Yet Another Court Says Victims Don't Need SESTA/FOSTA To Go After Backpage

We already pointed to a ruling in Massachusetts showing that victims of sex trafficking don't need SESTA/FOSTA to get around CDA 230 and go after Backpage when Backpage is an active participant, and now another court has found something similar. Found via Eric Goldman, a court in Florida has rejected a motion to dismiss by Backpage on CDA 230 grounds. The full order is here (and embedded below).

As with other cases (including the Massachusetts case) the real issue here is whether or not Backpage was just a service provider, or if it crossed the line into being a content provider itself, and did so in ways that broke the law. To be clear, the court here does seem... confused about CDA 230 and how other courts have ruled, and basically rejects plenty of existing caselaw and the nature of 230:

Some courts characterize the "protection" of 230(c)(1) as "a broad immunity," but this view is not universal.... And some courts regard 230(c)(1) as an affirmative defense that needs not be overcome by a complaint's allegations and is not the proper subject of a Rule 12(b)(6) motion to dismiss. Some courts have found that even if it is affirmative defense, the issue of the applicability of 230(c)(1) can be resolved on a 12(b)(6) motion if it is clear from the face of the complaint...."

That basically is laying out a few different interpretations of CDA 230 -- but does little to note that nearly all courts have found it to represent a broad immunity, and one that can be used at the motion to dismiss stage. Instead, this ruling points to a few limited cases that have found otherwise, and acted as if there's a widespread dispute with equal balance on either side. It also exaggerates the finding in some of those other cases, such as in Barnes where the court noted 230 immunity is not "absolute" (that case involved an employee promising to do something, which removed the 230 immunity). But here, the court interprets "not absolute" as meaning "not broad." And, as Goldman points out in his post, those two things are not synonymous.

Also odd in this ruling is that, unlike in the Massachusetts ruling, the court here presents no explanation of why Backpage has passed the threshold from service provider to content provider, and thus is no longer immune under CDA 230. Instead, it just says sufficient evidence has been presented.

Plaintiffs have alleged facts suggesting that Defendants materially contributed to the content of the advertisements, and thus the issue of CDA immunity cannot be resolved on a Rule 12(b)(6) motion to dismiss in this case.

That's... a pretty important sentence in a ruling, and you'd hope that it was backed up with evidence for why that is (as happened in the Massachusetts case). That's not to say it's wrong. It might be right, but it's important to know what activities take one from being a service provider to a content provider, and courts have fought over these issues in the past. Here, what you see in that sentence above is basically all the court has to say.

The court does note other problems with the complaint, and tells the plaintiffs to try amend the complaint, and this time to actually plead an actual federal claim. As it notes the existing claim doesn't make much sense -- arguing that Backpage tried to hide advertisements of minors, but this case doesn't even involve a minor. However, as Eric Goldman points out, even with this weak of a complaint and with a court that doesn't really explain its reasoning, the court is willing to get past the CDA 230 arguments, and again this raises the issue of why did we need SESTA and FOSTA in the first place.

The loudest advocates for SESTA/FOSTA kept falsely portraying Backpage as 100% immune from any claim due to CDA 230. Yet, this ruling and last week's ruling (not to mention an earlier ruling in Washington, a federal grand jury, and a Senate investigation) certainly suggested that Backpage was not 100% protected by CDA 230. Instead, just as Congress intended with CDA 230, it was protected from illegal actions done by others on its platform, and is not protected from illegal actions that it does itself.

But, of course, none of this seems to matter. Congress overwhelmingly voted SESTA/FOSTA through, and we're hearing that President Trump will sign it into law sometime next week.