United States District Court, District of Columbia
B. WALTON UNITED STATES DISTRICT JUDGE
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,  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).
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.
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.
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
18 U.S.C.A. § 1591(a) (2015) (emphasis added).
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