Beyond the Bounds of Decency?

On October 21, 2014, the Washington Supreme Court heard oral argument in a case brought against Backpage.com and its affiliates by three underage sex trafficking victims who alleged that hundreds of sex trafficking customers were directed to them via Backpage’s website.  Savitt Bruce & Willey served as Washington counsel for amici the National Crime Victim Law Institute, Shared Hope International, Covenant House, and Human Rights Project for Girls.[1]

The question for the Supreme Court was whether the Backpage defendants were immune from liability under the federal Communications Decency Act, 47 U.S.C. § 230 (CDA).  The CDA provides that websites may not be held liable for claims arising out of content that is wholly created by third parties.  The defendants contended that, because the advertisements at issue were created by pimps, rather than by the defendants, they could not be held liable for the plaintiffs’ injuries.

In response, the plaintiffs pointed out that the CDA does not exempt from liability entities that are responsible in part for the creation of the information at issue.  Plaintiffs argued that Backpage’s posting rules and content requirements act as a de facto instruction manual on how to draft sex trafficking ads that evade law enforcement, and that Backpage was therefore responsible in part for creating the offending content and not entitled to immunity.

The lower court denied the defendants’ motion to dismiss, but noted that it involved a question of law ripe for immediate review and stayed the case pending resolution by the appellate courts.  The Court of Appeals certified the case to the Washington Supreme Court for review.  The Supreme Court’s decision is forthcoming.

If this suit is allowed to go forward, it will open the door for child victims of prostitution to seek justice against the entities whose services were used to locate them.  Although the defendants argued that allowing the suit to proceed would run counter to Congress’s intent in enacting the CDA, no appellate court has ever found that section 230 is so broad as to grant immunity to the unrestricted publication of advertisements for child sex trafficking.  The Supreme Court’s decision may therefore provide clarity on the boundaries between criminal activity and CDA protection.