United States District Court, D. Massachusetts
Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3 Plaintiffs,
Backpage.com, LLC, Carl Ferrer, Michael Lacey and James Larkin Defendants,
ORDER ON MOTION TO DISMISS
SOROKIN UNITED STATES DISTRICT JUDGE
March of 2016, the First Circuit affirmed Judge Stearns'
decision to dismiss claims brought by three Jane Does against
Backpage.com, LLC, (“Backpage”) alleging
violations of the: Trafficking Victims Protection
Reauthorization Act of 2008 (“TVPRA”), 18 U.S.C.
§ 1595; Massachusetts Anti-Human Trafficking and Victim
Protection Act of 2010 (“MATA”), Mass. Gen. Laws
ch. 265, § 50; Massachusetts Consumer Protection Act
(“MCPA”), Mass. Gen. Laws ch. 93A, § 9, and
each individual Doe's intellectual property rights.
Doe v. Backpage.com, LLC, 817 F.3d 12 (1st Cir.
2016), cert. denied, 137 S.Ct. 622 (2017)
(“Doe No. 1”). The Circuit found
Backpage's activities “meretricious, ”
id. at 29, and that the plaintiffs'
“circumstances evoke[d] outrage.” Id. at
16. Even so, it found that the Communications Decency Act of
1996 (“CDA”), 47 U.S.C., which commands,
“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,
” id. at § 230(c)(1), protected Backpage
from the suit. Doe No. 1, 817 F.3d at 22. In
particular, the Circuit ruled that “[Backpage's]
rules about which terms are permitted or not permitted in a
posting, the lack of controls on the display of phone
numbers, the option to anonymize e-mail addresses, the
stripping of metadata from photographs uploaded to the
website, the website's reaction after a forbidden term is
entered into an advertisement, and Backpage's acceptance
of anonymous payments” are traditional editorial
functions. Doe No. 1, 817 F.3d at 20. The Court
further held that, “[w]hatever Backpage's
motivations, ” its editorial behavior was protected
because the alleged harmful content was “created by
others.” Id. at 21. Now, three different Jane
Does, represented by the same pro bono counsel, have filed a
new lawsuit against Backpage.com, LLC., and its CEO and
owners (collectively, “Backpage”) asserting a
subset of the claims advanced in Doe No.
1. Doc. No. 1. Backpage has filed a motion to
dismiss in this Court, arguing that this is a
“do-over” suit which the Court should dismiss
under the authority of Doe No. 1 and the CDA. Doc.
No. 31, 32 at 11-27.
respect to the advertisement of Jane Doe No. 3, Plaintiffs
allege “on information and belief, Backpage . . .
redrafted the advertisement to suggest Jane Doe No. 3 was an
adult.” Doc. No. 1 at ¶ 78. This allegation is
distinct from their allegations with respect to Jane Doe Nos.
1 and 2; this allegation as to Jane Doe No. 3, unlike the
allegations as to Jane Doe Nos. 1 or 2, plausibly describes
Backpage as creating content. Given the basis for the
allegation, “on information and belief,
” and the breadth of the statutory immunity,
the Court permitted limited discovery regarding Jane Doe No.
3, Doc. No. 44, which the parties have now completed, Doc.
No. 53. The discovery does reveal one ad advertising Jane Doe
No. 3 which was changed between submission and publication.
Doc. No. 53 at 7. In response, Backpage argues, based on
attorney proffers or representations, that a user rather than
either Backpage employees or Backpage's system made any
change in this ad. Id. at 12. That, however, is a
fact issue for resolution at summary judgment or
trial. The allegation in the complaint that
“Backpage . . . redrafted the advertisement [of Jane
Doe No. 3] to suggest she was an adult” suffices to
allow the complaint by Jane Doe No. 3 to proceed in the face
of the CDA's statutory immunity, which does not protect
service providers when they create content, FTC v.
Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009).
The further discovery, while not clarifying greatly the
matter, provides, drawing all reasonable inferences in
Plaintiff's favor, a modicum of support for the notion
that Backpage has substantively changed an ad, which then
supports the information and belief allegation in the
complaint. Thus, the CDA poses no bar to Jane Doe No. 3's
claim at this stage of the proceedings. To the extent that
Defendants argue Jane Doe No. 3's claims fail more
generally under Rule 12(b)(6), that argument is denied
without prejudice to renewal on a motion for summary judgment
Doe Nos. 1 and 2, legally, are in a different position. The
Complaint is devoid of factual allegations plausibly
supporting the contention that Backpage created
content, expressly or impliedly, as to either of these two
plaintiffs. Thus, the CDA bars their claims. See Doe
No. 1, 817 F.3d at 18.
Court notes three further points. First, Plaintiffs allege
Backpage revised one advertisement regarding Jane Doe No. 1
by not only deleting words but also by adding a word. Doc.
No. 1 at ¶ 64. The advertisement initially included the
language “Latina shorty, ” which was later
replaced by the words “Exotic Latina.”
Id. Backpage's alleged alteration of the
advertisement of Jane Doe is not enough to transform Backpage
from an internet service provider to the creator, even in
part, of this advertisement's content.
“Shorty”, per the Complaint, signaled, in slang,
a young girl. Id. The deletion of this word did not
create content. Backpage added the word “exotic.”
The Complaint does not allege that the word exotic carries
any special or slang meaning. Ordinarily, the word means from
a foreign or distant land. In the circumstances of this
advertisement as described in the complaint, the addition of
the word exotic is in the nature of editorial change rather
than content creation, as its addition does not substantively
alter the meaning of the already provided identifier
“Latina.” Second, Backpage's counsel argued
vehemently and repeatedly at the motion hearing that the
Court should disregard the allegations of paragraph 35 of the
Complaint because these allegations are not true as
established in light of factual submissions made with
Backpage's opposition. The Court rejects this argument.
The Federal Rules of Civil Procedure and the governing law
handed down by the Supreme Court and the First Circuit
require that the factual allegations of a complaint be
“taken as true.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007); Ruiz v. Bally
Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.
2007). While paragraph 35 does not describe an ad about any
of the Plaintiffs, it is an allegation the Court can and does
consider regarding Backpage's process for reviewing,
changing and publishing ads.
crediting the truthfulness of the Plaintiffs'
allegations, as the law instructs, the Complaint describes
unimaginable sexual abuse, repeatedly endured by each
Plaintiff, Doc. No. 1 at ¶¶ 61-63, 67-69, 74-76.
Nothing about the Court's ruling as to Jane No. 1 or No.
2 diminishes the harm suffered by each of these woman. The
ruling addresses only the applicable civil law. 47 U.S.C.
§ 230(e)(1) (creating immunity from civil and state
criminal law, but not federal criminal law).
applying the familiar standard governing Rule 12(b)(6)
motions, the Motion to Dismiss (Doc. No. 31) is ALLOWED IN
PART AND DENIED IN PART. Defendants shall file their answers
within fourteen days. The Clerk shall schedule a Rule 16
 Defendants in this action are
Backpage.com, LLC; CEO of Backpage, LLC, Carl Ferrer; and
Backpage, LLC, owners, Michael Lacey, and James Larkin.
Hereinafter, Defendants are collectively ...