The protections that courts have given to online publishers under Section 230 of the Communications Decency Act 1996 (the “CDA”) just may have gone too far.
On Monday 9 January 2017, the Supreme Court denied a petition to hear the appeal from three victims of trafficking, accusing Backpage.com – the world’s second-largest classified advertising website – of enabling their exploitation. Backpage.com defended itself on the basis of Section 230, claiming immunity as a mere host of the content created by others.
Section 230 grants broad immunity to interactive websites that host content provided by third parties. The immunity is only lost where a website operator edits the content in a manner that contributes to the alleged illegality. Fair Hous. Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (2008).
That same day, the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations (“the Senate Subcommittee”) released a damning report, accusing, among other things, Backpage.com of consistently and automatically deleting incriminating words from sex ads prior to their publication and knowingly facilitating prostitution and child sex trafficking. The report argues that the newly uncovered evidence makes it clear that Backpage.com went beyond passive publication of third-party content to editing content to conceal illegality. A few hours later, Backpage.com shut the adult services section of its website, along with the statement “The government has unconstitutionally censored this content” and the hashtag “#FREESPEECH”.
On Tuesday 10 January 2017, the Senate Subcommittee held an Investigations hearing on the matter, where Backpage.com executives that had been compelled to appear refused to testify, invoking the First and Fifth Amendments. Democrat Sen. Claire McCaskill, described Backpage’s practices as “the definition of evil”. Republican Sen. Rob Portman rejected Backpage’s censorship claims, calling Backpage’s closure of its adult services section the “validation of [the report’s] findings” instead.
Speaking to reporters following the hearing, Sen. Claire McCaskill called for an amendment of the CDA “in a changing world”. This is not the first time such calls have been issued. In July 2013, 47 state attorneys signed a letter to Congress, asking it to amend the CDA, pointing to the irony that the CDA, intended to protect children from indecent material on the internet, was now being “used as a shield by those who intentionally profit from prostitution and crimes against children”. The 47 AGs specifically requested that Section 230 be amended to enable not only (as it currently does) Federal but also State prosecutions.
For supporters of Section 230, the First Amendment implications of such a change are deemed too great and would undermine the “collective commitment” to free speech online. Judges are also reluctant to jeopardize this commitment by applying a narrow interpretation of Section 230. In Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (2016) [pdf], the First Circuit upheld the applicability of Section 230 to Backpage.com, finding that the websites features did not make it a content-creator. The Court was clear: “[i]f the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is though legislation, not through litigation”. [The Scotus Blog case page for Doe v Backpage can be found here.]
Whether recent comments following the Backpage.com scandal will translate into such legislation remains to be seen.
Ed Klaris is the founding partner of Klaris Law PLLC. Alexia Bedat is an Associate at the firm.
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