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# ~**:;;~** Supreme Court Clerk INTHE SUPREME COURT OF THE STATE OF WASHINGTON
J.S., S.L., and L.C., ) ) Respondents, ) ) 

### v. ) ) VILLAGEVOICE MEDIAHOLDINGS, ) L.L.C., d/b/a/Backpage.com and ) BACKPAGE.COM, L.L.C., ) 

### ) Petitioners, ) 

### ) and ) 

### ) BARUTIHOPSON andNEWTIMES ) MEDIA, L.L.C., d/b/a/Backpage.com, ) ) Defendants. ) )



# ___________________________) No. 90510-0

EnBane

Filed 

### SEP 03 2015

GONZALEZ, 

### J.--The plaintiffs before us have beenthe repeated victims of horrific acts committed inthe shadows ofthe law. Theybroughtthis suit inpartto bring lightto some ofthose shadows: to showhow children are bought and sold for sexual services online onBackpage.comin advertisements that, they allege, the defendants help develop. Federal law shields website operators from state lawJS., S.L., andL.C. v. Village Voice Media Holdings et al., No. 90510-0 

### liability for merely hosting content developed by users butdoes notprotectthose who develop the content. Theplaintiffs allege thatthe defendants did more than justprovide 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 thatthe plaintiffs have alleged sufficient facts that, ifproved, would showthatthe defendants helpedto produce the illegal content and therefore are subjectto liabilityunder state law. Accordingly, we affirm and remand to the trial court for further proceedings consistentwiththis opinion.

FACTS 

### Advertisements featuring three minor girls, J.S., S.L., andL.C. (collectively J.S.), allegedly were posted on a website owned and maintainedbyVillage Voice MediaHoldings, d/b/a Backpage.com, Backpage.comLLC andNewTimes Media LLC, d/b/a/ Backpage.com (collectively Backpage). J.S. allegedly was raped multiple times by adult customers who responded to the advertisements. J.S. filed a complaint alleging state law claims for damages against Backpage and Baruti Hopson. 1 

### J.S. asserted claims for negligence, outrage, sexual exploitation ofchildren, ratification/vicarious liability, unjust enrichment, invasion ofprivacy, sexual assault andbattery, and civil conspiracy. Backpage movedto

1Hopson was found guilty ofraping, assaulting, andprostituting one ofthe plaintiffs. J.S. did not pursue its action against Hopson. Appellant's Opening Br. at 7 n.2. 2JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 

### dismiss on the theorythat it is immune from suit in relation to J.S.'s state law claims under the federal Communications Decency Act of 1996 (CDA), 47 U.S.C. 

### § 230.2 

### J.S. countered by arguing thatBackpage is not immune from suit inpart because its advertisementpos.ting rules were "designedto help pimps develop advertisements that can evade the unwanted attention oflaw enforcement, while still conveyingthe illegal message." Clerk's Papers (CP) at 201. The trial court denied the motion to dismiss, allowing J.S.'s case to proceed. Backpage moved for discretionary review. The Court ofAppeals grantedreview and certifiedthe case to this court for directreview. Order Certifying Case for Transfer, 

### JS. v. Vill. Voice MediaHoldings, LLC, 

### No. 44920-0-II (Wash. Ct. App. July 17, 2014). J.S. allegedly was featured in Backpage advertisements posted in accordance with instructions on Backpage's website without any special guidance from Backpagepersonnel. J.S. alleges that all ofthe advertisements featuring J.S. complied withBackpage's contentrequirements. Backpage does not allow advertisements on its website to contain naked images, images featuring transparent clothing, sexually explicit language, suggestions ofan exchange ofsex acts for money, or advertisements for illegal services. In addition to these rules, specifically for advertisements posted in the

2 Backpage removed this case to a federal district courtbased on diversityjurisdiction. That courtremanded to state court. 3JS., S.L., andL.C. v. Village VoiceMediaHoldingsetal.,No. 90510-0 

### '"escort"' section ofits website, Backpage does not allow "any solicitation directly

or in 'coded' fashion for any illegal service exchanging sexual favors for money or othervaluable 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. ANALYSIS 

### A. Standardof Review 

### "Atrial court's ruling to dismiss a claimunder 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&TWireless Servs., 

### 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). Atthis stage, "we accept as true the allegations in aplaintiffs complaint and any reasonable inferences therein." Reidv. 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 &DoddFuneralHome, Inc., 

### 89 Wn.2d 959, 961, 577 P.2d 580 (1978)). "CR 12(b)(6) motions shouldbe granted 'sparingly and with care' and 'only in the unusual case in whichplaintiffincludes allegations that show on the face ofthe complaintthatthere is some insuperable barto 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 areasonable doubt that no facts

4JS., S.L., andL.C. v. Village Voice MediaHoldings etal., No. 90510-0 

### exist that wouldjustifyrecovery."' 

### In re Parentage of C.M.F., 179 Wn.2d 411, 418,314P.3d 1109 (2013) (quoting 

### Cutler, 124 Wn.2d at 755). B. 

### FederalPreemption J.S. alleges that Backpage facilitated the violation ofnumerous Washington laws, including violations ofWashington's laws against trafficking, commercial sexual abuse, andprostitution.3 

### Federal law, however, preempts state law when state law "would stand 'as

an obstacle to the accomplishment ofthe full purposes and objectives ofCongress' inpassing§ 230 ofthe 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, 524U.S. 937 (1998). Applicable here, the CDAprovides that "[n]o cause of action maybebrought and no liabilitymaybeimposedunder any State orlocal lawthat is inconsistent with this section." 47 U.S.C. § 230(e)(3).

3RCW 9.68A.040 (sexual exploitation ofa minor), .050 (dealing indepictions ofminor engaged in sexuallyexplicit conduct),

. 090 (communicationwith a minor for immoralpurposes), .100 (commercial sexual abuse ofaminor), .101 (promoting commercial sexual abuse ofaminor), .103 (permitting commercial sexual abuse ofaminor); RCW 9A.44.076 (rape ofa child inthe second degree), .079 (rape ofa child inthe third degree), .086 (child molestationinthe second degree), .089 (child molestation inthethird degree); RCW 9A.88.070 (promotingprostitution in the first degree), .080 (promotingprostitutionin the second degree), .090 (permitting prostitution); RCW 9A.40.100 (trafficking); and RCW 9A.28.040 (criminal conspiracy); RCW 9A.82.060 (leading organized crime). 5JS., S.L., andL.C. v. Village Voice Media Holdings et al., No. 90510-0 Underthe CDA, an "information contentprovider"4may be subjectto state law liability inrelationto contentthat it develops but an "interactive computer service"5 is immune from suitfor state law claims inrelationto merelyhosting such content on a website. 

### See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). Accordingly, the CDA controls whetherBackpage is immune from J.S.'s state law claims. The scope ofCDAimmunity is a matter offirst impression for this court. C. J.S. 

### 's ClaimsAreSufficient To Withstand the Motion To Dismiss This case turns on whetherBackpage merely hosted the advertisements that featured J.S., in which case Backpage is protectedby CDA immunity, orwhether Backpage also helped develop the content ofthose advertisements, in which case Backpage is notprotectedby CDA immunity. A website operator can be both a service provider and a content provider: 

### Ifitpassively displays contentthat is created entirelybythird parties, then it is only a service provider withrespectto that content. Butas to contentthat it creates itself, or is "responsible, inwhole or inpart" for creating or developing, the website is also a contentprovider. Thus, a

4 An "information content provider" is "anyperson or entity responsible, in whole orinpart, for the creation or development ofinformationprovidedthroughthe Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3). 5 An "interactive computer service," however, is "any information service, system, or access software providerthatprovides or enables computer access bymultiple users to a computer server, including specifically a service or system thatprovides access to the Internet and such systems operated or services offeredby libraries or educational institutions." 47 U.S.C. § 230(f)(2).
6JS., S.L., andL.C. v. Village Voice Media Holdings eta!., No. 90510-0 

### website may be immune from liability for some ofthe content it displays to the public butbe subjectto liability for other content. 

### FairHous. Council v. Roomates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008) (citing

### Anthonyv. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006)). A website operator, however, does not "develop" contentby 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). Viewing J.S.'s allegations in the light most favorable to J.S., as we must at this stage, J.S. alleged facts that, ifprovedtrue, would showthat Backpage did

more than simply maintain neutral policies prohibiting or limiting certain content. Those allegations include that (1) "Backpage.com

...has intentionally developed its website to require information that allows and encourages ... illegal trade to

occurthrough its website, including the illegal trafficking ofunderage girls," (2) "Backpage.comhas developed content requirements that it knows will allowpimps and prostitutes to evade law enforcement," (3) "Backpage.comknows thatthe foregoing contentrequirements are a fraud and aruse that is aimed at helping pimps, prostitutes, and Backpage.com evade law enforcementby givingthe [false] appearance thatBackpage.com does not allow sex trafficking on its website," (4) "the contentrequirements are nothing more than a method developedby Backpage.comto allowpimps, prostitutes, and Backpage.comto evade law enforcement for illegal sextrafficking, including the trafficking ofminors for sex,"

7JS., S.L., andL.C. v. Village Voice Media Holdings eta!., No. 90510-0 

### (5) Backpage's "contentrequirements are specifically designedto control the nature and context ofthose advertisements so thatpimps can continue to use Backpage.comto traffic in sex, includingthe trafficking ofchildren, and so Backpage.com can continue to profit from those advertisements," and (6) Backpage has a "substantial role in creatingthe content and context ofthe advertisements on its website." CP at 6, 8, 10, 12, 13. According to J.S., Backpage's advertisementposting rules were not simply neutral policies prohibiting or limiting certain contentbut were instead**~'specifically** 

### designed

... so thatpimps can continue to use Backpage.comto traffic in sex." Id. 

### at 12. Given J.S.'s allegations, it does not appear "'beyond a reasonable doubtthat

no facts existthat wouldjustifyrecovery"' in this case, and, therefore, dismissal of J.S.'s claims under CR 12(b)(6) is not appropriate. In re C.MF., 

### 179 Wn.2d at 418 (quoting Cutler, 

### 124 Wn.2d at 755). It

### is importantto ascertain whether in fact Backpage designed its postingrules to induce sextrafficking to determine whether Backpage is subjectto suit under the CDAbecause "awebsite helps to develop unlawfulcontent, and thus falls within the exceptionto section 230, ifit contributes materially to the alleged illegality ofthe conduct." FairHous. Council, 

### 521 F.3d at 1168. Fact-finding onthis issue is warranted.

8JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0
CONCLUSION 

### We find the plaintiffs have pleaded a case that survives the motionto dismiss. Accordingly, we affirm the trial court and remand for further proceedings consistentwiththis opinion.

9JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0



### WE CONCUR:

10J. S., S.L., andL. C. v. Village Voice Media Holdings eta!., No. 90510-0 (Wiggins, J., concurring)

No. 90510-0 WIGGINS, J. (concurring)-! 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 1 designed its posting rules to induce sex trafficking and to help pimps and prostitutes evade law enforcement. Thus, I would affirm the trial court and allow the plaintiffs to pursue their claims. 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 1. This reading is irreconcilable with the actual language ofthe 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

1 We refer to petitioners-Village Voice Media Holdings, d/b/a Backpage.com; Backpage.com LLC; and New Times Media LLC, d/b/a Backpage.com-collectively as Backpage.com.J.S., S.L., and L.C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) when there is (1) a provider or userofan interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause ofaction, as a publisher or speaker of information (3) that is provided by another information content provider. 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 ucontent 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, Ijoin the majority opinion. DISCUSSION I. Plain language ofthe statute precludes web hosts from being treated as publishers and speakers ofthird-party information 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."2 (Boldface omitted.) Backpage.com ignores the second part, captioned "Civil Liability." (Boldface omitted.) Subsection 230(c) provides in full: (c) Protection for "Good Samaritan" blocking and screening of offensive material (1) Treatment of publisher or speaker

2 See Appellant's Reply Br. at 15 n.11 ("Regardless of whether Section 230(c)(2) also applies, Backpage.com moved to dismiss under Section 230(c)(1), which contains no good faith element.").

2J.S., S.L., and L.C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.[3l (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of- (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1 ). 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 distincttypes 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 userto 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."

3 The terms "interactive computer service" and "information content provider" are statutorily defined in subsection 230(f)(3): an "interactive computer service" is defined to include all online service providers and websites, and an "information content provider" is "any person or entity that is responsible, in whole or in part, for the creation ordevelopment of information provided through the Internet or any other interactive computer service." 3J. S., S.L., andL. C. v. Village Voice Media Holdings et at., No. 90510-0 (Wiggins, J., concurring) 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." R·ather, subsection 230(c)(1) simply precludes treating the user or ISP "as the publisher or speakerofany information" ifthat 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, then the action cannot proceed. But subsection 230(c)(1) does not protect the ISP from liability for other causes of action. 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 ofEcology

### 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: (c) Protection for "Good Samaritan" blocking and screening of offensive material (1) Treatment of publisher or speaker (2) Civil liability

4J.S., S.L., and L.C. v: Village Voice Media Holdings etat., No. 90510-0 (Wiggins, J., concurring) 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. Backpage.com's reading, adopted by the dissent, totally ignores subsection 230(c)(2); the dissent instead asserts that good faith is irrelevantto subsection 230(c)(1 ). See dissent at 33-34. 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 considerthe statute's placement within the entire statutory scheme. Campbell& Gwinn, 146 Wn.2d at 9. 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.

5J. S., S.L., andL. C. 

### v. Village Voice Media Holdings eta!., No. 90510-0 (Wiggins, J., concurring) 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). 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. Rather than engaging with the plain language, structure, and purpose of section 230, Backpage.com relies on the opinions of various federal courts to conclude that the

6J.S., S.L., andL.C. v. Village Voice Media Holdings eta!., No. 90510-0 (Wiggins, J., concurring) statute "'provides broad immunity for publishing content provided primarily by third parties."' Garbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1118 (W.O. Wash. 2004) (quoting Carafano 

### v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)), overruled on other grounds by Cosmetics Ideas, Inc. 

### v. IAC!Interactivecorp, 606 F.3d 612 (9th Cir. 201 0). The dissent adopts this reading, asserting that it is following the reasoning of a majority ofthe courts to consider the question. Dissent at 8-9 & nn. 3-4. The dissent is correct that it is certainly not alone in taking this position-many courts, particularly in the early years after the statute was enacted, followed these early decisions in applying an expansive interpretation of the statute. Ryan J.P. Dyer, Comment, The Communication Decency Act Gone Wild: A Case for Renewing the Presumption Against Preemption, 37 SEATTLE U. L. REV. 837, 841-43 (2014); see also, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997); Green v. Am. Online, 318 F.3d 465 (3d Cir. 2003). But it is difficultto reconcile an expansive reading finding "broad immunity" with the actual language of the statute, which uses specific terms and does not include the words "immunity" or any synonym. Chi. Lawyers'Comm. for Civil Rights underLaw, Inc., v. Craigslist, Inc., 519 F.3d 666, 669 (7th Cir. 2008). Perhaps recognizing this, the Ninth Circuit Court ofAppeals has retreated from its earlier cases relied on by the dissent, joining other circuits in refusing to treat section 230 as providing broad immunity. Compare Carafano, 339 F.3d at 1123 (law "provides broad immunity for publishing content provided primarily by third parties"), with Barnes 

### v. Yahoo!, Inc., 570 

### F.3d 1096, 1100 (9th Cir. 2009) ("[l]ooking at the text, it appears clear that neither

7J. S., S.L., andL. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) [subsection 230(c)] nor any other declares a general immunity from liability deriving from third-patiy content"). The dissent also supports its argument for broad immunity through repeated references to other courts' interpretations ofthe 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.

II. Treatment as publisher or speaker**Wit~1** 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 1124-25 (dismissal appropriate for suit alleging invasion of privacy and defamation, among other things, based on third-party submission offalse dating profile). 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

8J. S., S.L., and L. C. v. Village Voice Media Holdings etat., No. 90510-0 (Wiggins, J., concurring) 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."4 Clerk's Papers at 10. Plaintiffs argue·that these content rules transform Backpage.com from a neutral intermediary hosting another's information into an original speaker of that information. See, e.g., Fair Hous. Council 

### v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (Roommates.com) ("By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of prepopulated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information."); see a/so Felix T. Wu, Collateral Censorship and the Limits of Intermediary Immunity, 87 NOTRE DAME L. REV. 293, 297 (2011 ). Plaintiffs also assert that Backpage.com specifically designed these rules to induce sex trafficking. These allegations require an analysis of (1) whether they treat Backpage.com as the original speaker of the information and (2) whether each cause of action inherently requires the court to treat the defendant as the "publisher or speaker" of content provided by another.

4 Subsection 230(c)(2) protects ISPs who either (A) acting in good faith preclude access to objectionable material or (B) take action to allow others to preclude access to objectionable material. Content rules created in good faith fall within the protections of subsection 230(c)(2). However, plaintiffs allege that Backpage.com created these content restrictions in bad faith. Backpage.com does not rely on the defenses provided in subsection 230(c)(2). See note 2, supra.

9J.S., S.L., andL.C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) The dissentwould answer the first question by holding thatthe adoption ofposting 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 20. 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. 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 notclaiming that Backpage.com itselfis 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), 5 an inducementtheory does not require

5 42 U.S.C. § 3604 provides in relevant part that

10J. S., S.L., andL. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) the defendantto act as a publisher. Nor does plaintiffs' theory involve "decisions relating to the monitoring, screening, and deletion of content"-actions that are "quintessentially related to a publishers role." Green, 318 F.3d at 471. 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. 6 /d. at 968 (quoting Chi. Lawyers' Comm., 519 F.3d at 671-72). Plaintiffs do not argue that Backpage.com necessarily induces the posting of unlawful content by merely providing an escort services category. Instead, plaintiffs allege that Backpage.com deliberately designed its posting rules in a manner

it shall be unlawful- (c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, oradvertisement, with respectto the sale or rental ofa dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. 6 The dissent also cites to Jane Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) for support. Dissent at 22-23. MySpace involved a girl, 13, who lied about her age (claiming to be 18) in order to create a social networking profile. By lying about her age, she was able to create a public profile. Another user, 19, viewed this profile, initiated contact with the girl, and sexually molested her. The parents ofthe girl sued MySpacefor negligence forthe failure to have an age verification system in place and for the failure to keep younger users' profiles hidden. The Fifth Circuit Court of Appeals held that section 230 barred the claim. However, the court never explained how an age verification requirement would treat MySpace as the speaker or publisher of third-party information. See Wu, supra, at 327-28, 344. Notably, the plaintiff's claim was not one that would treat MySpace as if it had been the one claiming that the girl was 18. Myspace, 528 F.3d at 416. Instead, the claim faulted MySpace for its actions as the recipient ofthe girl's assertion rather than in its capacity as a speaker or publisher of that assertion to others. See generallyWu, supra, at 327-28. Rather than analyze the plain language, the court relied on the grant of broad immunity that we should reject as inconsistent with the plain language of section 230 to reach its holding. Thus, the analysis employed in Myspace is inapplicable to this case. 11J. S., S.L., and L. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) that would enable pimps to engage in sex trafficking, including in the trafficking of minors, and to avoid law enforcement. These factual allegations do not suggest that Backpage.com is being treated as a "publisher or speaker." Accordingly, the plaintiffs' claim should not be dismissed under CR 12(b)(6). 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 34. 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 8. 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. 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

12J. S., S.L.., andL. C. v. Village Voice Media Holdings et at., No. 90510-0 (Wiggins, J., concurring) to be resolved. No one would say that the successful defense of the standard of care claim "provides the defendant with nothing," dissent at 34, or that the continued viability of the informed consent claim "eviscerates" the standard of care claim. 

### /d. So too here the continued viability of the bad faith guidelines claim works no "evisceration." 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. 7 Roommates.com, 521 F.3d at 1175 ("[t]he message to website operators is clear: if you don't encourage illegal content[] or design your website to require users to input illegal content," you will not be held liable for hosting third-party content). Courts specifically reject the subsection 230(c)(1) defense when the underlying cause of action does not treat the information content provider as a "publisher or speaker" of another's information. See, e.g., City of Chicago v. StubHub!, Inc., 624 F.3d 363, 366 (7th Cir. 201 0) (subsection 230(c)(1) defense inapplicable because suit to collected city's amusement tax "does not depend on who 'publishes' any information or is a 'speaker"'). More analogous to the instant case, the Ninth Circuit recently permitted a lawsuit against an ISP on a theory of

7 Contrary to**Backpage~com's** argumentthat section 230 "unequivocally bars

... claims seeking to impose liability on online service providers based on third-party content," courts do not uniformly immunize information content providers from suits based on unlawful content provided by third parties; currently eight circuits have explicitly left room for liability based on the inducement of illegal content. See, e.g., Chi. Lawyers' Comm., 519 F.3d at 671-72; Roominates.com, 521 F.3d at 1175; Fed. Trade Comm'n v. Accusearch, Inc., 570 F.3d 1187, 1199 (10th Cir. 2009); Johnson v. Arden, 614 F.3d 785, 792 (8th Cir. 2010); MySpace, 528 F.3d at 421-22; Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257 (4th Cir. 2009); Dimeo v. Max, 248 F. App'x 280, 282 (3d Cir. 2007); Universal Commc'n Sys., Inc. 

### v. Lycos, Inc., 478 F.3d 413, 421 (1st Cir. 2007).

13J. S., S.L., andL. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) promissory estoppel. Barnes, 570 F.3d at 1106-09. 8 These cases provide meaningful limitations on the defenses afforded by subsection 230(c)(1 ). "The Communications DecencyAct was not meant to create a lawless no-man'sland 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 ofthese 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, Ijoin the majority in affirming the trial court's decision to deny Backpage.com's motion to dismiss.

8 In Barnes, the plaintiff's former boyfriend posted nude photographs ofthe plaintiff on Yahool's social media website without her permission, along with open solicitations to engage in sexual intercourse. 570 F.3d 1096. Barnes received numerous advances from unknown men in response to this profile and contacted Yahoo! to have the profile removed. Yahoo! did not remove the profile and Barnes filed a lawsuit alleging both the tort of negligent undertaking and a contract claim promissory estoppel for Yahool's failure to remove the photographs. The court dismissed Barnes' tort claim, finding that "the duty that Barnes claims Yahoo violated derives from Yahoo's conduct as a publisher-the steps it allegedly took, but later supposedly abandoned, to de-publish the offensive profiles." !d. at 1103. However, the court permitted her claim to go forward under a claim of promissory estoppel because that claim treated Yahoo! as a promisor rather than as a publisher.

14J. S., S.L., and L. C. v. Village Voice Media Holdings eta/., No. 90510-0 (Wiggins, J., concurring) Accordingly, I concur in the majority opinion.

15J.S., S.L., andL.C. v. Village Voice MediaHoldings etal., No. 90510-0 (GordonMcCloud, J., Dissent)

No. 90510-0 GORDON McCLOUD, J. (dissenting)-The question before us is whether J.S.'s 1 civil lawsuit against these particular defendants can proceed or whether federal law shields Backpage2 from suit. In 1996, Congress passed the Communications Decency Act (CDA), 47 U.S.C. § 230, a statute that gives "interactive service providers" such as Backpage immunity from lawsuits based on the "content" ofads composed and posted ontheir sites byothers. 

### See 47 U.S.C. § 230(c)(l). Beforeitpassedthis statute, Congress weighedthe competingpolicies of fostering robust interactive service provider growth, promoting self-policingbythe interactive serviceproviderindustry, andprotectingagainstvictimizationbyInternet advertisements. In the CDA, Congress struck the balance in favor ofimmunity for "interactive serviceproviders"but not for "contentproviders." We must now decide whether Backpage fits within the CDA's broad definition ofan "interactive

... service

... provider" under subsection 230(c)(1),

1Minorplaintiffs-J.S., S.L., and L.C. (collectivelyJ.S.).
2 Village Voice Media Holdings, d/b/a Backpage.com; Backpage.com LLC; and NewTimes Media LLC, d/b/a Backpage.com (collectivelyBackpage). 1JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) 

### entitledto immunity from suit for contentpublished 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 apublisher or speaker of that information. Subsection 230(c)(l) 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. Irespectfully dissent. FACTUAL ALLEGATIONS 3 

### The complaint alleges that pimps posted advertisements displaying J.S. for sale for prostitution on the "escort" section ofBackpage'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 Backpagepersonnel. CP at 12.

3 Because we review the trial court's denial ofa CR 12(b)(6) motion, we presume that the complaint's factual allegations are true. Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998). 2JS., S.L., andL. C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) 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 ofsex acts for money; and advertising an illegal service. CP at 8. Users must also agree to certain contentrequirements to post advertisements

on the "escort" section ofthe 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 onthe Site that in any way constitutes or assists in humantrafficking." CP at 9-10. Backpage also requires users to agree thatthey are "atleast 18 years ofage
or older and not consideredto be a minor in my state or residence." CP at 10. J.S. alleges thatall ofthe advertisements aboutJ.S. compliedwithBackpage'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 butfailed to complywithBackpage'srules barring advertisements for illegal

3JS., S.L., andL. C. v. Village Voice Media Holdings 

### etal., No. 90510-0 (Gordon McCloud, J., Dissent) 

### services and exploitation of minors-because Backpage's alleged illegal exploitation ofminors forms the gravamen ofthe complaint. PROCEDURAL BACKGROUND 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 1-26.4 

### J.S. asserted claims for negligence, outrage, sexual exploitation ofchildren, ratification/vicarious liability, unjust enrichment, invasion ofprivacy, sexual assault and battery, and civil conspiracy. CP at 21-25. On March 25, 2013, Backpage filed a CR 12(b)(6) motion to dismiss; it argued thatthe CDAprovided it with immunity from liability for Backpage's claims. CP at 155-84. 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) "developedthe unlawful contentby makingit 'useable and available,'" CP at 196-97 (formatting omitted), and (3) "encouraged unlawful content." CP at 197-204 (formatting omitted). The trial court rejected J.S.'s first argument, explaining that a website could notbeheldliable for advertisingfor escortsbecausethatis alegal activity. Verbatim

4Hopson is currently inprisonfor abusing and prostituting one oftheplaintiffs. CP at 3-4, 2778. J.S. did notpursue its action against Hopson. Appellants' Opening Br. at 7. 4J.S., S.L., andL.C. v. Village Voice Media Holdings etal., 

### No. 90510-0 (Gordon McCloud, J., 

### Dissent) Tr. ofProceedings (VRP) at 23. The trial court also rejectedJ.S.'s second argument thatBackpage conspiredwithusers. VRP at 15, 23, 50. Butthe courtacceptedJ.S.'s third argument-that Backpage's posting rules were "designed to help pimps develop advertisements that can evade the unwanted attention oflaw enforcement, while still conveying the illegal message." CP at 201. It 

### therefore denied Backpage's motionto dismiss, stating, [T]he question is did Congress tell Superior Courttrialjudges that you have to
-- that you are entitled to ignore the CDA or do you have to enforce it? This case is

-- honestly, this is, I think, ofall the cases in terms ofthe [CR] 12(b)(6) or summaryjudgment for that matter, is the closest that I've ever come. I mean, it's right on the line and with all due respect to the fabulous briefing and the great arguments, it really walks the line for me this case, it's right on the edge.

. . . These are where I'm most concerned, this is what I highlighted over and over again and reread, it's the posting guidelines. And, frankly, my note to myselfin the sideline was Backpage doesn't know this is for prostitution and isn't assisting with the development? And despite the case law, I answer that questionjuston the side oftheplaintiffs and I'm denying a [CR] 12(b)(6) [motion]. VRP at 49-50. The Court ofAppeals granted Backpage's motion for discretionary review and then certified the case to this court for direct reviewunder RCW 2.06.030. ANALYSIS I. STANDARD OF REVIEW 

### 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 

### 5JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) facts alleged inthe plaintiffs complaint are true. 

### Tenore v. AT&TWireless 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, 744P.2d 1032, 750P.2d254 (1987). Dismissal is proper whenit appears beyond areasonable doubtthattheplaintiffcanproveno setoffacts that wouldjustify relief. 

### Lakey v. PugetSoundEnergy, Inc., 176 Wn.2d 909, 922 n.9, 296 P.3d 860 (2013). II. THE CDA PROVIDES IMMUNITY TO INTERACTIVE COMPUTER SERVICE PROVIDERS ORUSERS A. The Language and Context ofSubsection 230(c)(1) The resolution ofthis case depends on our interpretation ofa federal statute, 47 U.S.C. § 230(c). Itprovides: 

### (1) Treatment ofpublisher or speaker No provider or user ofan interactive computer service shall be treated as the publisher or speaker of any information provided by another information contentprovider. 

### (2) Civil liability No provider or user ofan interactive computer service shall be held liable on account of- (A) any actionvoluntarilytaken ingood faithtorestrict accessto or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material 1s constitutionallyprotected; or 6J.S., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 

### (1). Subsection 230(c)(l)-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 speakerofinformation, and (3) a differentinformationcontentproviderprovidedthe information. 47 U.S.C. § 230(c)(l). 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 systemthatprovides access tothe Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(£)(2). An "information contentprovider," onthe other hand, is defined as any person or entity "responsible, in whole or inpart, for the creation ordevelopment of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(£)(3). Subsection 230(e) ofthe CDA, titled "Effect on other laws," then provides a limitedexceptionto the immunitydescribed above for defendants infederal criminal prosecutions, even those broughtunder inconsistent or conflicting laws, but not for defendants in cases broughtunder inconsistent state laws:


### 7J.S.; S.L., andL.C. v. Village Voice MediaHoldings et al., No. 90510-0 (GordonMcCloud, J., Dissent) 

### (1) No effect on criminallaw Nothing in this section shall be construed to impair the enforcement ofsection 223 or 231 ofthis title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation ofchildren) ofTitle 18, or anyotherFederal criminal statute. (3) 

### State law Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may bebroughtandno liability may be imposedunder any State or local law that is inconsistentwith this section. 47 U.S.C. § 230(e) (emphasis added). As the majority acknowledges, the emphasized last sentence shows the limits ofwhat is carved out, barring any state lawsuit that is based on a theory of liability "'inconsistent with this section.'" Majority at 5 (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)(l). Its second subsectionbars liabilitybased on certain good faith content restrictions. 47 U.S.C. § 230(c)(2). Most courts characterize subsection 230(c)(1)'s language treating Internet service providers as "publisher[s] or speaker[s]" ofthe content that they display as

8JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (GordonMcCloud, J., Dissent) 

### providing an "immunity" from suit. 5 

### A few courts say that this language creates a protection from suit, rather than an absolute immunity.6 

### The concurrence finds the difference dispositive. Concurrence at 8 (holding that subsection 230(c) creates "adefense to, not an immunity from, liability arising from a cause ofaction that wouldtreat the web host as apublisher or speaker"). 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)(l)'s language

5 Jones v. Dirty World Entm 't Recordings, LLC, 755 F.3d 398, 406-07 (6th Cir. 2014); see alsoAlmeidav. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) ("The majority offederal circuits have interpretedthe CDA to establishbroad 'federal immunity to any cause ofactionthatwouldmake serviceproviders liable for informationoriginating with a third-partyuser ofthe service."' (quotingZeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)); accordJohnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) ("'[I]mmunity is an immunity from suit rather than a mere defense to liability and

... is effectively lost if a case is erroneously permitted to go to trial."' (emphasis omitted) (quotingBrown v. Gilmore, 278 F.3d 362, 366 n.2 (4th Cir. 2002))); JaneDoe v. MySpace, Inc., 528 F.3d413, 418 (5thCir. 2008); Chi. Lawyers' Comm.for CivilRights underLaw, Inc. v. Craigslist, Inc., 519 F.3d 666,671 (7th Cir. 2008); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d413,418-19 (1st Cir. 2007);Batzelv. Smith, 333 F.3d 1018, 1026-30 (9th Cir. 2003); Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003); Ben Ezra, Weinstein, & Co. v. Am. Online, Inc., 206 F.3d 980, 984-85 (lOth Cir. 2000); Zeran, 129 F.3d at 330 ("Byits plainlanguage, §230 creates a federal immunityto anycause ofaction thatwouldmake serviceproviders liable for informationoriginatingwithathird-partyuser ofthe service.") Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004), overruled on other grounds by Cosmetics Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612 (9th Cir. 2010). 6 See, e.g., John Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003) (reading"§ 230(c)(l) as a definitional clause rather than as an immunityfrom liability"). 

### 9JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 

### (Gordon McCloud, J., 

### Dissent) uniformly hold that its protection for publishers is "quite robust." They apply an expans1ve 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 ifthe plaintiffalleges 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 serviceproviderreceives full immunityregardless ofthe specific editing or selection process."' Corbis Corp. v. Amazon.com, Inc., 

### 351 F. Supp. 2d 1090, 1098-99, 1118 (W.D. Wash. 2004) (quoting Carafano, 

### 339 F.3d at 1123). The inquiry is whether the defendant "function[ed] as an 'information content provider' for the portion of the statement or publication at issue." Carafano, 

### 339 F.3d at 1123; see also Nemet Chevrolet, Ltd. v. Consumera.ffairs.com, Inc., 

### 591 F.3d 250, 260 (4th Cir. 2009) (affirming district court's dismissal ofcomplaint where plaintifffailed to showthat defendant "was responsible for the creation or development. of the allegedly defamatory content at issue"). 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 10J.S., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) 

### content. Majority at 6-7; Jones v. Dirty World Entm 'tRecordings, LLC, 755 

### F.3d 398, 408-09 (6th Cir. 2014) (Jones III). 

### But critically for this case, a person or entity does not qualify as an information content provider merely byfacilitating an individual user's expression ofinformation, ifit is the user alone who selects the content. Carafano, 

### 339 F.3d at 1124. B. The Policy Choices Reflected in Subsection 230(c)(l) 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. ofResp'ts at 37 (boldface omitted). ButJ.S. provides no citations to congressional intentto supportthis argument. The statute shows that Congress weighed the policy concerns at issue here differently. Subsection 230(b) oftheCDA states, It

### is thepolicy oftheUnited States- (1) to promote the continued development ofthe Internet and other interactive computer services and otherinteractive media; (2) to preserve the vibrant and competitive free market that presentlyexists fortheInternet and otherinteractivecomputerservices, unfetteredbyFederal or State regulation;
11JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) (3) to encourage 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; (4) to remove disincentives for the development and utilization ofblocking and filtering technologies that empower parents to restrict theirchildren'saccessto objectionableorinappropriateonlinematerial; and (5) to ensure vigorous enforcement ofFederal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means ofcomputer. 47 U.S.C. § 230(b). Section 230 thus puts apremium ontwo basicpolicy concerns: promotingthe free exchange ofinformation and ideas overthe Internet, and encouragingvoluntary monitoring for offensive or obscenematerial. 

### Carafano, 339 F.3dat 1122;

### Batzelv. (·'·:

l 

### 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 intentionallytreats Internetpublishers "differentlyfrom correspondingpublishers in print, television and radio." 

### Carafano, 339 F.3d at 1122; 

### see also Batzel, 333 F.3d at 1026-27.

12JS., S.L., andL. C. v. Village Voice Media Holdings etal., 

### No. 90510-0 (Gordon McCloud, J., Dissent) 

### 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 ofan online messaging board could be liable for defamatory statements that third party users posted on the board. See Fair Hous. Council v. Roommates.com, LLC, 

### 521 F.3d 1157, 1163 (9th Cir. 2008) (Roommates) 

### (explaining Congress's concern about Stratton Oakmont). 

### The court in Stratton Oakmont 

### ruled that the online board administrator became a "publisher" when it deleted certain offensive third party postings and that it was therefore subject to liability for the content ofdefamatory messagesthatit did notremove. 1995 WL 

### 323710, at *4-5. Congress criticizedthis decision for discouraging the Internet service provider from voluntarily filtering Internet content because that forum provider's efforts to remove objectionable content would trigger liability that the forum could avoid by doing nothing. Roommates, 

### 521 F.3d at 1163. Thus, Congress was aware of competing policy

concerns when enacting the CDA. 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, adefamation action involving CDA immunity, the court described the conflict between facilitating the 13JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 

### (Gordon McCloud, J., 

### Dissent) Internet's growth and preventing harm to individuals. It 

### concluded that Congress erred on the side offavoring "robust [Internet] communication": [T]his case implicates some important issues ofpolicy. On the one hand, the ability of individual users to log onto the Internet anonymously, undeterredbytraditional social and legalrestraints,tends to promote the kind ofunrestrained, robust communication that many people view as the Internet's most important contribution to society. On the other hand, the ability of members of the public to link an individual's online identity to his or her physical self is essential to preventing the Internet's exchange ofideas from causing harm in the real world. The legislative resolution ofthese issues will, indirectly, shape the content ofcommunication overthe Internet. For now, the§ 230 of the [CDA] errs on the side ofrobust communication, and prevents the plaintiffs from moving forward with their claims. 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 ofpromoting free speech while at the same time giving parents the tools to limitthe material their children can access
overthe Internet.
...The needto balance competingvalues is aprimary impetus for enacting legislation. Tension within statutes is often not a defect but an indication that the legislature was doing itsjob."). Congress's policy choice resulted m subsection 230. As the majority acknowledges, federal law preempts state law when the state law "would 'stand 'as

an obstacle to the accomplishment ofthe full purposes and objectives ofCongress' in passing§ 230 ofthe CDA." Zeran v. Am. Online, Inc., 

### 958 F. Supp. 1124, 1134
14JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) (E.D. Va. 1997) (quotingEnglish v. Gen. Elec. Co., 496U.S. 72, 79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990)), 

### aff'd, 129 F.3d 327 (4th Cir. 1997). III. THE CDAIMMUNIZES BACKPAGEFROM LIABILITY With this background about subsection 230(c)(1)'s language, context, and policy choices in mind, I turn to J.S.'s claims. A. The Complaint's Factual Allegations Treat Backpage as a Publisher, Not a Content Creator 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. Theparties are correct.7 The second prerequisite to CDA immunity is that the interactive serv1ce provider (here, Backpage) is acting as a publisher or speaker. The parties do not dispute that J.S.'s claims treat Backpage as a publisher or speaker ofinformation satisfying this second prerequisite to CDA immunity, also. Again, the parties are correct: 

### J.S. seeksto imposeliabilityonBackpagefor failingtopreventortoremove certain advertisements. CP at 12 ("Backpage.com continues to display prostitution ads that include minors without any meaningful safeguards or protections for the

7See generallyRoommates, 521 F.3d at 1162 n.6; see alsoMA. v. Vill. Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1048 (E.D. Mo. 2011) (holding that Backpage is an interactive computer service); Schneider v. Amazon.com, Inc., 108 Wn. App. 454, 460-61, 31 P.3d 37 (2001) (Internet service providers are interactive computer services). 15JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) children."). This constitutes publication. See, e.g., Barnes, 570 F.3d at 1103 ("[R]emoving content is something publishers do, and to impose liability on the basis ofsuch conduct necessarily involves treating the liable party as a publisher of the content it failed to remove."); Roommates, 521 F.3d at 1170-71 ("[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230."); Chi. Lawyers' Comm. for CivilRights underLaw, Inc. v. Craigslist, Inc., 519 F.3d 666,671 (7thCir. 2008)

(ruling that defendant was immune because "only in a capacity as publisher could [the defendant] be liable under [ 42 U.S.C. § 3604(c)]"); Green 

### v. Am. Online, 318 F.3d465, 471 (3d Cir. 2003) ("[D]ecisionsrelatingto themonitoring, screening, and deletion ofcontent" are "actions quintessentially relatedto a publisher's role."). 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, Backpage engages in three distinct activities, each of which independently excludes CDA immunity. First, Backpage creates, at least some, unlawful content with respect to advertising the minor Plaintiffs for sex. Second, Backpage develops unlawful content by making online sex advertisements ofthe minor Plaintiffs usable and available. Third, Backpage encourages unlawful content, including postings offering the minorPlaintiffs for sex. CP at 89. Similarly, the majority holds, "Backpage's advertisement posting rules

were not simply neutral policies prohibiting or limiting certain content but were 16J.S., S.L., andL.C. v. Village Voice Media Holdings eta!., No. 90510-0 (GordonMcCloud, J., Dissent) 

### instead 'specifically designed

... so that pimps can continue to use Backpage.com to traffic in sex.'" Majority at 8 (quoting CP at 12). 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

onthese legal arguments. First, J.S. alleges, "The Backpage.com defendants were well aware that their website was being used in this waybecause 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 discussedbelow, at Part D. Andthe allegation about the meaning of"develop" is a legal conclusion, not a factual allegation. We do not consider such legal conclusions. 

### Haberman, 109 Wn.2d at 120. 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 ofthe prostitution advertisements on its website through the

use ofthe foregoing content requirements." CP at 10. This is a claim that equates contentrules with content development. This is a legal assertion, and, as discussed below inPart B, it is one that Congress rejected when it enactedthe CDA.

17JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 

### (Gordon McCloud, J., 

### Dissent) The complaint further alleges, "[Backpage's] content requirements are specifically designed to control the nature and context ofthose 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 d,evelopment under the CDA. The complaint similarly alleges, "Backpage.com does not impose [a licensing] requirement for its website because itbelieves itis immune from liability, regardless of its substantial role in creating the content and context of the advertisements on its website." CP at 13. The allegation of"creating the content,"

as J.S. presents it here, is a legal conclusion. 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 ofher to create advertisements for the Backpage.com escort website

.... The wordings ofthe advertisements were sexually suggestive and obvious invitations for commercial sex acts with the underage S.L., and from the appearance ofher photographs itwas obvious S.L. was 18JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) underage." CP at 17-18. J.S. further alleges, "The wordings ofthe advertisements

were sexually suggestive and obvious invitations for commercial sex acts with the underage L.C. and from the appearance ofherphotographs 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 ofCDA immunity here. 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-wefind allegations thatpimps wrote anduploaded illegal content and thatBackpage intentionallypublishedit, knowingthatitwould leadto child sex trafficking. As discussed in the sections below, Congress has said that that is not content development, butpublication. B. Under the CDA's Definitions, Backpage Did Not "Develop Content" byMaintainingNeutral ContentRequirements J.S. argues that Backpage "developed" content by maintaining content requirements for advertisements posted on its website: [T]he backpage defendants "developed" the content of the escort advertisements themselves by providing phoney "posting rules" and 19JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) "content requirements" to instruct sex traffickers not to use certain words andgraphics inorderto avoid growing scrutinybythepublic and lawenforcement, all withthe goal ofallowingthe backpage defendants to continueprofiting from their illegal marketplace for sex. Br. ofResp'ts at 21. 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 ofJ.S.'s complaint. But adopting suchpostingrules still does notmake Backpagea "contentprovider"withinthemeaningofthe CDA, evenundertheNinth Circuit case upon which J.S., the majority, and the concurrence place principal reliance. Majority at 7-8; concurrence at 12-13. Inthat case, Roommates, the court held, "[A] website helps to develop unlawful content, and thus falls within the exception to section 230, ifit contributes materially to the alleged illegality ofthe conduct." 521 F.3d at 1168.8 In fact, courts have consistently rejected the contention that defendants "develop" content by maintaining neutral policies prohibiting or limiting certain

8 J.S. asserts that the court in Roommates "approved of several definitions ofthe term 'develop' and several methods by which a provider can become a 'developer," including making "'usable or available"' and by "'researching, writing, gathering, organizing and editing information for publication on websites."' Br. ofResp'ts at 17-18 (quoting Roommates, 421 F.3d at 1168-69). J.S. misreads this case. The court in Roommates stated, "[T]oreadthe term so broadlywould defeatthe purposes ofsection 230 by swallowing up every bit of the immunity that the section otherwise provides." Roommates, 521 F.3d at 1167. And contrary to J.S.'s assertion, Br. ofResp'ts at 19, the Tenth Circuit in Fed. Trade Comm 'n v. Accusearch Inc., 570 F.3d 1187, 1200 (lOth Cir. 2009), applied the Ninth Circuit's definition stated in Roommates. 20JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 

### 90510-0 (Gordon McCloud, J., 

### Dissent) content. Forexample, 

### inDartv. Craigslist, Inc., 665 F. Supp. 2d 961,969 (N.D. Ill. 2009), whichthemajoritycites at7, theplaintiffclaimedthateventhoughCraigslist,

an Internet classifieds service, prohibited illegal content on its website, users frequently posted ads promising sex for money. 665 F. Supp. 2d at 962. Consequently, the p1aintiffasserted that Craigslist "ma[de] it easier for prostitutes, pimps, and patrons to conduct business." I

### d. at 963. A federal court in Illinois dismissed the claims on a Fed. R. Civ. P. 12(b)(6) motion, explaining, "Plaintiffs argument that Craigslist causes or induces illegal content is further undercut by the fact that Craigslistrepeatedly warns users notto post such content. While we accept

as true for the purposes ofthis motionplaintiffs allegationthatusers routinely flout Craigslist's guidelines, it is notbecause.Craigslisthas causedthemto do so. Or ifit has, itis only 'inthe sense thatno one couldpost [unlawful content] ifcraigslist did not offer a forum."' 

### Id. at 969 (quoting 

### Chi. Lawyers', 519 F.3d at 671); 

### see also Chi. Lawyers', 519 F.3d at 671 ("Nothing in the service craigslist offers induces anyone to post any particular listing."); 

### Roommates, 521 F.3d at 1171 ("To be sure, the websiteprovidedneutral tools, whichthe anonymous dastardusedto publishthe libel, butthe website did absolutely nothing to encourage the posting ofdefamatory content-indeed, the defamatory posting was contrary to the website's express policies." (citing 

### Carafano, 339 F.3d at 1124)); 

### Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1198 (N.D. Cal. 2009) (rejecting plaintiffs claim relating to third21JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 

### (Gordon McCloud, J., 

### Dissent) party ads wherethe ads were "'contraryto [Google's] expresspolic[y]"' (alterations in original) (quoting

### Roommates, 521 F.3d at 1171). The facts in

### Dartare analogous to the facts here. J.S. alleges thatpimps-not Backpage-created and uploadedthe ads at issue. CP at 2 ("adultpimps

...posted advertisements for the girls"), 17 ("adult pimps

... create[d]

... andthen uploaded [the] advertisements of S.L. onto . . . Backpage.com"). Nothing in Backpage's policies obligated users to flout Backpage's express contentrequirements orto 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 ofthe particular wording andphotos thatthe pimps provided. CP at 16-21. Thus, holding Backpage liable would punish it for publishing third party content, and the CDAprohibits such liability. 

### See also Jane Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) (dismissing claims brought on behalfofa minor sexually assaulted after meeting a man through the defendant's website: "[Plaintiffs'] claims are barred by [section 230], notwithstandingtheir assertionthat 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 claimingthatMySpace was liable for

...third-party-generated content."); 

### Julie Doe

v. MySpace Inc., 175 Cal. App. 4th 561, 573, 96 Cal. Rptr. 3d 148 (2009) 22JS., S.L., andL.C. 

### v. Village Voice Media Holdings eta!.,

### No. 90510-0 

### (Gordon McCloud, J., 

### Dissent) ("[Plaintiffs] want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type ofactivity-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) ("Atthe end ofthe day

...Plaintiffis seekingto hold SexSearchliable for itspublicationofthirdparty content andharms flowing from the dissemination ofthatcontent. . . . Section 230 specificallyproscribes liabilityin such circumstances."), aff'don othergrounds, 

### 551 F.3d 412 (6th Cir. 2008). J.S. and the majority then rely on Roommates, 

### 521 F.3d at 1168, to suggest thatBackpage lostimmunitybecause it'"contribute[d] materiallyto the illegality of the alleged conduct."' Majority at 8. 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, whichis designedto help individuals find suitable roommates, Roommates.com required 

### users to create a profile describingtheuser's desired roommate andmandated

### thatusers "disclosehis sex, sexual orientation and whether he would bring children to a household." Id. 

### at 1161. Notably, the website also encouragedusers to provide separate comments "in

an open-ended essay" describing themselves and their desired roommate.. I

### d. The 23JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) Ninth Circuit ruled that while the website's users were "information content providers" because they ultimately provided the information for their profiles, this ''does not preclude Roommate[s.com] from also being an information content provider by helping 'develop' at least 'in part' the information in the [mandatory dropdown menu] profiles" through its required questionnaire. Id. at 1165. The Ninth Circuit therefore concluded that Roommates.com lacked immunity for the discriminatorycontentthatitmandatedusers providewiththatdrop-downmenu and required discriminatory fields: Roommate[s.com] does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate[s.com]'s work in developing the discriminatory questions, discriminatory answers and discriminatory searchmechanism is directly relatedtothe alleged illegality ofthe site

... Roommate[s.com] is directly involved with developing and enforcing a system that subjects subscribers to allegedly discriminatory housing practices. Id. at 1172. Critically, however, Roommates also held that the defendant was immune from liability for the open-ended comments users posted, whichthe website neither required nor shapedthrough its questionnaire: Roommate[s.com] publishes these comments as written. Itdoes notprovide any specific guidance as to what the essay should contain, nor does it urge subscribers to input discriminatory preferences. Roommate[s.com] is not responsible, in whole or in part, for the developmentofthis content, whichcomes entirelyfrom subscribers and is passively displayed byRoommate[s.com]. Withoutreviewing every essay, Roommate[s.com] would have no way to distinguish unlawful 24JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) discriminatory preferences from perfectly legitimate statements. Nor can there be any doubt that this information was tendered to Roommate[s.com] for publication online. 

### !d. at 1173-74. Thus, the defendant in 

### Roommates was immune from liability for claims based on nonmandatory content even ifthis content showedroommate selection on
a discriminatory basis. But it was not immune for alleged violations ofhousing discrimination laws based on the comments that Roommates.com elicited with mandatory illegal questions aboutrace, sex, or sexual preferences. Here, J.S. allegesthatBackpagemaintainspoliciesprohibiting solicitationfor 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 ofsex acts for money; and advertising an illegal service. CP at 8. Ifusers post advertisements that do not comply with these guidelines, 

### ·it is not because Backpagecausedthemto do so withmandatoryquestions orinanyotherway. Thus, contrary to the majority's and the concurrence's arguments, majority at 8;

concurrence at 11-12,unlikethewebsite in

### Roommates, Backpage.doesnottellusers 

### 25JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 

### (Gordon McCloud, J., 

### Dissent) that they should or must include certain information as a condition ofusing 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. Backpageinstead "provide[s] a frameworkthat could be utilized for proper or improperpurposes." 

### Roommates, 521 F.3d at 1172. 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, evenunder

### Roommates, J.S. fails to allege facts thatwould establish Backpage created contentthrough its posting requirements. C. Underthe CDA, There Is No For-ProfitExemption J.S. also claims that CDAimmunity does not apply becauseBackpage derives the "vast majority" of its income "from sex trafficking." Br. of Resp'ts at 24. Backpage allegedly "provid[es] commissions to pimps who refer other pimp customers," "accepts pre-paid credit card payments for the advertisements ofmore than one girl from the same source," and "charge[s] their users a higher fee to post in their 'escort' sectionthan they do for any other section ontheir website." 

### !d. Butunderthe CDA, "'[t]he fact that awebsite elicits online content for profit is immaterial; the only relevant inquiry is whether the interactive service provider "creates" or "develops"thatcontent."'

### MA. v. Vill. VoiceMediaHoldings, LLC, 809 F. Supp. 2d 1041, 1050 (B.D. Mo 2011) (alteration in original) (quoting 

### Goddardv. 26JS., S.L., andL.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent)

- 

### 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 structuredits websiteto increase its profits "wouldbeto create a for-profit exception to§ 230's broad grant ofimmunity. This the Courtmaynot do." 

### !d. Based on the allegations in this complaint, Backpage did not materially contributeto the developmentorcreationofthe contentatissueno matterhowmuch it benefited financially from the pimps' use ofits website. D. Under the CDA, Backpage's Escort Category Does Not Defeat Immunity J.S. also claims that Backpage contributes materially to the unlawful content ofthe advertisements on its website because "Backpage chose the term 'escorts' as its heading because it means 'prostitutes' in the world ofsex trafficking, and thus would most effectively identifythe internet location ofillicit sex ads tojohns." Br. ofResp'tsat 30. J.S. assertsthatBackpageplacedits ownlogo andtheword"escort"

onthe individual ads inthe "escort" section. 

### !d. 9 J.S. further argues thatBackpage "encourages illegal content" because "selling sex online is backpage's business

9 Backpage contends that the website automatically generates the labels on the ads identifying the category in which the ad appears. Appellants' Reply Br. at 18 n.l5. Other courts have rejected similar claims that this defeats CDA immunity. See Seldon v. Magedson, No. CV-13-00072-PHX-DGC, 2014 WL 1456316, at *4, *6 (D. Ariz. Apr. 15, 2014) (court order) ("software that automatically published and filed a third-party's statements "as" "philip-seldon I Ripoff Report I Complaints Reviews Scams Lawsuits Frauds Reported" "does not undercut Xcentric's claimto immunity under the CDA"). 27JS., S.L., andL. C. v. Village Voice Media Holdings eta!., No. 90510-0 (Gordon McCloud, J., Dissent) model" andbecauseits website contains an "'escorts"' section. 

### Id. at25, 27-28. J.S. continues that Backpage's "knowledge about the illicit ads in its 'escorts' section shows that it is well aware thatthe services offered on its website are (1) illegal and (2) not the same as any ofthe 

### lawful services regulated by state or municipal law." 

### Id. at 28. 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. ofResp'ts at 28. This is incorrect. In fact, 

### Bondinvolvedwebsitesthat admittedlyprovidedinformationaboutprostitution 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, indescribingthewebsite,the courtnoted, "Plaintiffscounsel acknowledged at oral argument that 'escort services' is essentially a euphemism for prostitution services." 

### I

### d. at 1152. Therefore,werejectJ.S.'sargument. 

### See also Cityof Yakima

v. Emmons, 25 Wn. App. 798, 802, 609 P.2d 973 (1980) (recognizing the existence of"legitimate escort service[s]"). Evenif"escort" were a euphemism for "prostitute," subsection 230(c) would still provide immunity. In 

### MA., 809 F. Supp. 2d at 1049, the court stated, "[T]he creation by Backpage ofan 'adult' category does not impose liability on Backpage for ads posted in that category." The court in 

### MA. cited 

### Dart in rejecting the 28JS., S.L., andL.C. v. Village Voice Media Holdings eta!., No. 90510-0 (Gordon McCloud, J., Dissent) plaintiffs claim that Backpage lacked immunity because it created an "escort" category: "'Craigslist created the categories, but its users create the contents ofthe ads and selectwhich categories their ads will appear in."' 

### !d. (quoting

### Dart, 665 F. Supp. at 962). 10 Similarly, in 

### Prickett v. InfoUSA, Inc., 561 

### F. Supp. 2d 646, 651 (E.D. Tex. 2006), the court rejected plaintiffs' argument "that because the anonymous third party was prompted to select subcategories through the Defendant's database gathering system, the Defendant directed the third party's selections. The fact that

some ofthe contentwas formulated inresponseto theDefendant'sprompts does not alter the Defendant's status [as a publisher]." 

### Roommates**simi~arly** held that by

10 J.S. contends that MA. is distinguishable because "while MA. involved similar facts (i.e. aminor trafficked on backpage.com), itwas pledmuch differently thanthe child victims' case and the Missouri courtwas thereby limited in its analysis." Br. ofResp'ts at 32-33. Specifically, J.S. argues that MA. involved no allegations that Backpage was responsible for developing the ad content at issue or for encouraging the development of the content's offensive nature and that the court "mistakenly seemed to regard backpage.com as an innocent classified ads website, instead of a deliberate purveyor of prostitution." ld. at 33. J.S. is partially correct. The MA. plaintiff alleged that Backpage "'[w]as responsible in part for the development and/or creation ofinformation provided through the internet or other internet computer service,"'MA., 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 andphotographs. CP at 16, 17, 20. And the complaint here still alleges no facts showing that Backpage actually selected the wording orphotos that the ads at issue contained. 29JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) 

### creating a neutral category "escort," a legal service in Washington, Backpage provided atoolbutthatthepimps werethe ones who useditto develop theunlawful content. 521 F.3d at 1172. Accordingly, the creation ofthis category does not establishthatBackpage contributedmateriallyto unlawful content ofthe ads (within the meaning ofthe CDA). In fact, other federal courts have held that the FirstAmendmentto theUnited 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 struckdown

as unconstitutionallyvague aWashington statutethattargetedBackpagebycreating

a criminal offense for '"advertising commercial sexual abuse ofaminor."' (Quoting S.B. 6251, at 2, 62d Leg., Reg. Sess. (Wash. 2012).) 11 

### The court found it "unlikely that Defendants would be able to prove that all 

### online advertisements for escort services are ads for prostitution." Id. 

### at 1282. The court expressed concern that "a websitethat contains a section for postings for escort services that chooses to either shut down that section orrequire age verification will likely chill protected speech

11 The courtinMcKenna stated, "Washingtonlegislators have openlystatedthatthe challenged statuteis aimed atBackpage.com andthattheyseekto eliminate escort ads and similarInternetpostings." McKenna, 881 F. Supp. 2dat 1270. 

### 30JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) in the course ofdoing so." Jd.; 12 

### see also Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 823 (M.D. Tenn. 2013) (CDA preempted a Tennessee statute similar to Washington's, which "impose[d) liability on websites such as Backpage.com for selling or offering to sell advertisements, activity inherent in their role as publishers."); 

### Dart, 665 F. Supp. 2d at 968 ("Plaintiff is simply wrong when he insists that [the 'erotic services' category and subcategories] are all synonyms for illegal sexual services."). Thesecases demonstratethata categoryfor escortservices

on Backpage's website is another neutral, legal tool that users misuse to commit unlawful acts. Therefore, J.S. cannotusethis as a basis to defeat immunity. E. Under the CDA, Backpage's Alleged Knowledge Does Not DefeatImmunity We are thus left with J.S.'s theory that Backpage is liable for knowingly encouragingunlawfulcontentpromoting sextraffickingofchildren. Butcourtshave consistently heldthat an allegation that a defendant encourages unlawful content is insufficientto defeatCDAimmunity. See, e.g., Hillv. StubHub, Inc., 219N.C. App. 227, 727 S.E.2d 550, 560 (2012) ("the fact that a website acted in such a manner as to encourage the publication ofunlawful material does not preclude a finding of

12 The court in McKenna also reasoned that "numerous states license, tax and otherwise regulate escort services as legitimate businesses." !d. at 1282. See, e.g., RCW 82.04.050(3)(g) (escort services subject to state business and occupation tax); see also Appellants' Opening Br. at 30-31 n.13 (listing state and municipal provisions recognizing and regulating escort services). 31J.S., S.L., andL. C. v. Village VoiceMediaHoldings etal., No. 90510-0 (GordonMcCloud, J., Dissent) 

### immunitypursuantto [section] 

### 230");Ascentive,LLCv. Opinion Corp., 842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011) ("[T]here is simply 'no authority for the proposition that [encouragingthepublicationofdefamatorycontent] makes thewebsite operator responsible, in whole or in part, for the 'creation or development' ofeverypost on the site." (second alteration in original) (quoting 

### GlobalRoyalties, Ltd. v. 

### Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008) (holding that the ripoffreport.com website was not an information content provider even though it allegedly encouraged defamatoryreviews byothers for its financial benefit)). As the First Circuit explained, "It

### is, bynow, well established that notice of the unlawful nature ofthe informationprovided is not enoughto make it the service provider's own speech." 

### Lycos, 478 F.3d at 420. "Section 230 immunity applies

even after notice ofthe potentiallyunlawful nature ofthe third-party content." Jd.;



### see also Zeran, 129 F.3d at 333 ("[I]fcomputer service providers were subject to distributor liability, theywould face potential liability eachtime theyreceive notice ofa potentially defamatory statement-from any party, concerning any message," and such notice-based liability "would deter service providers from regulating the dissemination ofoffensive material over their own services" by confronting them with "ceaseless choices ofsuppressingcontroversial speechorsustainingprohibitive 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 32JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) intervene is immunized."' 

### MA., 809 F. Supp. 2d at 1051 (quoting 

### Goddard, 2008 WL 5245490, at *3). To be sure, intentionallypromoting child sextrafficking is a serious crime in

our state. But encouraging users to use a website-even with the intentto promote

sex trafficking ofminors-does not convert a defendant into a "content provider" within the meaning ofthe CDA. F. Subsection 230(c)(l) Contains No GoodFaithRequirement J.S. further claims that Backpage lacks immunity because "backpage's 'posting rules' and 'contentrequirements' are not developed or enforced in 

### agood 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. ofResp'ts at 31. The concurrence echoesthis argument. Concurrence at 5, 9 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 supportthis position. 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 exceptionto the immunity that it provides. 

### SeeLevittv. Yelp! Inc., No. C-10-1321- EMC, 2011 WL 5079526, at *7 (N.D. Cal. Oct. 26, 2011) (courtorder) ("[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 33JS., S.L., andL.C. v. Village Voice Media Holdings et al., 

### No. 90510-0 (Gordon McCloud, J., 

### Dissent) ("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 thirdparties. 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 ofan interactive computer service."). For that reason, courts have found that defendants are immune under subsection230(c)(l) even ifthey act inbad faith. 

### See, e.g., Zeran, 129 F.3d at 331- 33 (interactive service provider immune from defamation liability even when it has actual knowledge ofstatement's falsity); 

### AsiaEcon. 

### Inst. v. 

### Xcentric Ventures LLC, 

### No. CV 10-01360 SVW (PJWx), 2011 WL 

### 2469822, at *6 (C.D. Cal. May4, 2011) (court order) (holdingthatdefendant's deliberate manipulation ofHTML (hypertext markup language) computer code for paying customers to make certain reviews

more visible in online search results was immune under section 230 and that "[a]bsent a changing ofthe disputed reports' substantive content that is visible to consumers, liability cannotbe found."); 

### Blumenthal, 992 F. Supp. at 52. 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) essentiallyprovides the defendant withnothing. Concurrence at 5-6. But

we cannot ignore the plain language ofa federal statute, or treat it as a superfluous, 34JS., S.L., andL.C. v. Village Voice Media Holdings etal., 

### No. 90510-0 (Gordon McCloud, J., 

### Dissent) 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 ofspeakers and publishers, the subject ofsubsection [230](c)(l). We read eachto do exactly what it 

### says." 

### Chi. Lawyers', 519 F.3d at 671 (affirming grant of summaryjudgment). G. The Cases That J.S. Cites Do Not Support Their Legal Arguments J.S. comparesthis caseto

### Anthonyv. Yahoo!, Inc., 421 F. Supp. 2d 1257 (N.D. Cal. 2006),

### NPSLLCv. 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. ofResp'ts at 32-37; Resp'ts Notice ofSuppl. Auth. Ex. A. In

### Anthony,the courtrejectedYahoo's claim ofimmunityfrom liabilitywhere the plaintiffalleged 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 notimmune from tort liabilitybecause it 

### createdthe false profiles. 

### Id. at 1263. But in contrast to the plaintiff in 

### Anthony, J.S. does not allege that

35JS., S.L., andL.C. v. Village Voice Media Holdings et al., No. 90510-0 (Gordon McCloud, J., Dissent) Backpage actually chose the content of the ads or otherwise created the actual challenged content. Thus, J.S. cannotrely onthis case. 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 courtruledthat evidence intherecord showedthatthe websitematerially contributedto its sellers' illegal "'ticketscalping'" and, thus, CDAimmunity didnot apply. Id. at*13. Specifically, the website's pricing structure meantthat it profited from violations ofantiscalping laws; the website did notrequire a seller to disclose the face value ofa ticket, so a buyer was unaware ofwhether the ticket price was above the legal threshold; andthe website "affirmatively encouraged" "underpriced ticket[]" sales by waiving its fees for a certain class ofsellers. Id. at *11. The court saidthatthe absence ofinformation aboutthe face valueofaticketprecludedabuyer fromknowingifaticketpricewas abovethepricethreshold setbylawandprevented any policing ofthe website to prohibit scalping. Id. 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 36JS., S.L., andL.C. v. Village Voice Media Holdings etal., 

### No. 90510-0 (Gordon McCloud, J., 

### Dissent) rejectedNPS. See, e.g., Milgram v. Orbitz Worldwide, Inc., 

### 419 N.J. Super. 305, 16 A.3d 1113, 1126 (2010) (finding online ticketmarketplace immune; dismissingNPS

as inconsistent with other cases, and noting that it was "quite fntnkly, unclear

... whichfacts the courtusedinreachingthe conclusionthat§ 230 didnotapply"); Hill, 

### 727 S.E.2d at 563 ("declin[ing] to follow" NPS 

### as "inconsistent with the decisions concluding that knowledge ofunlawful content does not strip a website of [section 230] immunity"). Although it is arguable that Backpage, like StubHub, contributed to the illegalityhere, NPS

### is an outlier. InternetBrands 

### does not supportJ.S.'s claims, either. InInternetBrands, 

### the NinthCircuitheldthatthe CDAdid notapplyto amodel'sclaim againstthe operator ofa social networking site for models for its negligent failure to warn that rapists

wereusingthe websiteto luremodelsto fake auditions wheretheywouldbe 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 soughtto holdthe defendantliable for its ownfailure to provide informationthat it allegedly possessed aboutthe rapists. I

### d. at 897. The courtexplained, "Any obligationto warn could have been satisfied withoutchanges to the content posted by the website's users. Internet Brands would simply have beenrequiredto give awarningtoModelMayhemusers, perhapsbyposting anotice

on the website or by informing users by e-mail" the information it had about the 37J.S., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 

### (Gordon McCloud, J., 

### Dissent) 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 thatthird parties created. 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'tRecordings, LLC, 

### 840 F. Supp. 2d 1008, 1009 (E.D. Ky. 2012) (Jones 

### I). After the plaintiffbecame the unwelcome subject ofseveralposts, the district court deniedimmunityfrom her statetort claims. Jones 

### II, 965 F. Supp. 2d at 823. The court found that the defendant "invited and encouraged" thepostings through its name andbyincitingthe site'sviewers 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. Thedefendant's comments about theplaintiffaddedto theposts atissue "effectively ratified and adopted the defamatorythird-partypost." Id. 

### at 823. 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,

38JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (GordonMcCloud, J., Dissent) 

### Dirty World and Richie did not author the statements at issue; however, they did selectthe statements forpublication. ButRichie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7, 2009, simply because those posts were selected for publication. Nor can they be found to have materially contributed to the defamatory contentthrough the decision not to remove the posts.

Unlike in Roommates, 

### the website that Richie operated did not require users to post illegal or actionable content as a condition ofuse. Nor does the name ofthe website, www.TheDirty.com, suggest that onlyillegal or actionable content will bepublished. Unlike in [Federal Trade Commission v. ]Accusearch[ Inc., 570 FJd 1187 (lOth Cir. 2009)], 

### Richie or Dirty World did not compensate users for the submission of unlawful content. The website's content submission form simply instructsusersto "[t]ellus what'shappening. Rememberto tellus who, what, when, where, why." The form additionally provides labels by which to categorize the submission. These tools, neutral (both in orientation and design) as to whatthirdparties submit, do notconstitute a material contributionto any defamatory speech that is uploaded. Id. 

### at415-16 (fourth alteration in original). IV. No RELEVANT DIFFERENCE EXISTS BETWEEN STATE AND FEDERAL PLEADING STANDARDS HERE 

### Backpage also claims that the trial court applied CR 12(b)(6) improperly because it "went beyondjust accepting Plaintiffs' factual allegations" and credited J.S.'s legal contentions that Backpage could be held liable for '"assist[ing] in developing' content." Appellants' Opening Br. at 43. Backpage also alleges, "To the extent the Superior Court felt constrained to reject federal case law because of

39JS., S.L., andL.C. v. Village Voice Media Holdings etal., 

### No. 90510-0 (Gordon McCloud, J., 

### Dissent) Washington's more lenient CR 12(b)(6)pleading standards, it erred for the separate

reasonthat stateproceduralrules cannottrump federal substantive rights." Id. 

### at44. While I agree that it appears the trial court's order erroneously credited J.S.'s legal conclusions, rather thanjustJ.S.'s factual allegations, federal and state law do not differ about creditinglegal conclusions in aplaintiffs complaintonaCRor Fed. R. Civ. P. 12(b)(6) motion. Haberman, 

### 109 Wn.2d at 120 ("[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 notboundto accept as true a legal conclusion couched as a factual allegation"). Washington's

more relaxed pleading standards did notplay any role in this case. CONCLUSION This case does not ask us to decide whether pimps should be able to traffick

ourchildrenwithout consequence. The answerto that question is certainlyno. And this case does not askus to decide whetherthirdparty accomplices or coconspirators should be able to escape criminal prosecution for human trafficking and child rape. The answerto thatis also aresoundingno. Instead, the questionbeforeus is whether the CDA, a federal statute, shields this defendant from this state law claim. Using settled principles ofstatutory interpretation, the CDA compels me to conclude that the answer to that question is also no. J.S. fails to allege facts sufficient to prove that Backpage was a content provider as opposed to a service provider. Thus, 40JS., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent) 

### subsection 230(c) immunizes Backpage from liability for J.S.'s claims. And subsection 230(c) trumps conflicting state law. I would therefore reverse the trial court's denial ofBackpage's CR 12(b)(6) motionto dismiss. Irespectfully dissent.

41J.S., S.L., andL.C. v. Village Voice Media Holdings etal., No. 90510-0 (Gordon McCloud, J., Dissent)

42r