence at 8 (holding
that subsection 230( c) creates "a defense to, not an immunity from, liability arising
from a cause of action that would treat the web host as a publisher or speaker").
I don't. Given the allegations in this particular case, the difference in
terminology is irrelevant. The question is how far the subsection 230( c)(1)
protection reaches, and courts interpreting subsection 230(c)(l)'s language
5 Jones v. Dirty World Entm 't Recordings, LLC, 755 F.3d 398, 406-07 (6th Cir. 2014); see also Almeida v. Amazon. com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) ("The majority of federal circuits have interpreted the CDA to establish broad 'federal immunity to any cause of action that would make service providers liable for information originating with a third-party user ofthe service."' (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)); accord Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) ("'[I]mmunity is an immunity from suit rather than a mere defense to liability and ... is effectively lost if a case is erroneously permitted to go to trial."' (emphasis omitted) (quoting Brown v. Gilmore, 278 F.3d 362, 366 n.2 (4th Cir. 2002))); Jane Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Chi. Lawyers' Comm.for Civil Rights under Law, Inc. v. Craigslist, Inc., 519 F.3d 666,671 (7th Cir. 2008); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,418-19 (1st Cir. 2007); Batzel v. Smith, 333 F.3d 1018, 1026-30 (9th Cir. 2003); Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003); Ben Ezra, Weinstein, & Co. v. Am. Online, Inc., 206 F.3d 980, 984-85 (lOth Cir. 2000); Zeran, 129 F .3d at 330 ("By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user ofthe service.") Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004), overruled on other grounds by Cosmetics Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612 (9th Cir. 2010). 6 See, e.g., John Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003) (reading"§ 230(c)(l) as a definitional clause rather than as an immunity from liability").
9 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
uniformly hold that its protection for publishers is "quite robust." They apply an
expans1ve definition of '"interactive computer service provider"' and a rather
restrictive definition of "information content provider." · Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (footnotes omitted).
They hold that the law provides immunity if the plaintiff alleges that the defendant
violated a duty deriving from the defendant's status or conduct as a publisher or
speaker. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107-09 (9th Cir. 2009). As long
as a third party "'willingly provides the essential published content, the interactive
service provider receives full immunity regardless of the specific editing or selection
process."' Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1098-99, 1118
(W.D. Wash. 2004) (quoting Carafano, 339 F.3d at 1123). The inquiry is whether
the defendant "function[ed] as an 'information content provider' for the portion of
the statement or publication at issue." Carafano, 339 F.3d at 1123; see also Nemet
Chevrolet, Ltd. v. Consumera.ffairs.com, Inc., 591 F.3d 250, 260 (4th Cir. 2009)
(affirming district court's dismissal of complaint where plaintiff failed to show that
defendant "was responsible for the creation or development. of the allegedly
defamatory content at issue").
As the majority notes, if a website operator is in part responsible for the
creation or development of content, then it is considered an information content
provider as to that content and loses immunity from claims predicated on such
10 J.S., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
content. Majority at 6-7; Jones v. Dirty World Entm 't Recordings, LLC, 755 F.3d 398,
408-09 (6th Cir. 2014) (Jones III).
But critically for this case, a person or entity does not qualify as an
information content provider merely by facilitating an individual user's expression
of information, if it is the user alone who selects the content. Carafano, 339 F.3d at
1124.
B. The Policy Choices Reflected in Subsection 230(c)(l)
J.S. argues, "Granting [i]mmunity to the Backpage [d]efendants at the CR
12(b)(6) [p]hase of [l]itigation [w]ould [r]esult [i]n [a]bsurdity" because Congress
"did not intend to grant absolute immunity to websites let alone immunity to
websites whose primary business is to generate profit from the sex trafficking of
women and children." Br. ofResp'ts at 37 (boldface omitted). But J.S. provides no
citations to congressional intent to support this argument.
The statute shows that Congress weighed the policy concerns at issue here
differently. Subsection 230(b) ofthe CDA states,
It is the policy of the United States-
( 1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
11 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
(3) to encourage the development of technologies whiCh maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
47 U.S.C. § 230(b).
Section 230 thus puts a premium on two basic policy concerns: promoting the
free exchange of information and ideas over the Internet, and encouraging voluntary
monitoring for offensive or obscene material. Carafano, 339 F.3d at 1122; Batzel v. (·'·:l Smith, 333 F.3d 1018, 1026-30 (9th Cir. 2003). Congress was working against a
backdrop of laws providing that publishers of media such as '"newspapers,
magazines or television and radio stations"' may "'be held liable for publishing or
distributing ... material written or prepared by others."' Batzel, 333 F.3d at 1026
(quoting Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998)). Section 230
intentionally treats Internet publishers "differently from corresponding publishers in
print, television and radio." Carafano, 339 F.3d at 1122; see also Batzel, 333 F.3d
at 1026-27.
12 JS., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
In fact, Congress enacted the CDA to respond to Stratton Oakmont, Inc. v.
Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *5 (N.Y. Sup. Ct. May 26,
1995), an unpublished state court decision that held that the provider of an online
messaging board could be liable for defamatory statements that third party users
posted on the board. See Fair Hous. Council v. Roommates.com, LLC, 521 F.3d
1157, 1163 (9th Cir. 2008) (Roommates) (explaining Congress's concern about
Stratton Oakmont). The court in Stratton Oakmont ruled that the online board
administrator became a "publisher" when it deleted certain offensive third party
postings and that it was therefore subject to liability for the content of defamatory
messages that it did not remove. 1995 WL 323710, at *4-5. Congress criticized this
decision for discouraging the Internet service provider from voluntarily filtering
Internet content because that forum provider's efforts to remove objectionable
content would trigger liability that the forum could avoid by doing nothing.
Roommates, 521 F.3d at 1163. Thus, Congress was aware of competing policy
concerns when enacting the CDA.
Many of the CDA decisions note these competing policy concerns. The
courts, however, consistently acknowledge that Congress already weighed those
competing policies when it enacted subsection 230(c)(1 ). In Patent Wizard, Inc. v.
Kinko 's, Inc., 163 F. Supp. 2d 1069 (D.S.D. 2001), for example, a defamation action
involving CDA immunity, the court described the conflict between facilitating the
13 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
Internet's growth and preventing harm to individuals. It concluded that Congress
erred on the side of favoring "robust [Internet] communication":
[T]his case implicates some important issues of policy. On the one hand, the ability of individual users to log onto the Internet anonymously, undeterred by traditional social and legal restraints, tends to promote the kind of unrestrained, robust communication that many people view as the Internet's most important contribution to society. On the other hand, the ability of members of the public to link an individual's online identity to his or her physical self is essential to preventing the Internet's exchange of ideas from causing harm in the real world.
The legislative resolution of these issues will, indirectly, shape the content of communication over the Internet. For now, the§ 230 of the [CDA] errs on the side of robust communication, and prevents the plaintiffs from moving forward with their claims.
Id. at 1071-72 (citation omitted); see also Batzel, 333 F.3d at 1027, 1028 ("[T]here
is an apparent tension between Congress's goals of promoting free speech while at
the same time giving parents the tools to limit the material their children can access
over the Internet. ... The need to balance competing values is a primary impetus for
enacting legislation. Tension within statutes is often not a defect but an indication
that the legislature was doing its job.").
Congress's policy choice resulted m subsection 230. As the majority
acknowledges, federal law preempts state law when the state law "would 'stand 'as
an obstacle to the accomplishment of the full purposes and objectives of Congress'
in passing§ 230 of the CDA." Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1134
14 JS., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
(E.D. Va. 1997) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S. Ct. 2270,
110 L. Ed. 2d 65 (1990)), aff'd, 129 F.3d 327 (4th Cir. 1997).
III. THE CDA IMMUNIZES BACKPAGE FROM LIABILITY
With this background about subsection 230(c)(1)'s language, context, and
policy choices in mind, I turn to J.S. 's claims.
A. The Complaint's Factual Allegations Treat Backpage as a Publisher, Not a Content Creator
The first prerequisite to subsection 230( c)(1) immunity is that the defendant
is an interactive service provider. The parties do not dispute Backpage is such an
interactive service provider. The parties are correct. 7
The second prerequisite to CDA immunity is that the interactive serv1ce
provider (here, Backpage) is acting as a publisher or speaker. The parties do not
dispute that J. S. 's claims treat Backpage as a publisher or speaker of information
satisfying this second prerequisite to CDA immunity, also. Again, the parties are
correct: J.S. seeks to impose liability on Backpage for failing to prevent or to remove
certain advertisements. CP at 12 ("Backpage.com continues to display prostitution
ads that include minors without any meaningful safeguards or protections for the
7 See generally Roommates, 521 F.3d at 1162 n.6; see also MA. v. Vill. Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1048 (E.D. Mo. 2011) (holding that Backpage is an interactive computer service); Schneider v. Amazon. com, Inc., 108 Wn. App. 454, 460-61, 31 P.3d 37 (2001) (Internet service providers are interactive computer services). 15 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
children."). This constitutes publication. See, e.g., Barnes, 570 F.3d at 1103
("[R]emoving content is something publishers do, and to impose liability on the
basis of such conduct necessarily involves treating the liable party as a publisher of
the content it failed to remove."); Roommates, 521 F.3d at 1170-71 ("[A]ny activity
that can be boiled down to deciding whether to exclude material that third parties
seek to post online is perforce immune under section 230."); Chi. Lawyers' Comm.
for Civil Rights under Law, Inc. v. Craigslist, Inc., 519 F.3d 666,671 (7th Cir. 2008)
(ruling that defendant was immune because "only in a capacity as publisher could
[the defendant] be liable under [42 U.S.C. § 3604( c)]"); Green v. Am. Online, 318
F.3d 465, 471 (3d Cir. 2003) ("[D]ecisions relating to the monitoring, screening, and
deletion of content" are "actions quintessentially related to a publisher's role.").
J.S. and the majority, however, argue that Backpage flunks the third
prerequisite to CDA immunity because it could also be an information content
provider. As discussed above, J.S. argues,
Backpage engages in three distinct activities, each of which independently excludes CDA immunity. First, Backpage creates, at least some, unlawful content with respect to advertising the minor Plaintiffs for sex. Second, Backpage develops unlawful content by making online sex advertisements of the minor Plaintiffs usable and available. Third, Backpage encourages unlawful content, including postings offering the minor Plaintiffs for sex.
CP at 89. Similarly, the majority holds, "Backpage's advertisement posting rules
were not simply neutral policies prohibiting or limiting certain content but were
16 J.S., S.L., and L.C. v. Village Voice Media Holdings eta!., No. 90510-0 (Gordon McCloud, J., Dissent)
instead 'specifically designed ... so that pimps can continue to use Backpage.com
to traffic in sex.'" Majority at 8 (quoting CP at 12).
Because we are reviewing a CR 12(b)( 6) motion, the assertion that Backpage
constitutes a "content provider" must stand or fall on J. S. 's factual allegations, not
on these legal arguments.
First, J.S. alleges, "The Backpage.com defendants were well aware that their
website was being used in this way because they developed and required content to
ensure that young girls, like the Plaintiffs, would continue to be advertised in this
manner." CP at 2. The allegation about "required content" or content rules is not a
basis for liability, as discussed below, at Part B. The allegation about awareness of
illegal content is irrelevant, as discussed below, at Part D. And the allegation about
the meaning of "develop" is a legal conclusion, not a factual allegation. We do not
consider such legal conclusions. Haberman, 109 Wn.2d at 120.
J.S. also alleges that Backpage "owns, operates, designs and controls the
website Backpage.com, including its content," CP at 3, and that "Backpage.com
develops the content of the prostitution advertisements on its website through the
use of the foregoing content requirements." CP at 10. This is a claim that equates
content rules with content development. This is a legal assertion, and, as discussed
below in Part B, it is one that Congress rejected when it enacted the CDA.
17 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
The complaint further alleges, "[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." CP at 12. Once again, "content requirements"-even content
requirements that promote sex trafficking-do not constitute content d,evelopment
under the CDA.
The complaint similarly alleges, "Backpage.com does not impose [a
licensing] requirement for its website because it believes it is immune from liability,
regardless of its substantial role in creating the content and context of the
advertisements on its website." CP at 13. The allegation of "creating the content,"
as J.S. presents it here, is a legal conclusion.
Addressing the specific advertisements at issue, J.S. alleges, "As a result of
Backpage.com's relationship and agreement with [alleged pimp] Hopson, J.S.
engaged in sexual activities with adults, including sexual intercourse with multiple
adult customers per day for several months." CP at 17. J.S. also alleges that pimps
"dressed S.L. in lingerie and took photographs of her to create advertisements for
the Backpage.com escort website .... The wordings of the advertisements were
sexually suggestive and obvious invitations for commercial sex acts with the
underage S.L., and from the appearance of her photographs it was obvious S.L. was
18 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
underage." CP at 17-18. J. S. further alleges, "The wordings of the advertisements
were sexually suggestive and obvious invitations for commercial sex acts with the
underage L.C. and from the appearance of her photographs it was obvious L.C. was
underage. The advertisements were for prostitution services and included contact
information that allowed customers to access L.C." CP at 20. These allegations,
while repulsive, do not demonstrate that Backpage created the content of these
advertisements and hence do not form a basis for rejecting the application of CDA
immunity here.
I fear that the majority has accepted J.S.'s legal conclusions while failing to
recognize the lack of supporting facts. But when we depart from J.S.'s legal
argument and look only at factual allegations-as we must when reviewing a CR
12(b )(6) motion-we find allegations that pimps wrote and uploaded illegal content
and that Backpage intentionally published it, knowing that it would lead to child sex
trafficking. As discussed in the sections below, Congress has said that that is not
content development, but publication.
B. Under the CDA's Definitions, Backpage Did Not "Develop Content" by Maintaining Neutral Content Requirements
J.S. argues that Backpage "developed" content by maintaining content
requirements for advertisements posted on its website:
[T]he backpage defendants "developed" the content of the escort advertisements themselves by providing phoney "posting rules" and
19 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
"content requirements" to instruct sex traffickers not to use certain words and graphics in order to avoid growing scrutiny by the public and law enforcement, all with the goal of allowing the backpage defendants to continue profiting from their illegal marketplace for sex.
Br. ofResp'ts at 21.
This allegation-that Backpage designed its posting rules to induce sex
trafficking-might prove true. Indeed, we presume it is true when evaluating the
sufficiency of J. S. 's complaint. But adopting such posting rules still does not make
Backpage a "content provider" within the meaning of the CDA, even under the Ninth
Circuit case upon which J.S., the majority, and the concurrence place principal
reliance. Majority at 7-8; concurrence at 12-13. In that case, Roommates, the court
held, "[A] website helps to develop unlawful content, and thus falls within the
exception to section 230, if it contributes materially to the alleged illegality of the
conduct." 521 F.3d at 1168. 8
In fact, courts have consistently rejected the contention that defendants
"develop" content by maintaining neutral policies prohibiting or limiting certain
8 J.S. asserts that the court in Roommates "approved of several definitions of the term 'develop' and several methods by which a provider can become a 'developer," including making "'usable or available"' and by "'researching, writing, gathering, organizing and editing information for publication on websites."' Br. ofResp'ts at 17-18 (quoting Roommates, 421 F.3d at 1168-69). J.S. misreads this case. The court in Roommates stated, "[T]o read the term so broadly would defeat the purposes of section 230 by swallowing up every bit of the immunity that the section otherwise provides." Roommates, 521 F.3d at 1167. And contrary to J.S.'s assertion, Br. ofResp'ts at 19, the Tenth Circuit in Fed. Trade Comm 'n v. Accusearch Inc., 570 F.3d 1187, 1200 (lOth Cir. 2009), applied the Ninth Circuit's definition stated in Roommates. 20 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
content. For example, inDartv. Craigslist, Inc., 665 F. Supp. 2d 961,969 (N.D. Ill.
2009), which the majority cites at 7, the plaintiff claimed that even though Craigslist,
an Internet classifieds service, prohibited illegal content on its website, users
frequently posted ads promising sex for money. 665 F. Supp. 2d at 962.
Consequently, the p1aintiff asserted that Craigslist "ma[de] it easier for prostitutes,
pimps, and patrons to conduct business." I d. at 963. A federal court in Illinois
dismissed the claims on a Fed. R. Civ. P. 12(b)(6) motion, explaining, "Plaintiffs
argument that Craigslist causes or induces illegal content is further undercut by the
fact that Craigslist repeatedly warns users not to post such content. While we accept
as true for the purposes of this motion plaintiffs allegation that users routinely flout
Craigslist's guidelines, it is not because.Craigslist has caused them to do so. Or if it
has, it is only 'in the sense that no one could post [unlawful content] if craigslist did
not offer a forum."' Id. at 969 (quoting Chi. Lawyers', 519 F.3d at 671); see also
Chi. Lawyers', 519 F .3d at 671 ("Nothing in the service craigslist offers induces
anyone to post any particular listing."); Roommates, 521 F.3d at 1171 ("To be sure,
the website provided neutral tools, which the anonymous dastard used to publish the
libel, but the website did absolutely nothing to encourage the posting of defamatory
content-indeed, the defamatory posting was contrary to the website's express
policies." (citing Carafano, 339 F.3d at 1124)); Goddard v. Google, Inc., 640 F.
Supp. 2d 1193, 1198 (N.D. Cal. 2009) (rejecting plaintiffs claim relating to third-
21 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
party ads where the ads were "'contrary to [Google's] express polic[y]"' (alterations
in original) (quoting Roommates, 521 F.3d at 1171).
The facts in Dart are analogous to the facts here. J.S. alleges that pimps-not
Backpage-created and uploaded the ads at issue. CP at 2 ("adult pimps ... posted
advertisements for the girls"), 17 ("adult pimps ... create[ d] ... and then uploaded
[the] advertisements of S.L. onto . . . Backpage.com"). Nothing in Backpage's
policies obligated users to flout Backpage' s express content requirements or to post
unlawful content. J. S. 's allegations indicate that the pimps chose the content
ultimately used in the advertisements. CP at 2, 12, 16, 17-18, 20-21. The actual
"information" at issue consisted of the particular wording and photos that the pimps
provided. CP at 16-21.
Thus, holding Backpage liable would punish it for publishing third party
content, and the CDA prohibits such liability. See also Jane Doe v. MySpace, Inc.,
528 F.3d 413, 420 (5th Cir. 2008) (dismissing claims brought on behalf of a minor
sexually assaulted after meeting a man through the defendant's website:
"[Plaintiffs'] claims are barred by [section 230], notwithstanding their assertion that
they only seek to hold MySpace liable for its failure to implement measures that
would have prevented [the abuse]. Their allegations are merely another way of
claiming that MySpace was liable for ... third-party-generated content."); Julie Doe
v. MySpace Inc., 175 Cal. App. 4th 561, 573, 96 Cal. Rptr. 3d 148 (2009)
22 JS., S.L., and L.C. v. Village Voice Media Holdings eta!., No. 90510-0 (Gordon McCloud, J., Dissent)
("[Plaintiffs] want MySpace to ensure that sexual predators do not gain access to
(i.e., communicate with) minors on its Web site. That type of activity-to restrict
or make available certain material-is expressly covered by section 230."); John
Doe v. SexSearch.com, 502 F. Supp. 2d 719, 727-28 (N.D. Ohio 2007) ("At the end
of the day ... Plaintiff is seeking to hold SexSearch liable for its publication of third-
party content and harms flowing from the dissemination of that content. . . . Section
230 specifically proscribes liability in such circumstances."), aff'd on other grounds,
551 F.3d 412 (6th Cir. 2008).
J.S. and the majority then rely on Roommates, 521 F.3d at 1168, to suggest
that Backpage lost immunity because it'" contribute[d] materially to the illegality of
the alleged conduct."' Majority at 8.
They misread Roommates. In Roommates, the Ninth Circuit did hold that
Roommates.com was an information content provider and was not entitled to
immunity from liability for violating housing discrimination laws under the CDA.
521 F.3d at 1164. But as a condition for using its website, which is designed to help
individuals find suitable roommates, Roommates.com required users to create a
profile describing the user's desired roommate and mandated that users "disclose his
sex, sexual orientation and whether he would bring children to a household." Id. at
1161. Notably, the website also encouraged users to provide separate comments "in
an open-ended essay" describing themselves and their desired roommate .. I d. The
23 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
Ninth Circuit ruled that while the website's users were "information content
providers" because they ultimately provided the information for their profiles, this
''does not preclude Roommate[s.com] from also being an information content
provider by helping 'develop' at least 'in part' the information in the [mandatory
dropdown menu] profiles" through its required questionnaire. Id. at 1165. The
Ninth Circuit therefore concluded that Roommates.com lacked immunity for the
discriminatory content that it mandated users provide with that drop-down menu and
required discriminatory fields:
Roommate[s.com] does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate[s.com]'s work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality of the site ... Roommate[s.com] is directly involved with developing and enforcing a system that subjects subscribers to allegedly discriminatory housing practices.
Id. at 1172.
Critically, however, Roommates also held that the defendant was immune
from liability for the open-ended comments users posted, which the website neither
required nor shaped through its questionnaire:
Roommate[s.com] publishes these comments as written. It does not provide any specific guidance as to what the essay should contain, nor does it urge subscribers to input discriminatory preferences. Roommate[s.com] is not responsible, in whole or in part, for the development of this content, which comes entirely from subscribers and is passively displayed by Roommate[s.com]. Without reviewing every essay, Roommate[s.com] would have no way to distinguish unlawful
24 JS.,S.L., and L.C. v. Village Voice et al., Media Holdings No. 90510-0 (Gordon McCloud, J., Dissent)
discriminatory preferences from perfectly legitimate statements. Nor can there be any doubt that this information was tendered to Roommate[ s.com] for publication online.
!d. at 1173-74.
Thus, the defendant in Roommates was immune from liability for claims
based on nonmandatory content even if this content showed roommate selection on
a discriminatory basis. But it was not immune for alleged violations of housing
discrimination laws based on the comments that Roommates.com elicited with
mandatory illegal questions about race, sex, or sexual preferences.
Here, J.S. alleges that Backpage maintains policies prohibiting solicitation for
illegal services "exchanging sexual favors for money or other valuable
consideration," prohibiting material that exploits minors, and prohibiting material
that "in any way constitutes or assists in human trafficking." CP at 9-10. J.S. also
acknowledges-and even alleges-that Backpage prohibits the use of sexually
explicit language; naked images; images using transparent clothing, graphic box, or
pixelization to cover bare breasts or genitalia; certain code words; suggesting an
exchange of sex acts for money; and advertising an illegal service. CP at 8. If users
post advertisements that do not comply with these guidelines, ·it is not because
Backpage caused them to do so with mandatory questions or in any other way. Thus,
contrary to the majority's and the concurrence's arguments, majority at 8;
concurrence at 11-12, unlike the website in Roommates, Backpage.does not tell users
25 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
that they should or must include certain information as a condition of using the
website. And J.S. does not allege that Backpage induces users to post particular
advertisements or express a preference for soliciting minors for sex. See Chi.
Lawyers', 519 F.3d at 671-72. Backpage instead "provide[s] a framework that could
be utilized for proper or improper purposes." Roommates, 521 F.3d at 1172.
Based on these factual allegations, Backpage's rules did not cause or induce
anyone to create, post, or search for illegal content. See Dart, 665 F. Supp. 2d at
969. Therefore, even under Roommates, J.S. fails to allege facts that would establish
Backpage created content through its posting requirements.
C. Under the CDA, There Is No For-Profit Exemption
J.S. also claims that CDA immunity does not apply because Backpage derives
the "vast majority" of its income "from sex trafficking." Br. of Resp'ts at 24.
Backpage allegedly "provid[es] commissions to pimps who refer other pimp
customers," "accepts pre-paid credit card payments for the advertisements of more
than one girl from the same source," and "charge[s] their users a higher fee to post
in their 'escort' section than they do for any other section on their website." !d.
But under the CDA, "' [t]he fact that a website elicits online content for profit
is immaterial; the only relevant inquiry is whether the interactive service provider
"creates" or "develops" that content."' MA. v. Vill. Voice Media Holdings, LLC, 809
F. Supp. 2d 1041, 1050 (B.D. Mo 2011) (alteration in original) (quoting Goddard v.
26 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent) -
Google, Inc., No. C 08-2738JF(PVT), 2008 WL 5245490, at *3 (N.D. Cal. Dec. 17,
2008) (court order)). Barring subsection 230(c) immunity because Backpage
structured its website 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." !d.
Based on the allegations in this complaint, Backpage did not materially
contribute to the development or creation of the content at issue no matter how much
it benefited financially from the pimps' use of its website.
D. Under the CDA, Backpage's Escort Category Does Not Defeat Immunity
J.S. also claims that Backpage contributes materially to the unlawful content
of the advertisements on its website because "Backpage chose the term 'escorts' as
its heading because it means 'prostitutes' in the world of sex trafficking, and thus
would most effectively identify the internet location of illicit sex ads to johns." Br.
ofResp'ts at 30. J.S. asserts that Backpage placed its own logo and the word "escort"
on the individual ads in the "escort" section. !d. 9 J.S. further argues that Backpage
"encourages illegal content" because "selling sex online is backpage's business
9 Backpage contends that the website automatically generates the labels on the ads identifying the category in which the ad appears. Appellants' Reply Br. at 18 n.l5. Other courts have rejected similar claims that this defeats CDA immunity. See Seldon v. Magedson, No. CV-13-00072-PHX-DGC, 2014 WL 1456316, at *4, *6 (D. Ariz. Apr. 15, 2014) (court order) ("software that automatically published and filed a third-party's statements "as" "philip-seldon I Ripoff Report I Complaints Reviews Scams Lawsuits Frauds Reported" "does not undercut Xcentric's claim to immunity under the CDA"). 27 JS.,S.L., and L. C. v. Village Voice eta!., Media Holdings No. 90510-0 (Gordon McCloud, J., Dissent)
model" and because its website contains an "'escorts"' section. I d. at 25, 27-28. J.S.
continues that Backpage's "knowledge about the illicit ads in its 'escorts' section
shows that it is well aware that the services offered on its website are (1) illegal and
(2) not the same as any of the lawful services regulated by state or municipal law."
Id. at 28.
J.S. cites First Global Communications, Inc., v. Bond, 413 F. Supp. 2d 1150,
1152 (W.D. Wash. 2006), and states that the case "recognize[ed] 'escort was a
euphemism for prostitution services."' Br. of Resp 'ts at 28. This is incorrect. In
fact, Bond involved websites that admittedly provided information about prostitution
services in the United States and abroad. 413 F. Supp. 2d at 1151-52. The court
made no findings about the term "escort" and did not seek to define this term.
Rather, in describing the website, the court noted, "Plaintiffs counsel acknowledged
at oral argument that 'escort services' is essentially a euphemism for prostitution
services." I d. at 1152. Therefore, we reject J.S. 's argument. See also City of Yakima
v. Emmons, 25 Wn. App. 798, 802, 609 P.2d 973 (1980) (recognizing the existence
of "legitimate escort service[s]").
Even if"escort" were a euphemism for "prostitute," subsection 230(c) would
still provide immunity. In MA., 809 F. Supp. 2d at 1049, the court stated, "[T]he
creation by Backpage of an 'adult' category does not impose liability on Backpage
for ads posted in that category." The court in MA. cited Dart in rejecting the
28 JS.,S.L., v. and L.C. Village Voice Media Holdings eta!., No. 90510-0 (Gordon McCloud, J., Dissent)
plaintiffs claim that Backpage lacked immunity because it created an "escort"
category: "'Craigslist created the categories, but its users create the contents of the
ads and select which categories their ads will appear in."' !d. (quoting Dart, 665 F.
Supp. at 962). 10
Similarly, in Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 651 (E.D. Tex.
2006), the court rejected plaintiffs' argument "that because the anonymous third
party was prompted to select subcategories through the Defendant's database
gathering system, the Defendant directed the third party's selections. The fact that
some of the content was formulated in response to the Defendant's prompts does not
alter the Defendant's status [as a publisher]." Roommates simi~arly held that by
10 J.S. contends that MA. is distinguishable because "while MA. involved similar facts (i.e. a minor trafficked on backpage.com), it was pled much differently than the child victims' case and the Missouri court was thereby limited in its analysis." Br. ofResp'ts at 32-33. Specifically, J.S. argues that MA. involved no allegations that Backpage was responsible for developing the ad content at issue or for encouraging the development of the content's offensive nature and that the court "mistakenly seemed to regard backpage.com as an innocent classified ads website, instead of a deliberate purveyor of prostitution." ld. at 33.
J.S. is partially correct. The MA. plaintiff alleged that Backpage "'[w]as responsible in part for the development and/or creation of information provided through the internet or other internet computer service,"' MA., 809 F. Supp. 2d at 1044 (alteration in original), but also stated later that she was not suing Backpage for the ad content. I d. at 1046. In this case, in contrast, J.S. is suing Backpage for the ad content. But J.S.'s arguments still conflict with the allegations that pimps, not Backpage, uploaded advertisements with sexually suggestive wording and photographs. CP at 16, 17, 20. And the complaint here still alleges no facts showing that Backpage actually selected the wording or photos that the ads at issue contained. 29 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
creating a neutral category "escort," a legal service in Washington, Backpage
provided a tool but that the pimps were the ones who used it to develop the unlawful
content. 521 F.3d at 1172. Accordingly, the creation of this category does not
establish that Backpage contributed materially to unlawful content of the ads (within
the meaning of the CDA).
In fact, other federal courts have held that the First Amendment to the United
States Constitution protects escort ads and that the CDA preempts state measures
imposing liability for publishing escort ads. In Backpage.com, LLC v. McKenna,
881 F. Supp. 2d 1262, 1268 (W.D. Wash. 2012), for example, the court struck down
as unconstitutionally vague a Washington statute that targeted Backpage by creating
a criminal offense for '"advertising commercial sexual abuse of a minor."' (Quoting
S.B. 6251, at 2, 62d Leg., Reg. Sess. (Wash. 2012).) 11 The court found it "unlikely
that Defendants would be able to prove that all online advertisements for escort
services are ads for prostitution." Id. at 1282. The court expressed concern that "a
website that contains a section for postings for escort services that chooses to either
shut down that section or require age verification will likely chill protected speech
11 The court in McKenna stated, "Washington legislators have openly stated that the challenged statute is aimed at Backpage.com and that they seek to eliminate escort ads and similar Internet postings." McKenna, 881 F. Supp. 2d at 1270.
30 JS.,S.L., v. et al., and L.C. Village Voice Media Holdings No. 90510-0 (Gordon McCloud, J., Dissent)
in the course of doing so." Jd.; 12 see also Backpage.com, LLC v. Cooper, 939 F.
Supp. 2d 805, 823 (M.D. Tenn. 2013) (CDA preempted a Tennessee statute similar
to Washington's, which "impose[ d) liability on websites such as Backpage.com for
selling or offering to sell advertisements, activity inherent in their role as
publishers."); Dart, 665 F. Supp. 2d at 968 ("Plaintiff is simply wrong when he
insists that [the 'erotic services' category and subcategories] are all synonyms for
illegal sexual services."). These cases demonstrate that a category for escort services
on Backpage' s website is another neutral, legal tool that users misuse to commit
unlawful acts. Therefore, J.S. cannot use this as a basis to defeat immunity.
E. Under the CDA, Backpage's Alleged Knowledge Does Not Defeat Immunity
We are thus left with J.S.'s theory that Backpage is liable for knowingly
encouraging unlawful content promoting sex trafficking of children. But courts have
consistently held that an allegation that a defendant encourages unlawful content is
insufficient to defeat CDA immunity. See, e.g., Hill v. StubHub, Inc., 219 N.C. App.
227, 727 S.E.2d 550, 560 (2012) ("the fact that a website acted in such a manner as
to encourage the publication of unlawful material does not preclude a finding of
12 The court in McKenna also reasoned that "numerous states license, tax and otherwise regulate escort services as legitimate businesses." !d. at 1282. See, e.g., RCW 82.04.050(3)(g) (escort services subject to state business and occupation tax); see also Appellants' Opening Br. at 30-31 n.13 (listing state and municipal provisions recognizing and regulating escort services). 31 J.S., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
immunity pursuant to [section] 230");Ascentive, LLCv. Opinion Corp., 842 F. Supp.
2d 450, 476 (E.D.N.Y. 2011) ("[T]here is simply 'no authority for the proposition
that [encouraging the publication of defamatory content] makes the website operator
responsible, in whole or in part, for the 'creation or development' of every post on
the site." (second alteration in original) (quoting Global Royalties, Ltd. v. Xcentric
Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008) (holding that the
ripoffreport.com website was not an information content provider even though it
allegedly encouraged defamatory reviews by others for its financial benefit)).
As the First Circuit explained, "It is, by now, well established that notice of
the unlawful nature of the information provided is not enough to make it the service
provider's own speech." Lycos, 478 F.3d at 420. "Section 230 immunity applies
even after notice of the potentially unlawful nature of the third-party content." Jd.;
see also Zeran, 129 F.3d at 333 ("[I]f computer service providers were subject to
distributor liability, they would face potential liability each time they receive notice
of a potentially defamatory statement-from any party, concerning any message,"
and such notice-based liability "would deter service providers from regulating the
dissemination of offensive material over their own services" by confronting them
with "ceaseless choices of suppressing controversial speech or sustaining prohibitive
liability," which is contrary to section 230's statutory purposes). Thus, despite
Backpage's alleged knowledge that its users post illegal content, its "'failure to
32 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
intervene is immunized."' MA., 809 F. Supp. 2d at 1051 (quoting Goddard, 2008
WL 5245490, at *3).
To be sure, intentionally promoting child sex trafficking is a serious crime in
our state. But encouraging users to use a website-even with the intent to promote
sex trafficking of minors-does not convert a defendant into a "content provider"
within the meaning of the CDA.
F. Subsection 230(c)(l) Contains No Good Faith Requirement
J.S. further claims that Backpage lacks immunity because "backpage's
'posting rules' and 'content requirements' are not developed or enforced in a good
faith effort to restrict offensive content, but rather in a surreptitious effort to evade
law enforcement, skirt legal liability, and maintain the profitability of its escort
website." Br. ofResp'ts at 31. The concurrence echoes this argument. Concurrence
at 5, 9 n.4. J.S. and the concurrence cite 47 U.S.C. § 230(c)(2), which contains a
good faith prerequisite to subsection 230( c)(2) immunity, to support this position.
But Backpage moved to dismiss based on subsection 230(c)(1), a provision
separate from subsection 230( c)(2). Subsection 230( c)(1) contains no intent-based
exception to the immunity that it provides. See Levitt v. Yelp! Inc., No. C-10-1321-
EMC, 2011 WL 5079526, at *7 (N.D. Cal. Oct. 26, 2011) (court order) ("[subsection
230](c)(1)'s immunity applies regardless of whether the publisher acts in good
faith"), aff'd, 765 F.3d 1123 (9th Cir. 2014); see also Barnes, 570 F.3d at 1105
33 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
("Subsection [230]( c)(1 ), by itself, shields from liability all publication decisions,
whether to edit, to remove, or to post, with respect to content generated entirely by
third parties. Subsection [230]( c)(2), for its part, provides an additional shield from
liability . . . not merely [for] those whom subsection [subsection] (c)( 1) already
protects, but [for] any provider of an interactive computer service.").
For that reason, courts have found that defendants are immune under
subsection 230(c)(l) even ifthey act in bad faith. See, e.g., Zeran, 129 F.3d at 331-
33 (interactive service provider immune from defamation liability even when it has
actual knowledge of statement's falsity); Asia Econ. Inst. v. Xcentric Ventures LLC,
No. CV 10-01360 SVW (PJWx), 2011 WL 2469822, at *6 (C.D. Cal. May 4, 2011)
(court order) (holding that defendant's deliberate manipulation ofHTML (hypertext
markup language) computer code for paying customers to make certain reviews
more visible in online search results was immune under section 230 and that
"[a]bsent a changing of the disputed reports' substantive content that is visible to
consumers, liability cannot be found."); Blumenthal, 992 F. Supp. at 52.
The concurrence seeks to avoid this conclusion by arguing that subsection
23 0( c)(2) basically eviscerates subsection 23 0( c)( 1). It does this by arguing that
subsection 23 0( c)(2) provides the defendant with the defense, . while subsection
230(c)(1) essentially provides the defendant with nothing. Concurrence at 5-6. But
we cannot ignore the plain language of a federal statute, or treat it as a superfluous,
34 JS.,S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
any more than we can do that with a state statute. As the Seventh Circuit ruled, in
rejecting the same argument, "[S]ubsection [230]( c)(2) does not deal with the
liability of speakers and publishers, the subject of subsection [230](c)(l). We read
each to do exactly what it says." Chi. Lawyers', 519 F.3d at 671 (affirming grant of
summary judgment).
G. The Cases That J.S. Cites Do Not Support Their Legal Arguments
J.S. compares this case to Anthony v. Yahoo!, Inc., 421 F. Supp. 2d 1257 (N.D.
Cal. 2006), NPS LLC v. StubHub, Inc., No. 06-4874-BLS1, 2009 WL 995483, at* 1
(Mass. Super. Ct. Jan. 26, 2009) (court order), Jones v. Dirty World Ent'mt
Recordings, LLC, 965 F. Supp. 2d 818 (E.D. Kent. 2013) (Jones II), rev'd and
vacated, Jones III, 755 F.3d 398, and Jane Doe v. Internet Brands, Inc., 767 F.3d
894 (9th Cir. 2014). Br. ofResp'ts at 32-37; Resp'ts Notice ofSuppl. Auth. Ex. A.
In Anthony, the court rejected Yahoo's claim of immunity from liability where
the plaintiff alleged that Yahoo created false dating profiles posted on its website
and sent them to users "for the purpose of luring them into renewing their
subscriptions." 421 F. Supp. 2d at 1262. The court held that Yahoo was a content
provider and was not immune from tort liability because it created the false profiles.
Id. at 1263. But in contrast to the plaintiff in Anthony, J.S. does not allege that
35 JS.,S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
Backpage actually chose the content of the ads or otherwise created the actual
challenged content. Thus, J.S. cannot rely on this case.
In NPS, a Massachusetts state trial court applied the CDA and denied a
website operator's motion for summary judgment with respect to a claim by a
football team and stadium owner of intentional interference with the team's
advantageous relationship with its season tickets holders. NPS, 2009 WL 995483,
at *4. The court ruled that evidence in the record showed that the website materially
contributed to its sellers' illegal "'ticket scalping'" and, thus, CDA immunity did not
apply. I d. at* 13. Specifically, the website's pricing structure meant that it profited
from violations of antiscalping laws; the website did not require a seller to disclose
the face value of a ticket, so a buyer was unaware of whether the ticket price was
above the legal threshold; and the website "affirmatively encouraged" "underpriced
ticket[]" sales by waiving its fees for a certain class of sellers. I d. at * 11. The court
said that the absence of information about the face value of a ticket precluded a buyer
from knowing if a ticket price was above the price threshold set by law and prevented
any policing of the website to prohibit scalping. I d.
Arguably, Backpage similarly engaged in willful blindness and maintained a
pricing structure that encouraged pimps to misuse its website. But NPS conflicts
with the cases discussed above that rejected similar arguments about a website's
notice of the illegal content and its pricing structure. Notably, later cases have
36 JS.,S.L., and L.C. v. Village Voice et al., Media Holdings No. 90510-0 (Gordon McCloud, J., Dissent)
rejected NPS. See, e.g., Milgram v. Orbitz Worldwide, Inc., 419 N.J. Super. 305, 16
A.3d 1113, 1126 (2010) (finding online ticket marketplace immune; dismissingNPS
as inconsistent with other cases, and noting that it was "quite fntnkly, unclear ...
which facts the court used in reaching the conclusion that§ 230 did not apply"); Hill,
727 S.E.2d at 563 ("declin[ing] to follow" NPS as "inconsistent with the decisions
concluding that knowledge of unlawful content does not strip a website of [section
230] immunity"). Although it is arguable that Backpage, like StubHub, contributed
to the illegality here, NPS is an outlier.
Internet Brands does not support J.S. 's claims, either. In Internet Brands, the
Ninth Circuit held that the CDA did not apply to a model's claim against the operator
of a social networking site for models for its negligent failure to warn that rapists
were using the website to lure models to fake auditions where they would be drugged
and sexually assaulted. 767 F.3d at 895. The court determined that the model's
claim did not seek to hold the defendant liable for its failure to remove content that
others created; rather, the claim sought to hold the defendant liable for its own failure
to provide information that it allegedly possessed about the rapists. I d. at 897. The
court explained, "Any obligation to warn could have been satisfied without changes
to the content posted by the website's users. Internet Brands would simply have
been required to give a warning to Model Mayhem users, perhaps by posting a notice
on the website or by informing users by e-mail" the information it had about the
37 J.S., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
rapists' activities. Id. Because the plaintiff allegedly failed to generate its own
warning to users, CDA immunity did not apply. Id. at 898. Here, J.S. alleges no
similar failure to warn claim. J.S. seeks to hold Backpage liable as a publisher of
content that third parties created.
Finally, J.S. cites to Jones. In Jones, users could anonymously upload
comments, photographs, and videos to a website called "www.TheDirty.com,"
which the website's operator would select and publish along with his own editorial
comments. Jones v. Dirty World Entm't Recordings, LLC, 840 F. Supp. 2d 1008,
1009 (E.D. Ky. 2012) (Jones I). After the plaintiff became the unwelcome subject
of several posts, the district court denied immunity from her state tort claims. Jones
II, 965 F. Supp. 2d at 823. The court found that the defendant "invited and
encouraged" the postings through its name and by inciting the site's viewers to form
"'the Dirty Army,' which [the defendant] urged to have 'a war mentality' against
anyone who dared to object to having their character assassinated." Id. at 822-23.
The defendant's comments about the plaintiff added to the posts at issue "effectively
ratified and adopted the defamatory third-party post." Id. at 823.
After J.S. filed its brief, however, the Sixth Circuit reversed. Jones III, 755
F.3d at 402. Applying the material contribution test defined in Roommates and
rejecting the district court's "encouragement" test, the Sixth Circuit held,
38 JS., S.L., and L.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
Dirty World and Richie did not author the statements at issue; however, they did select the statements for publication. But Richie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7, 2009, simply because those posts were selected for publication. Nor can they be found to have materially contributed to the defamatory content through the decision not to remove the posts.
Unlike in Roommates, the website that Richie operated did not require users to post illegal or actionable content as a condition of use. Nor does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content will be published. Unlike in [Federal Trade Commission v. ]Accusearch[ Inc., 570 FJd 1187 (lOth Cir. 2009)], Richie or Dirty World did not compensate users for the submission of unlawful content. The website's content submission form simply instructs users to "[t]ell us what's happening. Remember to tell us who, what, when, where, why." The form additionally provides labels by which to categorize the submission. These tools, neutral (both in orientation and design) as to what third parties submit, do not constitute a material contribution to any defamatory speech that is uploaded.
Id. at 415-16 (fourth alteration in original).
IV. No RELEVANT DIFFERENCE EXISTS BETWEEN STATE AND FEDERAL PLEADING STANDARDS HERE
Backpage also claims that the trial court applied CR 12(b)(6) improperly
because it "went beyond just accepting Plaintiffs' factual allegations" and credited
J.S. 's legal contentions that Backpage could be held liable for '"assist[ing] in
developing' content." Appellants' Opening Br. at 43. Backpage also alleges, "To
the extent the Superior Court felt constrained to reject federal case law because of
39 JS.,S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
Washington's more lenient CR 12(b)(6) pleading standards, it erred for the separate
reason that state procedural rules cannot trump federal substantive rights." Id. at 44.
While I agree that it appears the trial court's order erroneously credited J. S. 's
legal conclusions, rather than just J.S.'s factual allegations, federal and state law do
not differ about crediting legal conclusions in a plaintiffs complaint on a CR or Fed.
R. Civ. P. 12(b)(6) motion. Haberman, 109 Wn.2d at 120 ("[t]he court need not
accept legal conclusions as correct"); Papas an v. Allain, 4 78 U.S. 265, 286, 106 S.
Ct. 2932, 92 L. Ed. 2d 209 (1986) (on a motion to dismiss, courts "are not bound to
accept as true a legal conclusion couched as a factual allegation"). Washington's
more relaxed pleading standards did not play any role in this case.
This case does not ask us to decide whether pimps should be able to traffick
our children without consequence. The answer to that question is certainly no. And
this case does not ask us to decide whether third party accomplices or coconspirators
should be able to escape criminal prosecution for human trafficking and child rape.
The answer to that is also a resounding no. Instead, the question before us is whether
the CDA, a federal statute, shields this defendant from this state law claim. Using
settled principles of statutory interpretation, the CDA compels me to conclude that
the answer to that question is also no. J.S. fails to allege facts sufficient to prove
that Backpage was a content provider as opposed to a service provider. Thus,
40 JS.,S.L., v. and L.C. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
subsection 230(c) immunizes Backpage from liability for J.S.'s claims. And
subsection 230(c) trumps conflicting state law.
I would therefore reverse the trial court's denial of Backpage' s CR 12(b)( 6)
motion to dismiss. I respectfully dissent.
41 J.S., S.L., and L. C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)
42r
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