BACKPAGE.COM, LLC v. LYNCH
MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on October 24, 2016. (lcrbw2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 15-2155 (RBW)
LORETTA E. LYNCH, in her official
capacity as Attorney General of the United )
States of America,
The plaintiff, Backpage.com, LLC (“Backpage.com”), brought this action against the
defendant, Loretta Lynch, in her official capacity as Attorney General of the United States of
America (“the government”), challenging the constitutionality of the Stop Advertising Victims of
Exploitation Act of 2015 (“SAVE Act”), which amended 18 U.S.C. § 1591 (2000), “a statute that
prohibits certain conduct related to sex trafficking of children and those subjected to force, fraud,
or coercion,” and added “advertising to the types of conduct prohibited under § 1591(a).”
Memorandum in Support of Defendant’s Motion to Dismiss (“Gov’t’s Mem.”) at 1; see also
Complaint for Declaratory and Injunctive Relief (“Compl.”) ¶ 1. Currently pending before the
Court is the Defendant’s Motion to Dismiss (“Gov’t’s Mot.”), ECF No. 10, which seeks
dismissal of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule
12(b)(1)”), or alternatively, dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
Upon careful consideration of the parties’ submissions,1 the Court concludes that it must grant
In addition to the filings already identified, the Court considered the following submissions in reaching its
decision: (1) the plaintiff’s Opposition to Motion to Dismiss (“Pl.’s Opp’n”); and (2) the government’s Reply in
Support of Defendant’s Motion to Dismiss (“Gov’t’s Reply”).
the government’s motion to dismiss this action for lack of subject matter jusrisdiction pursuant to
A. Statutory Background
In 2000, Congress passed the Trafficking Victims Protection Act (“Trafficking Act”),
Pub. L. No. 106–386, §§ 101–113, 114 Stat. 1464 (2000) (codified as amended in sections
throughout Titles 8, 18, and 22 of the United States Code), “to combat trafficking in persons, a
contemporary manifestation of slavery whose victims are predominantly women and children,
to ensure just and effective punishment of traffickers, and to protect their victims,” 22 U.S.C. §
7101(a) (2012). The legislation was enacted because “Congress recognized that human
trafficking, particularly of women and children in the sex industry ‘is a modern form of slavery,
and it is the largest manifestation of slavery today.’” United States v. Walls, 784 F.3d 543, 548
(9th Cir. 2015) (quoting 22 U.S.C. § 7101(b)(1)), cert. denied, 136 S. Ct. 226 (2015).
Accordingly, through the Trafficking Act, Congress adopted “a comprehensive regulatory
scheme that criminalizes and attempts to prevent slavery, involuntary servitude, and human
trafficking for commercial gain.” Id.
This comprehensive scheme proscribes “severe forms of tracking in persons,” including
“sex trafficking in which a commercial sex act is induced by force, fraud, or coercion,” and “sex
trafficking . . . in which the person induced to perform such act has not attained 18 years of
age.” 22 U.S.C § 7102(9)(A). Section 1591(a) of the statute, as originally enacted, imposed
criminal penalties for any individual who knowingly
(1) in or affecting interstate commerce recruits, entices, harbors, transports,
provides, or obtains by any means a person; or (2) benefits, financially or by
receiving anything of value, from participation in a venture which has engaged in
an act described in violation of paragraph (1), knowing that force, fraud or
coercion . . . will be used to cause the person to engage in a commercial sex act,
or that person has not attained the age of 18 years and will be caused to engage in
a commercial sex act.
Pub. L. No. 106–386, § 112. However, in 2008, Congress amended the mens rea requirement of
§ 1591(a), allowing for the prosecution of a person who commits an “act identified in §
1591(a)(1) and (a)(2) where [the person] acted ‘knowing, or in reckless disregard of the fact,’
that force, fraud, or coercion [would] be used or that the individual involved is a minor.” Gov’t’s
Mem. at 4 (citing the William Wilberforce Trafficking Victims Protection Act of 2008, Pub. L.
No. 110–457, 122 Stat. 5044 (2008)). Moreover, Congress added subsection (c) to the statute,
which eliminated the government’s burden of demonstrating that the defendant had the requisite
mens rea of either acting knowingly, or in reckless disregard of the fact that the individual
caused to engaged in a commercial sexual act prohibited by subsection (a)(1) had not reached the
age of eighteen, provided that “the defendant had a reasonable opportunity to observe the person
so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or
Pertinent to this case, Congress, in 2015, further amended § 1591(a) through the SAVE Act
to include “advertis[ing]” as a type of conduct made criminal for sex trafficking acts covered by
§ 1591(a)(1). Compl. ¶ 47; Gov’t’s Mem. at 5 (citing the SAVE Act, Pub. L. No. 114–22,
§ 118(b)(1)). Additionally, the SAVE Act “amended the mens rea requirement set forth in the
language below § 1591(a)(2).” Gov’t’s Mem. at 5 (citing the SAVE Act, Pub. L. No. 114-22,
§ 118(b)(2)); see also Compl. ¶ 47. Consequently, § 1951(a) now provides:
(a) Whoever knowingly –
(1) in or affecting interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States, recruits, entices,
harbors, transports, provides, obtains, advertises, or maintains by any
means a person; or
(2) benefits financially or by receiving anything of value from participation
in a venture which has engaged in an act described in violation of
knowing, or, except where the act constituting the violation of paragraph (1) is
advertising, in reckless disregard of the fact, that means of force, threats of force,
fraud, coercion described in subsection (e)(2), or any combination of such means
will be used to cause the person to engage in a commercial sex act, or that the
person has not attained the age of 18 years and will be caused to engage in a
commercial sex act, shall be punished as provided in subsection (b).
18 U.S.C.A. § 1591(a) (2015) (emphasis added).
B. Factual Background
Backpage.com is a limited liability company, organized and existing under the laws of
Delaware, with its principal place of business in Dallas, Texas. Compl. ¶ 8. Primarily,
Backpage.com hosts an online classified advertising service (“web service”) that was created in
2004 and is located at www.backpage.com. Id. ¶ 15. As the second-largest web service of its
kind, after Craigslist, id.; Gov’t’s Mem. at 5, Backpage.com’s web service operates in all fifty
states and the District of Columbia. Compl. ¶¶ 8, 15; Gov’t’s Mem. at 5. Users of
Backpage.com’s web service may post advertisements under a number of categories (e.g., local
places, buy/sell/trade, automotive, rentals, real estate, jobs, dating, adult, and services) and
various subcategories, and millions of advertisements are placed each month. Compl. ¶¶ 15–16;
Gov’t’s Mem. at 5. Users “provide all content for their ad[vertisements] . . . , including all text,
titles, and photographs.” Compl. ¶ 17. But, even though “Backpage.com does not dictate any
content, . . . it does screen, block, and remove ad[vertisements] that violate the website’s terms of
use.” Compl. ¶¶ 17–18. And, “Backpage.com prohibits illegal content and activity on its
website and takes numerous steps to prevent such misuse, especially to guard against any human
trafficking or child exploitation.” Compl. ¶ 18; Gov’t’s Mem. at 5.
On or about October 2010, various public officials and state attorneys general began
pressuring Backpage.com to remove the “adult services” category from its website. 2 Id. ¶¶ 20–
21 (citing statements by politicians who had written to Backpage.com or made comments in
regards to legislative resolutions that sought to pressure Backpage.com to eliminate its “adult
services” category). “[M]aintain[ing] that censorship is not a solution to human trafficking or
child exploitation,” Compl. ¶ 23, Backpage.com has refused to remove the “adult services”
category from its website, “advocat[ing] that a better approach is to use the Internet and to work
with cooperative website providers such as [itself] to identify, investigate and prosecute illegal
conduct and rescue victims,” id.
In 2012, three states “expressly target[ed] Backpage.com,” id. ¶ 24, when they “enacted
criminal statutes to censor adult ads on [its website],” id. ¶ 2. Backpage.com challenged the
constitutionality of these state laws, and “[i]n each instance, federal courts enjoined the laws,
finding them unconstitutional under the First Amendment . . . [because] the states’ efforts to
regulate or effectively block [escort] ads and [escort services] ‘would likely chill protected
speech.’” Id. ¶¶ 24–25 (citing cases) (quoting Backpage.com, LLC v. McKenna, 881 F. Supp.
2d 1262, 1282 (W.D. Wash. 2012). And as noted above, in 2015, after these three cases were
decided, Congress enacted the SAVE Act, which among other amendments, “added the term
‘advertises’ among the predicate acts for criminal sex trafficking in [§] 1591.” Id. ¶ 1.
Intending to maintain an “adult services” category as part of its web service, see id. ¶ 23;
Gov’t’s Mem. at 10, Backpage.com filed this action, asserting a pre-enforcement challenge to the
SAVE Act, see generally Compl.; Gov’t’s Mem. at 1. Specifically, Backpage.com contends that
the “[p]rovisions of the SAVE Act . . . are . . . unconstitutionally vague, overbroad[,] and
In its Complaint, Backpage.com notes that prior to the pressure it received to remove the “adult services” category
form its website, Craigslist was targeted by many public officials and state attorneys general to do the same, and in
September of 2010, Craigslist removed their “adult services” category from its website. See Compl. ¶¶ 19–20.
infringe First Amendment rights,” id. ¶ 3. In response, the government moves to dismiss the
Complaint on the grounds that Backpage.com “lacks standing to bring this pre-enforcement
challenge,” and thus, dismissal is required under Rule 12(b)(1) because the Court lacks subject
matter jurisdiction, or in the alternative, that Backpage.com has failed to state a claim upon
which relief can be granted as required under Rule 12(b)(6). Gov’t’s Mem at 1–2.
STANDARD OF REVIEW
Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under Federal Rule of Civil
Procedure 12(b)(1) ‘presents a threshold challenge to the court’s jurisdiction . . . .’” Morrow v.
United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a district court is obligated to dismiss a claim if it
“lack[s] . . . subject matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). Because “it is presumed that
a cause lies outside [a federal court’s] limited jurisdiction,” id. (quoting Kokkonen, 511 U.S. at
377), the plaintiff bears the burden of establishing by a preponderance of the evidence that a
district court has subject matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
In deciding a motion to dismiss based upon lack of subject matter jurisdiction, the district
court “need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, “a court may consider
such materials outside the pleadings as it deems appropriate to resolve the question [of] whether
it has jurisdiction [in] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18,
22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005). Additionally, a district court must “assume the truth of all material factual
allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the
benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). However, “the [p]laintiff’s factual allegations in the complaint . . . will bear closer
scrutiny in resolving [a 12(b)(1) motion].” Grand Lodge, 185 F. Supp. 2d at 13–14.
As a preliminary matter, the Court must “begin . . . with the question of subject matter
jurisdiction” before turning to the merits of the plaintiff’s claims. Am. Freedom Law Ctr. v.
Obama, 106 F. Supp. 3d 104, 108 (D.D.C. 2015) (Walton, J.) (quoting Aamer v. Obama, 742
F.3d 1023, 1028 (D.C. Cir. 2014)); see also NO Gas Pipeline v. Fed. Energy Regulator Comm’n,
756 F.3d 764, 767 (D.C. Cir. 2014) (“It is fundamental to federal jurisprudence that Article III
courts such as ours are courts of limited jurisdiction. Therefore, ‘we must examine our authority
to hear a case before we can determine the merits.’” (quoting Wyo. Outdoor Council v. U.S.
Forest Serv., 165 F.3d 43, 47 (D.C. Cir. 1999))). “Article III of the Constitution limits the
jurisdiction of federal courts to ‘Cases’ and ‘Controveries.’” Susan B. Anthony List v. Driehaus,
__ U.S. __, __, 134 S. Ct. 2334, 2341 (2014) (quoting U.S. Const., art. III, § 2). “The doctrine of
standing gives meaning to these constitutional limits of Article III by identify[ing] those disputes
which are appropriately resolved through the judicial process.” Id. (quoting Lujan, 504 U.S. at
560). “Indeed, the Court ‘need not delve into [a plaintiff’s] myriad constitutional and statutory
claims [where] the [plaintiff] lacks Article III standing . . . .’” Am. Freedom Law Ctr., 106 F.
Supp. 3d at 108 (quoting Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912, 915 (D.C. Cir.
2003)). “This is because a court may not ‘resolve contested questions of law when its
jurisdiction is in doubt,’ as ‘[h]ypothetical jurisdiction produces nothing more than a
hypothetical judgment—which comes to the same thing as an advisory opinion, disapproved by
[the Supreme] Court from the beginning.’” Id. (quoting Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 101 (1998)).
“Courts have ‘always insisted on strict compliance with this jurisdictional standing
requirement . . . [a]nd [this Court’s] standing inquiry [must be] especially rigorous when
reaching the merits of the dispute would force [this Court] to decide whether an action taken by
one of the other two branches of the Federal Government was unconstitutional.’” Id. (quoting
Raines v. Byrd, 521 U.S. 811, 819–20 (1997)). “The irreducible constitutional minimum of
standing contains three elements: (1) injury in fact; (2) causation; and (3) the possibility of
redress by a favorable decision.” Id. (citing Lujan, 504 U.S. at 56–61); see also Susan B.
Anthony List, __ U.S. at __, 134 S. Ct. at 2341. “‘The party invoking federal jurisdiction bears
the burden of establishing’ standing,” Clapper v. Amnesty Int’l USA, 568 U.S. __, __, 133 S. Ct.
1138, 1148 (2013) (citations omitted), and “each element must be supported in the same way as
any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litigation,” Susan B. Anthony List, __
U.S. at __, 134 S. Ct. at 2342 (quoting Lujan, 504 U.S. at 561). Here, the parties only dispute
whether there is a sufficient injury in fact. See Gov’t’s Mem. at 9; Pl.’s Opp’n at 1.
The injury-in-fact requirement “helps to ensure that the plaintiff has a ‘personal stake in
the outcome of the controversy.’” Susan B. Anthony List, __ U.S. at __, 134 S. Ct. at 2341
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “An injury sufficient to satisfy Article III
must be concrete and particularized and actual or imminent, not conjectural or hypothetical. An
allegation of future injury may suffice if the threatened injury is certainly impending, or there is
a substantial risk that the harm will occur.” Id. (citations and quotations omitted). And, as here,
where a plaintiff raises a pre-enforcement First Amendment challenge to a statute, “[s]ubjective
chill alone” is not a sufficient injury in fact to confer standing. Johnson v. District of Columbia,
71 F. Supp. 3d 155, 159 (D.D.C. 2014) (quoting Act Now to Stop War & End Racism Coal. v.
District of Columbia, 589 F.3d 433, 435 (D.C. Cir. 2009)) (internal quotations omitted).
However, whenever “the threatened enforcement of a law creates an Article III injury,”
Susan B. Anthony List, __ U.S. at __, 134 S. Ct. at 2342, “it is not necessary that [a] plaintiff
first expose [itself] to actual arrest or prosecution to be entitled to challenge [a] statute that [it]
claims deters the exercise of [its] constitutional rights.” Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979) (quoting Steffel v. Thompson, 415 U.S. 488, 494 (1974))
(internal quotations omitted); see also Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–
29 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff
to expose himself to liability before bringing suit to challenge the basis for the threat.”). Instead,
“a plaintiff satisfies the injury-in-fact requirement where [it] alleges ‘an intention to engage in a
course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List, __ U.S. at __,
134 S. Ct. at 2334 (quoting Babbitt, 442 U.S. at 298). A credible threat of prosecution exists
when “the [challenged] law is aimed directly at plaintiffs, who, if their interpretation of the
statute is correct, will have to take significant and costly compliance measures or risk criminal
prosecution.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988) (citations
In its effort to satisfy the injury-in-fact requirement, Backpage.com first alleges that it
“intends ‘to engage in a course of conduct arguably affected with a constitutional interest,’” Pl.’s
Opp’n at 13 (quoting Babbitt, 442 U.S. at 298), because “[i]t hosts an online classified ad service
and intends to continue providing that forum for third parties’ speech[, and s]everal courts have
held that hosting advertisements – including adult-oriented and escort ads – is protected by the
First Amendment,” id. (citing cases). Additionally, it contends that because the SAVE ACT “‘is
aimed directly at Backpage.com, [and] if [its] interpretation of the statute is correct,’ [it] will
have to take steps to comply [with the statute] ‘or risk criminal prosecution.’” Pl.’s Opp’n at 14–
15 (citing Backpage.com, LLC v. Cooper, 939 F. Supp. 805, 819 (M.D. Tenn. 2013) (quoting
Am. Booksellers Ass’n, 484 U.S. at 392)). Further, since “the SAVE Act’s legislative history is
rife with statements that its sponsors and supporters ‘intended to go after Backpage.com,’” id. at
17, and because the government has “not disavow[ed] that it will pursue Backpage[.com] under
th[is] law,” id., Backpage.com contends that it faces a credible threat of prosecution.
Backpage.com stumbles at the outset in its attempt to demonstrate Article III standing
because the course of conduct it alleges an intent to continue performing is not “‘proscribed by
[the] statute’ they wish to challenge.” Susan B. Anthony List, __ U.S. at __, 134 S. Ct. at 2344
(quoting Babbitt, 442 U.S. at 298). Backpage.com represents that it intends to continue hosting
third party advertisements, including advertisements that are adult-oriented and concern escort
services. See Pl.’s Opp’n at 13 (citing Compl. ¶¶ 15–18). And it alleges, albeit in general, an
intent to engage in conduct “arguably affected with a constitutional interest” because First
Amendment protections extend to commercial advertisements, including advertisements
concerning consensual sex between adults. See id.; see also Reno v. Am. Civil Liberties Union,
521 U.S. 844, 874 (1997) (“In evaluating the free speech rights of adults, we have made it
perfectly clear that ‘[s]exual expression which is indecent but not obscene is protected by the
First Amendment.’” (quoting Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 125
(1989))); see also Bigelow v. Virginia, 421 U.S. 809, 818 (1975) (“The central assumption made
by the Supreme Court of Virginia was that the First Amendment guarantees of speech and press
are inapplicable to paid commercial advertisements. Our cases, however, clearly establish that
speech is not stripped of First Amendment protection merely because it appears in that form.”
Despite its assertions, what encumbers Backpage.com’s position is that its “intended
future . . . conduct,” Susan B. Anthony List, __ U.S. at __, 134 S. Ct. at 2344, of hosting third
party advertisements, some of which are for legal “adult services,” see Pl.’s Opp’n at 13, is not
“arguably . . . proscribed by [the SAVE Act, the] statute [it] wishes to challenge,” id. (quoting
Babbitt, 442 U.S. at 298). The SAVE Act explicitly prohibits advertisements of illegal sex
trafficking of a minor or a victim of force, fraud, or coercion. 18 U.S.C. § 1591(a). And there is
no doubt that advertisements that promote these types of conduct are not afforded First
Amendment protection. See U.S. v. Williams, 553 U.S. 285, 297 (“Offers to engage in illegal
transactions are categorically excluded from First Amendment protection.”); see also Cent.
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 563–64 (1980)
(“Consequently, there can be no constitutional objection to the suppression of commercial
messages that do not accurately inform the public about lawful activity. The government may
ban . . . commercial speech related to illegal activity.”). However, the SAVE Act does not
“sweep broadly and cover the subject matter of [Backpage.com’s] intended speech,” which is
hosting third party advertisements, including advertisements of legal adult sexual services,
conduct that is “arguably affected with a constitutional interest.” Susan B. Anthony List, __ U.S.
at __, 134 S. Ct. at 2344. In fact, Backpage.com does not allege that the SAVE Act extends to
their intended conduct of hosting legal third party advertisements; rather, it focuses the lion’s
share of its pre-enforcement challenge on who may be held liable under § 1591(a). See Pl.’s
Opp’n at 15 (“The government argues that Backpage[.com] ‘does not suggest . . . ambiguity [as
to] which advertisements would be . . . related to sex trafficking,’ but rather ‘only [on] . . . who
may be charged . . . as one who ‘advertises’ . . . and what mens rea is required[.]” Gov’t’s Mem.
[at] 11. But that is entirely the point – the statute is vague regarding whether Backpage[.com] or
the third parties who post content may be prosecuted (or both), and what scienter is required.”).
Backpage.com acknowledges that it does not intend to host advertisements for illegal sex
trafficking, representing that it “screen[s], block[s], and remove[s] ads that violate the website’s
steps to prevent such misuse, especially to guard against human trafficking or child
exploitation.” Compl. ¶¶ 17–18. While the Supreme Court has repeatedly emphasized that its
jurisprudence does not require Backpage.com “to confess that [it] will in fact violate the law”
before it “wishes to challenge the constitutionality of [the SAVE Act],” Susan B. Anthony List,
__ U.S. at __, 134 S. Ct. at 2345 (quoting Babbitt, 442 U.S. at 301), Backpage.com still must
“allege an intention to engage in a course of conduct arguably affected with a constitutional
interest,” Babbitt, 442 U.S. at 298, and that conduct must be “proscribed by [the] statute [it]
wishes to challenge,” Susan B. Anthony List, __ U.S. at __, 134 S. Ct. at 2344, to have standing
to pursue a pre-enforcement action, Babbitt, 442 U.S. at 298 (“When the plaintiff has alleged an
intention to engage in a course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should
not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’”
(emphasis added) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973))). But, even if
Backpage.com “did start [hosting advertisements of sex trafficking, it] could not contend that
[its] speech would be ‘arguably affected with a constitutional interest,’” Am. Library Ass’n v.
Barr, 956 F.2d 1178, 1193 (D.C. Cir. 1992) (quoting Babbitt, 442 U.S. at 298), as such speech is
not protected by the First Amendment. Therefore, the Court does not find that Backpage.com’s
“intended speech is ‘arguably proscribed’ by the [SAVE Act, the] law” it seeks to challenge.
Susan B. Anthony List, __ U.S. at __, 134 S. Ct. at 2344 (finding that the “petitioners’ intended
conduct [was] ‘arguably . . . proscribed by [the] statute’ they wish[ed] to challenge” because the
challenged law “swe[pt] broadly, and cover[ed] the subject matter of [the] petitioners’ intended
As further support for its position that it has standing to bring this pre-enforcement
challenge to the SAVE Act, Backpage.com cites the decisions of several courts that concluded
that it had standing to “challenge state laws that targeted online classified advertising sites.”
Pl.’s Opp’n at 15. Specifically, Backpage.com contends that these courts “held that hosting
advertisements – including adult-oriented and escort ads – is protected by the First Amendment,”
id. at 13 (citing Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015); Backpage.com, LLC
v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012); Backpage.com, LLC v. Cooper, 939 F.
Supp. 2d 805 (M.D. Tenn. 2013)),3 and that Backpage.com has standing here even though it
“‘would be unlikely to face prosecution’ because it ‘has not alleged that it intends to violate the
law’ and takes measures ‘to screen illicit ads,’” id. at 15 (citing Cooper, 939 F. Supp. 2d at 818).
However, Backpage.com’s reliance on these cases is unavailing because, as the government
notes, “none of th[ese] cases support [Backpage.com having] standing [in this case], primarily
because th[ese] cases rest on different facts and different claims. . . . [and] the challenged state
actions actually implicated [Backpage.com’s constitutionally protected] First Amendment
Backpage.com also cites Backpage.com, LLC v. Hoffman, No. 13-cv-03952, 2013 WL 4502097 (D.N.J. Aug. 20,
2013), as support for its standing argument. However, the district court in that case did not address the question of
whether Backpage.com had standing to seek a preliminary injunction against enforcement of the challenged statute;
rather, the district court addressed solely whether granting injunctive relief was appropriate. Hoffman, 2013 WL
4502097, at *5–8. The Court, therefore, does not find further consideration of that case pertinent to its analysis.
interests.” Gov’t’s Reply at 3.
For example, in Backpage.com, LLC v. Dart, “Backpage[.com] sought a preliminary
injunction to stop the [defendant]’s campaign of starving the company by pressuring credit card
companies to cut ties with its website.” 807 F.3d at 230. In that case, the defendant, a county
sherriff, “decided to proceed against Backpage[.com] not by litigation but instead by suffocation,
depriving the company of ad revenues by scaring off its payments-service providers.” Id. at 231.
To achieve this objective, the defendant sent a letter to both “MasterCard’s [Chief Executive
Officer] and Board of Directors and to the corresponding personnel of Visa[,] . . . request[ing]
that [their] institution[s] immediately cease and desist from allowing [their] credit cards to be
used to place ads on websites like Backpage.com.” Id. Because “[t]he First Amendment forbids
a public official [from] attempt[ing] to suppress the protected speech of private persons by
threatening that legal sanctions will at his urging be imposed unless there is compliance with his
demands,” id., the Seventh Circuit reversed the district court’s denial of Backpage.com’s request
for a preliminary injunction, id. at 238. But, Backpage.com, in this case, has not shown that it
has or will suffer irreparable injury or that its constitutionally protected speech falls under the
purview of the SAVE Act. See id. at 231 (“[The defendant] demand[ed] that [the credit card
companies] cease and desist from placing any ads on ‘websites like Backpage.com.’”). Instead,
Backpage.com primarily alleges that it may face criminal liability depending on which mens rea
of § 1591(a) applies. See Compl. ¶ 5; see also Pl.’s Opp’n at 15. Therefore, the Seventh
Circuit’s analysis in Dart provides no support for Backpage.com having standing here.
Additionally, in Backpage.com, LLC v. McKenna, Backpage.com sought a preliminary
injunction against a state law that criminalized “the offense of advertising commercial sexual
abuse of a minor.” 881 F. Supp. 2d at 1265. While focusing its standing analysis on whether a
credible threat of prosecution existed, see id. at 1270, the district court in McKenna concluded
that Backpage.com had standing because it could “show that there is a credible threat that [the
challenged state law would] be enforced against [it because state] legislators ha[d] openly stated
that the challenged statute [was] aimed at Backpage.com and that they [sought] to eliminate
escort ads and similar Internet postings,” id. Moreover, the McKenna court agreed that
Backpage.com’s interpretation of the statute was “correct,” id. – that “‘the law [would] require
them to undertake the impossible task [of] review[ing] and censor[ing] third-party content, or
obtain[ing] and retain[ing] the required forms of identification from all third-party users seeking
to post such content, or block[ing] content altogether,’” id. But, in this case, Backpage.com has
not presented evidence that Congress sought to eliminate all advertisements of a sexual nature
from its website through the adoption of the SAVE Act; rather, the legislation is directed only at
those advertisements concerning illegal sex trafficking, which do not constitute constitutionally
protected speech. See Compl. ¶ 28(b) (citing statement in the legislative history of the SAVE
Act by a Congressional member that the statute “is necessary to end facilitation of sex trafficking
by Web sites like Backpage.com and others who commercially advertise this criminal activity”)
(emphasis added) 4; Pl.’s Opp’n at 18-19. And Backpage.com does not allege that it would be
Backpage.com also cites two additional Congressional statements in the legislative history of the SAVE Act, see
Compl. ¶ 28, but, Backpage.com’s reliance on these two statements is of no avail either because they also show that
Congress sought to eliminate only those advertisements concerning illegal sex trafficking. First, Backpage.com
cites Illinois Senator Mark Kirk’s statement that “[he] intended to go after Backpage.com . . . . We really ought to be
able to charge them . . . .” Id. ¶ 28(a) (citing 161 CONG. REC. S1458 (daily ed. Mar. 12, 2015) (statement of Sen.
Kirk)). However, Senator Kirk’s statement came after a recitation on how the proposed amendment being discussed
was derived from the research conducted by Congress on the prevalence of sex trafficking on the Internet, see 161
CONG. REC. S1457–58 (daily ed. Mar. 12, 2015) (statement of Sen. Kirk), and Senator Kirk’s statement was made in
reference to a different “amendment [that he] was trying to offer ealier th[at] week on the SAVE Act,” id.
Nontheless, Senator Kirk noted that he “intended to go after [B]ackpage.com [because it] is the largest provider of
slavery-related services in the country. They make about $30 million a year off of slavery. We really ought to be
able to charge them to clean up the mess they have created.” Id. Thus, Senator Kirk’s statements were directed only
at advertisements concerning illegal activity, not advertisements concerning consensual adult services. Additionally,
Backpage.com cites part of a statement by Washington State House of Representative Jaime Herrera-Beutler, where
he stated: “We are seeking to disable Web sites like Backpage.com . . . .” Compl. ¶ 28(c) (citing 160 CONG. REC.
(continued . . .)
forced “to take significant and costly compliance measures” to comply with the SAVE Act “or
otherwise risk criminal prosecution.” Am. Booksellers Ass’n, 484 U.S. at 392. In fact,
Backpage.com acknowledges that it already
voluntarily employ[s] extensive monitoring to identify improper content,
including automated filtering and manual review. . . . [and that it also] voluntarily
reports suspect ads to the National Center for Missing and Exploited Children. [It
further notes that it] regularly works with local, state and federal law enforcement
to support investigations and prosecutions, including promptly responding to
subpoenas, providing training to law enforcement, removing and blocking posts at
their request, and even conducting independent research to assist in rescuing
victims and arresting and prosecuting criminals.
Compl. ¶18. The Court, therefore, does not find the analysis in McKenna persuasive considering
the distinguishable circumstances here.
Likewise, in Backpage.com, LLC v. Cooper, Backpage.com sought a preliminary
injunction against a state law that criminalized “the sale of certain sex-oriented advertisements.”
939 F. Supp. 2d at 813. There, the district court focused its standing analysis solely on the
question of whether a credible threat of prosecution existed. See id. at 819 (“[T]he injury-in-fact
requirement is automatically met, if ‘the law is aimed directly at plaintiffs, who, if their
interpretation of the statute is correct, will have to take significant and costly compliance
measures or risk criminal prosecution.’” (emphasis added) (quoting Am. Booksellers Ass’n, 484
U.S. at 392)). 5 And the court concluded that Backpage.com had standing to seek a preliminary
(. . . continued)
H4518–19 (daily ed. May 20, 2014) (statement of Rep. Herrera-Beutler). But, Representative Herrera-Beutler’s
entire statement was that, “We are here not just to discuss the problem, but the solutions. We are seeking to disable
Web sites like [B]ackpage.com that advertise children for commercial sex and make it a Federal crime for a
company to knowingly post advertisements for sex with minors.” 160 CONG. REC. H4521 (daily ed. May 20, 2014)
(statement of Rep. Herrera-Beutler). Thus, Representative Herrar-Beutler’s statement demonstrates that the
legislative efforts sought to target only advertisements concerning illegal sex trafficking through the SAVE Act, and
Backpage.com’s omission of this essential portion of Representative Herrera-Beutler’s statement dramatically alters
the context in which her statement was made.
Backpage.com argues that the “injury-in-fact [requirement] is automatically met, if the law is aimed directly at
[the] plaintiff, who, if [its] interpretation of the statute is correct, [is] placed at risk of criminal prosecution.” Pl.’s
(continued . . .)
injunction because it “ha[d] shown sufficient evidence that it [was] the direct target of the law,
and would have to take cost-prohibitive measures to comply with its provisions.” Id. Moreover,
the parties in Cooper did not dispute that the law was passed “to pressure Backpage.com to stop
selling adult services advertisements,” id., and “Backpage.com allege[d] that it would have to
undertake an individual review of the millions of ads posted on its site each month and likely
conduct in-person identification checks of users, which it call[ed] ‘a practical impossibility,’” id.
(citation omitted). The court further noted that, “[e]ven if the statute did not directly target
Backpage.com, [it nonetheless concluded that] Backpage.com ha[d] alleged sufficient facts to
establish a credible threat of prosecution under Babbitt,” because it clearly alleged that “it
intend[ed] to continue hosting adult and escort services advertisements, which it argue[d might]
be proscribed by the statute’s vague and overboard scope. . . . [and because] the [d]efendants
assert[ed] in their briefs and supporting documents that Backpage.com ha[d] hosted and
continue[d] to host paid advertisements that violate the law.” Id. at 820. Again, similar to
McKenna, the facts and Backpage.com’s allegations in this case are distinguishable from those
in Cooper, because Backpage.com has not alleged here that its constitutionally protected speech
is proscribed by the SAVE Act or that it will have to employ “significant and costly compliance
measures” to comply with the statute. Therefore, the Court does not find the analysis in Cooper
(. . . continued)
Opp’n at 17 (citations and internal quotations omitted). However, Backpage.com’s characterization of the language
cited in Cooper and derived from Am. Booksellers Ass’n, mischaracterizes the standard. As the Supreme Court
noted, the plaintiff booksellers in Am. Booksellers Ass’n were able to seek pre-enforcement review of the
challenged statute because they “introduced 16 books they believed were covered by the statute and testified that
costly compliance measures would be necessary to avoid prosecution for displaying such books.” Susan B. Anthony
List, __ U.S. at __, 134 S. Ct. at 2343. Thus, as the government correctly notes, the Supreme Court “did not
establish a rule of ‘automatic’ standing based on the notion of a law targeting a specific individual or business.
Rather, the law at issue in that case was ‘aimed directly’ at the plaintiff booksellers in that it directly regulated
bookstore displays.” Gov’t’s Reply at 5. Thus, Backpage.com must also show that its interpretation of the SAVE
Act is correct, presumably by showing that its constitutionally protected speech is proscribed by the SAVE Act, and
that it would have to take significant compliance measures to comply with the statute or risk criminal prosecution.
And, unlike Am. Booksellers Ass’n, Backpage.com has not alleged or demonstrated that either its constitutionally
protected speech is chilled or proscribed by the SAVE Act or that it would have to undergo “significant and costly
compliance measures” to avoid the risk of prosecution. 484 U.S. at 642.
persuasive authority either.
The facts in this case are more aligned with those in American Library Association v.
Barr, 956 F.2d 1178. In Barr, the plaintiffs “sought an injunction and a judgment declaring [the
Child Protection and Obscenity Act of 1988’s] recordkeeping and forfeiture provisions to be
unconstitutional, in violation of the First Amendment.” 956 F.2d at 1181. Because the plaintiffs
represented that “they [would] not knowingly . . . produce child pornography or obscenity,” and
even if they did, “they could not contend that their speech would be ‘arguably affected with a
constitutional interest,’” id. at 1193 (citations omitted), the District of Columbia Circuit held that
“a litigant must demonstrate a credible threat of prosecution under a statute that appears to render
the litigant’s arguably protected speech illegal [and the p]laintiffs in th[at] case ha[d] not met that
essential requirement and therefore ha[d] failed to assert an injury in fact with respect to their
challenge,” id. at 1194 (“Here, as [the] plaintiffs admit, the forfeiture provisions are not ‘aimed’
at them. They are aimed instead at those who [knowingly] produce and distribute child
pornography and obscene material.”). Like the plaintiffs in Barr, Backpage.com has not argued
that it will knowingly host advertisements for sex trafficking, and if it did, it could not argue that
such speech is arguably affected with a constitutional interest. And, while it might be true that
some Congressional members had Backpage.com in mind when enacting the SAVE ACT, the
statute is “aimed” at individuals who knowingly advertise or benefit from advertising sex
trafficking. See 18 U.S.C. § 1591(a). Thus, the same conclusion must apply – Backpage.com
does not have standing to bring this pre-enforcement challenge to the SAVE Act.
Moreover, even assuming that Backpage.com intended “to engage in a course of conduct
arguably affected with a constitutional interest, [and] proscribed by [the SAVE Act],” Susan B.
Anthony List, __ U.S. at __, 134 S. Ct. at 2334, it nonetheless could not show the existence of a
credible threat of prosecution under the SAVE Act 6 because its interpretation of the mens rea
requirement of the SAVE Act is inaccurate. Backpage.com argues that “the mens rea
requirement in the . . . SAVE Act was enacted to require a higher mens rea for one who
‘advertises,’ i.e., the party placing the ad, while the lesser standard of reckless disregard may
apply to a party like a website that may benefit financially from the ‘advertising.’” Compl. ¶ 5.
In other words, Backpage.com contends that a website, like itself, “could be convicted pursuant
to § 1591(a)(2) in connection with advertising related to sex trafficking based on proof of
‘reckless disregard’ rather than actual knowledge that an ‘advertisement or communication was
for sex trafficking of an adult or a minor.’” Gov’t’s Mem. at 13 (citing Compl. ¶¶ 63–64). But,
the Court does not find that the plain reading of § 1591(a)(2) supports this interpretation because
“[§] 1591(a) allows for conviction based on a mens rea of ‘reckless disregard,’ rather than
knowledge, ‘except where the act constituting the violation of paragraph (1) is advertising.’”
Gov’t’s Mem. at 13 (citing 18 U.S.C. § 1591(a)). As the government aply notes,
[t]he statutory language does not limit this exception to prosecutions pursuant to
§ 1591(a)(1). Section 1591(a)(1) contains the list of ‘acts’ at issue, see id.
§ 1591(a)(1) (listing such acts as ‘recruits, entices, harbors, transports, provides,
obtains, advertises, maintains, patronizes, or solicits’). Id. § 1591(a)(1). The
offense set forth in § 1591(a)(2) is then defined by reference to the same ‘act[s]
described in violation of paragraph (1).’ Id. § 1591(a)(2). Thus, ‘the act
constituting the violation of paragraph (1)’ will be ‘advertising,’ regardless of
whether an individual is charged pursuant to § 1591(a)(1) as someone who
‘advertises,’ or pursuant to § 1591(a)(2) as someone who ‘benefits . . . from
participation in a venture which has engaged in [advertising].’
Gov’t’s Mem. at 14. Section 1591(a) then provides the following as the mens rea requirement
that applies to an individual who commits or benefits from one of the proscribed acts in
Backpage.com argues that when “statutes that facially restrict expressive activity by the class to which the plaintiff
belongs, the court will assume a credible threat of prosecution in the absence of compelling contrary evidence.”
Pl.’s Opp’n at 16 (citing Reno, 31 F. Supp. 2d at 480). But, because the SAVE Act does not facially restrict
Backpage.com’s expressive activity of hosting legal third party advertisements, or at least Backpage.com has not
alleged that the SAVE Act imposes such a restriction, Backpage.com’s reliance on this language to demonstrate a
credible threat of prosecution is misplaced.
connection with human sex trafficking: “knowing, or, except where the act constituting the
violation of paragraph (1) is advertising, in reckless disregard of the fact.” § 1591(a) (emphasis
added). Thus, the statute provides two mens rea standards, and the insertion of the word “or”
after the word “knowing,” which establishes the first mens rea standard, explicitly demonstrates
Congress’ intent to impose a second mens rea standard. And, the insertion of the phrase, “except
where the act constituting the violation of paragraph (1) is advertising,” after the word “or,”
indicates Congress’ intent to exclude the act of “advertising” from the mens rea standard of
reckless disregard. Consequently, where the act constituting a violation of the statute is
advertising, a conviction under § 1591(a) requires a “knowing” mens rea standard, and therefore,
the plain reading of § 1591(a) does not support Backpage.com’s interpretation. 7
Because Backpage.com has not alleged an “intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by [the SAVE Act],” Susan B.
Anthony List, __ U.S. at __, 134 S. Ct. at 2334, and because Backpage.com has not
demonstrated that a credible threat of prosecution under the SAVE Act exists, Backpage.com has
not demonstrated an injury-in-fact sufficient to confer standing to bring this pre-enforcement
action. Accordingly, the Court does not find this matter justiciable, as this Court lacks the
requisite subject matter jurisdiction to consider the merits of Backpage.com’s constitutional
In its complaint, Backpage.com cites multiple statements in the legislative history of the SAVE Act by
Congressional members which support the Court’s plain reading of § 1591(a) that the requisite mens rea standard for
a violation of the statute regarding advertising is the “knowing” standard. See Compl. ¶ 40(a)–(c) (quoting various
statements by Congressional members) (i.e., (1) “‘[S]ome have raised questions about how the advertising
prohibitions under this bill would apply to online companies,’ but ‘the standard of mens rea’ protects websites that
‘wind up finding things on their site that they may not have had anything to do with’”; (2) “The ‘knowingly
standard’ ‘emphatically’ refutes concerns that the ‘net might be too broad’ because a website ‘will not be caught up
if an adverstiement for sex trafficking appears without their knowledge’”; and (3) “I want the legislative history of
this bill to show that ‘knowingly’ is import”; the bill was ‘carefully crafted’ so that ‘Internet companies and
legitamte Web sites are protected’ unless ‘[t]hey . . . know that they are advertising for victims of human
challenge claims. Also, because the Court concludes that it must dismiss Backpage.com’s
pre-enforcement challenge for lack of subject matter jurisdiction, the Court need not consider the
government’s alternative argument to dismiss the complaint for failure to state a claim under
For all of the foregoing reasons, the Court grants the government’s motion to dismiss the
complaint in this case on the basis that it lacks subject matter jurisdiction to entertain this
SO ORDERED this 24th day of October, 2016. 8
REGGIE B. WALTON
United States District Judge
An Order consistent with this Memorandum Opinion is issued simultaneously with this opinion.
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