backpage.com, LLC v. Lynch
216 F. Supp. 3d 96
| D.D.C. | 2016Background
- Backpage.com operates a national classified-ad website, including an "adult services" category; it screens and removes illicit ads and works with law enforcement.
- Congress amended 18 U.S.C. § 1591 via the SAVE Act (2015) to add "advertises" to the list of proscribed acts and clarified mens rea language, making advertising require a knowing standard.
- Backpage.com filed a pre-enforcement constitutional challenge to the SAVE Act, alleging vagueness, overbreadth, and First Amendment injury from potential prosecution.
- The government moved to dismiss for lack of subject‑matter jurisdiction (Rule 12(b)(1)) for lack of standing, or alternatively for failure to state a claim (Rule 12(b)(6)).
- The district court considered whether Backpage.com pleaded an injury‑in‑fact: i.e., an intention to engage in conduct arguably proscribed by the statute and a credible threat of prosecution.
- The court found Backpage.com does not intend to host ads that promote sex trafficking, and the SAVE Act targets knowingly advertising illegal sex‑trafficking (not lawful adult ads); therefore Backpage.com lacked standing and the case was dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Injury‑in‑fact for pre‑enforcement First Amendment challenge | Backpage intends to continue hosting third‑party ads (including adult/escort ads); SAVE Act targets Backpage and could subject it to prosecution, so it faces a credible threat | SAVE Act proscribes only advertising of illegal sex‑trafficking (not lawful ads); Backpage does not intend to post illegal ads and already screens content, so no imminent, cognizable injury | Dismissed: no Article III standing—no intent to engage in conduct arguably proscribed and no credible threat of prosecution |
| Scope/vagueness re: who can be liable under §1591 for "advertises" | SAVE Act is ambiguous whether websites (like Backpage) can be prosecuted based on reckless disregard under §1591(a)(2) | Plain text shows Congress excluded "advertising" from the reckless‑disregard mens rea; advertising requires a knowing standard, applying to both advertisers and those who benefit | Court adopts government reading: mens rea for advertising is knowing; Backpage’s worry about reckless‑disregard liability is misplaced |
| Whether prior decisions finding Backpage standing control here | Backpage cites state‑law preemption/injunction cases (Cooper, McKenna, Dart) as support for standing | Those cases involved different facts and statutes that directly targeted protected speech or sought to suffocate the business; they do not show a credible threat here | Court distinguishes those authorities and finds them inapplicable to this federal SAVE Act challenge |
| Justiciability / need to resolve merits given jurisdictional doubts | Backpage urges pre‑enforcement review to avoid chilling protected speech | Court emphasizes strict Article III limits and that hypothetical jurisdiction is impermissible; jurisdiction must be established before merits | Court declines to reach merits and dismisses for lack of subject‑matter jurisdiction |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (federal courts are courts of limited jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires plaintiff to prove injury, causation, redressability)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (pre‑enforcement First Amendment challenges and injury‑in‑fact standards)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (pre‑enforcement challenge allowed where credible threat of prosecution exists)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (no requirement to risk prosecution before seeking declaratory judgment)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (courts must resolve jurisdiction before merits)
- Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (credible threat and costly compliance measures support pre‑enforcement standing)
- United States v. Williams, 553 U.S. 285 (offers to engage in illegal transactions are unprotected speech)
- American Library Ass’n v. Barr, 956 F.2d 1178 (D.C. Cir. 1992) (no standing where plaintiffs disavow intent to engage in proscribed illegal speech)