GONZÁLEZ, J.
¶ 1 The plaintiffs before us have been the repeated victims of horrific acts committed in the shadows of the law. They brought this suit in part to bring light to some of those shadows: to show how children are bought and sold for sexual services online on Backpage.com in advertisements that, they allege, the defendants help develop. Federal law shields website operators from state law liability for merely hosting content developed by users but does not protect those who develop the content. The plaintiffs allege that the defendants did more than just provide a forum for illegal content; the plaintiffs allege the defendants helped develop it. Taking the complaint as true, as we must at this point, we find that the plaintiffs have alleged sufficient facts that, if proved, would show that the defendants helped to produce the illegal content and therefore are subject to liability under state law. Accordingly, we affirm and remand to the trial court for
¶ 2 Advertisements featuring three minor girls, J.S., S.L., and L.C. (collectively J.S.), allegedly were posted on a website owned and maintained by Village Voice Media Holdings, d/b/a Backpage.com, Backpage.com LLC and New Times Media LLC, d/b/a/ Backpage.com (collectively Backpage). J.S. allegedly was raped multiple times by adult customers who responded to the advertisements.
¶ 3 J.S. filed a complaint alleging state law claims for damages against Backpage and Baruti Hopson.
¶ 4 J.S. allegedly was featured in Backpage advertisements posted in accordance with instructions on Backpage's website without any special guidance from Backpage personnel. J.S. alleges that all of the advertisements featuring J.S. complied with Backpage's content requirements.
¶ 5 Backpage does not allow advertisements on its website to contain naked images, images featuring transparent clothing, sexually explicit language, suggestions of an exchange of sex acts for money, or advertisements for illegal services. In addition to these rules, specifically for advertisements posted in the "`escort'" section of its website, Backpage does not allow "any solicitation directly or in `coded' fashion for any illegal service exchanging sexual favors for money or other valuable consideration," "any material on the Site that exploits minors in any way," or "any material ... that in any way constitutes or assists in human trafficking." CP at 9-10.
¶ 6 "A trial court's ruling to dismiss a claim under CR 12(b)(6) is reviewed de novo." Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). At this stage, "we accept as true the allegations in a plaintiff's complaint and any reasonable inferences therein." Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998) (citing Chambers-Castanes v. King County, 100 Wn.2d 275, 278, 669 P.2d 451 (1983); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978)). "CR 12(b)(6) motions should be granted `sparingly and with care' and `only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" Cutler v. Phillips Petrol. Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994) (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988)). "Dismissal under CR 12(b)(6) is appropriate only if `it appears beyond a reasonable doubt that no facts exist that would justify recovery.'" In re Parentage of C.M.F., 179 Wn.2d 411, 418, 314 P.3d 1109 (2013) (quoting Cutler, 124 Wash.2d at 755, 881 P.2d 216).
¶ 7 J.S. alleges that Backpage facilitated the violation of numerous Washington laws, including violations of Washington's laws against trafficking, commercial sexual abuse, and prostitution.
¶ 8 Federal law, however, preempts state law when state law "would stand `as an obstacle to the accomplishment of the full purposes and objectives of Congress' in passing § 230 of the CDA." Zeran v. Am. Online, Inc., 958 F.Supp. 1124, 1134 (E.D.Va.1997) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)), aff'd, 129 F.3d 327 (4th Cir.1997), cert. denied, 524 U.S. 937, 118 S.Ct. 2341, 141 L.Ed.2d 712 (1998). Applicable here, the CDA provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).
¶ 9 Under the CDA, an "information content provider"
¶ 10 Accordingly, the CDA controls whether Backpage is immune from J.S.'s state law claims. The scope of CDA immunity is a matter of first impression for this court.
¶ 11 This case turns on whether Backpage merely hosted the advertisements that featured J.S., in which case Backpage is protected by CDA immunity, or whether Backpage also helped develop the content of those advertisements, in which case Backpage is not protected by CDA immunity.
Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir.2008) (citing Anthony v. Yahoo! Inc., 421 F.Supp.2d 1257, 1262-63 (N.D.Cal.2006)). A website operator, however, does not "develop" content by simply maintaining neutral policies prohibiting or limiting certain content. See, e.g., Dart v. Craigslist, 665 F.Supp.2d 961, 968-69 (N.D.Ill.2009).
¶ 12 Viewing J.S.'s allegations in the light most favorable to J.S., as we must at this stage, J.S. alleged facts that, if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content. Those allegations include that (1) "Backpage.com ... has
¶ 13 Given J.S.'s allegations, it does not appear "`beyond a reasonable doubt that no facts exist that would justify recovery'" in this case, and, therefore, dismissal of J.S.'s claims under CR 12(b)(6) is not appropriate. In re C.M.F., 179 Wash.2d at 418, 314 P.3d 1109 (quoting Cutler, 124 Wash.2d at 755, 881 P.2d 216). It is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking to determine whether Backpage is subject to suit under the CDA because "a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct." Fair Hous. Council, 521 F.3d at 1168. Fact-finding on this issue is warranted.
¶ 14 We find the plaintiffs have pleaded a case that survives the motion to dismiss. Accordingly, we affirm the trial court and remand for further proceedings consistent with this opinion.
WE CONCUR: MADSEN, C.J., JOHNSON, STEPHENS and YU, JJ.
WIGGINS, J. (concurring).
¶ 15 I fully concur in the majority opinion. CR 12(b)(6) motions should be granted "`sparingly and with care' and `only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998) (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988)). These procedural rules "are intended to facilitate the full airing of claims having a legal basis." Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187 (1977). Here, plaintiffs claim that Backpage.com
¶ 16 I write separately to emphasize that this holding implies that the plaintiffs' claims do not treat Backpage.com as the publisher or speaker of another's information under the Communications Decency Act of 1996(CDA), 47 U.S.C. § 230(c). The dissent misreads this statute to provide "immunity" to "`interactive service providers.'" Dissent at 724. This reading is irreconcilable with the actual language of the statute, which does not include the term or any synonym of "immunity." Subsection 230(c)(1) instead provides a narrower protection from liability: the plain language of the statute creates a defense when there is (1) a provider or user of an interactive computer service (2) whom a
¶ 17 Thus, when the cause of action does not treat an intermediary as a publisher or speaker, subsection 230(c)(1) cannot be read to protect that intermediary from liability. Plaintiffs' claims that Backpage.com created "content rules" specifically designed to induce sex trafficking and evade law enforcement do not treat Backpage.com as the publisher or speaker of another's information. Accordingly, I join the majority opinion.
¶ 18 We begin by considering the plain language of the statute. Though subsection 230(c) has two parts, Backpage.com relies entirely on subsection 230(c)(1), captioned "Treatment of publisher or speaker."
The plain language of subsection 230(c) does two things: it precludes treating an interactive computer service provider as publisher or speaker of information provided by another provider, and it limits two distinct types of potential liability: (1) a provider or user cannot be subject to liability for any action taken in good faith to restrict access to materials considered to be objectionable, and (2) a provider or user cannot be subject to liability for any action taken to make it possible for any user to restrict access to material. However, the plain language of subsection 230(c)(1) does not, as Backpage.com and the dissent assert, create an "immunity."
¶ 19 The plain language of subsection 230(c) permits liability for causes of action that do not treat the user or Internet service provider (ISP) as a publisher or a speaker. Backpage.com's argument that section 230 "provides broad immunity to online service providers" is wholly unsupported by the statute's plain language — subsection 230(c) says nothing about "broad immunity." Rather, subsection 230(c)(1) simply precludes treating the user or ISP "as the publisher or speaker of any information" if that information was "provided by another information content provider." If the elements of a cause of action include proof that an ISP is the publisher or speaker of information provided by another information content provider,
¶ 20 The context of subsection 230(c)(1) also compels the conclusion that it does not establish an immunity. We must consider the context of the statute in discerning its meaning. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-12, 43 P.3d 4 (2002) (In interpreting a statute we "tak[e] into account the statutory context, basic rules of grammar, and any special usages stated by the legislature on the face of the statute.'" (quoting 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 48A:16, at 809-10 (6th ed.2000))). Subsection 230(c) includes two distinct subsections:
The actual defenses against civil liability are found in subsection 230(c)(2). In other words, subsection 230(c)(1) is neither an immunity nor a defense; it is a prohibition against considering the provider as a publisher or speaker of content provided by another. The main purpose of subsection 230(c) is not to insulate providers from civil liability for objectionable content on their websites, but to protect providers from civil liability for limiting access to objectionable content. Ironically, the dissent would turn section 230 upside down, insulating plaintiffs from expanding access to objectionable content.
¶ 21 Backpage.com's reading, adopted by the dissent, totally ignores subsection 230(c)(2); the dissent instead asserts that good faith is irrelevant to subsection 230(c)(1). See dissent at 736-37. Whether or not that is correct, good faith is certainly relevant to subsection 230(c)(2), which expressly requires "good faith." We cannot just ignore this subsection — we read statutes in context and consider the statute's placement within the entire statutory scheme. Campbell & Gwinn, 146 Wash.2d at 9, 43 P.3d 4. Subsection 230(c)(2)(A) of the CDA protects providers from civil liability when they act in good faith to limit access to objectionable content, regardless of their status as a publisher or speaker. As discussed in more detail below, this provision clearly shows that Congress contemplated defenses for good faith actions that do not rely on an ISP's status as a publisher or speaker. But it would be absurd to ignore this language in order to protect the actions of Backpage.com, taken in bad faith, that have nothing to do with publishing or speaking another's content.
¶ 22 The purpose of the CDA provides further support for the conclusion that subsection 230(c)(1) does not provide "absolute immunity" to providers. Congress set forth its findings in subsection 230(a) and its resulting policies in subsection 230(b): promoting "the continued development of the Internet"; preserving "the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation"; encouraging the "development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services"; removing "disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material"; and ensuring "vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." 47 U.S.C. § 230(b).
¶ 23 Subsection 230(b) makes clear that Congress intended to remove disincentives to technologies that would restrict Internet access to objectionable materials. But Backpage.com would have us brush aside as irrelevant the subsection 230(c)(2) defenses that accomplish the congressional intent. Instead of encouraging all ISPs to incorporate restrictive technologies, this reading would absolutely immunize providers who allow third parties freedom to post objectionable materials on the providers' websites.
¶ 25 The dissent also supports its argument for broad immunity through repeated references to other courts' interpretations of the congressional intent in enacting section 230, "but such noise ultimately signifies nothing. It is the language of the statute that defines and enacts the concerns and aims of Congress; a particular concern does not rewrite the language." Barnes, 570 F.3d at 1105. I would hold that subsection 230(c)(1) creates a defense to, not an immunity from, liability arising from a cause of action that would treat the web host as a publisher or speaker.
¶ 26 With this approach in mind, we ask when subsection 230(c)(1) protects Backpage.com from liability. Some of the claims asserted by the plaintiffs treat Backpage.com as the publisher or original speaker of the pimps' offensive postings on their message board. These claims must be dismissed: the plain language of the subsection 203(c)(1) clearly protects Backpage.com from claims that would hold it liable for publishing or speaking another's information. See, e.g., Zeran, 129 F.3d at 333 (dismissal appropriate for both initial publication and delay in removal of defamatory messages); Carafano, 339 F.3d at 1124-25 (dismissal appropriate for suit alleging invasion of privacy and defamation, among other things, based on third-party submission of false dating profile).
¶ 27 However, the plaintiffs also allege that Backpage.com's content rules were adopted and intended to assist pimps in using ambiguous language to avoid police attention or to minimize the appearance that they are selling the sexual favors of their prostitutes. Specifically, plaintiffs complain that these content rules "are nothing more than a method developed by Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law enforcement for illegal sex trafficking."
¶ 28 The dissent would answer the first question by holding that the adoption of posting rules designed to induce sex trafficking does not make Backpage.com a "content developer" under the statute; i.e., Backpage.com is not the original speaker of the information. Dissent at 731. This may be true; many courts have held that content rules do not equal content development. See, e.g., Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 963 (N.D.Ill.2009); Roommates.com, 521 F.3d at 1171. But the real question is whether plaintiffs' allegations that Backpage.com developed posting rules to induce prostitution require us to treat Backpage.com as the publisher or speaker of another's information.
¶ 29 Backpage.com argues that plaintiffs' inducement theory clearly treats them as publishers and that holding it liable would punish the company for publishing third party content. To the contrary, plaintiffs have alleged a totally different theory — that Backpage.com guided pimps to craft Invitations to prostitution that appear neutral and legal so that the pimps could advertise prostitution and share their ill-gotten gains with Backpage.com. Plaintiffs are not claiming that Backpage.com itself is acting as their pimp but that Backpage.com is promoting prostitution, which is a crime in Washington (RCW 9A.88.060) and should support a cause of action. The dissent does not analyze how these claims treat Backpage.com as a publisher or a speaker, relying instead on analogies to distinguishable cases. Unlike the cause of action in Chicago Lawyers' Committee, which relied on 42 U.S.C. § 3604(c),
¶ 30 Factually, the dissent finds the most support for its position in Dart, 665 F.Supp.2d 961. But Dart recognized that Craigslist "could be held liable for `causing' discriminatory ads if that was in fact what it had done"; it simply disagreed with the petitioner's assertion that the mere existence of an "`adult services'" section necessarily induced others to provide unlawful content.
¶ 31 The dissent further asserts that our interpretation of subsection 230(c)(2) "basically eviscerates § 230(c)(1) ... by arguing that § 230(c)(2) provides the defendant with the defense, while § 230(c)(1) essentially provides the defendant with nothing." Dissent at 737. This is an empty rhetorical flourish and a strange one to make of this concurring opinion, which straightforwardly acknowledges that to the extent plaintiffs' claims treat Backpage.com as a publisher or original speaker, such claims "must be dismissed." Supra at 721. The dissent's rhetoric reveals its unwillingness to acknowledge that the plaintiffs make at least two claims: publishing advertisements treating the plaintiffs as chattels to be bought and sold over the Internet and crafting bad faith guidelines intended to create a plausible denial of the true nature of the services for which the plaintiffs were bought and sold — that is, promoting prostitution or inducing sex trafficking. Successfully defending against one of two claims does not "eviscerate" the remaining claim.
¶ 32 A simple analogy shows that defending against the publication claim does not defeat the bad faith guideline claim. A patient can bring a medical malpractice claim against a treating physician for at least two different claims — failure to adhere to the standard of care and failure to obtain informed consent to treatment. If the physician defeats the claim based on standard of care, the informed consent claim would remain to be resolved. No one would say that the successful defense of the standard of care claim "provides the defendant with nothing," dissent at 737, or that the continued viability of the informed consent claim "eviscerates" the standard of care claim. Id. So too here the continued viability of the bad faith guidelines claim works no "evisceration."
¶ 33 Recognizing that the statute contains competing policy goals, recent circuit court decisions have protected "Good Samaritan" and neutral behavior while asserting that culpable behavior by websites is not protected under section 230.
¶ 34 "The Communications Decency Act was not meant to create a lawless no-man's-land on the Internet." Roommates.com, 521 F.3d at 1164. The CDA instead prevents website hosts from being liable when they elect to block and screen offensive material, and it encourages the development of the Internet by not permitting causes of action, such as defamation, that would treat the web host as the publisher or speaker of objectionable material. Neither of these directives requires us to blindly accept the early premise of "broad immunity" in order to defeat potentially meritorious claims alleging flagrantly criminal complicity or inducement by website hosts on the Internet. We should interpret the statute to create a defense to, not an immunity from, liability arising from a cause of action that would treat the web host as a publisher or speaker. Because the plaintiffs' claims do not treat Backpage.com as a publisher or speaker, I join the majority in affirming the trial court's decision to deny Backpage.com's motion to dismiss.
¶ 35 Accordingly, I concur in the majority opinion.
GORDON McCLOUD, J. (dissenting).
¶ 36 The question before us is whether J.S.'s
¶ 37 We must now decide whether Backpage fits within the CDA's broad definition of an "interactive ... service ... provider" under subsection 230(c)(1), entitled to immunity from suit for content published on its website, or whether it is, instead, an "information content provider" that is not immune. The majority holds that J.S.'s complaint would support a claim that Backpage functions as an "information content provider" because it alleged that Backpage maintains content requirements for advertisements posted on its website that surreptitiously guide pimps on how to post illegal, exploitative ads. But J.S.'s complaint clearly alleges that another content provider, not Backpage, provided the content for the advertisements. J.S. thus seeks to hold Backpage liable as a publisher or speaker of that information. Subsection 230(c)(1) therefore bars J.S.'s claims. Accordingly, I would reverse the trial court's decision to deny the defendant's Civil Rule (CR) 12(b)(6) motion to dismiss the complaint. I respectfully dissent.
¶ 38 The complaint alleges that pimps posted advertisements displaying J.S. for sale for prostitution on the "escort" section of Backpage's website. Clerk's Papers (CP) at 1-2. Adult customers then responded to these advertisements and raped J.S. multiple times. CP at 2. The pimps posted these advertisements by using a computer; they had no personal contact with Backpage personnel. CP at 12.
¶ 39 The complaint further alleges that Backpage maintains content requirements for advertisements posted on its website and removes ads that violate these requirements. CP at 6. Backpage prohibits the use of sexually explicit language; naked images; images using transparent clothing, graphic box, or pixelization to cover bare breasts or genitalia; certain code words; suggesting an exchange of sex acts for money; and advertising an illegal service. CP at 8.
¶ 40 Users must also agree to certain content requirements to post advertisements on the "escort" section of the Backpage website. These requirements bar posting "obscene or lewd and lascivious graphics or photographs which depict genitalia or actual or simulated sexual acts"; "any solicitation directly or in `coded' fashion for any illegal service exchanging sexual favors for money or other valuable consideration"; "any material on the Site that exploits minors in any way"; or "any material on the Site that in any way constitutes or assists in human trafficking." CP at 9-10. Backpage also requires users to agree that they are "at least 18 years of age or older and not considered to be a minor in my state or residence." CP at 10.
¶ 41 J.S. alleges that all of the advertisements about J.S. complied with Backpage's content requirements. CP at 16, 18, 20-21. We interpret this as an allegation that those advertisements complied with Backpage's requirements for language and images but failed to comply with Backpage's rules barring advertisements for illegal services and exploitation of minors — because Backpage's alleged illegal exploitation of minors forms the gravamen of the complaint.
¶ 42 On September 5, 2012, J.S. filed a first amended complaint, raising state law claims for damages against the current defendants plus Baruti Hopson, an alleged pimp. CP at 1-26.
¶ 43 J.S. opposed, arguing, "Backpage engages in three distinct activities, each of which independently excludes CDA immunity." CP at 194. J.S. asserted that Backpage (1) "`created' its unlawful `escort' heading," CP at 195-96 (formatting omitted), (2) "developed the unlawful content by making it `useable and available,'" CP at 196-97 (formatting omitted), and (3) "encouraged unlawful content." CP at 197-204 (formatting omitted).
¶ 44 The trial court rejected J.S.'s first argument, explaining that a website could not be held liable for advertising for escorts because that is a legal activity. Verbatim Tr. of Proceedings (VRP) at 23. The trial court also rejected J.S.'s second argument that Backpage conspired with users, VRP at 15, 23, 50. But the court accepted J.S.'s third argument — that Backpage's posting rules were "designed to help pimps develop advertisements that can evade the unwanted attention of law enforcement, while still conveying the illegal message." CP at 201. It therefore denied Backpage's motion to dismiss, stating,
VRP at 49-50.
¶ 45 The Court of Appeals granted Backpage's motion for discretionary review and then certified the case to this court for direct review under RCW 2.06.030.
¶ 46 This court reviews the denial of a CR 12(b)(6) motion to dismiss de novo. Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). We presume that all facts alleged in the plaintiff's complaint are true. Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998). But we are not required to accept the complaint's legal conclusions as correct. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987). Dismissal is proper when it appears beyond a reasonable doubt that the plaintiff can prove no set of facts that would justify relief. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922 n. 9, 296 P.3d 860 (2013).
¶ 47 The resolution of this case depends on our interpretation of a federal statute, 47 U.S.C. § 230(c). It provides:
Subsection 230(c)(1) — the basis for Backpage's motion to dismiss — protects defendants from claims if (1) the defendant is an "interactive computer service ... provider" or "user," (2) the cause of action treats the defendant as a publisher or speaker of information, and (3) a different information content provider provided the information. 47 U.S.C. § 230(c)(1). An "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(f)(2). An "information content provider," on the other hand, is defined as any person or entity "responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3).
¶ 48 Subsection 230(e) of the CDA, titled "Effect on other laws," then provides a limited exception to the immunity described
47 U.S.C. § 230(e) (emphasis added). As the majority acknowledges, the emphasized last sentence shows the limits of what is carved out, barring any state lawsuit that is based on a theory of liability "`inconsistent with this section.'" Majority at 717 (quoting 47 U.S.C. § 230(e)(3)). The "section" is section 230, whose first subsection, as discussed above, prohibits treating interactive computer service providers as "publisher[s] or speaker[s]," 47 U.S.C. § 230(c)(1). Its second subsection bars liability based on certain good faith content restrictions. 47 U.S.C. § 230(c)(2).
¶ 49 Most courts characterize subsection 230(c)(1)'s language treating Internet service providers as "publisher[s] or speaker[s]" of the content that they display as providing an "immunity" from suit.
¶ 50 The concurrence finds the difference dispositive. Concurrence at 721 (holding that subsection 230(c) creates "a defense to, not an immunity from, liability arising from a cause of action that would treat the web host as a publisher or speaker").
¶ 51 I don't. Given the allegations in this particular case, the difference in terminology is irrelevant. The question is how far the subsection 230(c)(1) protection reaches, and courts interpreting subsection 230(c)(1)'s language uniformly hold that its protection for publishers is "quite robust." They apply an expansive definition of "`interactive computer service provider'" and a rather restrictive definition of "information content provider." Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.2003) (footnotes omitted). They hold that the law provides immunity if the plaintiff alleges that the defendant violated a duty deriving from the defendant's status or conduct as a publisher or speaker. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107-09 (9th Cir.2009). As long as a third party "`willingly provides the essential published `content, the interactive service provider receives full immunity regardless of the specific
¶ 52 As the majority notes, if a website operator is in part responsible for the creation or development of content, then it is considered an information content provider as to that content and loses immunity from claims predicated on such content. Majority at 717-18; Jones v. Dirty World Entm't Recordings, LLC, 755 F.3d 398, 408-09 (6th Cir.2014) (Jones III).
¶ 53 But critically for this case, a person or entity does not qualify as an information content provider merely by facilitating an individual user's expression of information, if it is the user alone who selects the content. Carafano, 339 F.3d at 1124.
¶ 54 J.S. argues, "Granting [i]mmunity to the Backpage [d]efendants at the CR 12(b)(6) [p]hase of [l]itigation [w]ould [r]esult [i]n [a]bsurdity" because Congress "did not intend to grant absolute immunity to websites let alone immunity to websites whose primary business is to generate profit from the sex trafficking of women and children." Br. of Resp'ts at 37 (boldface omitted). But J.S. provides no citations to congressional intent to support this argument.
¶ 55 The statute shows that Congress weighed the policy concerns at issue here differently. Subsection 230(b) of the CDA states,
47 U.S.C. § 230(b).
¶ 57 Section 230 thus puts a premium on two basic policy concerns: promoting the free exchange of information and ideas over the Internet, and encouraging voluntary monitoring for offensive or obscene material. Carafano, 339 F.3d at 1122; Batzel v. Smith, 333 F.3d 1018, 1026-30 (9th Cir.2003). Congress was working against a backdrop of laws providing that publishers of media such as "`newspapers, magazines or television and radio stations'" may "`be held liable for publishing or distributing ... material written or prepared by others.'" Batzel, 333 F.3d at 1026 (quoting Blumenthal v. Drudge, 992 F.Supp. 44, 49 (D.D.C.1998)). Section 230 intentionally treats Internet publishers "differently from corresponding publishers in print, television and radio." Carafano, 339 F.3d at 1122; see also Batzel, 333 F.3d at 1026-27.
¶ 58 In fact, Congress enacted the CDA to respond to Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *5 (N.Y.Sup.Ct. May 26, 1995), an unpublished state court decision that held that the provider of an online messaging board could be liable for defamatory statements that
¶ 59 Many of the CDA decisions note these competing policy concerns. The courts, however, consistently acknowledge that Congress already weighed those competing policies when it enacted subsection 230(c)(1). In PatentWizard, Inc. v. Kinko's, Inc., 163 F.Supp.2d 1069 (D.S.D.2001), for example, a defamation action involving CDA immunity, the court described the conflict between facilitating the Internet's growth and preventing harm to individuals. It concluded that Congress erred on the side of favoring "robust [Internet] communication":
Id. at 1071-72 (citation omitted); see also Batzel, 333 F.3d at 1027, 1028 ("[T]here is an apparent tension between Congress's goals of promoting free speech while at the same time giving parents the tools to limit the material their children can access over the Internet.... The need to balance competing values is a primary impetus for enacting legislation. Tension within statutes is often not a defect but an indication that the legislature was doing its job.").
¶ 60 Congress's policy choice resulted in subsection 230. As the majority acknowledges, federal law preempts state law when the state law "would `stand `as an obstacle to the accomplishment of the full purposes and objectives of Congress' in passing § 230 of the CDA." Zeran v. Am. Online, Inc., 958 F.Supp. 1124, 1134 (E.D.Va.1997) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)), aff'd, 129 F.3d 327 (4th Cir.1997).
¶ 61 With this background about subsection 230(c)(1)'s language, context, and policy choices in mind, I turn to J.S.'s claims.
¶ 62 The first prerequisite to subsection 230(c)(1) immunity is that the defendant is an interactive service provider. The parties do not dispute Backpage is such an interactive service provider. The parties are correct.
¶ 63 The second prerequisite to CDA immunity is that the interactive service provider (here, Backpage) is acting as a publisher or speaker. The parties do not dispute that
¶ 64 J.S. and the majority, however, argue that Backpage flunks the third prerequisite to CDA immunity because it could also be an information content provider. As discussed above, J.S. argues,
CP at 89. Similarly, the majority holds, "Backpage's advertisement posting rules were not simply neutral policies prohibiting or limiting certain content but were instead `specifically designed ... so that pimps can continue to use Backpage.com to traffic in sex.'" Majority at 718 (quoting CP at 12).
¶ 65 Because we are reviewing a CR 12(b)(6) motion, the assertion that Backpage constitutes a "content provider" must stand or fall on J.S.'s factual allegations, not on these legal arguments.
¶ 66 First, J.S. alleges, "The Backpage.com defendants were well aware that their website was being used in this way because they developed and required content to ensure that young girls, like the Plaintiffs, would continue to be advertised in this manner." CP at 2. The allegation about "required content" or content rules is not a basis for liability, as discussed below, at Part B. The allegation about awareness of illegal content is irrelevant, as discussed below, at Part D. And the allegation about the meaning of "develop" is a legal conclusion, not a factual allegation. We do not consider such legal conclusions. Haberman, 109 Wash.2d at 120, 744 P.2d 1032, 750 P.2d 254.
¶ 67 J.S. also alleges that Backpage "owns, operates, designs and controls the website Backpage.com, including its content," CP at 3, and that "Backpage.com develops the content of the prostitution advertisements on its website through the use of the foregoing content requirements." CP at 10. This is a claim that equates content rules with content development. This is a legal assertion, and, as discussed below in Part B, it is one that Congress rejected when it enacted the CDA.
¶ 68 The complaint further alleges, "[Backpage's] content requirements are specifically designed to control the nature and context of those advertisements so that pimps can continue to use Backpage.com to traffic in sex, including the trafficking of children, and so Backpage.com can continue to profit from those advertisements." CP at 12. Once again, "content requirements" — even content requirements that promote sex trafficking — do not constitute content development under the CDA.
¶ 69 The complaint similarly alleges, "Backpage.com does not impose [a licensing] requirement for its website because it believes it is immune from liability, regardless of its substantial role in creating the content and context of the advertisements on its website."
¶ 70 Addressing the specific advertisements at issue, J.S. alleges, "As a result of Backpage.com's relationship and agreement with [alleged pimp] Hopson, J.S. engaged in sexual activities with adults, including sexual intercourse with multiple adult customers per day for several months." CP at 17. J.S. also alleges that pimps "dressed S.L. in lingerie and took photographs of her to create advertisements for the Backpage.com escort website.... The wordings of the advertisements were sexually suggestive and obvious invitations for commercial sex acts with the underage S.L., and from the appearance of her photographs it was obvious S.L. was underage." CP at 17-18. J.S. further alleges, "The wordings of the advertisements were sexually suggestive and obvious invitations for commercial sex acts with the underage L.C. and from the appearance of her photographs it was obvious L.C. was underage. The advertisements were for prostitution services and included contact information that allowed customers to access L.C." CP at 20. These allegations, while repulsive, do not demonstrate that Backpage created the content of these advertisements and hence do not form a basis for rejecting the application of CDA immunity here.
¶ 71 I fear that the majority has accepted J.S.'s legal conclusions while failing to recognize the lack of supporting facts. But when we depart from J.S.'s legal argument and look only at factual allegations — as we must when reviewing a CR 12(b)(6) motion — we find allegations that pimps wrote and uploaded illegal content and that Backpage intentionally published it, knowing that it would lead to child sex trafficking. As discussed in the sections below, Congress has said that is not content development, but publication.
¶ 72 J.S. argues that Backpage "developed" content by maintaining content requirements for advertisements posted on its website:
Br. of Resp'ts at 21.
¶ 73 This allegation — that Backpage designed its posting rules to induce sex trafficking — might prove true. Indeed, we presume it is true when evaluating the sufficiency of J.S.'s complaint. But adopting such posting rules still does not make Backpage a "content provider" within the meaning of the CDA, even under the Ninth Circuit case upon which J.S., the majority, and the concurrence place principal reliance. Majority at 717-18; concurrence at 723-24. In that case, Roommates, the court held, "[A] website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct." 521 F.3d at 1168.
¶ 74 In fact, courts have consistently rejected the contention that defendants "develop" content by maintaining neutral policies prohibiting or limiting certain content. For example, in Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 969 (N.D.Ill.2009), which the majority cites at 717, the plaintiff claimed that even though Craigslist, an Internet classifieds
¶ 75 The facts in Dart are analogous to the facts here. J.S. alleges that pimps — not Backpage — created and uploaded the ads at issue. CP at 2 ("adult pimps ... posted advertisements for the girls"), 17 ("adult pimps ... create[d] ... and then uploaded [the] advertisements of S.L. onto ... Backpage.com"). Nothing in Backpage's policies obligated users to flout Backpage's express content requirements or to post unlawful content. J.S.'s allegations indicate that the pimps chose the content ultimately used in the advertisements. CP at 2, 12, 16, 17-18, 20-21. The actual "information" at issue consisted of the particular wording and photos that the pimps provided. CP at 16-21.
¶ 76 Thus, holding Backpage liable would punish it for publishing third party content, and the CDA prohibits such liability. See also Jane Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir.2008) (dismissing claims brought on behalf of a minor sexually assaulted after meeting a man through the defendant's website: "[Plaintiffs'] claims are barred by [section 230], notwithstanding their assertion that they only seek to hold MySpace liable for its failure to implement measures that would have prevented [the abuse]. Their allegations are merely another way of claiming that MySpace was liable for ... third-party-generated content."); Julie Doe v. MySpace Inc., 175 Cal.App.4th 561, 573, 96 Cal.Rptr.3d 148 (2009) ("[Plaintiffs] want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity — to restrict or make available certain material — is expressly covered by section 230."); John Doe v. SexSearch.com, 502 F.Supp.2d 719, 727-28 (N.D.Ohio 2007) ("At the end of the day ... Plaintiff is seeking to hold Sex-Search liable for its publication of third-party content and harms flowing from the dissemination of that content.... Section 230 specifically proscribes liability in such circumstances."), aff'd on other grounds, 551 F.3d 412 (6th Cir.2008).
¶ 77 J.S. and the majority then rely on Roommates, 521 F.3d at 1168, to suggest that Backpage lost immunity because it "`contribute[d] materially to the illegality of the alleged conduct.'" Majority at 718.
¶ 78 They misread Roommates. In Roommates, the Ninth Circuit did hold that Roommates.com was an information content provider and was not entitled to immunity from liability for violating housing discrimination laws under the CDA. 521 F.3d at 1164. But as a condition for using its website, which is designed to help individuals find suitable roommates, Roommates.com required users to create a profile describing the user's desired roommate and mandated that users "disclose his sex, sexual orientation and whether he would bring children to a household." Id. at 1161. Notably, the website also encouraged users to provide separate
Id. at 1172.
¶ 79 Critically, however, Roommates also held that the defendant was immune from liability for the open-ended comments users posted, which the website neither required nor shaped through its questionnaire:
Id. at 1173-74.
¶ 80 Thus, the defendant in Roommates was immune from liability for claims based on nonmandatory content even if this content showed roommate selection on a discriminatory basis. But it was not immune for alleged violations of housing discrimination laws based on the comments that Roommates.com elicited with mandatory illegal questions about race, sex, or sexual preferences.
¶ 81 Here, J.S. alleges that Backpage maintains policies prohibiting solicitation for illegal services "exchanging sexual favors for money or other valuable consideration," prohibiting material that exploits minors, and prohibiting material that "in any way constitutes or assists in human trafficking." CP at 9-10. J.S. also acknowledges — and even alleges — that Backpage prohibits the use of sexually explicit language; naked images; images using transparent clothing, graphic box, or pixelization to cover bare breasts or genitalia; certain code words; suggesting an exchange of sex acts for money; and advertising an illegal service. CP at 8. If users post advertisements that do not comply with these guidelines, it is not because Backpage caused them to do so with mandatory questions or in any other way. Thus, contrary to the majority's and the concurrence's arguments, majority at 718; concurrence at 722-23, unlike the website in Roommates, Backpage does not tell users that they should or must include certain information as a condition of using the website. And J.S. does not allege that Backpage induces users to post particular advertisements or express a preference for soliciting minors for sex. See Chi. Lawyers', 519 F.3d at 671-72. Backpage instead "provide[s] a framework that could be utilized for proper or improper purposes." Roommates, 521 F.3d at 1172.
¶ 82 Based on these factual allegations, Backpage's rules did not cause or induce anyone to create, post, or search for illegal content. See Dart, 665 F.Supp.2d at 969. Therefore, even under Roommates, J.S. fails to allege facts that would establish Backpage created content through its posting requirements.
¶ 83 J.S. also claims that CDA immunity does not apply because Backpage derives the
¶ 84 But under the CDA, "`[t]he fact that a website elicits online content for profit is immaterial; the only relevant inquiry is whether the interactive service provider "creates" or "develops" that content.'" M.A. v. Vill. Voice Media Holdings, LLC, 809 F.Supp.2d 1041, 1050 (E.D.Mo.2011) (alteration in original) (quoting Goddard v. Google, Inc., No. C 08-2738JF(PVT), 2008 WL 5245490, at *3 (N.D.Cal. Dec. 17, 2008) (court order)). Barring subsection 230(c) immunity because Backpage structured its website to increase its profits "would be to create a for profit exception to § 230's broad grant of immunity. This the Court may not do." Id.
¶ 85 Based on the allegations in this complaint, Backpage did not materially contribute to the development or creation of the content at issue no matter how much it benefited financially from the pimps' use of its website.
¶ 86 J.S. also claims that Backpage contributes materially to the unlawful content of the advertisements on its website because "Backpage chose the term `escorts' as its heading because it means `prostitutes' in the world of sex trafficking, and thus would most effectively identify the internet location of illicit sex ads to johns." Br. of Resp'ts at 30. J.S. asserts that Backpage placed its own logo and the word "escort" on the individual ads in the "escort" section. Id.
¶ 87 J.S. cites First Global Communications, Inc., v. Bond, 413 F.Supp.2d 1150, 1152 (W.D.Wash.2006), and states that the case "recognize[ed] `escort was a euphemism for prostitution services.'" Br. of Resp'ts at 28. This is incorrect. In fact, Bond involved websites that admittedly provided information about prostitution services in the United States and abroad. 413 F.Supp.2d at 1151-52. The court made no findings about the term "escort" and did not seek to define this term. Rather, in describing the website, the court noted, "Plaintiff's counsel acknowledged at oral argument that `escort services' is essentially a euphemism for prostitution services." Id. at 1152. Therefore, we reject J.S.'s argument. See also City of Yakima v. Emmons, 25 Wn.App. 798, 802, 609 P.2d 973 (1980) (recognizing the existence of "legitimate escort service[s]").
¶ 88 Even if "escort" were a euphemism for "prostitute," subsection 230(c) would still provide immunity. In M.A., 809 F.Supp.2d at 1049, the court stated, "[T]he creation by Backpage of an `adult' category does not impose liability on Backpage for ads posted in that category." The court in M.A. cited Dart in rejecting the plaintiff's claim that Backpage lacked immunity because it created an "escort" category: "`Craigslist created the categories, but its users create the contents of the ads and select which categories their ads will appear in.'" Id. (quoting Dart, 665 F.Supp.2d at 962).
¶ 90 In fact, other federal courts have held that the First Amendment to the United States Constitution protects escort ads and that the CDA preempts state measures imposing liability for publishing escort ads. In Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1262, 1268 (W.D.Wash.2012), for example, the court struck down as unconstitutionally vague a Washington statute that targeted Backpage by creating a criminal offense for "`advertising commercial sexual abuse of a minor.'" (Quoting S.B. 6251, at 2, 62d Leg., Reg. Sess. (Wash. 2012).)
¶ 91 We are thus left with J.S.'s theory that Backpage is liable for knowingly encouraging unlawful content promoting sex trafficking of children. But courts have consistently
¶ 92 As the First Circuit explained, "It is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider's own speech." Lycos, 478 F.3d at 420. "Section 230 immunity applies even after notice of the potentially unlawful nature of the third-party content." Id.; see also Zeran, 129 F.3d at 333 ("[I]f computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement — from any party, concerning any message," and such notice-based liability "would deter service providers from regulating the dissemination of offensive material over their own services" by confronting them with "ceaseless choices of suppressing controversial speech or sustaining prohibitive liability," which is contrary to section 230's statutory purposes). Thus, despite Backpage's alleged knowledge that its users post illegal content, its "`failure to intervene is immunized.'" M.A., 809 F.Supp.2d at 1051 (quoting Goddard, 2008 WL 5245490, at *3).
¶ 93 To be sure, intentionally promoting child sex trafficking is a serious crime in our state. But encouraging users to use a website — even with the intent to promote sex trafficking of minors — does not convert a defendant into a "content provider" within the meaning of the CDA.
¶ 94 J.S. further claims that Backpage lacks immunity because "backpage's `posting rules' and `content requirements' are not developed or enforced in a good faith effort to restrict offensive content, but rather in a surreptitious effort to evade law enforcement, skirt legal liability, and maintain the profitability of its escort website." Br. of Resp'ts at 31. The concurrence echoes this argument. Concurrence at 720, 721 n. 4. J.S. and the concurrence cite 47 U.S.C. § 230(c)(2), which contains a good faith prerequisite to subsection 230(c)(2) immunity, to support this position.
¶ 95 But Backpage moved to dismiss based on subsection 230(c)(1), a provision separate from subsection 230(c)(2). Subsection 230(c)(1) contains no intent-based exception to the immunity that it provides. See Levitt v. Yelp! Inc., No. C-10-1321-EMC, 2011 WL 5079526, at *7 (N.D.Cal. Oct. 26, 2011) (court order) ("[subsection 230](c)(1)'s immunity applies regardless of whether the publisher acts in good faith"), aff'd, 765 F.3d 1123 (9th Cir.2014); see also Barnes, 570 F.3d at 1105 ("Subsection [230](c)(1), by itself, shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties. Subsection [230](c)(2), for its part, provides an additional shield from liability ... not merely [for] those whom subsection [subsection] (c)(1) already protects, but [for] any provider of an interactive computer service.").
¶ 96 For that reason, courts have found that defendants are immune under subsection 230(c)(1) even if they act in bad faith. See, e.g., Zeran, 129 F.3d at 331-33 (interactive service provider immune from defamation liability even when it has actual knowledge of statement's falsity); Asia Econ. Inst. v. Xcentric Ventures LLC, No. CV 10-01360 SVW (PJWx), 2011 WL 2469822, at *6 (C.D.Cal. May 4, 2011) (court order) (holding that defendant's deliberate manipulation of
¶ 97 The concurrence seeks to avoid this conclusion by arguing that subsection 230(c)(2) basically eviscerates subsection 230(c)(1). It does this by arguing that subsection 230(c)(2) provides the defendant with the defense, while subsection 230(c)(1) essentially provides the defendant with nothing. Concurrence at 720-21. But we cannot ignore the plain language of a federal statute, or treat it as a superfluous, any more than we can do that with a state statute. As the Seventh Circuit ruled, in rejecting the same argument, "[S]ubsection [230](c)(2) does not deal with the liability of speakers and publishers, the subject of subsection [230](c)(1). We read each to do exactly what it says." Chi. Lawyers', 519 F.3d at 671 (affirming grant of summary judgment).
¶ 98 J.S. compares this case to Anthony v. Yahoo!, Inc., 421 F.Supp.2d 1257 (N.D.Cal. 2006), NPS LLC v. StubHub, Inc., No. 06-4874-BLS1, 2009 WL 995483, at *1 (Mass.Super.Ct. Jan. 26, 2009) (court order), Jones v. Dirty World Ent'mt Recordings, LLC, 965 F.Supp.2d 818 (E.D.Kent.2013) (Jones II), rev'd and vacated, Jones III, 755 F.3d 398, and Jane Doe v. Internet Brands, Inc., 767 F.3d 894 (9th Cir.2014). Br. of Resp'ts at 32-37; Resp'ts Notice of Suppl. Auth. Ex. A.
¶ 99 In Anthony, the court rejected Yahoo's claim of immunity from liability where the plaintiff alleged that Yahoo created false dating profiles posted on its website and sent them to users "for the purpose of luring them into renewing their subscriptions." 421 F.Supp.2d at 1262. The court held that Yahoo was a content provider and was not immune from tort liability because it created the false profiles. Id. at 1263. But in contrast to the plaintiff in Anthony, J.S. does not allege that Backpage actually chose the content of the ads or otherwise created the actual challenged content. Thus, J.S. cannot rely on this case.
¶ 100 In NPS, a Massachusetts state trial court applied the CDA and denied a website operator's motion for summary judgment with respect to a claim by a football team and stadium owner of intentional interference with the team's advantageous relationship with its season tickets holders. NPS, 2009 WL 995483, at *4. The court ruled that evidence in the record showed that the website materially contributed to its sellers' illegal "`ticket scalping'" and, thus, CDA immunity did not apply. Id. at *13. Specifically, the website's pricing structure meant that it profited from violations of antiscalping laws; the website did not require a seller to disclose the face value of a ticket, so a buyer was unaware of whether the ticket price was above the legal threshold; and the website "affirmatively encouraged" "underpriced ticket[]" sales by waiving its fees for a certain class of sellers. Id. at *11. The court said that the absence of information about the face value of a ticket precluded a buyer from knowing if a ticket price was above the price threshold set by law and prevented any policing of the website to prohibit scalping. Id.
¶ 101 Arguably, Backpage similarly engaged in willful blindness and maintained a pricing structure that encouraged pimps to misuse its website. But NPS conflicts with the cases discussed above that rejected similar arguments about a website's notice of the illegal content and its pricing structure. Notably, later cases have rejected NPS. See, e.g., Milgram v. Orbitz Worldwide, Inc., 419 N.J.Super. 305, 16 A.3d 1113, 1126 (2010) (finding online ticket marketplace immune; dismissing NPS as inconsistent with other cases, and noting that it was "quite frankly, unclear ... which facts the court used in reaching the conclusion that § 230 did not apply"); Hill, 727 S.E.2d at 563 ("declin[ing] to follow" NPS as "inconsistent with the decisions concluding that knowledge of unlawful content does not strip a website of [section 230] immunity"). Although it is arguable
¶ 102 Internet Brands does not support J.S.'s claims, either. In Internet Brands, the Ninth Circuit held that the CDA did not apply to a model's claim against the operator of a social networking site for models for its negligent failure to warn that rapists were using the website to lure models to fake auditions where they would be drugged and sexually assaulted. 767 F.3d at 895. The court determined that the model's claim did not seek to hold the defendant liable for its failure to remove content that others created; rather, the claim sought to hold the defendant liable for its own failure to provide information that it allegedly possessed about the rapists. Id. at 897. The court explained, "Any obligation to warn could have been satisfied without changes to the content posted by the website's users. Internet Brands would simply have been required to give a warning to Model Mayhem users, perhaps by posting a notice on the website or by informing users by e-mail" the information it had about the rapists' activities. Id. Because the plaintiff allegedly failed to generate its own warning to users, CDA immunity did not apply. Id. at 898. Here, J.S. alleges no similar failure to warn claim. J.S. seeks to hold Backpage liable as a publisher of content that third parties created.
¶ 103 Finally, J.S. cites to Jones. In Jones, users could anonymously upload comments, photographs, and videos to a website called "www.TheDirty.com," which the website's operator would select and publish along with his own editorial comments. Jones v. Dirty World Entm't Recordings, LLC, 840 F.Supp.2d 1008, 1009 (E.D.Ky.2012) (Jones I). After the plaintiff became the unwelcome subject of several posts, the district court denied immunity from her state tort claims. Jones II, 965 F.Supp.2d at 823. The court found that the defendant "invited and encouraged" the postings through its name and by inciting the site's viewers to form "`the Dirty Army,' which [the defendant] urged to have `a war mentality' against anyone who dared to object to having their character assassinated." Id. at 822-23. The defendant's comments about the plaintiff added to the posts at issue "effectively ratified and adopted the defamatory third-party post." Id. at 823.
¶ 104 After J.S. filed its brief, however, the Sixth Circuit reversed. Jones III, 755 F.3d at 402. Applying the material contribution test defined in Roommates and rejecting the district court's "encouragement" test, the Sixth Circuit held,
Id. at 415-16 (fourth alteration in original).
¶ 105 Backpage also claims that the trial court applied CR 12(b)(6) improperly because it "went beyond just accepting Plaintiffs' factual allegations" and credited J.S.'s legal contentions
¶ 106 While I agree that it appears the trial court's order erroneously credited J.S.'s legal conclusions, rather than just J.S.'s factual allegations, federal and state law do not differ about crediting legal conclusions in a plaintiff's complaint on a CR or Fed. R. Civ. P. 12(b)(6) motion. Haberman, 109 Wash.2d at 120, 744 P.2d 1032, 750 P.2d 254 ("[t]he court need not accept legal conclusions as correct"); Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Washington's more relaxed pleading standards did not play any role in this case.
¶ 107 This case does not ask us to decide whether pimps should be able to traffick our children without consequence. The answer to that question is certainly no. And this case does not ask us to decide whether third party accomplices or coconspirators should be able to escape criminal prosecution for human trafficking and child rape. The answer to that is also a resounding no. Instead, the question before us is whether the CDA, a federal statute, shields this defendant from this state law claim. Using settled principles of statutory interpretation, the CDA compels me to conclude that the answer to that question is yes. J.S. fails to allege facts sufficient to prove that Backpage was a content provider as opposed to a service provider. Thus, subsection 230(c) immunizes Backpage from liability for J.S.'s claims. And subsection 230(c) trumps conflicting state law.
¶ 108 I would therefore reverse the trial court's denial of Backpage's CR 12(b)(6) motion to dismiss. I respectfully dissent.
J.S. is partially correct. The M.A. plaintiff alleged that Backpage "`[w]as responsible in part for the development and/or creation of information provided through the internet or other internet computer service,'" M.A., 809 F.Supp.2d at 1044 (alteration in original), but also stated later that she was not suing Backpage for the ad content. Id. at 1046. In this case, in contrast, J.S. is suing Backpage for the ad content. But J.S.'s arguments still conflict with the allegations that pimps, not Backpage, uploaded advertisements with sexually suggestive wording and photographs. CP at 16, 17, 20. And the complaint here still alleges no facts showing that Backpage actually selected the wording or photos that the ads at issue contained.
