Another Win for Internet Freedom, First Amendment in First Circuit's Backpage Ruling

"Congress did not sound an uncertain trumpet when it...chose to enact broad protections to internet publishers," held the appeals court.


Good news for folks who care about Internet freedom and the First Amendment: a federal appeals court just affirmed that classified-advertising sites aren't generally liable for content posted by users. The case stems from a civil lawsuit filed against by three women who said they were forced into prostitution and that perpetrators had advertised their services on Backpage. The plaintiffs said this makes Backpage complicit in their abuse and sought damages from the company.

They had no luck with this argument in a district court, which ruled against them. "The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal," wrote Judge Rihard Sterns in his decision. By merely providing a platform for these ads, Backpage's actions "amount to neither affirmative participation in an illegal venture nor active web content creation," and therefore fail to forfeit the benefits provided by the Communications Decency Act (CDA) of 1996.

Under Section 230 of the CDA, "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." In effect, this means that "online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do," according to the Electronic Frontier Foundation (For more on why section 230 is so valuable, see here.)

"Congress did not sound an uncertain trumpet when it enacted the CDA and chose to enact broad protections to internet publishers," held the U.S. Court of Appeals for the First Circuit in its recent decision. If "the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation."

Rob Rogers, senior counsel with the law firm Holland and Knight, said the First Circuit's opinion in the civil case "signals that at least one Circuit Court will not accept plaintiffs' invitations to chill the commercial use of websites by eroding the CDA."

This is important, because there's been a "rising frequency of lawsuits attempting to chip away at CDA immunity," according to Rogers, "particularly as website operators await the Ninth Circuit's decision following its rehearing in Jane Doe No. 14 v. Internet Brands, in which the Ninth Circuit initially ruled in 2014 that the CDA does not bar actions against website operators for failure to warn."

The plaintiffs in the Backpage case had tried to argue that CDA immunity did not apply in their case because Backpage was actively participating in a sex trafficking venture—in violation of the federal Trafficking Victims Protection Act of 2000—by offering an escort-ad section and employing certain (site-wide) rules that allow for user anonymity. Yet any "claims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by Section 230(c)(1)" of the CDA, the First Cicuit held.

The federal Justice for Victims of Trafficking Act (JVTA), passed in 2015, states explicitly that that advertising a victim of sex trafficking is a crime of the same calibur as sex trafficking, in a move that many legislators hoped would help shut down Backpage. But it remains to be seen how courts will interpret the role of advertiser here. Is it the person who drafts and posts an ad, or the venue where the ad runs?

Backpage is currently suing the federal government over this provision, which it claims is unconstitutionally vague. The law "does not define 'advertises' or 'advertising,'" Backpage complains. "The ambiguity of the terms .. is compounded by legislator's statements that the Act was intended to impose criminal liability on (or other websites) for 'facilitating' or 'profiting' from sex trafficking when individuals misuse the site."

This isn't Backpage's only ongoing battle with the U.S. government. In October, the CEO refused to show up in Congress to testify on a panel about human trafficing. Last week, the Senate passed a resolution to hold him in contempt of Congress.