And before anyone gets to confused, please note I am not writing today about my favorite Byrds song – “My Back Pages.”
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No, this blog concerns a case from Washington State involving Backpage.com. The opinion I think illustrates the old cliché that “hard facts make bad law.” And the facts here are indeed hard.
The first line of the court’s opinion lays it out pretty clearly:
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.
So we’re talking about creepy stuff here. That’s not in debate. What is at issue, though, is whether Backpage, as a Web site operator, can be liable for advertisements submitted by third parties. On its face, it seems like the answer is no. The federal Communications Decency Act says that a Web site operator cannot be deemed the publisher of content created by a third party. So, given that third parties clearly wrote the creepy ads, it seems like the CDA would protect Backpage here, whether we like it or not.
But not according to the Washington State court. It denied Backpage’s motion to dismiss, finding plaintiffs presented a question of fact by pleading that Backpage’s rules for posting ads in the “escort” section were nothing more than instructions for pimps to post ads and evade the law. In plaintiffs’ view, by giving these “instructions” Backpage became a content creator.
I am admittedly scratching my head over this one. Here are the rules in question:
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.
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."
I have a tough time seeing how those rules constitute some sort of “how to” manual. Is the contention that the rule against “coded” messages really a suggestion that the pimp submit a coded message? Or is the argument that Backpage is essentially saying, “when you send in an ad soliciting sex for money, make sure you don’t expressly or implicitly ask to exchange sex for money and don’t make it sexually explicit, then we’ll be cool.” It seems a little flimsy to me.
Would the plaintiffs make the same argument if Backpage posted this: “Backpage will not accept ads that in the judgment of Backpage implicitly or expressly constitute solicitation of sex for money”? Is that language materially different from what Backpage currently says? And if the pimp works up an ad that manages to work around the rules, how does that make Backpage the content creator exactly?
I’m all for legitimate efforts to crack down on human trafficking. But I’m not crazy about ignoring federal law to do it. This court’s good intentions could create a loophole that swallows the CDA. And that makes no sense.