WASHINGTON D.C. —­­ Yesterday, a federal district court judge in Massachusetts allowed a civil lawsuit against Backpage.com to proceed, ruling that the plaintiff had plausibly alleged that the site had “redrafted the advertisement to suggest Jane Doe No. 3 was an adult.” The judge denied Backpage’s motion to dismiss, holding that whether an employee or automated system of Backpage actually redrafted the ad was an issue of fact to be resolved at trial. Section 230 of the Communications Decency Act immunizes websites for content created solely by users, but not content that websites are even partially responsible for creating. This lawsuit was re-filed after the First Circuit dismissed an initial suit in 2016 for failure to show that Backpage’s site had become responsible for creating user content through the design of its website.

“This decision dynamites the primary rationale for SESTA,” said Berin Szóka, President of TechFreedom. “SESTA’s sponsors insisted Congress rollback Section 230 immunity because the law denied deserving plaintiffs their day in court. In fact, yesterday’s decision makes clear that Section 230 has never barred civil litigation against, or state criminal prosecution of, sites like Backpage. The argument for SESTA has always been a cynical, calculated sham. By contrast, the decision doesn’t moot the argument for the House Judiciary Committee’s version of FOSTA: a new federal criminal law might well be necessary to ensure effective prosecutions, and FOSTA’s mandatory restitution would likely do more for victims than opening the floodgates of civil litigation, without creating such uncertainty that websites like Craigslist feel compelled to take down entire categories of content.”

“SESTA’s sponsors have systematically ignored concerns from all quarters about their legislation,” explained Szóka. “The Permanent Select Committee on Investigations’ January 2017 report on Backpage dismissed the Washington State Supreme Court’s 2015 decision to allow a civil suit against Backpage to proceed, pointing to the First Circuit decision instead. When the Washington suit finally settled out of court last fall, SESTA’s sponsors knew they had to move quickly to jam their bill through Congress before the Massachusetts court ruled that Section 230 was not the absolute bar to suit that SESTA’s sponsors claimed it was.”

SESTA’s sponsors refused to involve the Senate Judiciary Committee in a bill that raised hard questions of criminal law far outside the competence of the Commerce Committee. When, in February, the House Judiciary Committee finally voted out a starkly different bill, and warned that SESTA’s approach would do little to help sex trafficking victims, SESTA’s sponsors simply ignored that advice and held a shotgun marriage of the two bills. Even the Department of Justice’s objection that the combined bill was unconstitutional did not stop House Leadership from rushing the hybrid bill through. Finally, the Senate voted down an amendment that would have ensured funding for enforcement of the new bill, because that would have required a second vote in the House, and thus allowed an opportunity to fix other problems in the bill.

“If substance mattered at all, the President would veto this bill and insist that Congress finally give this issue the consideration it deserves,” concluded Szóka. “The veto power was supposed to be a ‘salutary check upon the legislative body,’ a check against ‘errors which flow from want of due deliberation,’ as Hamilton explained in Federalist #73. Vetoing the bill would allow Congress to try again — starting with the House Judiciary version of FOSTA. If this decision had come down a month ago, that version probably have been the one to pass the House, and we might now be having a substantive discussion of these two starkly different approaches. If President Trump won’t veto the combined bill, he should at least issue a signing statement to make up for the startling lack of legislative history, and help courts avoid the most problematic, unconstitutional interpretations of the bill.”

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We can be reached for comment at media@techfreedom.org. See more of our work on SESTA and FOSTA, including:

  • Our post on why the bill likely does violate the Constitution’s ex post facto clause
  • Our statement on Sen. Wyden’s amendments to fix SESTA’s largest flaws
  • Our joint statement with Engine on the House vote on FOSTA
  • Our letter to Reps. Goodlatte and Wagner on the FOSTA markup
  • Our primer on anti-sex trafficking bills
  • Our statement on SESTA
  • Tech Policy Podcast #189: Fighting Online Sex Trafficking

About TechFreedom:

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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