The following contains the analysis and opinions of the author and no one else. The author does not speak for the Backpage defendants.

During the second Backpage trial in 2023, prosecutors sought an end-run around the First Amendment, claiming that the classified ads website Backpage.com had been “on notice” from state Attorneys General, religious groups, activists and others, who complained about Backpage’s publishing of legal adult ads for massage, escorts, and dating.

Testimony and documents from these organizations and their leaders were allowed into the trial, despite the fact that their opinions do not supersede the First Amendment, which presumptively protects all speech, save for certain very narrow categories.

What was not allowed into court was a mountain of evidence demonstrating the Backpage defendants’ good faith belief that they and their company were operating within the law.  This includes attorney letters and a string of favorable decisions in federal and state courts holding
that Backpage’s publication of adult advertising was protected both by the First Amendment and Section 230 of the Communications Decency Act.

One of the many documents barred from admission during trial was the so-called “Sableman memo,” an analysis of Backpage’s liability — or lack thereof — under criminal and civil law by Missouri attorney Mark Sableman, a well-known media lawyer. According to court documents, one of the Backpage 3, Jed Brunst, former chief financial officer of Backpage’s parent company, Village Voice Media, sent the memo to a bank in 2010 in order to demonstrate Backpage’s lawfulness.

The memo makes standard arguments regarding Backpage’s First Amendment and Section 230 protections. It also observes that Backpage’s owners and operators took “extensive efforts to
prevent and remove ads for illegal services,” showing they lacked the intent to commit or
aid and abet in the commission of a crime.

In a First Amendment context, criminal intent is a necessary component of any law targeting speech. The memo cites the 1959 U.S. Supreme Court Case Smith v. California, in which SCOTUS held that “a bookseller cannot be found criminally liable for simply having an obscene book in his or her store; rather, criminal laws against sale of obscene publications can only be applied to booksellers who know of the book’s unlawful content.”

The memo adds that “unless knowledge of the obscenity of the targeted publication is required for a prosecution of a bookseller, then booksellers would be required to pre-read and screen every book.” As a result, numerous books “containing protected speech would be withheld from sale as booksellers pro-actively removed borderline books from their shelves, to the harm of the public and its right of free expression.”

The memo also points out that the remoteness or the degree to which an act is removed from the crime involved is also a factor in determining criminal liability. This analysis verges on what non-lawyers might refer to as common sense.

The memo reads:

“In a felony murder case, a getaway car driver may be convicted even though he did not pull the trigger, because of his intentional involvement in the crime team and the foreseeability of possible harm. That is, his involvement is sufficiently close to the wrongful conduct that it is fair to make him liable. But the person who sold the getaway car driver his car, or the store that sold the bank robber his ski mask, are not liable, because such involvement is too remote.”

Holding the owners of an interactive website criminally responsible for illegal acts committed by unknown third parties connected to a vaguely-worded, adult-themed ad that the defendants never saw would seem an absurd length to stretch criminal liability.

And yet, that’s precisely what occurred in the Backpage trial. Brunst and his fellow VVM executive Scott Spear each are currently serving a 10 year prison sentence as a result. Storied VVM executive editor Michael Lacey is serving a five year sentence. All three men are in their 70s and have filed notices of appeal.

Below, in italics, is the text of the Sableman memo. It’s unfortunate the jury never saw it.

Why Village Voice Media’s Backpage.com Service Does Not Create Liability for Promoting Prostitution

Mark Sableman
Anthony F. Blum

I. VILLAGE VOICE MEDIA LLC Is IMMUNE FROM LIABILITY FOR THE MESSAGES OF USERS OF ITS BACKPAGE.COM SERVICE

Village Voice Media LLC (“Village Voice”) is exempt by virtue of a federal statute from state civil or criminal liability for any illegal content posted on its 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”), sometimes referred to by the title of the chapter in which it was contained, the Communications Decency Act (“CDA”), precludes liability 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 enacted legislation “(1) to promote the continued development of the Internet and other interactive computer services and other interactive media [and] (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” 47 U.S.C. § 23o(b).

Congress at the time made findings that the Internet “offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” It further noted that “The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.”

Based on these findings and policies, Congress made the decision to not hold interactive computer service providers liable for user-generated content. This did not strip the government or wronged parties of redress for problems created by such content, because nothing in Congress’ enactment prevents the original culpable party who posted any unlawful or harmful content from being held liable. See Zeran, 129 F.3d at 330. However, Congress realized that the “Internet is a unique and wholly new medium of worldwide human communication”; that internet service providers have hundreds of millions of users; and that it 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 measure essential to the growth and development of the Internet. If service providers were “[ f]aced with potential liability for every message republished by their services, interactive computer service providers might choose to 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 be lost.

Section 230 has directly 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 congressional policy by broadly immunizing Internet intermediaries from liability based on user content. Section 230 states: “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.” 47 U.S.C. § 23o(c)(1). Furthermore, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 23o(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”) was sued in negligence for failing to remove defamatory messages posted on an AOL bulletin board. Id. at 329. The Court found that Section 230 by its plain language created “federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Id. at 330. A service provider cannot be held liable as a publisher of the third party content, nor can it be held liable for exercising “traditional editorial functions,” such as deciding whether to publish, withdraw, postpone or alter the content of a third party. Id. The Court, therefore, held that the claim was barred by Section 230. Id. at 327.

Since Zeran, “[t]he majority offederal circuits have interpreted the CDA to establish broad ‘federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”‘ Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir. 2007) (internal cites omitted); see also Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (“Courts have construed the immunity provisions in§ 230 broadly in all cases arising from the publication of user-generated content.”); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,419 (1st Cir. 2007) (“[W]e too find that Section 230 immunity should be broadly construed.”); Almeida v. Amazon, Inc., 456 F.3d 1316, 1321 (11nth Cir. 2006); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (following the “consensus developing across other courts of appeals that§ 23o(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 (10th Cir. 2000).

Even defamatory, harmful and despicable content is covered by Section 230-with the effect that Internet intermediaries are not liable for that content, and only the originators of it are. In Zeran, the content at issue were a series of postings that falsely accused Mr. Zeran of delighting in the Oklahoma City federal building bombing. In Carafano, the content at issue was a false dating service posting, portraying Ms. Carafano as sexually promiscuous. In Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998), the content at issue (content that AOL could have previewed, did in fact edit, and did in fact profit from) allegedly constituted defamation of a top White House official. In all of these cases, courts applied section 230 by its terms, realizing that Congress made the determination that Internet intermediate can and must be immunized for liability for user content, even where that content was wrongful, illegal, and/or harmful.

Section 230 applies to any cause of action, not specifically exempted in the statute, that would hold a service provider liable for the content of another. This immunity defense has been applied to a number of different causes of action, including negligence, defamation, invasion of privacy, misappropriation of the right of publicity, state securities and cyberstalking acts, and violations of 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. For Civil 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. § 23o(e) (stating the section has no effect on intellectual property, the Electronic Communications Privacy Act, or federal 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 hold a service provider liable for user-generated content. See Gregerson v. Vilana Finan., Inc., No. 06-1164, 2008 WL 451060, at *8 (D. Minn. Feb. Faegre & Benson, LLPv. 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).

C. Section 230 Prohibits State Criminal Laws and Prosecutions That Would Impose Criminal Liability On An Interactive Computer Service Provider For Third Party Content.

Section 230 provides immunity not only for civil liability but also for liability under state criminal statutes. 47 U.S.C. § 23o(e)(3) (“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”).

In Voicenet Commc’n, Inc. v. Corbett, 2006 WL 2506318 (E.D. Pa. 2006), the court rejected arguments by the defendant, the attorney general of Pennsylvania, that Section 230 did not apply to certain state criminal statutes. 2006 WL 2506318, at *3-4. The court explained that Section 23o(e)(3) made it clear that Section 230 applies to state criminal laws. Id. at *3. That subsection states that no “cause of action” may be brought and no “liability” may be imposed under any State or local law that is “inconsistent with” this section. The court found that the terms “liability” and “cause of action” in Section 230 encompass criminal as well as civil actions. Id. Also, subsection (e)(3) provides that no liability can be imposed under “any State or local law.” By the express language, Section 230 provides immunity to all inconsistent state laws and not only civil ones.

Furthermore, Section 230 clearly sets forth what areas of the law are excluded from its coverage. Subsection (e)(1) “provides that nothing in the CDA shall be construed to impair enforcement of certain federal statutes governing obscenity and the sexual exploitation of children, ‘or any other Federal criminal statute.”‘ Voicenet, 2006 WL 2506318, at *3. Congress could have exempted state criminal laws, 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 criminal law).

D. Village Voice Satisfies All Requirements for Immunity Under Section 230.

Village Voice falls squarely within the requirements of Section 230 and is immune from any state prosecution which would attempt to impose liability on it arising from the content of third party postings. Section 230 immunity exists if: (1) Village Voice 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 Village Voice “as the publisher or speaker” of that information. See 47 U.S.C. § 23o(c)(1); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,418 (1st Cir. 2007). All of these requirements are plainly met.

1. Village Voice Is A “Provider” Of An “Interactive Computer Service,” Namely The Backpage.com Website

First, Village Voice is a “provider” of an “interactive computer service.” See 47 U.S.C. § 23o(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 computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(£)(2).

Village Voice’s Backpage.com meets the statutory definition of an “interactive computer service.” Backpage.com provides an online service that allow people or companies to post classified ads or messages regarding items for sale; services, both commercial and noncommercial; and other information. Backpage.com is an “information service or system” which enables multiple users to access its “computer server,” namely the server that hosts its website. See Lycos, Inc., 478 F.3d at 419. Websites that allow users to post information have always been treated as “interactive computer services” under Section 230. See, e.g., Lycos, Inc., 478 F.3d 413; Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980, 985 (10th Cir. 2000). For example, craigslist.com, a provider of similar online classified ads, has been found to be an “interactive computer service.” See Chicago Lawyers’ Comm. For Civil 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 Thus Are “Information Provided By Another Information Content Provider”

Second, the ads and other postings on Backpage.com are clearly “information provided by another information content provider.” These ads are not created by Village Voice. The definition of “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Users of backpage.com who post the ads, messages or comments clearly are information content providers distinct from Village Voice. See, e.g., Lycos, 478 F.3d at 419.

The fact that Backpage.com provides categories for posting does not change the analysis. Such basic editorial and organizational structures are separate from the content contained within them. Use of these categories does not make Village Voice “responsible, in whole or in part, for the creation or development of [the] information . .. . ” See 47 U.S.C. § 23o(f)(3).

In fact, many if not most “interactive computer services” provide some type of organization or categories for user-generated content. Without such, 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-compliant ads were posted, but the mere creation of that category did not, and could not, reasonably be construed as authorship in whole or part for the noncompliant 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 reports on companies under such categories as “con artists”, “corrupt companies” and “false TV advertisements,” as well as other non-negative categories, the court held that establishment of such categories did not make the defendant the “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 make it responsible for ads created by its users for sale of bootleg materials).

Only where a website publisher mandates use of certain content by its users does the publisher become a co-author (or more specifically, in the statutory language, “responsible … in part, for the creation or development of [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, some of which required users to include unlawful ad content, such as racial preferences for a roommate. Because Roommates.com mandated use of certain illegal terms, it was at least a co-author of the content of messages when its users used those mandated terms. Thus, in that unusual situation, the allegedly unlawful statements did not originate 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 or in part, for the creation or development of information.” Id.

Interestingly, Rommates.com also provided its users with an open-ended textbox, titled “Additional Comments.” Id. at 1173. Comments entered in this box by users of the Roommates.com service, even when they used illegal terms, were covered by Section 230 such that Roommates.com was immune under Section 230 for that content. The decision likened this textbox to Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), where an open-ended text prompt was provided that imparted no structure and did not “induce[] anyone to post any particular listing or express a preference for discrimination …. ” Roommates.Com, 521 F.3d at 1172.

Just as Section 230 applies to the “Additional Comments” box in Roommates.com and to ordinary ad text prompts as in craigslist, it applies to Backpage.com’s user submissions. Backpage.com does not require users to enter inappropriate or illegal content. It does not provide users with illegal terms which they must select from, nor does it 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 that users should not advertise illegal services or post obscene images, as explained further below.) Backpage.com only requires users to enter a title, age, description, location, and some other options, such as e-mail address. Any possible unlawful content submitted by users, in violation of Backpage.com’s terms, would appear most likely in the title or description which are developed solely from user entries in open-ended textboxes. Thus, such content is fully protected by Section 230.

Notably, by structuring its service to isolate sexually related content from other content, Backpage is utilizing a procedure that Congress encouraged and protected in the CDA. Section 230( c) (2) specifically states:

“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.”

This portion of Section 230 is known as 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, without facing 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 because it edited and deleted some offensive user material. Id. at *4. Congress reversed Stratton Oakmont in order to take away disincentives to self-regulation.

Village Voice takes efforts 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 those categories. It also uses sub-category labels such as “escorts, body rubs, TS, … ” to zone off and separate adult material from family-friendly ads. By these techniques, users can stay clear of such categories they find offensive, and can also use filtering and blocking software to prevent themselves or their children from viewing objectionable material, without also blocking appropriate ads. All of these actions of Village Voice fall within the protection of the Good Samaritan provision of Section 230.

3. Village Voice Is The “Publisher” of User Ads on Backpage.com.

Since Village Voice is the provider of an “interactive computer service” and the ads and postings on Backpage.com are “information provided by another information content provider,” Section 230 provides that it cannot be held liable “as the publisher” under any state or local law for the content of those ads or postings. 47 U.S.C. § 230(3)(1).

Because Village Voice could only be liable for user posted illegal content if it were treated “as the publisher,” imposition of any such liability is clearly prohibited by Section 230. This is so because Congress in enacting Section 230 realized that while brick and mortar publishers have a duty to review and screen material, imposition of such requirements on the Internet would be virtually impossible and would effectively shut down the medium, which Congress viewed as essential to the country’s growth and future. See e.g., Zeran, 129 F.3d at 330, 333 (“the sheer number of postings on interactive computer services would create an impossible burden in the Internet context;” and so “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.”)

No matter how a cause of action is labeled, or whether it is civil or criminal, Village Voice is immune from any liability for the content of third party information. It cannot be held liable as a publisher, for not removing the material, or for failing to implement better protective measures. Zeran, 129 F.3d at 330; Doe v. Myspace, Inc., 528 F.3d 413, 419-20 (5th Cir. 2008).

4. The Commercial Nature of Backpage.com Is Irrelevant.

The fact that Village Voice and its Backpage.com service operate on a for-profit basis is completely irrelevant to the Section 230 analysis. In just about eve1y case involving Section 230, the interactive computer service provider was a for-profit company. It also is irrelevant that Village Voice is potentially making money off of user ads, even if it ultimately develops that some of them contain illegal content.

In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), AOL entered into a contract for Drudge to create content that would be posted on AOL. Drudge, after writing his Drudge report, would email it to AOL, which would then post it on its services. Id. at 48. AOL paid Drudge $3,000 a month. Id. at 47. One of the reports contained false and defamatory statements. Id. at 47-48. The Court found it irrelevant that Drudge was paid by AOL to create the content, or even that AOL actively and aggressively promoted and advertised it. Id. at 51. Section 230 is clear in its broad sweep, and AOL was immune from liability. Id. at 53.

By the same token, it is irrelevant that Backpage.com charges to post ads in some of its categories, and thus potentially receives money to post ads which could be illegal. Village Voice is a provider of an “interactive computer service” and these ads are “information created by another information content provider.” Therefore, Village Voice cannot be treated as the publisher of the information.

E. State Officials Face Liability Under 42 U.S.C. § 1983 If They Violate Village Voice’s Statutory Rights Under Section 230.

State action directed against Village Voice based upon its publication of user-generated content on Backpage.com could result in liability to the involved state officials. The Civil Rights Act, 42 U.S.C. § 1983 (“Section 1983”), states:

“Every person who under color of any statute, 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 thereof to the deprivation of any rights, 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 proceeding for redress ….” 42 U.S.C. § 1983 (emphasis added).

In Voicenet, state officials executed a search warrant on the premises of plaintiff, a provider of usenet services, regarding a Pennsylvania state statute which criminalizes the knowing distribution and possession of child pornography. 2006 WL 2506318, at *1. Voicenet brought a variety of claims, including violation of Section 1983, against the Pennsylvania attorney general and other state officials.

The court denied a motion to dismiss the Section 1983 claim, holding that Section 230 was a right enforceable by Section 1983. Section 230 met the Blessing v. Freestone, 520 U.S. 329, 340-41 (1997), test in that (a) it was intended to benefit the plaintiff, (b) it is not too “vague and amorphous” for a court to enforce, and (c) it imposes a binding obligation on the state.

In finding that Section 230 imposes a binding obligation on the state, the court in Voicenet cited to Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989), where the Supreme Court held “that a statute that ‘denies [a] sovereign the authority to abridge a personal liberty’ imposes a binding obligation on the State.” Voicenet, 2006 WL 2506318, at *2-3 (quoting Golden State, 493 U.S. at 112). The National Labor Relations Act (“NLRA”) gave parties to a collective-bargaining agreement the right to bargain with each other “free of governmental interference,” thus creating a “free zone from which all regulation, whether federal or state, is excluded.” Golden State Transit, 493 U.S. at 110- 11. Where, in Golden State Transit, the defendant city refused to renew a taxicab company’s franchise unless it settled a dispute with its union, the Supreme Court held that the company could enforce this violation of the NLRA through the Civil Rights Act. Id. at 104.

Similarly, Section 230 created a “free zone” that protects service providers from being held liable by a state for information posted by others. See Voicenet, 2006 WL 2506318, at *3. Thus, Section 230 imposes a binding obligation on the State, which can be enforced through the Civil Rights Act, to not treat an interactive computer service provider as the publisher or speaker of information provided by others. See id. at *5. The Court in Voicenet therefore denied the motion to dismiss. Id. at *1-5 (but holding that state officials had qualified immunity from money damages since at that time the right was not clearly established).

II. EVEN IF SECTION 230 DID NOT APPLY, VILLAGE VOICE WOULD NOT BE LIABLE FOR BACKPAGE.COM CONTENT THAT ALLEGEDLY PROMOTES PROSTITUTION.

Before any user can enter any category in the “personals” or “adult” section, the Backpage.com site requires the user to read and agree to entry terms. The entry terms for the “personals” section prohibit access to those under 18. They warn that the user “may encounter some sexual content, pictorial nudity or adult language,” and request users report inappropriate content. They also link back to the “Terms of Use” and require users to read and agree to them.

Different entry terms are used for all categories in the “adult” section. These entry terms also warn that the “section contains sexual content, including pictorial nudity and adult language,” and that the user should not access it unless he or she is over 18 (or of legal age in the user’s jurisdiction). These entry terms also link back to the full Backpage.com “Terms of Use,” which one is required to read and agree to before using the service. Additionally, the entry terms ask all users to “agree to report any illegal services or activities which violate the Terms of Use,” and provide an e-mail address to which such reports should be directed.

When a user attempts to post an ad in the “Escorts,” “Body Rubs” or “TS” categories, the following statements appear clearly and visibly at the top of the page in red type: “Do not suggest an exchange of sexual favors for money,” “Do not use code words such as ‘greek’, ‘bbbj’, ‘blow’, ‘trips to greece’, etc.,” “Do not post obscene images,” and “Do not post content which advertises an illegal service.” A legend at the top of the page explains that ads not complying with the terms are subject to removal. When a user attempts to post in the “Phones & Websites” category, the following statements appear in red type: “Do NOT post escort, massage ads, or obscene pies here” and “Do NOT post content which advertises an illegal service.

In order to complete a post in any adult service or massage category, Backpage.com requires the use of a credit card. This deters users from posting ads for illegal services, since a record is kept that can be used by law enforcement officials. It also eliminates most prank postings and postings by under-age users.

When users report non-complying material, Backpage.com takes reasonable efforts to promptly remove offending advertisements. Each month, for example, Village Voice removes almost 150,000 ads from among more than one million posted in that time period on Backpage.com.

B. Village Voice Cannot Be Liable Under Missouri Law For Promoting Prostitution.

Under a standard criminal law analysis, Village Voice cannot be held criminally liable merely because some of its users violate its terms and post advertisements for illegal services, such as prostitution. Statutes relating to promotion of prostitution were not meant to, and cannot, apply to publishers like Village Voice that merely provide an advertising medium for others, prohibit ads for illegal activities, actively screen for and encourage reporting of noncomplying ads, and promptly remove any such ads.

“Aiding and abetting” liability is a form of derivative liability-a situation where one party is held liable for another’s conduct. Derivative liability can be sensitive and troublesome particularly in the criminal law, and accordingly the law sets intent and remoteness limits on derivative liability. The scienter (intent) requirement set forth in Section II.B.1. above is one such limit. Additionally, prudential consideration of remoteness also limit derivative liability. In a felony murder case, a getaway car driver may be convicted even though he did not pull the trigger, because of his intentional involvement in the crime team and the foreseeability of possible harm. That is, his involvement is sufficiently close to the wrongful conduct that it is fair to make him liable. But the person who sold the getaway car driver his car, or the store that sold the bank robber his ski mask, are not liable, because such involvement is too remote.

Judge Richard Posner explained that remoteness of an intermediary from another’s wrongful conduct can protect the intermediary even if he or she knows or strongly suspects that a wrongful activity will occur:

 A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if he knows that some of his customers are prostitutes-he may even know which ones are. See United States v. Giovannetti, supra, 919 F.2d at 1227; People v. Lauria, 251 Cal.App.2d 471, 59 Cal.Rptr. 628 (1967); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 746-47 (3d ed.1982). The extent to which his activities and those of similar sellers actually promote prostitution is likely to be slight relative to the social costs of imposing a risk of prosecution on him. But the owner of a massage parlor who employs women who are capable of giving massages, but in fact as he knows sell only sex and never massages to their customers, is an aider and abettor of prostitution (as well as being guilty of pimping or operating a brothel). See United States v. Sigalow, 812 F.2d 783, 784, 785 (2d Cir.1987); State v. Carpenter, 122 Ohio App.3d 16, 701 N.E.2d 10, 13, 18-19 (1997); cf. United States v. Luciano Mosquera, 63 F.3d 1142, 1149-50 (1st Cir.1995). In re Aimster Copyright Litigation, 334 F.3d 643, 651 (7th Cir. 2003).

Publishers of Internet services, telephone directories and newspapers can no more be charged with aiding prostitution than “[a] retailer of slinky dresses … even if he knows that some of his customers are prostitutes.” Similarly, Hilton Hotels does not aid and abet prostitution when a customer takes a prostitute to his hotel room, even if some of the hotel workers suspect or recognize what is occurring. To take another example, it is common and appropriate for escort and other adult services to advertise in telephone directories and newspapers. Just because some of these might turn out to be offering prostitution does not create derivative liability for the telephone directories or newspaper publishers; they merely provide neutral services. See Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) (offering rhetorical question, “Does a newspaper that carries an advertisement for “escort services” or “massage parlors” aid and abet the crime of prostitution, if it turns out that some (or many) of the advertisers make money from that activity?”); People v. Lauria, 59 Cal. Rptr. 628 (Cal. App. 1968) (absolving proprietor of telephone answering service from liability for conspiracy to further prostitution where the defendant knew prostitutes used his service, but there was no proof that he actually intended to further the prostitution).

 If the dress seller and hotel operator are not liable for promoting prostitution, then surely a neutral internet publisher is not. Unlike with the hotel operator and dress seller, any criminal liability for Village Voice would implicate serious First Amendment concerns. If Village Voice is held liable because some prostitutes use its service, it would have no choice but to severely self-censor its service to avoid criminal liability. This would have the adverse effect of chilling protected speech and possibly even eliminating a forum for protected speech. The First Amendment prohibits such derivative liability, especially here, where protected ads for legal adult

services and unprotected ads for prostitution are “often separated … only by a dim and uncertain line.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963).

Furthermore, unlike the drug paraphernalia cases, there are absolutely no standards to determine whether the ads on Backpage.com are allowed or not. Without any standards “a person of ordinary intelligence” is not provided with “fair notice of what is prohibited.” Williams, 128 S. Ct. 1845. Any attempt to force Village Voice to remove ads without providing such clear standards would be unconstitutional under the vagueness doctrine in violation of due process and the First Amendment. See also Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968). Village Voice does not have the manpower, training or any guidance to know what ads the State objects to and those it does not.

III. EVEN IF SECTION 230 AND THE SCIENTERAND REMOTENESS DOCTRINES OF CRIMINAL LAW DID NOT APPLY, THE FIRST AMENDMENT WOULD PREVENT IMPOSITION OF CRIMINAL LIABILITY ON VILLAGE VOICE IN THIS SITUATION.

A. Backpage.com Is Engaged In Protected Speech.

Village Voice’s activities in publishing Backpage.com is protected speech under the First Amendment of the U.S. Constitution. Backpage.com is a classic forum designed for the exchange of information, both commercial and non-commercial. It provides a modern-day counterpart to the personal and commercial ads that the Founders of our country found in the coffeehouse newspapers of their day.

Three different sets of persons have First Amendment interests with respect to Backpage. First, Village Voice as the publisher has a publisher’s traditional interest in creating a publication that is useful to, and in demand by, readers and advertisers. Second, advertisers use Backpage as a forum for publication and distribution of their messages, which may be non-commercial (e.g. personal ads) or commercial (e.g., ads for legal escort or massage services. Third, readers use Backpage to find and read items of interest. All three of these parties have recognized First Amendment interests. The readers’ right to receive information is every bit as worthy of First Amendment protection as the right of publishers of advertisers to publish it. “Where a speaker exists, as is the case here, the protection afforded is to the communications, to its source and to its recipients both *** If there is a right to advertise, there is a reciprocal right to receive the advertising.” Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). “Freedom to speak publicly and to publish has, as its inevitable and important correlative, the private right to hear, to read, and to think and to feel about what one hears and reads. The First Amendment protects those private rights of hearers and readers.” United States v. Roth, 237 F.2d 796, 808 (2nd Cir. 1956) (Frank, J., concurring).

Accordingly, any attempt to prosecute Village Voice in connection with Backpage.com must contend with two key foundational facts about the expressive nature of the service: (1) Village Voice carries out a traditional publishing function on Backpage, and (2) Backpage users (both advertisers and readers) utilize the service for their own expressive activities. That is, Village Voice and its readers and advertisers all engage in constitutionally protected expressive activities.

B. Normal Backpage Content is Classic Protected Expression, Even If it May be Offensive or “Indecent” To Some.

 The fact that many of the posts in the “sex” forum and ads posted in the “personals”section are not family-friendly does not remove their full protection under the First Amendment. No obscene material or child pornography is allowed on the site, and hence the content is presumptively covered by the First Amendment. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-46 (U.S. 2002) (“[T]he First Amendment bars the government from dictating what we see or read or speak or hear.” But it has limits, and “does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.”). “Indecent” material on the internet, including sexual expression, is fully protected. See Sable Commc’n of Cal., Inc. v. Fed. Commc’n Comm., 492 U.S. 115,126 (1989). While some parents may wish to shield this material from their children, this is easily done through the use of internet blocking and filtering software, widely available on the market, and through parental supervision. See Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004).

The content contained within the ads in the “adult” section and “escorts” category which meet Village Voice’s terms of service is also constitutionally protected. Many of the ads are noncommercial in nature and fully protected speech, even if some of them contain indecent content. See Sable Commc’n of Cal., Inc. v. Fed. Commc’n Comm., 492 U.S. 115,126 (1989). Others propose commercial transactions dealing with legal escort services, massages and other legal adult services. Advertisement of such services are best done on specialized sections of the internet where they can be screened away from minors. The First Amendment does not permit restricting or banning such advertisements, especially on the internet. Cf, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (finding a complete ban on advertising the price of alcohol to be unconstitutional; also stating in a plurality portion of the opinion: “Most obviously, complete speech bans … are particularly dangerous because they all but foreclose alternative means of disseminating certain information.”).

C. Internet Websites Are Like Bookstores, Which Cannot Be Expected To Pre-Screen All Their Content.

The internet has allowed the distribution of free and protected speech on a scale unknown in the past. Imposition of liability holding an internet website, such as Backpage.com, liable for the content of its users would disrupt the internet services that Americans enjoy today, and would violate the First Amendment.
In many ways, a website such as Backpage.com is the modern day virtual equivalent of a bookstore. A bookstore cannot be held liable simply because it carries an illegal book. The Supreme Court in Smith v. California struck down an ordinance holding a bookseller strictly liable for selling obscene books. 361 U.S. 147 (1959). The Court stated that under such a law,'”Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.” Id. at 153. Such a requirement would greatly impede the number of books with protected speech that would be available. Id. at 154. This concern is compounded a thousandfold with the internet. Currently, there are hundreds of millions of users logging onto the internet across the globe, and a large percentage of those are actively creating and posting content to sites such as Backpage.com, eBay, craigslist and Wikipedia. If Village Voice and other internet service providers faced potential liability merely because their users posted illegal content, which was available for a short time before it was removed, such services could not exist, and would have to close down-just like booksellers would have, had not Smith v. California clarified the more limited nature of their potential responsibility.

In Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997) the Supreme Court struck down a law that made it a crime to transmit certain material to a minor on the internet, since it would disrupt protected adult-to-adult communication. Id. at 876. The Court found that given the nature and size of the internet, one could almost always be charged with knowing a minor would view material sent. Id. In fact, the law would have “confer[red] broad powers of censorship, in the form of a ‘heckler’s veto,’ upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child … would be present.” Id. at 880. The same analysis applies to the threatened prosecution in the instant case.

It is a core constitutional principle that the First Amendment requires “breathing space” for protected expression. E.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 772 (1986). In Hepps, the Supreme Court held that plaintiff in a defamation case must prove falsity of the statements when they concern a public matter. Id. at 778. The Court recognized that this would necessarily insulate from liability some false statements of fact, which are not constitutionally protected. Id.; Gertzv. Robert Welch, Inc., 418 U.S. 323,340 (1974). However, the Court concluded that it was necessary in order to provide “breathing space” so that protected speech is not chilled.2 Hepps, 475 U.S. at 772. Such a tipping of the scales in favor of speech and against regulation that would chill speech is the basis for the time-honored “chilling effect” derivative of First Amendment law, on which Smith v. California is based.
(2 In the same manner, it is possible that some prostitutes advertise on Backpage.com in the guise of legal adult services, but it is impossible to eliminate those without eliminating protected speech.)

The origins of the “breathing space” doctrine trace back to Speiser v. Randall, 357 U.S. 513(1958). A provision of the California constitution made nonadvocacy of overthrow of government by unlawful means a condition precedent to tax exemption. Id. at 1338-39. California law providing a tax exemption for World War II veterans enforced this provision by placing the burden of persuasion on claimants to show that they qualify, i.e., that they did not engage in such unlawful speech. Id. at 521-22. The Court, while assuming the California constitutional provision as valid, struck down this enforcement procedure as unconstitutional based on due process andthe First Amendment. Id. at 529. The Court explained:

“The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding-inherent in all litigation-will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. * * * [T]his procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.” Id. at 526.

In short, the government in regulating unprotected speech must do so in a manner which does not deter or unconstitutionally chill protected expression. In order to defend speech on the edge of protected speech, the First Amendment requires that some speech on the other side go unpunished. See also New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a public official must prove falsity and actual malice to win damages in defamation so as not to chill protected speech).

If Village Voice is not held responsible for content posted by its users, some ads promoting illegal services are likely to slip by. However, this is a necessary evil, and indeed it is part of the process by which free speech is protected. Otherwise, because it is virtually impossible for Village Voice to screen all user-posted content on Backpage.com, Village Voice would face uncertainty regarding the scope of the unlawful zone, resulting in it avoiding liability, either by shutting down, or by over self-regulating, thereby either cutting off or limiting protected speech.

D. An Internet Provider Cannot Be Held Liable for Conducting a Communications Service That Has “Substantial Lawful Uses.”

The First Amendment and the nature of the internet require websites to be immune from any non-intentional and remote derivative liability based on postings of its users. Judge Easterbrook of the Seventh Circuit has stated:

“A web host, like a delivery service or phone company, is an intermediary and normally is indifferent to the content of what it transmits. Even entities that know the information’s content do not become liable for the sponsor’s deeds. Does a newspaper that carries an advertisement for “escort services” or “massage parlors” aid and abet the crime of prostitution, if it turns out that some (or many) of the advertisers make money from that activity? How about Verizon, which furnishes pagers and cell phones to drug dealers and thus facilitates their business? GTE does not want to encourage the surreptitious interception of oral communications, nor did it profit from the sale of the tapes. It does profit from the sale of server space and bandwidth, but these are lawful commodities whose uses overwhelmingly are socially productive. That web hosting services likewise may be used to carry out illegal activities does not justify condemning their provision whenever a given customer turns out to be crooked.” Doe v. GTE Corp., 347 F.3d 655,659 (7th Cir. 2003).

Although made in the context of Section 230, this opinion demonstrates why it would be improper under criminal law to construe offering of services for legal purposes as conduct that could be prosecuted, merely because some users misuse the services provided.

In copyright law, the Supreme Court held that copying equipment is not liable for contributory copyright infringement if it is “capable of substantial noninfringing uses.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984); see also 35 U.S.C. § 271(c) (statutorily providing the same for patent law). By the same token, a website that provides a service allowing user-generated content should not be held liable for unlawful content of some users if the service has “substantial lawful uses.” Indeed, the danger of limiting speech protected by the First Amendment is of a much greater concern than the policies at play in copyright law.

Backpage.com is a useful internet service that has many substantial legal uses. Almost all of its categories contain ads and information regarding appropriate and non-objectionable speech. Others, while objectionable to some, are still fully protected. It is only in a small number of categories where some users post ads for illegal services and those ads generally have only a short life, since Village Voice takes them down when it becomes aware of them.

In these circumstances, given the legality of the substantial uses of Village Voice’s services, derivative liability against Village Voice would be inappropriate

E. Forcing Village Voice to Eliminate the “Escorts” Category or to Block Ambiguous Ads Would Constitute An Unlawful “Prior Restraint.”

Serious threats of civil or criminal suits by the State would present Village Voice with the choice of either eliminating much protected speech or facing serious liability. Such threats would essentially constitute the State using Village Voice as its censor to eliminate and prevent constitutionally protected speech. Bantam Books, 372 U.S. 58. This is a prior restraint of speech in violation of the First Amendment.

Requiring Backpage.com to block lawful speech or eliminate entire categories on its site that carry substantial amounts of protected speech is a prior restraint. This would shut down an entire forum of speech, and would essentially be giving “public officials the power to deny use of a forum in advance of actual expression,” which is a classic example of prior restraint. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975).

Prior restraints are “particularly disfavored” and bear a heavy burden against constitutional validity. Id. at 558 (internal citations omitted); CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994). The “gagging of publication has been considered acceptable only in ‘exceptional cases.”‘ Id. (citing Near v. Minnesota, 283 U.S. 697,716 (1931)). Even where national security is concerned,see New York Times Co. v. United States, 403 U.S. 713 (1971), courts are reluctant to grant this “most extraordinary remed[y]” unless “the evil that would result … is both great and certain and cannot be mitigated by less intrusive measures.” CBS, Inc., 510 U.S. at 562 (internal citations omitted).

The State cannot justify a prior restraint under the “exceptional case” standard. The users posting ads can readily be punished after-the-fact, and the ads can readily be removed if reported to Village Voice and determined under appropriate standards to be for illegal services. In fact, removing escort ads would be counter-productive and would actually make law enforcement even more difficult, because prostitutes advertising their services would place their ads in other places, where they are more difficult to identify, and where the operators do not retain credit card information which can be traced.

Conclusion

As more fully explained above, prosecution of Village Voice for its Backpage.com service would be improper for three independent reasons:

(1) Section 230 of the Federal Communications Act, 47 U.S.C. § 230, specifically bars civil or criminal liability of Internet intermediaries based upon the content of their users’ messages.

(2) Missouri criminal law relating to promoting and aiding and abetting prostitution applies only to those who have specific criminal intent to promote or aid prostitution, and such intent is 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.

(3) The First Amendment limits prosecutions of information providers 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 and intent to provide illegal content, (c) the prosecution is conducted after-the-fact and does not chill or restrain ongoing protected speech.

Please also see:
Reason Magazine Releases New Documentary on Backpage Case
and
Julian Assange’s First Speech Since His Release, Complete and Unabridged