Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 1 of 34
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`
`
`Exhibit 2
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 2 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 2 of 34
`
`WhyVillage Voice Media’s Backpage.com Service
`Does Not Create Liability for Promoting Prostitution
`
`Summary
`I. VILLAGE VoiceMep1ALLC Is IMMUNE FROM LIABILITYFor THE MESSAGES Or
`UsERs Or ITs BACKPAGE.COM SERVICE
`
`A.
`
`B.
`
`Cc.
`
`D.
`
`Congress Created in Section 230 A National PolicyTo EncourageInternet
`.te
`Use and Growth.
`Section 230 Immunizes Interactive Computer Service Providers From
`Liability For Third Party Content.
`Section 230 Prohibits State Criminal Laws and Prosecutions That Would
`Impose CriminalLiability On An Interactive Computer Service Provider
`For Third Party Content.
`Village Voice Satisfies All Requirements for Immunity Under Section 230.
`1,
`Village Voice Is A “Provider” OfAn “Interactive ComputerService,”
`Namely The Backpage.com Website
`
`z.
`
`TheAdsIn Question Are Posted By Users OfBackpage.com And
`ThusAre “Information Provided By Another Information Content
`Provider”
`
`E.
`
`Village Voice Is The “Publisher” ofUserAds on Backpage.com.
`3.
`The Commercial Nature ofBackpage.com Is Irrelevant,
`4.
`State Officials Face Liability Under42 U.S.C. § 1983 IfThey Violate Village
`Voice’s Statutory Rights Under Section 230,
`Il. EVEN IF SECTION230 Dip NotAPPLY, VILLAGE VOICEWOULD NOT BE LIABLE FoR
`BACKPAGE.COM CONTENTTHATALLEGEDLYPROMOTES PROSTITUTION.
`A.
`Village Voice’s Policies and Practices Prohibit, Monitorfor, and Remove
`Advertisements for Illegal Services
`Village Voice Cannot Be Liable Under Missouri Law For Promoting
`Prostitution.
`
`B.
`
`1
`
`2.
`
`Village Voice Has No Intentto Aid or Abet or Promote Prostitution,
`And Thus Has Not Committed These Crimes.
`
`Scienter IsAn Essential Element OfCriminal Statutes Which Target
`Even Unprotected Speech.
`
`DEFENSE_015288
`DEFENSE_015288
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 3 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 3 of 34
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`3.
`
`4.
`
`Criminal Laws Must Be Worded Or Construed So That They Do
`Not Cover Constitutionally Protected Speech.
`Public Provision ofa Communications Service Cannot Support
`Aiding AndAbetting Liability, Because The Connection With The
`Crime Is Too Remote.
`
`Ill. EVEN IF SECTION 230AND THE SCIENTERAND REMOTENESS DOCTRINES OF
`CRIMINAL LAWDip NotAPPLY, THE FIRSTAMENDMENTWOULD PREVENT
`IMPOSITION OF CRIMINAL LIABILITYONVILLAGEVOICE IN THIS SITUATION.
`A.
`Backpage.com Is Engaged In Protected Speech.
`B.
`Normal Backpage Contentis Classic Protected Expression, Even Ifit May
`be Offensive or “Indecent” To Some.
`
`c,
`
`D.
`
`E.
`
`Internet Websites Are Like Bookstores, Which Cannot Be Expected To
`Pre-Screen All Their Content.
`
`An Internet Provider Cannot Be Held Liable for Conducting a
`Communications Service That Has “Substantial Lawful Uses.”
`Forcing Village Voice to Eliminate the “Escorts” Category or to Block
`Ambiguous Ads Would Constitute An Unlawful “Prior Restraint.”
`
`Conclusion
`
`Section 230 ofthe Federal Communications Act, 47 U.S.C. § 230,
`(1)
`specifically bars civil or criminal liability ofInternet intermediaries based upon
`the content oftheir users’ messages.
`
`Missouri criminal law relating to promoting andaiding and
`(2)
`abetting prostitution applies only to those who have specific criminal intent to
`promote oraid prostitution, and such intentis clearly lacking in the circumstances
`where a communications provider makes available a forum for posting
`communications, but also bans, screens for, and promptly deletes messages that
`offer prostitution.
`
`The First Amendmentlimits prosecutions ofinformation providers
`(3)
`such as bookstore operators and communications providers to the rare situations
`where (a) the prosecution is confined to illegal content, (b) the publisher has
`knowledge andintent to provideillegal content, (c) the prosecution is conducted
`after-the-fact and does notchill or restrain ongoing protected speech.
`
`DEFENSE_015289
`DEFENSE_015289
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 4 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 4 of 34
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`WhyVillage Voice Media’s Backpage.com Service
`Does Not Create Liability for Promoting Prostitution
`
`Mark Sableman
`AnthonyF. Blum
`THOMPSON COBURN LLP
`One USBankPlaza
`St. Louis, MO 63101
`(314) 552-6000
`
`I.
`
`VILLAGE VOICE MEDIA LLC Is IMMUNE FROM LIABILITY FOR THE MESSAGES OF USERS
`OFITS BACKPAGE.COM SERVICE
`
`Village Voice Media LLC (“Village Voice”) is exemptbyvirtue of a federal statute from
`
`state civil or criminalliability for any illegal content posted onits Backpage.com service that was
`
`contributed by third party users of the site. The Section 230 of the Telecommunications Act of
`
`1996, 47 U.S.C. § 230 (“Section 230”), sometimesreferred to by the title of the chapter in which it
`
`was contained, the Communications Decency Act (“CDA”), precludesliability for Internet
`
`dissemination or publication of such third party content.
`
`A.
`
`Congress Created in Section 230 A National Policy To Encourage Internet
`Use and Growth.
`
`In 1996, Congress enactedlegislation “(1) to promote the continued developmentof the
`
`Internet andotherinteractive computerservices andotherinteractive media [and] (2) to preserve
`
`the vibrant and competitive free market that presently exists for the Internet and other interactive
`
`computerservices, unfettered by Federalor State regulation.” 47 U.S.C. § 230(b).
`
`Congressat the time madefindings that the Internet “offer[s] a forum for a true diversity
`
`ofpolitical discourse, unique opportunities for cultural development, and myriad avenues for
`
`intellectualactivity.” It further noted that “The Internet and other interactive computerservices
`
`haveflourished, to the benefit of all Americans, with a minimum ofgovernment regulation.”
`
`47 U.S.C. § 230(a) (emphasis added).
`
`DEFENSE_015290
`DEFENSE_015290
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 5 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 5 of 34
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`Based onthese findings and policies, Congress madethedecision to not hold interactive
`
`computerservice providersliable for user-generated content. This did not strip the government
`
`or wrongedparties of redress for problems created by such content, because nothing in Congress’
`
`enactmentprevents the original culpable party who posted any unlawful or harmful content from
`
`being heldliable. See Zeran, 129 F.3d at 330. However, Congressrealized that the “Internetis a
`
`unique and wholly new medium of worldwide human communication”; that internet service
`
`providers have hundredsof millions of users; and thatit is impossible to screen the hundreds of
`
`millions of messages posted daily. Reno v. ACLU, 521 U.S. 844, 850 (1997); Zeran,129 F.3d at 330.
`
`For these reasons, Congress enacted Section 230, granting a broad immunity to Internet
`
`intermediaries from liability arising from user content. Congress found this measureessentialto
`
`the growth and developmentof the Internet. If service providers were “[fjaced with potential
`
`liability for every message republished by their services, interactive computer service providers
`
`might chooseto severely restrict the number and type of messages posted.” Zeran, 129 F.3d at 331.
`
`It is impossible to merely weed out the objectionable or unlawful content. Without some law like
`
`Section 230, service providers would be forced to eliminate the user-generated content that makes
`
`the internet so vibrant,or face liability that would shut them down. See Batzel v. Smith, 333 F.3d
`
`1018, 1028 (9th Cir. 2003). Useful and constitutionally protected speech would belost.
`
`Section 230 hasdirectly led to the vibrant and useful internet that Americans enjoy today.
`
`B.
`
`Section 230 Immunizes Interactive Computer Service Providers From
`Liability For Third Party Content.
`
`Section 230 implements congressionalpolicy by broadly immunizingInternet
`
`intermediaries from liability based on user content. Section 230 states: “No provideror user of an
`
`interactive computerservice shall be treated as the publisher or speaker of any information
`
`provided by anotherinformation content provider.” 47 U.S.C. § 230(c)(1). Furthermore, “No
`
`DEFENSE_015291
`DEFENSE_015291
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 6 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 6 of 34
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`causeof action may be broughtandnoliability may be imposed underanyStateor local law that
`
`is inconsistent with this section.” 47 U.S.C. § 230(e)(3).
`
`In Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the leading and most-cited
`
`case construing Section 230, America Online (“AOL”) wassuedin negligencefor failing to remove
`
`defamatory messages posted on an AOLbulletin board. Id. at 329. The Court found that Section
`
`230 byits plain languagecreated “federal immunity to any cause ofaction that would make
`
`service providersliable for information originating with a third-party user ofthe service.” Id. at
`
`330. A service provider cannotbeheldliable as a publisherof the third party content, nor canit
`
`be heldliable for exercising “traditional editorial functions,” such as deciding whetherto publish,
`
`withdraw, postponeor alter the content ofa third party. Id. The Court, therefore, held that the
`
`claim wasbarred by Section 230. Id. at 327.
`
`Since Zeran, “(t]he majority of federal circuits have interpreted the CDAto establish broad
`
`‘federal immunity to any cause of action that would makeservice providersliable for information
`
`originating with a third-party user of the service.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 118
`
`(gth Cir. 2007) (internal cites omitted); see also Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir.
`
`2008) (“Courts have construed the immunity provisionsin § 230 broadlyin all cases arising from
`
`the publication of user-generated content.”); Universal Commce’n Sys., Inc. v. Lycos, Inc., 478 F.3d
`
`413, 419 (ast Cir. 2007) (“[W]etoofind that Section 230 immunity should be broadly construed.”);
`
`Almeida v. Amazon, Inc., 456 F.3d 1316,1321 (uth Cir. 2006); Carafano v. Metrosplash.com,Inc., 339
`
`F.3d 119, 1123 (gth Cir. 2003) (following the “consensus developingacross othercourts of appeals
`
`that § 230(c) provides broad immunity for publishing content provided primarily by third
`
`parties.”); Green v. America Online, Inc., 318 F.3d 465, 471 (3d Cir. 2003); Ben Ezra, Weinstein & Co.
`
`v, America Online, Inc., 206 F.3d 980, 984-85 (oth Cir. 2000).
`
`DEFENSE_015292
`DEFENSE_015292
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 7 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 7 of 34
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`Even defamatory, harmful and despicable contentis covered by Section 230—with the
`
`effect that Internet intermediaries are notliable for that content, and only theoriginatorsofit
`
`are. In Zeran, the contentat issue werea series of postings that falsely accused Mr. Zeran of
`
`delighting in the OklahomaCity federal building bombing. In Carafano, the contentat issue was
`
`a false dating service posting, portraying Ms. Carafano as sexually promiscuous. In Blumenthalv.
`
`Drudge, 992 F.Supp. 44 (D.D.C. 1998), the contentat issue (content that AOL could have
`
`previewed,did in fact edit, and did in fact profit from) allegedly constituted defamation of a top
`
`White Houseofficial. In all of these cases, courts applied section 230 by its terms, realizing that
`
`Congress madethe determination that Internet intermediate can and must be immunizedfor
`
`liability for user content, even where that content was wrongful,illegal, and/or harmful.
`
`Section 230 applies to any cause ofaction, not specifically exemptedin the statute, that
`
`would holdaservice providerliable for the content of another. This immunity defense has been
`
`applied to a numberofdifferent causes of action, including negligence, defamation, invasion of
`
`privacy, misappropriation of the right of publicity, state securities and cyberstalking acts, and
`
`violationsof the Fair Housing Act. See, e.g., Carafano, 339 F.3d 1119 (negligence, defamation,
`
`invasion of privacy and misappropriation ofright of publicity); Lycos, Inc., 478 F.3d 413 (state
`
`securities and cyberstalking acts); Chicago Lawyers’ Comm.ForCivil Rights Under Law, Inc., 519
`
`F.3d 666 (7th Cir. 2008) (Fair Housing Act). Section 230 is only limited by the specific exclusions
`
`in the statute, which do not apply here. See 47 U.S.C. § 230(e) (stating the section has no effect
`
`onintellectual property, the Electronic Communications Privacy Act,orfederal criminal law).
`
`While neither Missouri state courts nor the Eighth Circuit have yet addressed Section 230,
`
`all district courts within the Eighth Circuit that have confronted the issue have also found broad
`
`immunity for any cause of action that would holdaservice provider liable for user-generated
`
`content. See Gregersonv. Vilana Finan., Inc., No. 06-1164, 2008 WL 451060, at *8 (D. Minn.Feb.
`
`DEFENSE_015293
`DEFENSE_015293
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 8 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 8 of 34
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`15, 2008); Faegre & Benson, LLP v. Purdy, 367 F. Supp. 2d 1238, 1249 (D. Minn.2005);
`
`PatentWizard, Inc. v. Kinko's, Inc., 163 F. Supp. 2d 1069, 1071-72 (D.S.D. 2001).
`
`Cc.
`
`Section 230 Prohibits State Criminal Laws and Prosecutions That Would
`ImposeCriminal Liability On An Interactive Computer Service Provider For
`Third Party Content.
`
`Section 230 provides immunity notonlyforcivil liability but also forliability under state
`
`criminal statutes. 47 U.S.C. § 230(e)(3) (“No cause of action may be broughtand noliability may
`
`be imposed underanyState or local law thatis inconsistent with this section.”).
`
`In Voicenet Commc’n,Inc. v. Corbett, 2006 WL 2506318 (E.D, Pa. 2006), the court rejected
`
`argumentsby the defendant, the attorney general of Pennsylvania, that Section 230 did not apply
`
`to certain state criminal statutes. 2006 WL 2506338,at *3-4. The court explained that Section
`
`230(e)(3) madeit clear that Section 230 applies to state criminal laws. Id. at *3. That subsection
`
`states that no “cause of action” may be brought andno“liability” may be imposed underanyState
`
`orlocallaw thatis “inconsistent with” this section. The court foundthat the terms“liability” and
`
`“cause of action” in Section 230 encompasscriminalas well as civil actions. Id. Also, subsection
`
`(e)(3) providesthat no liability can be imposed under“anyStateor local law.” By the express
`
`language, Section 230 provides immunity to all inconsistent state laws and not onlycivil ones.
`
`Furthermore, Section 230 clearly sets forth whatareas of the law are excluded from its
`
`coverage. Subsection (e)(1) “provides that nothing in the CDAshall be construed to impair
`
`enforcementofcertain federal statutes governing obscenity and the sexualexploitation of
`”»
`children,‘or any other Federal criminal statute.” Voicenet, 2006 WL 2506318, at *3. Congress
`
`could have exempted state criminallaws, but did not do so. Id. at *4. Accord, People v. Gourlay,
`
`2009 WL 529216, at *2-3 (Mich. App. March 3, 2009)(finding that Section 230 applies to state
`
`criminallaw).
`
`D.
`
`Village Voice Satisfies All Requirements for Immunity UnderSection 230.
`
`DEFENSE_015294
`DEFENSE_015294
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 9 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 9 of 34
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`Village Voice falls squarely within the requirements of Section 230 and is immunefrom
`
`any state prosecution which would attemptto imposeliability on it arising from the contentof
`
`third party postings. Section 230 immunity exists if:
`
`(1) Village Voiceis a “provider or user of an
`
`interactive computerservice”; (2) the claim is based on “information provided by another
`
`information content provider”; and (3) the claim wouldtreat Village Voice “as the publisher or
`
`speaker”of that information. See 47 U.S.C. § 230(c)(1); Universal Commc’nSys., Inc. v. Lycos, Inc.,
`
`478 F.3d 413, 418 (ist Cir. 2007). All of these requirements are plainly met.
`
`1.
`
`Village Voice Is A “Provider” OfAn “Interactive Computer Service,” Namely
`The Backpage.com Website
`
`First, Village Voiceis a “provider” of an “interactive computerservice.” See 47 U.S.C. §
`
`230(c)(1). The term “interactive computer service”is defined in the statute as any information
`
`service, system, or access software provider that provides or enables computeraccess by multiple
`
`users to a computerserver, including specifically a service or system that provides access to the
`
`Internet and such systemsoperated orservices offered by libraries or educational institutions.” 47
`
`U.S.C. § 230(f)(2).
`
`Village Voice’s Backpage.com meetsthestatutory definition of an “interactive computer
`
`service.” Backpage.com provides an online service that allow people or companiesto post
`
`classified ads or messages regarding itemsfor sale; services, both commercial and noncommercial;
`
`and other information. Backpage.comis an “information service or system” which enables
`
`multiple users to access its “computerserver,” namely theserver that hosts its website. See Lycos,
`
`Inc., 478 F.3d at 419. Websites that allow users to post information have always beentreated as
`
`“interactive computerservices” underSection 230. See, e.g., Lycos, Inc., 478 F.3d 413; Ben Ezra,
`
`Weinstein & Co. v. America Online, Inc., 206 F.3d 980, 985 (,oth Cir. 2000). For example,
`
`craigslist.com, a providerof similar online classified ads, has been foundto be an “interactive
`
`DEFENSE_015295
`DEFENSE_015295
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 10 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 10 of 34
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`computerservice.” See Chicago Lawyers’ Comm.ForCivil Rights Under Law,Inc.v. craigslist, Inc.,
`
`519 F.3d 666 (7th Cir. 2008).
`
`2.
`
`The Ads In Question Are Posted By Users Of Backpage.com And ThusAre
`“Information Provided By Another Information Content Provider”
`
`Second, the ads and other postings on Backpage.com areclearly “information provided by
`
`anotherinformation content provider.” These adsare not created by Village Voice. The
`
`definition of “information contentprovider” is “any personorentity thatis responsible, in whole
`
`orin part, for the creation or developmentof information provided throughtheInternet or any
`
`other interactive computerservice.” Users of backpage.com whopostthe ads, messages or
`
`commentsclearly are information contentprovidersdistinct from Village Voice. See, e.g., Lycos,
`
`478 F.3d at 419.
`
`The fact that Backpage.com provides categories for posting does not changetheanalysis.
`
`Such basic editorial and organizational structures are separate from the content contained within
`
`them. Useof these categories does not makeVillage Voice “responsible, in whole orin part, for
`
`the creation or developmentof[the] information ....” See 47 U.S.C. § 230(f)(3).
`
`In fact, many if not most “interactive computerservices” provide some type of
`
`organization or categories for user-generated content. Withoutsuch,Internet sites and service
`
`using third party content would be chaotic and useless. For example, in Chicago Lawyers’ Comm.
`
`For Civil Rights Under Law,Inc. v. craigslist, Inc., craigslist provided a category labeled as
`
`“apartments,” where FHA non-compliantads wereposted, but the mere creation of that category
`
`did not, and could not, reasonably be construed as authorship in wholeorpart for the non-
`
`compliant content posted within that category, and thus it could not support liability for
`
`craigslist. Similarly, in Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 2008 WL 450095
`
`(M.D.Fla. Feb. 15, 2008), where the website www.ripoffreport.com allowed users to submit
`6
`reports on companies undersuchcategories as “conartists”, “corrupt companies” and “false TV
`
`7
`
`DEFENSE_015296
`DEFENSE_015296
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 11 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 11 of 34
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`advertisements,” as well as other non-negative categories, the court held that establishment of
`
`such categories did not make the defendantthe “information content provider.” 2008 WL
`
`450095,at *10, See also Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 832 (2002) (eBay’s product
`
`categories did not makeit responsible for ads created byits users for sale of bootleg materials).
`
`Only where a website publisher mandates use ofcertain contentbyits users does the
`
`publisher becomea co-author(or morespecifically, in the statutory language,“responsible... in
`
`part, for the creation or developmentof[the] information”), and hence lose Section 230
`
`immunity. That is what occurred in Fair Housing Council v. Roommates.com, 521 F.3d 1157 (9th
`
`Cir. 2008). Roommates.com required users in creating postings to select from entries provided in
`
`dropdown boxes, someof which required users to include unlawful ad content, suchasracial
`
`preferences for a roommate, Because Roommates.com mandateduseof certainillegal terms,it
`
`wasatleast a co-authorof the content of messages whenits users used those mandated terms.
`
`Thus, in that unusualsituation, the allegedly unlawful statements did notoriginate solely from
`
`“another information content provider.” Id. at 1165-66. Roommates.com in that case was one of
`
`the “information content provider[s]” since it was “responsible, in whole orin part, for the
`
`creation or developmentof information.” Id.
`
`Interestingly, Rommates.com also providedits users with an open-endedtextbox,titled
`
`“Additional Comments.” Id, at 173. Comments entered in this box by usersof the
`
`Roommates.com service, even when theyusedillegal terms, were covered by Section 230 such
`
`that Roommates.com was immune underSection 230 for that content. The decision likened this
`
`textbox to Chicago Lawyers’ Committeefor Civil Rights Under Law,Inc. v. craigslist, Inc., 519 F.3d
`
`666 (7th Cir. 2008), where an open-ended text prompt wasprovided that imparted no structure
`
`and did not “induce[] anyoneto post any particularlisting or express a preference for
`
`discrimination ....” Roommates.Com, 521 F.3d at 1172.
`
`DEFENSE_015297
`DEFENSE_015297
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 12 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 12 of 34
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`Just as Section 230 applies to the “Additional Comments” box in Roommates.com and to
`
`ordinary ad text prompts asin craigslist, it applies to Backpage.com’s user submissions.
`
`Backpage.com does notrequire users to enter inappropriateorillegal content. It does not provide
`
`users withillegal terms which they mustselect from, nordoesit direct them in any way to enter
`
`illegal or inappropriate content. (In fact, it prohibits illegal or inappropriate content, stating
`
`directly on the page where ads are entered thatusers should not advertiseillegal services or post
`
`obscene images,as explained further below.) Backpage.com only requiresusersto entera title,
`
`age, description, location, and someother options, such as e-mail address. Any possible unlawful
`
`content submittedby users,in violation of Backpage.com’s terms, would appear mostlikely in the
`
`title or description which are developed solelyfrom userentries in open-ended textboxes. Thus,
`
`such contentis fully protected by Section 230.
`
`Notably, by structuringits service to isolate sexually related content from other content,
`
`Backpageis utilizing a procedure that Congress encouraged andprotected in the CDA. Section
`
`230(c)(2) specifically states:
`
`Noprovideror user of an interactive computerservice shall be held liable on
`accountof(A) any action voluntarily taken in goodfaithto restrict access to or
`availability of material that the provideror user considers to be obscene, lewd,
`lascivious,filthy, excessively violent, harassing, or otherwise objectionable,
`whetheror not such material is constitutionally protected.
`
`This portion of Section 230 is knownas the “Good Samaritan”provision, and was written
`
`specifically to encourage web publishers and intermediaries to use their discretion in taking
`
`editorial actions with respect to arguably indecent and inappropriate user content, withoutfacing
`
`liability because of those actions. This subsection reversed the prior law, Stratton Oakmont, Inc.
`
`v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct., May 24, 1995), which had treated a service
`
`provider as a “publisher” solely becauseit edited and deleted someoffensive user material. Id. at
`
`*4. Congress reversed Stratton Oakmontin order to take away disincentivesto self-regulation.
`
`DEFENSE_015298
`DEFENSE_015298
`
`

`

`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 13 of 34
`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 13 of 34
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`Village Voice takesefforts to isolate sexually related content, by using categories clearly
`
`identifying such content, and by requiring users to go through warning and adult-screening entry
`
`screens, before entering thosecategories. It also uses sub-category labels such as “escorts, body
`
`rubs,TS,...” to zone offand separate adult material from family-friendly ads. By these techniques,
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`users can stay clear of such categories theyfind offensive, and canalso usefiltering and blocking
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`software to prevent themselvesor their children from viewing objectionable material, without
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`also blocking appropriate ads. All of these actionsofVillage Voicefall within the protection of
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`the Good Samaritan provision of Section 230.
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`3-
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`Village Voice Is The “Publisher” of User Ads on Backpage.com.
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`Since Village Voice is the provider of an “interactive computerservice” and the ads and
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`postings on Backpage.com are“information provided by anotherinformation contentprovider,”
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`Section 230 provides that it cannotbe heldliable “as the publisher” underanystate or local law
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`for the contentof those ads or postings. 47 U.S.C. § 230(3)(1).
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`BecauseVillage Voice could only beliable for user postedillegal contentif it were treated
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`“as the publisher,” imposition of anysuchliability is clearly prohibited by Section 230. This is so
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`because Congress in enacting Section 230realized that while brick and mortar publishers have a
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`duty to review and screen material, imposition of such requirements on the Internet would be
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`virtually impossible and would effectively shut down the medium, which Congress viewed as
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`essential to the country’s growth and future. See e.g., Zeran, 12g F.3d at 330, 333 (“the sheer
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`numberofpostings on interactive computer services would create an impossible burdenin the
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`Internet context;” and so “lawsuits seeking to hold a service providerliable for its exercise of a
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`publisher's traditionaleditorialfunctions—suchas deciding whetherto publish, withdraw,
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`postponeor alter content—are barred.”) (emphasis added).
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`10
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`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 14 of 34
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`No matter how a causeofactionis labeled, or whetherit is civil or criminal, Village Voice
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`is immunefrom anyliability for the contentof third party information. It cannot be held liable as
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`a publisher, for not removing the material, or for failing to implementbetter protective measures.
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`Zeran, 129 F.3d at 330; Doe v. Myspace, Inc., 528 F.3d 413, 419-20 (5th Cir. 2008).
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`4
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`The Commercial Nature of Backpage.comIs Irrelevant.
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`Thefact that Village Voice and its Backpage.com service operate on a for-profit basis is
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`completely irrelevant to the Section 230 analysis. In just about every case involving Section 230,
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`the interactive computerservice provider wasa for-profit company.It also is irrelevant that
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`Village Voice is potentially making moneyoff of userads, evenifit ultimately develops that some
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`of them containillegal content.
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`In Blumenthalv. Drudge, 992 F. Supp. 44 (D.D.C. 1998), AOL entered into a contractfor
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`Drudgeto create content that would be posted on AOL. Drudge,after writing his Drudgereport,
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`would emailit to AOL, which would thenpostit on its services. Id. at 48. AOL paid Drudge
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`$3,000 a month. Id. at 47. Oneof the reports contained false and defamatory statements.
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`Id.at
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`47-48. The Court foundit irrelevant that Drudge was paid by AOLtocreate the content, or even
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`that AOLactively and aggressively promoted and advertisedit. Id. at 51. Section 230 is clearin its
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`broad sweep, and AOL was immunefromliability. Id. at 53.
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`By the sametoken,it is irrelevant that Backpage.com chargesto post ads in someofits
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`categories, and thuspotentially receives moneyto post ads which could beillegal. Village Voiceis
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`a providerof an “interactive computerservice” and these adsare “information created by another
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`information content provider.” Therefore, Village Voice cannotbe treated as the publisherof the
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`information.
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`E.
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`State Officials Face Liability Under 42 U.S.C. § 1983 If They Violate Village
`Voice’s Statutory Rights UnderSection 230.
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`il
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`Case 2:18-cr-00422-DJH Document 1393-2 Filed 11/17/21 Page 15 of 34
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`State action directed against Village Voice based uponits publication of user-generated
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`content on Backpage.com could resultin liability to the involvedstate officials. The Civil Rights
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`Act, 42 U.S.C. § 1983 (“Section 1983”), states:
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`Every person who undercolorof anystatute, ordinance, regulation, custom, or
`usage, of any State or Territory or the District of Columbia, subjects, or causes to
`be subjected, any citizen of the United States or other person within the
`jurisdiction thereofto the deprivationofanyrights, privileges, or immunities
`secured by the Constitution and laws, shall be liable to the party injured in an
`action at law, Suit in equity, or other proper proceedingfor redress ....
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`42 U.S.C. § 1983 (emphasis added).
`
`In Voicenet, state officials executed a search warrant on the premisesofplaintiff, a
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`provider of usenetservices, regarding a Pennsylvaniastate statute which criminalizes the knowing
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`distribution and possessionof child pornography. 2006 WL 2506318, at *1. Voicenet brought a
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`variety of claims, including violation of Section 1983, against the Pennsylvania attorney general
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`and otherstate officials.
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`The court denied a motion to dismiss the Section 1983 claim, holding that Section 230 was
`
`a right enforceable by Section 1983. Section 230 metthe Blessing v. Freestone, 520 U.S.329, 340-41
`
`(1997), test in that (a) it was intendedto benefit theplaintiff, (b) it is not too “vague and
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`amorphous”for a court to enforce, and (c) it imposes a binding obligation on the state. Voicenet,
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`2006 WL 2506318, at *2-3.
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`In finding that Section 230 imposesa binding obligation onthestate, the court in
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`Voicenet cited to Golden State Transit Corp. v. City ofLos Angeles, 493 U.S. 103 (1989), where the
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`SupremeCourt held “that a statute that ‘denies [a] sovereign the authority to abridgea personal
`
`liberty’ imposes a binding obligation on theState.” Voicenet, 2006 WL 2506318, at *2-3 (quoting
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`Golden State, 493 U.S. at 12). The National Labor Relations Act (“NLRA”) gave parties to a
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`collective-bargaining agreementthe right to bargain with each other “free of governmental
`
`interference,” thus creating a “free zone from whichall regulation, whetherfederalorstate, is
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`12
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`excluded.” Golden State Transit, 493 U.S. at 10-11. Where, in Golden State Transit, the defendant
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`city refused to renew a taxicab company’s franchise unlessit settled a dispute withits union, the
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`SupremeCourt held that the companycould enforce this violation of the NLRA throughtheCivil
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`Rights Act. Id. at 104.
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`Similarly, Section 230 created a “free zone” that protects service providers from being held
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`liable by a state for information postedby others. See Voicenet, 2006 WL 2506338,at *3. Thus,
`
`Section 230 imposes a binding obligation on the State, which can be enforced throughtheCivil
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`Rights Act, to not treat an interactive computerservice provider as the publisheror speaker of
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`information providedby others. Seeid. at *5. The Court in Voicenet therefore denied the motion
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`to dismiss. Id. at *1-5 (but holding thatstate officials had qualified immunity from money
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`damagessinceat that time the right was notclearly established).
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`II.
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`EVEN IF SECTION 230 DID NOT APPLY, VILLAGE VOICE WOULD NotBE LIABLE FOR
`BACKPAGE.COM CONTENT THAT ALLEGEDLY PROMOTESPROSTITUTION.
`
`A.
`
`Village Voice’s Policies and Practices Prohibit, Monitor for, and Remove
`Advertisementsfor Illegal Services
`
`Anyanalysis of potenti