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Wash. Sup. Ct. Hears Arguments in Backpage Escort Service Ad Case

By Mark Wilson, Esq. | Last updated on

Washington's Supreme Court heard oral arguments Tuesday in a case styled J.S. v. Village Voice Media, but known better as the "Backpage" case. is a website, owned by Village Voice Media, that allows people to contract with "escort" services for -- well, the things that you would do with an escort.

The plaintiffs are minors who were between 15 and 17 when they were allegedly sex trafficked -- not by Backpage, but by professional pimps who posted ads for them on Backpage. They claim that Village Voice knew exactly what was going on; namely, that pimps trafficked in underage girls on Backpage, but did nothing about it because they were making a whole lot of money.

You've Got a Big Hurdle There

The case centers on Village Voice's liability vis-à-vis Section 230 of the Communications Decency Act. Section 230 is a "safe harbor" provision that exempts content providers from liability for the actions of their users, where the users themselves are entirely responsible for generating the content. It's been used in many jurisdictions to shield websites from liability for everything from defamation to illegal gun sales.

Village Voice's argument is largely the same as that made by others who have asserted Section 230 protection in the past: Failure to immunize it from liability would chill free speech online. And Village Voice has a lot of case law on its side: In separate cases dealing with Backpage in New Jersey and Tennessee, courts not only upheld "escort services" as lawful businesses, but also advertising of such services as protected by the First Amendment.

"There might be some room for the courts to explore" the idea that a website might not be "a neutral party," but rather might try to encourage "a certain kind of content," Chief Justice Barbara Madsen suggested. James Grant, counsel for Village Voice, resisted: Case law, he said, is "uniform" that encouraging, inducing, or promoting isn't enough to overcome Section 230 liability.

'Helping Pimps Sell Children'

If you don't have the law on your side, you pound the facts -- and that's just what Erik Bauer, attorney for the minors, had to do in arguing that Section 230 shouldn't apply. Bauer continued to reiterate that Backpage was "helping pimps sell children" on its website. He also tried to make the argument that Backpage couldn't escape liability because it was at least partly responsible for the creation of content (which is the only way it wouldn't be able to escape liability).

How? By claiming that Backpage is responsible "in part" for the sex trafficking on its website because the website removes police "sting" ads and gives advice and instructions on making a good escort advertisement. A lot of this information isn't developed yet, however, because the case is only being appealed at the dismissal stage.

Perhaps a remand to develop the record more would be in order, to see just how much involvement Backpage has in the development of these ads. It's going to be tough: Backpage has won case after case on Section 230 immunity grounds -- including cases in federal court in Washington state.

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