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Backpage.com, LLC v. Lynch

United States District Court, District of Columbia

October 24, 2016

BACKPAGE.COM, LLC, Plaintiff,
v.
LORETTA E. LYNCH, in her official capacity as Attorney General of the United States of America, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         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 the government's motion to dismiss this action for lack of subject matter jusrisdiction pursuant to Rule 12(b)(1).

         I. BACKGROUND

         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 solicited." Id.

         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 paragraph (1),
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 advertisements] . .., including all text, titles, and photographs." Compl. ¶ 17. But, even though "Backpage.com does not dictate any content, ... it does screen, block, and remove advertisements] that violate the website's terms of ...


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