J.S. v. Village Voice Media Holdings, LLC
359 P.3d 714
Wash.2015Background
- Minors (J.S., S.L., L.C.) were advertised in Backpage.com escort listings; plaintiffs allege those ads led to repeated sexual assaults and trafficking.
- Plaintiffs sued Backpage (Village Voice Media Holdings, Backpage.com LLC, New Times Media) under Washington state tort and criminally based statutes (negligence, sexual exploitation, commercial sexual abuse, etc.).
- Backpage moved to dismiss under CR 12(b)(6) asserting immunity under 47 U.S.C. § 230 of the Communications Decency Act (CDA); trial court denied dismissal and case was certified to the state supreme court.
- Core factual allegation: Backpage’s posting rules and content requirements were allegedly designed to help pimps craft ads that evaded law enforcement while conveying unlawful meaning — i.e., that Backpage "helped develop" the illegal content rather than merely hosting third-party content.
- Legal question: whether those allegations, taken as true at the pleading stage, are sufficient to overcome § 230 immunity because they plausibly show Backpage was an "information content provider" for some content by materially contributing to or developing the illegal ads.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 230 bar state-law claims based on ads posted by third parties on Backpage? | § 230 does not shield defendants because Backpage designed posting rules to induce illegal ads, making it a content developer. | § 230 preempts state-law claims treating Backpage as publisher/speaker of third-party content; Backpage was only an interactive computer service. | Denied dismissal: allegations that Backpage materially contributed to/developed illegal content are sufficient at pleading stage to survive § 230-based dismissal. |
| Do neutral content rules (posting guidelines, category labels) constitute "development" of content under § 230? | The rules here were not neutral: they were crafted to allow pimps to evade enforcement and thus contributed to illegality. | Neutral rules and categories do not make a site a content provider; users supplied the ads. | At pleadings stage, court accepts plaintiffs’ allegations that rules were designed in bad faith and orders fact-finding — so neutral-rule defense not resolved for dismissal. |
| Does Backpage’s for-profit model or knowledge of illicit use negate § 230 immunity? | Profit motive and knowledge of illicit use show intent and bad faith such that § 230 should not protect Backpage. | Profitability and notice do not transform a host into a content developer; § 230 applies irrespective of profit or notice. | Court did not decide immunity is defeated by profit/knowledge at this stage; allegations of bad-faith design are enough to proceed to discovery. |
| Is § 230(c)(1) an absolute immunity or a narrower protection limited to publisher/speaker treatment? | (Plaintiff) contends protection should not cover bad-faith content development; (Concurrence) §230(c)(1) prohibits treating hosts as publishers/speakers but does not create blanket immunity for other causes of action. | (Defendant and Dissent) §230(c)(1) broadly shields interactive service providers from being treated as publishers for third-party content; it preempts inconsistent state claims. | Majority: §230(c)(1) controls only claims that treat host as publisher/speaker; but where plaintiff plausibly alleges the host helped develop illegal content, §230 immunity does not necessarily bar the claim. Case remanded for fact development. |
Key Cases Cited
- Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (a website can lose § 230 immunity if it materially contributes to or requires illegal content)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (§ 230 protects hosts that merely publish third-party content; creating content removes protection)
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (§ 230 creates broad protection for interactive service providers against claims based on third-party content)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (analysis of when publishing-based duties are barred by § 230; permits non-publisher theories to proceed)
- Jane Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (§ 230 bars claims that effectively seek to impose liability for third-party content even when plaintiff seeks safety-related features)
- Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009) (neutral posting categories and rules do not by themselves make a host an information content provider)
- Jones v. Dirty World Entm’t Recordings, LLC, 755 F.3d 398 (6th Cir. 2014) (applying material-contribution test; selection/publishing of third-party content alone did not show content development)