Jane Doe (1) v. Backpage.com, LLC

United States Court of Appeals
For the First Circuit
No. 15-1724
JANE DOE NO. 1 ET AL.,
Plaintiffs, Appellants,
v.
BACKPAGE.COM, LLC ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
John T. Montgomery, with whom Ching-Lee Fukuda, Aaron M. Katz,
Christine Ezzell Singer, Jessica L. Soto, Rebecca C. Ellis, and
Ropes & Gray LLP were on brief, for appellants.
Maura Healey, Attorney General of Massachusetts, and
Genevieve C. Nadeau, Deputy Chief, Civil Rights Division, on brief
for Commonwealth of Massachusetts, amicus curiae.
Dennis J. Herrera, City Attorney, Victoria Wong, Mollie Lee,
Elizabeth Pederson, and Mark D. Lipton, Deputy City Attorneys, on
brief for City and County of San Francisco, amici curiae.
Cathy Hampton, City Attorney, on brief for City of Atlanta,
amicus curiae.
Michael N. Feuer, City Attorney, James P. Clark, Mary Clare

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
Molidor, Anh Truong, Sahar Nayeri, and Office of the Los Angeles
City Attorney, on brief for City of Los Angeles, California, amicus
curiae.
Tracy Reeve, City Attorney, and Harry Auerbach, Chief Deputy
City Attorney, on brief for City of Portland (Oregon), amicus
curiae.
Donna L. Edmundson, City Attorney, on brief for City of
Houston, amicus curiae.
Shelley R. Smith, City Solicitor, on brief for Michael A.
Nutter, Mayor of Philadelphia, amicus curiae.
Jeffrey Dana, City Solicitor, on brief for City of Providence
and Mayor Jorge O. Elorza, amicus curiae.
Stacey J. Rappaport and Milbank, Tweed, Hadley & McCloy LLP
on brief for Covenant House, Demand Abolition, ECPAT-USA, Human
Rights Project for Girls, My Life, My Choice of Justice Resource
Institute, National Crime Victim Law Institute, Sanctuary for
Families, and Shared Hope International, amici curiae.
Jenna A. Hudson, Kami E. Quinn, Gilbert LLP, and Andrea
Powell, Executive Director, on brief for FAIR Girls, amicus curiae.
Michael Rogoff, Robert Barnes, Oscar Ramallo, and Kaye
Scholer LLP, on brief for National Center for Missing and Exploited
Children, amicus curiae.
Jeffrey J. Pyle, with whom Robert A. Bertsche, Prince Lobel
Tye LLP, James C. Grant, Ambika K. Doran, and Davis Wright Tremaine
LLP were on brief, for appellees.
March 14, 2016
SELYA, Circuit Judge. This is a hard case — hard not in
the sense that the legal issues defy resolution, but hard in the
sense that the law requires that we, like the court below, deny
relief to plaintiffs whose circumstances evoke outrage. The result
we must reach is rooted in positive law. Congress addressed the
right to publish the speech of others in the Information Age when
it enacted the Communications Decency Act of 1996 (CDA). See 47
U.S.C. § 230. Congress later addressed the need to guard against
the evils of sex trafficking when it enacted the Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA), codified
as relevant here at 18 U.S.C. §§ 1591, 1595. These laudable
legislative efforts do not fit together seamlessly, and this case
reflects the tension between them. Striking the balance in a way
that we believe is consistent with both congressional intent and
the teachings of precedent, we affirm the district court's order
of dismissal. The tale follows.
I. BACKGROUND
In reviewing the grant or denial of a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), we draw upon the
well-pleaded facts as they appear in the operative pleading (here,
the second amended complaint). See SEC v. Tambone, 597 F.3d 436,
438 (1st Cir. 2010) (en banc).
Backpage.com provides online classified advertising,
allowing users to post advertisements in a range of categories
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based on the product or service being sold.1 Among the categories
provided is one for "Adult Entertainment," which includes a
subcategory labeled "Escorts." The site is differentiated by
geographic area, enabling users to target their advertisements and
permitting potential customers to see local postings.
This suit involves advertisements posted in the
"Escorts" section for three young women — all minors at the
relevant times — who claim to have been victims of sex trafficking.
Suing pseudonymously, the women allege that Backpage, with an eye
to maximizing its profits, engaged in a course of conduct designed
to facilitate sex traffickers' efforts to advertise their victims
on the website. This strategy, the appellants say, led to their
victimization.
Past is prologue. In 2010, a competing website
(Craigslist) shuttered its adult advertising section due to
concerns about sex trafficking. Spying an opportunity, Backpage
expanded its marketing footprint in the adult advertising arena.
According to the appellants, the expansion had two aspects. First,
Backpage engaged in a campaign to distract attention from its role
in sex trafficking by, for example, meeting on various occasions
with hierarchs of the National Center for Missing and Exploited
1 The appellants sued Backpage.com, LLC, Camarillo Holdings,
LLC, and New Times Media, LLC. For ease in exposition, we refer
to these three affiliated companies, collectively, as "Backpage."
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Children (NCMEC) and making "false and misleading representations"
to the NCMEC and law enforcement regarding its efforts to combat
sex trafficking. But this campaign, the appellants suggest, was
merely a ruse.
The second aspect of Backpage's expansion strategy
involved the deliberate structuring of its website to facilitate
sex trafficking. The appellants aver that Backpage selectively
removed certain postings made in the "Escorts" section (such as
postings made by victim support organizations and law enforcement
"sting" advertisements) and tailored its posting requirements to
make sex trafficking easier.2
In addition, the appellants allege that Backpage's rules
and processes governing the content of advertisements are designed
to encourage sex trafficking. For example, Backpage does not
require phone number verification and permits the posting of phone
numbers in alternative formats. There is likewise no e-mail
verification, and Backpage provides users with the option to "hide"
their e-mail addresses in postings, because Backpage provides
2 The appellants note that (among other things) the process
of posting an advertisement in the "Escorts" section does not
require the poster to provide either identifying information or
the subject of the advertisement. And even though the website
does require that posters verify that they are 18 years of age or
older to post in that section, entering an age below 18 on the
first (or any successive) attempt does not block a poster from
entering a different age on a subsequent attempt. Backpage also
allows users to pay posting fees anonymously through prepaid credit
cards or digital currencies.
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message forwarding services and auto-replies on behalf of the
advertiser. Photographs uploaded for use in advertisements are
shorn of their metadata, thus removing from scrutiny information
such as the date, time, and location the photograph was taken.
While Backpage's automated filtering system screens out
advertisements containing certain prohibited terms, such as
"barely legal" and "high school," a failed attempt to enter one of
these terms does not prevent the poster from substituting
workarounds, such as "brly legal" or "high schl."
The appellants suggest that Backpage profits from having
its thumb on the scale in two ways. First, advertisements in the
"Adult Entertainment" section are the only ones for which Backpage
charges a posting fee. Second, users may pay an additional fee
for "Sponsored Ads," which appear on the right-hand side of every
page of the "Escorts" section. A "Sponsored Ad" includes a smaller
version of the image from the posted advertisement and information
about the location and availability of the advertised individual.
Beginning at age 15, each of the appellants was
trafficked through advertisements posted on Backpage. Jane Doe #1
was advertised on Backpage during two periods in 2012 and 2013.
She estimates that, as a result, she was raped over 1,000 times.
Jane Doe #2 was advertised on Backpage between 2010 and 2012. She
estimates that, as a result, she was raped over 900 times. Jane
Doe #3 was advertised on Backpage from December of 2013 until some
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unspecified future date. As a result, she was raped on numerous
occasions.3 All of the rapes occurred either in Massachusetts or
Rhode Island. Sometimes the sex traffickers posted the
advertisements directly and sometimes they forced the victims to
post the advertisements.
Typically, each posted advertisement included images of
the particular appellant, usually taken by the traffickers (but
advertisements for Doe #3 included some pictures that she herself
had taken). Many of the advertisements embodied challenged
practices such as anonymous payment for postings, coded
terminology meant to refer to underage girls, and altered telephone
numbers.
The appellants filed suit against Backpage in October of
2014. The operative pleading is the appellants' second amended
complaint, which limns three sets of claims. The first set
consists of claims that Backpage engaged in sex trafficking of
minors as defined by the TVPRA and its Massachusetts counterpart,
the Massachusetts Anti-Human Trafficking and Victim Protection Act
of 2010 (MATA), Mass. Gen. Laws ch. 265, § 50(a). The second set
consists of claims under a Massachusetts consumer protection
3
Once the parents of Doe #3 located some of the Backpage
advertisements featuring their daughter, they demanded that the
advertisements be removed from the website. A week later (after
at least one other entreaty to Backpage), the postings remained on
the website.
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statute, which forbids "unfair or deceptive acts or practices in
the conduct of any trade or commerce." Mass. Gen. Laws ch. 93A,
§ 2(a). The last set consists of claims alleging abridgements of
intellectual property rights.
In due season, Backpage moved to dismiss the second
amended complaint for failure to state claims upon which relief
could be granted. See Fed. R. Civ. P. 12(b)(6). Although the
appellants vigorously opposed the motion, the district court
dismissed the action in its entirety. See Doe ex rel. Roe v.
Backpage.com, LLC, 104 F. Supp. 3d 149, 165 (D. Mass. 2015). This
timely appeal ensued.
II. ANALYSIS
The appellants, ably represented, have constructed a
series of arguments. Those arguments are buttressed by a legion
of amici (whose helpful briefs we appreciate). We review the
district court's dismissal of the appellants' complaint for
failure to state any actionable claim de novo, taking as true the
well-pleaded facts and drawing all reasonable inferences in the
appellants' favor. See Tambone, 597 F.3d at 441. In undertaking
this canvass, we are not bound by the district court's
ratiocination but may affirm the dismissal on any ground apparent
from the record. See Santiago v. Puerto Rico, 655 F.3d 61, 72
(1st Cir. 2011). It is through this prism that we evaluate the
appellants' asseverational array.
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A. Trafficking Claims.
The appellants challenge the district court's conclusion
that section 230 of the CDA shields Backpage from liability for a
course of conduct that allegedly amounts to participation in sex
trafficking. We begin our consideration of this challenge with
the text of section 230(c), which provides:
(c) Protection for "Good Samaritan" blocking and
screening of offensive material
(1) Treatment of publisher or speaker
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.
(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 [subparagraph (A)].
47 U.S.C. § 230(c). Congress enacted this statute partially in
response to court cases that held internet publishers liable for
defamatory statements posted by third parties on message boards
maintained by the publishers. See, e.g., Stratton Oakmont, Inc.
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v. Prodigy Servs. Co., 1995 WL 323710, at *1, *5 (N.Y. Sup. Ct.
May 24, 1995) (explaining that Prodigy was liable because, unlike
some other website operators, it had taken steps to screen or edit
content posted on its message board). Section 230(c) limits this
sort of liability in two ways. Principally, it shields website
operators from being "treated as the publisher or speaker" of
material posted by users of the site, 47 U.S.C. § 230(c)(1), which
means that "lawsuits seeking to hold a service provider liable for
its exercise of a publisher's traditional editorial functions —
such as deciding whether to publish, withdraw, postpone or alter
content — are barred," Zeran v. Am. Online, Inc., 129 F.3d 327,
330 (4th Cir. 1997). Relatedly, it allows website operators to
engage in blocking and screening of third-party content, free from
liability for such good-faith efforts. See 47 U.S.C.
§ 230(c)(2)(A).
There has been near-universal agreement that section 230
should not be construed grudgingly. See, e.g., Doe v. MySpace,
Inc., 528 F.3d 413, 418 (5th Cir. 2008); Universal Commc'n Sys.,
Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); Almeida v.
Amazon.com, Inc., 456 F.3d 1316, 1321-22 (11th Cir. 2006); Carafano
v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003).
This preference for broad construction recognizes that websites
that display third-party content may have an infinite number of
users generating an enormous amount of potentially harmful
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content, and holding website operators liable for that content
"would have an obvious chilling effect" in light of the difficulty
of screening posts for potential issues. Zeran, 129 F.3d at 331.
The obverse of this proposition is equally salient: Congress sought
to encourage websites to make efforts to screen content without
fear of liability. See 47 U.S.C. § 230(b)(3)-(4); Zeran, 129 F.3d
at 331; see also Lycos, 478 F.3d at 418-19. Such a hands-off
approach is fully consistent with Congress's avowed desire to
permit the continued development of the internet with minimal
regulatory interference. See 47 U.S.C. § 230(a)(4), (b)(2).
In holding Backpage harmless here, the district court
found section 230(c)(1) controlling. See Backpage.com, 104 F.
Supp. 3d at 154-56. Section 230(c)(1) can be broken down into
three component parts. It shields conduct if the defendant (1)
"is a 'provider or user of an interactive computer service'; (2)
the claim is based on 'information provided by another information
content provider'; and (3) the claim would treat [the defendant]
'as the publisher or speaker' of that information." Lycos, 478
F.3d at 418 (quoting 47 U.S.C. § 230(c)(1)). The appellants do
not allege that Backpage fails to satisfy either of the first two
elements.4 Instead, they confine themselves to the argument that
4Certain amici advance an argument forsworn by the appellants
in the district court: that Backpage's activities amount to
creating the content of the advertisements. It is, however, clear
beyond hope of contradiction that amici cannot "interject into a
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their asserted causes of action do not treat Backpage as the
publisher or speaker of the contents of the advertisements through
which they were trafficked. It is to this argument that we now
turn.
The broad construction accorded to section 230 as a whole
has resulted in a capacious conception of what it means to treat
a website operator as the publisher or speaker of information
provided by a third party. Courts have recognized that "many
causes of action might be premised on the publication or speaking
of what one might call 'information content.'" Barnes v. Yahoo!,
Inc., 570 F.3d 1096, 1101 (9th Cir. 2009). The ultimate question,
though, does not depend on the form of the asserted cause of
action; rather, it depends on whether the cause of action
necessarily requires that the defendant be treated as the publisher
or speaker of content provided by another. See id. at 1101-02.
Thus, courts have invoked the prophylaxis of section 230(c)(1) in
connection with a wide variety of causes of action, including
housing discrimination, see Chi. Lawyers' Comm. for Civil Rights
Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671-72 (7th
Cir. 2008), negligence, see Doe, 528 F.3d at 418; Green v. Am.
case issues which the litigants, whatever their reasons might be,
have chosen to ignore." Lane v. First Nat'l Bank of Bos., 871
F.2d 166, 175 (1st Cir. 1989).
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Online (AOL), 318 F.3d 465, 470-71 (3d Cir. 2003), and securities
fraud and cyberstalking, see Lycos, 478 F.3d at 421-22.
The appellants have an uphill climb: the TVPRA claims
that they assert appear to treat Backpage as the publisher or
speaker of the content of the challenged advertisements. After
all, the appellants acknowledge in their complaint that the
contents of all of the relevant advertisements were provided either
by their traffickers or by the appellants themselves (under orders
from their traffickers). Since the appellants were trafficked by
means of these advertisements, there would be no harm to them but
for the content of the postings.
The appellants nonetheless insist that their allegations
do not treat Backpage as a publisher or speaker of third-party
content. They rest this hypothesis largely on the text of the
TVPRA's civil remedy provision, which provides that victims may
bring a civil suit against a perpetrator "or whoever knowingly
benefits, financially or by receiving anything of value from
participation in a venture which that person knew or should have
known has engaged in an act" of sex trafficking. 18 U.S.C.
§ 1595(a); see id. § 1591. Characterizing their allegations as
describing "an affirmative course of conduct" by Backpage distinct
from the exercise of the "traditional publishing or editorial
functions" protected under the CDA, the appellants contend that
this course of conduct amounts to participation in sex trafficking
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and, thus, can ground liability without treating Backpage as the
publisher or speaker of any of the underlying content. This
contention comprises more cry than wool.
We begin with the appellants' assertion that Backpage's
activities do not involve traditional publishing or editorial
functions, and are therefore outside the protective carapace of
section 230(c)(1). In support, the complaint describes choices
that Backpage has made about the posting standards for
advertisements — for example, rules about which terms are permitted
or not permitted in a posting, the lack of controls on the display
of phone numbers, the option to anonymize e-mail addresses, the
stripping of metadata from photographs uploaded to the website,
the website's reaction after a forbidden term is entered into an
advertisement, and Backpage's acceptance of anonymous payments.
The appellants submit that these choices are distinguishable from
publisher functions. We disagree.
As an initial matter, some of the challenged practices
— most obviously, the choice of what words or phrases can be
displayed on the site — are traditional publisher functions under
any coherent definition of the term. See Zeran, 129 F.3d at 330
(describing decisions about "whether to publish, withdraw,
postpone or alter content" as "traditional editorial functions").
And after careful consideration, we are convinced that the
"publisher or speaker" language of section 230(c)(1) extends to
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the formulation of precisely the sort of website policies and
practices that the appellants assail.
Precedent cinches the matter. In Lycos, we considered
the argument that the prophylaxis of section 230(c) did not
encompass "decisions regarding the 'construct and operation'" of
a defendant's websites. 478 F.3d at 422. There, the plaintiffs
alleged that Lycos permitted users to register under multiple
screen names and provided links to "objective financial
information" from a finance-related message board, thus enabling
"individuals to spread misinformation more credibly." Id. at 420.
We noted that, at bottom, the plaintiffs were "ultimately alleging
that the construct and operation of Lycos's web sites contributed
to the proliferation of misinformation" and held that as long as
"the cause of action is one that would treat the service provider
as the publisher of a particular posting, immunity applies not
only for the service provider's decisions with respect to that
posting, but also for its inherent decisions about how to treat
postings generally." Id. at 422. In short, "Lycos's decision not
to reduce misinformation by changing its web site policies was as
much an editorial decision with respect to that misinformation as
a decision not to delete a particular posting." Id.
The case at hand fits comfortably within this construct.
Without exception, the appellants' well-pleaded claims address the
structure and operation of the Backpage website, that is,
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Backpage's decisions about how to treat postings. Those claims
challenge features that are part and parcel of the overall design
and operation of the website (such as the lack of phone number
verification, the rules about whether a person may post after
attempting to enter a forbidden term, and the procedure for
uploading photographs). Features such as these, which reflect
choices about what content can appear on the website and in what
form, are editorial choices that fall within the purview of
traditional publisher functions.5
At oral argument in this court, the appellants placed
particular emphasis on Backpage's provision of e-mail
anonymization, forwarding, auto-reply, and storage services to
posters. In the last analysis, however, the decision to provide
such services and the parallel decision not to impose the same
conditions on messaging services as are applied to "Escorts"
section postings are no less publisher choices, entitled to the
protections of section 230(c)(1).
We add, moreover, that applying section 230(c)(1) to
shield Backpage from liability here is congruent with the case law
elsewhere. Relying on that provision, courts have rejected claims
5 The appellants argue that a concurring opinion in J.S. v.
Village Voice Media Holdings, L.L.C., 359 P.3d 714, 718-24 (Wash.
2015) (en banc) (Wiggins, J., concurring), points to a different
conclusion. But our reasoning in Lycos — which the J.S.
concurrence failed to address — defeats this argument.
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that attempt to hold website operators liable for failing to
provide sufficient protections to users from harmful content
created by others. For instance, where a minor claimed to have
been sexually assaulted by someone she met through the defendant's
website and her suit alleged that the website operator "fail[ed]
to implement basic safety measures to protect minors," the Fifth
Circuit rejected the suit on the basis that the claims were "merely
another way of claiming that [the website operator] was liable for
publishing the communications and they speak to [the website
operator's] role as a publisher of online third-party-generated
content." Doe, 528 F.3d at 419-20. Although the appellants try
to distinguish Doe by claiming Backpage's decisions about what
measures to implement deliberately attempt to make sex trafficking
easier, this is a distinction without a difference. Whatever
Backpage's motivations, those motivations do not alter the fact
that the complaint premises liability on the decisions that
Backpage is making as a publisher with respect to third-party
content.
Nor does the text of the TVPRA's civil remedy provision
change this result. Though a website conceivably might display a
degree of involvement sufficient to render its operator both a
publisher and a participant in a sex trafficking venture (say,
that the website operator helped to procure the underaged youths
who were being trafficked), the facts pleaded in the second amended
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complaint do not appear to achieve this duality. But even if we
assume, for argument's sake, that Backpage's conduct amounts to
"participation in a [sex trafficking] venture" — a phrase that no
published opinion has yet interpreted — the TVPRA claims as pleaded
premise that participation on Backpage's actions as a publisher or
speaker of third-party content. The strictures of section 230(c)
foreclose such suits.6
Contrary to the appellants' importunings, the decision
in Barnes does not demand a different outcome. There, the Ninth
Circuit concluded that a promissory estoppel claim based on a Yahoo
executive's statements that the company would remove explicit
photographs that had been posted online without the consent of the
person depicted was not barred by section 230(c)(1). See Barnes,
570 F.3d at 1098-99, 1109. Withal, this promissory estoppel claim
did not attempt to treat Yahoo as the publisher or speaker of the
photograph's content but, instead, the claim sought to hold Yahoo
liable for its "manifest intention to be legally obligated to do
something" (that is, to delete the photographs). Id. at 1107. No
comparable promise has been alleged here.
6 To be sure, the complaint contains a few allegations that do
not involve the publication of third-party content. Yet those
allegations, treated in detail in Part II(B) infra, rely on
sententious rhetoric rather than well-pleaded facts. Thus, they
cannot suffice to alter our conclusion here.
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That ends this aspect of the matter. We hold that 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). This holding is consistent with, and reaffirms,
the principle that a website operator's decisions in structuring
its website and posting requirements are publisher functions
entitled to section 230(c)(1) protection.
In this case, third-party content is like Banquo's
ghost: it appears as an essential component of each and all of the
appellants' TVPRA claims. Because the appellants' claims under
the TVPRA necessarily treat Backpage as the publisher or speaker
of content supplied by third parties, the district court did not
err in dismissing those claims.7
In an effort to shift the trajectory of the debate, the
appellants try a pair of end runs. First, the appellants call our
attention to section 230(c)(2), which provides that decisions made
by website operators to block or remove content are protected from
liability as long as they are made in good faith. Building on
7
Although the parties do not separately parse the text of the
MATA, those claims fail for essentially the same reasons: they
treat Backpage as the publisher or speaker of content provided by
third parties. As a result, the MATA — at least in this application
— is necessarily inconsistent with the protections provided by
section 230(c)(1) and, therefore, preempted. See 47 U.S.C.
§ 230(e)(3).
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this foundation, the appellants assert that the district court
relied on Backpage's descriptions of its efforts to block and
screen the postings in the "Escorts" section of its website, and
that those descriptions amount to an implicit invocation of section
230(c)(2). So, the appellants say, the district court should have
allowed discovery into Backpage's good faith (or lack of it) in
blocking and screening content. The district court's refusal to
allow them to pursue this course, they charge, eviscerates section
230(c)(2) and renders it superfluous.
The appellants start from a faulty premise: we do not
read the district court's opinion as relying on Backpage's
assertions about its behavior. That Backpage sought to respond to
allegations of misconduct by (among other things) touting its
efforts to combat sex trafficking does not, without more, invoke
section 230(c)(2) as a defense.
The appellants' suggestion of superfluity is likewise
misplaced. Courts routinely have recognized that section
230(c)(2) provides a set of independent protections for websites,
see, e.g., Barnes, 570 F.3d at 1105; Chi. Lawyers' Comm., 519 F.3d
at 670-71; Batzel v. Smith, 333 F.3d 1018, 1030 n.14 (9th Cir.
2003), and nothing about the district court's analysis is at odds
with that conclusion.
Next, the appellants suggest that their TVPRA claims are
saved by the operation of section 230(e)(1). That provision
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declares that section 230 should not "be construed to impair the
enforcement of . . . any . . . Federal criminal statute." The
appellants posit that the TVPRA's civil suit provision is part of
the "enforcement" of a federal criminal statute under the plain
meaning of that term and, thus, outside the protections afforded
by section 230(c)(1). This argument, though creative, does not
withstand scrutiny.
We start with the uncontroversial premise that, where
feasible, "a statute should be construed in a way that conforms to
the plain meaning of its text." In re Jarvis, 53 F.3d 416, 419
(1st Cir. 1995). The plain-language reading of section 230(e)(1)'s
reference to "the enforcement of . . . any . . . Federal criminal
statute" dictates a meaning opposite to that ascribed by the
appellants: such a reading excludes civil suits. See Backpage.com,
104 F. Supp. 3d at 159 (pointing out that "the common definition
of the term 'criminal,' as well as its use in the context of
Section 230(e)(1), specifically excludes and is distinguished from
civil claims" (quoting Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006
WL 3813758, at *21 (E.D. Tex. Dec. 27, 2006))). Other traditional
tools of statutory construction reinforce this conclusion.
Although titles or captions may not be used to contradict a
statute's text, they can be useful to resolve textual ambiguities.
See Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519,
528-29 (1947); Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4,
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9 (1st Cir. 1991). Here, the subsection's title, "[n]o effect on
criminal law," quite clearly indicates that the provision is
limited to criminal prosecutions.
It is equally telling that where Congress wanted to
include both civil and criminal remedies in CDA provisions, it did
so through broader language. For instance, section 230(e)(4)
states that the protections of section 230 should not "be construed
to limit the application of the Electronic Communications Privacy
Act of 1986," a statute that contains both criminal penalties and
civil remedies. See 18 U.S.C. §§ 2511, 2520. Preserving the
"application" of this Act contrasts with Congress's significantly
narrower word choice in safeguarding the "enforcement" of federal
criminal statutes. The normal presumption is that the employment
of different words within the same statutory scheme is deliberate,
so the terms ordinarily should be given differing meanings. See
Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004).
This holding is entirely in keeping with the policies
animating section 230(e)(1). Congress made pellucid that it sought
"to ensure vigorous enforcement of Federal criminal laws to deter
and punish" illicit activities online, 47 U.S.C. § 230(b)(5); and
this policy coexists comfortably with Congress's choice "not to
deter harmful online speech through the . . . route of imposing
tort liability on companies that serve as intermediaries for other
parties' potentially injurious messages," Lycos, 478 F.3d at 418
- 22 -
(omission in original) (quoting Zeran, 129 F.3d at 330-31). Seen
in this light, the distinctions between civil and criminal actions
— including the disparities in the standard of proof and the
availability of prosecutorial discretion — reflect a legislative
judgment that it is best to avoid the potential chilling effects
that private civil actions might have on internet free speech.
To say more about these attempted end runs would be
pointless. They are futile, and do not cast the slightest doubt
on our conclusion that the district court appropriately dismissed
the appellants' sex trafficking claims as barred by section
230(c)(1).
B. Chapter 93A Claims.
We turn next to the appellants' state-law unfair trade
practices claims. A Massachusetts statute, familiarly known as
Chapter 93A, creates a private right of action in favor of any
individual "who has been injured by another person's use or
employment" of unfair or deceptive business practices. See Mass.
Gen. Laws ch. 93A, § 9(1). The appellants' Chapter 93A claims (as
framed on appeal) target misrepresentations allegedly made by
Backpage to law enforcement and the NCMEC regarding Backpage's
efforts at self-regulation. The district court jettisoned these
claims, concluding that the causal chain alleged by the appellants
was "too speculative to fall as a matter of law within the penumbra
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of reasonabl[e] foreseeability." Backpage.com, 104 F. Supp. 3d at
162.
As this ruling hinges on the plausibility of the
appellants' allegations of causation, we first rehearse the
plausibility standard. It is, of course, apodictic that a
plaintiff must supply "a short and plain statement of the claim
showing that [she] is entitled to relief." Fed. R. Civ. P.
8(a)(2). Although this requirement does not call for the pleading
of exquisite factual detail, the complaint must allege "enough
facts to state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Evaluating the plausibility of a complaint is a two-step
process. First, "the court must separate the complaint's factual
allegations (which must be accepted as true) from its conclusory
legal allegations (which need not be credited)." Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). Second, the
court must determine whether the remaining facts allow it "to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). In carrying out this evaluation, the court must
view the claim as a whole, instead of demanding "a one-to-one
relationship between any single allegation and a necessary element
of the cause of action." Rodríguez-Reyes v. Molina-Rodríguez, 711
F.3d 49, 55 (1st Cir. 2013).
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With this standard in mind, we proceed to the appellants'
assignment of error. To prevail on a Chapter 93A claim of this
sort, the "plaintiff must prove causation — that is, the plaintiff
is required to prove that the defendant's unfair or deceptive act
caused an adverse consequence or loss." Rhodes v. AIG Domestic
Claims, Inc., 961 N.E.2d 1067, 1076 (Mass. 2012). This requirement
entails showing both "a causal connection between the deception
and the loss and that the loss was foreseeable as a result of the
deception." Smith v. Jenkins, 732 F.3d 51, 71 (1st Cir. 2013)
(quoting Casavant v. Norwegian Cruise Line Ltd., 952 N.E.2d 908,
912 (Mass. 2011)). In other words, the plaintiff must lay the
groundwork for findings of both actual and proximate causation.
If an examination of the claim leads to the conclusion that it
fails plausibly to allege a causal chain sufficient to ground an
entitlement to relief, that claim is susceptible to dismissal under
Rule 12(b)(6). See A.G. ex rel. Maddox v. Elsevier, Inc., 732
F.3d 77, 82 & n.2 (1st Cir. 2013).
Here, the second amended complaint attempts to forge the
causal chain as follows: Backpage made a series of disingenuous
representations to law enforcement officers and the NCMEC
regarding its supposed commitment to combating sex trafficking,
including representations about technical changes to its website
and its efforts to screen and monitor postings; Backpage neither
kept these commitments nor made the technical changes that had
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been discussed; instead, Backpage engaged in a series of pretextual
actions to generate the appearance of combating sex trafficking
(though it knew that these actions would not actually eliminate
sex trafficking from the website); this amalgam of
misrepresentations and deceptive practices "minimized and delayed"
any real scrutiny of what Backpage was actually doing, thus
allowing Backpage to gain a dominant market share in the online
advertising of sex trafficking; and this sequence of events harmed
the appellants by increasing their risk of being trafficked.
This causal chain is shot through with conjecture: it
pyramids speculative inference upon speculative inference. This
rampant guesswork extends to the effect of the alleged
misrepresentations on an indeterminate number of third parties,
the real impact of Backpage's behavior on the overall marketplace
for sex trafficking, and the odds that the appellants would not
have been victimized had Backpage been more forthright.
When all is said and done, it is apparent that the
attenuated causal chain proposed by the appellants is forged
entirely out of surmise. Put another way, the causation element
is backed only by "the type of conclusory statement[s] that need
not be credited at the Rule 12(b)(6) stage." Maddox, 732 F.3d at
80. Charges hinting at Machiavellian manipulation (such as the
charge that Backpage's "communications with NCMEC were simply an
effort to create a diversion as Backpage.com solidified its market
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position" or the charge that Backpage's posting review program
"appears to be merely superficial") cannot serve as surrogates for
well-pleaded facts.
To be sure, the complaint does plead a few hard facts.
For example, it indicates that some meetings occurred involving
Backpage and the NCMEC. It also indicates that Backpage made some
efforts (albeit not the ones that the NCMEC recommended) to address
sex trafficking. But beyond these scanty assertions, the complaint
does not offer factual support for its attenuated causal analysis.
In an effort to plug this gaping hole, the appellants
argue that in a Chapter 93A case the plausibility of causation
should be tested at the pleading stage not by looking at facts
but, rather, by employing "common economic sense." Bos. Cab
Dispatch, Inc. v. Uber Techs., Inc., No. 13-10769, 2015 WL 314131,
at *4 (D. Mass. Jan. 26, 2015); accord Katin v. Nat'l Real Estate
Info. Servs., Inc., No. 07-10882, 2009 WL 929554, at *7, *10 (D.
Mass. Mar. 31, 2009). Yet, facts are the linchpin of plausibility;
and the cases that the appellants cite are inapposite. Those cases
involve competitors suing each other pursuant to section 11 of
Chapter 93A. This distinction is significant because although
causation in section 11 cases between competitors turns on the
decisions of third parties (customers), the causal chain between
the unfair act and the harm to the plaintiff is much shorter and
- 27 -
more direct than the chain that the appellants so laboriously
attempt to construct.
The short of it is that the pertinent allegations in the
second amended complaint are insufficient "to remove the
possibility of relief from the realm of mere conjecture." Tambone,
597 F.3d at 442. It follows inexorably that the district court
did not err in dismissing the appellants' Chapter 93A claims.8
C. Intellectual Property Claims.
This brings us to the appellants' intellectual property
claims. Section 230 provides that "[n]othing in this section shall
be construed to limit or expand any law pertaining to intellectual
property." 47 U.S.C. § 230(e)(2). We assume, without deciding,
that the appellants' remaining claims come within the compass of
this exception.9
8 For the sake of completeness, we note that the court below
held, in the alternative, that the appellants' Chapter 93A claims
were barred by section 230(c)(1). See Backpage.com, 104 F. Supp.
3d at 162-63. We express no opinion on this alternative holding.
9 The application of the exemption to the appellants' state
law claims for the unauthorized use of pictures is not free from
doubt. At least one court of appeals has suggested that state law
intellectual property claims are not covered by this exemption.
See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19, 1119
n.5 (9th Cir. 2007); but cf. Lycos, 478 F.3d at 422-23, 423 n.7
(applying section 230(e)(2) to a claim under state trademark law,
albeit without detailed analysis). To make a muddled matter even
murkier, Backpage argues that the unauthorized use of pictures
claims do not involve intellectual property but, rather, stem from
privacy rights protected by tort law. We need not reach either of
these issues.
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1. Unauthorized Use of Pictures of a Person. All of
the appellants brought claims under state laws (Massachusetts
and/or Rhode Island) guarding against the unauthorized use of a
person's picture. See Mass. Gen. Laws ch. 214, § 3A; R.I. Gen.
Laws § 9-1-28. These nearly identical statutes, reprinted in
relevant part in the margin,10 confer private rights of action upon
individuals whose images are used for commercial purposes without
their consent. The appellants insist that Backpage, by garnering
advertising revenues from their traffickers, profited from the
unauthorized use of their photographs. This fusillade is wide of
10 Mass. Gen. Laws ch. 214, § 3A provides in relevant part
that:
Any person whose name, portrait or picture is used within
the commonwealth for advertising purposes or for the
purposes of trade without his written consent may bring
a civil action . . . against the person so using his
name, portrait or picture, to prevent and restrain the
use thereof; and may recover damages for any injuries
sustained by reason of such use.
R.I. Gen. Laws § 9-1-28(a) provides, as pertinent here, that:
Any person whose name, portrait, or picture is used
within the state for commercial purposes without his or
her written consent may bring an action . . . against
the person so using his or her name, portrait, or picture
to prevent and restrain the use thereof, and may recover
damages for any injuries sustained by reason of such
use.
To the modest extent that the wording of these statutes differs,
neither the appellants nor Backpage suggests that the differences
affect our analysis in any way. We therefore treat the statutes
interchangeably.
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the mark: the statutes in question impose liability only upon
persons or entities who deliberately use another's image for
commercial gain. As we explain below, Backpage (on the facts
alleged here) is not such an entity.
Neither the Massachusetts Supreme Judicial Court (SJC)
nor the Rhode Island Supreme Court has confronted the exact
scenario that is presented here. Our task, then, is to make an
informed determination of how each court would rule if it faced
the question, taking into account analogous state decisions, cases
from other jurisdictions, learned treatises, and relevant policy
rationales. See Andrew Robinson Int'l, Inc. v. Hartford Fire Ins.
Co., 547 F.3d 48, 51-52 (1st Cir. 2008). Here, the tea leaves are
easy to read.
The SJC has articulated the key point in the following
way: "the crucial distinction . . . must be between situations in
which the defendant makes an incidental use of the plaintiff's
name, portrait or picture and those in which the defendant uses
the plaintiff's name, portrait or picture deliberately to exploit
its value for advertising or trade purposes." Tropeano v. Atl.
Monthly Co., 400 N.E.2d 847, 850 (Mass. 1980). Exploitation for
advertising or trade purposes requires that the use of the image
be "for the purpose of appropriating to the defendant's benefit
the commercial or other values associated with the name or
likeness." Id. (quoting Nelson v. Me. Times, 373 A.2d 1221, 1224
- 30 -
(Me. 1977)). So, too, the nearly identical Rhode Island statute
requires a showing that by using the image "the defendant
commercially exploited [the plaintiff] without his permission."
Leddy v. Narragansett Television, L.P., 843 A.2d 481, 490 (R.I.
2004); accord Mendonsa v. Time Inc., 678 F. Supp. 967, 971 (D.R.I.
1988).
The appellants argue that the use of their images cannot
be written off as incidental because their pictures were "the
centerpieces of commercial advertisements." But this argument
misapprehends both the case law and the rationale that animates
the underlying right. Tropeano exemplifies the point. That case
involved the publication of the plaintiff's image to illustrate a
magazine article in which she was not even mentioned. See 400
N.E.2d at 848. The SJC concluded that this was an incidental use
of the image, notwithstanding that the article and accompanying
picture could be said to benefit the publisher. See id. at 851.
The fact that the publisher was a for-profit business did "not by
itself transform the incidental publication of the plaintiff's
picture into an appropriation for advertising or trade purposes."
Id.
In our view, Tropeano establishes that even a use leading
to some profit for the publisher is not a use for advertising or
trade purposes unless the use is designed to "appropriat[e] to the
defendant's benefit the commercial or other values associated with
- 31 -
the name or likeness." Id. at 850 (quoting Nelson, 373 A.2d at
1224). That is the rule in Massachusetts, and we are confident
that essentially the same rule prevails in Rhode Island.
Here, there is no basis for an inference that Backpage
appropriated the commercial value of the appellants' images.
Although Backpage does profit from the sale of advertisements, it
is not the entity that benefits from the misappropriation. A
publisher like Backpage is "merely the conduit through which the
advertising and publicity matter of customers" is conveyed,
Cabaniss v. Hipsley, 151 S.E.2d 496, 506 (Ga. Ct. App. 1966), and
the party who actually benefits from the misappropriation is the
advertiser. Matters might be different if Backpage had used the
pictures to advertise its own services, see id., but the appellants
proffer no such claim.
Basic policy considerations reinforce this result.
There would be obviously deleterious consequences to a rule placing
advertising media, such as newspapers, television stations, or
websites, at risk of liability every time they sell an
advertisement to a party who engages in misappropriation of another
person's likeness. Given this verity, it is hardly surprising
that the appellants have identified no case in which a publisher
of an advertisement furnished by a third party has been held liable
for a misappropriation present within it. The proper target of
any suit for damages in such a situation must be the advertiser
- 32 -
who increases his own business through the misappropriation (in
this case, the traffickers).11
We need not tarry. On this understanding, we uphold the
district court's dismissal of the appellants' claims under the
aforementioned state statutes.
2. Copyright. The last leg of our journey takes us to
a singular claim of copyright infringement. Shortly after the
institution of suit, Doe #3 registered a copyright in one of the
photographs used by her traffickers. In the second amended
complaint, she included a claim for copyright infringement. The
court below dismissed this claim, reasoning that it identified no
redressable injury. See Backpage.com, 104 F. Supp. 3d at 165.
Doe #3 challenges this ruling.
Assuming (without deciding) that Backpage could be held
liable for copyright infringement, the scope of Doe #3's potential
recovery is limited by the fact that she did not register her
copyright until December of 2014 — after the instant action had
been filed. By then, Backpage was no longer displaying the
copyrighted image. Given the timing of these events, Doe #3 cannot
recover either statutory damages or attorneys' fees under the
11This is precisely the situation reflected in the earliest
right of privacy cases, see, e.g., Henry v. Cherry & Webb, 73 A.
97 (R.I. 1909), and the state statutes in this case are designed
to codify liability for that sort of commercial conduct, see
Mendonsa, 678 F. Supp. at 969-70; Tropeano, 400 N.E.2d at 850-51.
- 33 -
Copyright Act. See 17 U.S.C. § 412; Johnson v. Gordon, 409 F.3d
12, 20 (1st Cir. 2005). Any recovery would be restricted to
compensatory damages under 17 U.S.C. § 504(b), which permits a
successful suitor to recover "the actual damages suffered by
. . . her as a result of the infringement, and any profits of the
infringer that are attributable to the infringement and are not
taken into account in computing the actual damages."
The prospect of such a recovery, however, is purely
theoretical: nothing in the complaint raises a plausible inference
that Doe #3 can recover any damages, or that discovery would reveal
such an entitlement. See Twombly, 550 U.S. at 556 (stating that
factual allegations must at least "raise a reasonable expectation
that discovery will reveal evidence" to suffice as plausible). A
showing of actual damages requires a plaintiff to prove "that the
infringement was the cause of [her] loss of revenue." Data Gen.
Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1170 (1st Cir.
1994). Such a loss is typically measured by assessing the
diminution in a copyrighted work's market value (say, by
calculating lost licensing fees). See Bruce v. Weekly World News,
Inc., 310 F.3d 25, 28-29 (1st Cir. 2002); Data Gen., 36 F.3d at
1170. No facts set forth in the second amended complaint suggest
that the market value of Doe #3's image has been affected in any
way by the alleged infringement, and Doe #3 points to nothing that
might plausibly support such an inference.
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By the same token, nothing in the complaint plausibly
suggests a basis for a finding that Doe #3 would be entitled to
profits attributable to the infringement. The closest that the
complaint comes is an optimistic assertion that because
photographs "enhance the effectiveness of advertisements,"
Backpage necessarily reaps a financial benefit from these images
(including, presumably, Doe #3's photograph). But a generalized
assertion that a publisher/infringer profits from providing
customers with the option to display photographs in
advertisements, standing alone, cannot plausibly be said to link
the display of a particular image to some discrete portion of the
publisher/infringer's profits. Cf. Mackie v. Rieser, 296 F.3d
909, 914-16 (9th Cir. 2002) (concluding, at summary judgment, that
the effect of including a photograph in an advertising brochure
was too speculative to make out a triable issue on advertiser's
profits attributable to infringement). In short, the link that
Doe #3 attempts to fashion between the copyrighted photograph and
Backpage's revenues is wholly speculative and, thus, does not cross
the plausibility threshold. After all, "[f]actual allegations
must be enough to raise a right to relief above the speculative
level." Twombly, 550 U.S. at 555.
In a last ditch effort to bell the cat, Doe #3 contends
that the district court erred in failing to determine whether she
was entitled to injunctive relief under 17 U.S.C. § 502(a), which
- 35 -
permits such relief "to prevent or restrain infringement of a
copyright." She says, in effect, that Backpage may still possess
the copyrighted photograph and that, therefore, she remains at
risk of future infringement. We reject this contention.
To begin, the mere fact of past infringement does not
entitle a plaintiff to permanent injunctive relief: the plaintiff
must also show "a substantial likelihood of infringement in the
future." Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82
F.3d 1533, 1555 (10th Cir. 1996); see 5 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright § 14.06[B][1][a] (2015). Nothing in
the complaint suggests that there is any substantial likelihood of
future infringement by Backpage with respect to the copyrighted
photograph. The known facts strongly suggest that no such risk
exists: the photograph was posted by a third party who no longer
has any sway over Doe #3, and Backpage is not alleged to post
material or create advertisements entirely of its own accord.
Thus, any fears of future infringement would appear to be
unfounded.
Viewing the complaint as a whole, see Twombly, 550 U.S.
at 569 n.14, we conclude that the distinctive facts alleged here
simply do not suffice to ground a finding that Doe #3 is plausibly
entitled to any relief on her copyright claim. Consequently, we
discern no error in the district court's dismissal of this claim.
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III. CONCLUSION
As a final matter, we add a coda. The appellants' core
argument is that Backpage has tailored its website to make sex
trafficking easier. Aided by the amici, the appellants have made
a persuasive case for that proposition. But Congress did not sound
an uncertain trumpet when it enacted the CDA, and it chose to grant
broad protections to internet publishers. Showing that a website
operates through a meretricious business model is not enough to
strip away those protections. 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.
We need go no further. For the reasons elucidated above,
the judgment of the district court is affirmed. All parties shall
bear their own costs.
Affirmed.
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