Exhibit M 

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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Case No. 6:17-cv-218-ORL-28-TBS

FLORIDA ABOLITIONIST and JANE 

DOE,

Plaintiffs,

-againstBACKPAGE.COM, LLC, 

EVILEMPIRE.COM, BIGCITY.COM, 

CARL FERRER, MICHAEL LACEY, and 

JAMES LARKIN,

Defendants.

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Local R. 3.01(h) – Dispositive Motion

MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) and (6) 

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TABLE OF CONTENTS

Page

INTRODUCTION .................................................................................................................... 1

BACKGROUND ...................................................................................................................... 3

A. Backpage.com and Affiliated Websites............................................................ 3

B. Plaintiffs’ Allegations and Claims.................................................................... 7

STANDARDS UNDER RULES 12(B)(6) AND 12(B)(1) ...................................................... 8

ARGUMENT............................................................................................................................ 9

I. SECTION 230 BARS ALL OF PLAINTIFFS’ CLAIMS............................................ 9

A. Section 230 Was Designed to Promote Free Speech Online and the 

Unfettered Growth of the Internet..................................................................... 9

B. Plaintiffs’ Claims are Barred Under Section 230’s Three-Part Test............... 11

C. Plaintiffs Cannot Evade Section 230 Through Artful Pleading...................... 16

1. Plaintiffs Cannot Evade Section 230 By Alleging That a Website 

Encourages Posting Unlawful Content. .............................................. 16

2. Plaintiffs’ Content-Creation Allegations Cannot Overcome 

Section 230 Immunity......................................................................... 18

D. Ms. Doe’s Right-of-Publicity Claims are Not Saved by Section 230’s 

“Intellectual Property” Exception................................................................... 21

E. Imposing Liability on Online Service Providers is Not the Solution to 

Preventing Trafficking. ................................................................................... 23

II. PLAINTIFFS’ CLAIMS FAIL AS A MATTER OF LAW ....................................... 24

A. Plaintiffs Lack Standing.................................................................................. 24

B. The Right-of-Publicity Claims Fail. ............................................................... 25

C. The Defamation Claim Is Time-Barred And Otherwise Defective. ............... 27

D. Other Claims Based on Publication of the Ad are Barred by the Single 

Action Rule. .................................................................................................... 28

E. The Civil Conspiracy Claim Fails................................................................... 29

F. The Section 1591 Claim Fails......................................................................... 30

CONCLUSION....................................................................................................................... 30

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TABLE OF AUTHORITIES

Page(s)

Cases

Almeida v. Amazon.com, Inc.,

456 F.3d 1316 (11th Cir. 2006) .............................................................................11, 26, 27

Ascentive, LLC v. Opinion Corp.,

842 F. Supp. 2d 450 (E.D.N.Y. 2011) ...............................................................................17

Ashcroft v. Iqbal,

556 U.S. 662 (2009).............................................................................................................8

Backpage.com, LLC v. Cooper,

939 F. Supp. 2d 805 (M.D. Tenn. 2013).................................................................... passim

Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016)....................................2, 4

Backpage.com, LLC v. Hoffman,

2013 WL 4502097 (D.N.J. Aug. 20, 2013) ...................................................................1, 11

Backpage.com, LLC v. Lynch,

2016 WL 6208368 (D.D.C. Oct. 24, 2016) .......................................................................30

Backpage.com, LLC v. McKenna,

881 F. Supp. 2d 1262 (W.D. Wash. 2012)................................................................. passim

Bankers Life Ins. Co. v. Credit Suisse First Boston Corp.,

2008 WL 1817294 (M.D. Fla. Apr. 22, 2008)...................................................................29

Batzel v. Smith,

333 F.3d 1018 (9th Cir. 2003) .......................................................................................9, 10

Bouton v. Ocean Props., Ltd.,

--- F. Supp. 3d --, 2016 WL 7324145 (S.D. Fla. Dec. 12, 2016).........................................4

Brooks v. Blue Cross & Blue Shield of Fla., Inc.,

116 F.3d 1364 (11th Cir. 1997) ...........................................................................................4

Byrd v. Hustler Magazine,

433 So. 2d 593 (Fla. 4th DCA 1983).................................................................................28

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Camp v. Alabama Telco Credit Union,

2013 WL 2106727 (N.D. Ala. May 13, 2013).....................................................................4

Carafano v. Metrosplash.com,

339 F.3d 1119 (9th Cir. 2003) .....................................................................................20, 22

Chicago Lawyers’ Comm. for Civil Rights Under the Law v. Craigslist, Inc.,

519 F.3d 666 (7th Cir. 2008) .............................................................................................17

Comins v. Vanvoorhis,

135 So. 3d 545 (Fla. 5th DCA 2014).................................................................................27

Cone Corp. v. Florida Dep’t of Transp.,

921 F.2d 1190 (11th Cir. 1991) .....................................................................................9, 24

Dart v. Craigslist, Inc.,

665 F. Supp. 2d 961 (N.D. Ill. 2009)...........................................................................12, 17

Doe II v. MySpace Inc.,

175 Cal. App. 4th 561 (2009) ............................................................................................14

Doe v. AOL,

783 So. 2d 1010 (Fla. 2001)...............................................................................................18

Doe v. Backpage.com, LLC,

104 F. Supp. 3d 149 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 2016), 

cert. denied, 137 S. Ct. 622 (2017)............................................................................ passim

Doe v. Backpage.com, LLC,

817 F.3d 12 (1st Cir. 2016)........................................................................................ passim

Doe v. Bates,

2006 WL 3813758 (E.D. Tex. Dec. 27, 2006)...................................................................23

Doe v. MySpace,

528 F.3d 413 (5th Cir. 2008) .......................................................................................14, 16

Dowbenko v. Google Inc.,

991 F. Supp. 2d 1219 (S.D. Fla. 2013), 

aff’d, 582 F. App’x 801 (11th Cir. 2014)...........................................................................22

e-ventures Worldwide, LLC v. Google, Inc.,

No. 2:14-cv-646-FtM-PAM-CM (M.D. Fla. Feb. 8, 2017)...............................................10

Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC,

521 F.3d 1157 (9th Cir. 2008) ...............................................................................11, 12, 18

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Franklin v. Curry,

738 F.3d 1246 (11th Cir. 2013) ...............................................................................9, 19, 21

Fridovich v. Fridovich,

598 So. 2d 65 (Fla. 1992)...................................................................................................28

FTC v. Accusearch, Inc.,

570 F.3d 1187 (10th Cir. 2009) .........................................................................................20

Fuentes v. Mega Media Holdings, Inc.,

721 F. Supp. 2d 1255 (S.D. Fla. 2010) ..............................................................................26

Giordano v. Romeo,

76 So. 3d 1100 (Fla. 3d DCA 2011)..................................................................................27

GoDaddy.com, LLC v. Toups,

429 S.W.3d 752 (Tex. App. 2014).....................................................................................18

Goddard v. Google, Inc.,

640 F. Supp. 2d 1193 (N.D. Cal. 2009).............................................................................18

Google v. Hood,

822 F.3d 212 (5th Cir. 2016) ...............................................................................................3

Green v. AOL,

318 F.3d 465 (3d Cir. 2003)...............................................................................................14

Griffin Indus., Inc. v. Irvin,

496 F.3d 1189 (11th Cir. 2007) .....................................................................................9, 19

Haddad v. Dudek,

784 F. Supp. 2d 1038 (M.D. Fla. 2011)...............................................................................4

Herrick v. Grindr, LLC,

2017 WL 744605 (S.D.N.Y. Feb. 24, 2017)......................................................................16

J.S. v. Village Voice Media Holdings, LLC,

184 Wash. 2d 95 (2015).....................................................................................................20

Jews for Jesus, Inc. v. Rapp,

997 So. 2d 1098 (Fla. 2008)...............................................................................................22

Jones v. Dirty World Entm’t Recordings LLC,

755 F.3d 398 (6th Cir. 2014) ..................................................................................... passim

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Jones v. Dirty World Entm’t Recordings, LLC,

965 F. Supp. 2d 818 (E.D. Ky. 2013) ................................................................................17

Kamau v. Slate,

2012 WL 5390001 (N.D. Fla. Oct. 1, 2012), adopted, 2012 WL 5389836 

(N.D. Fla. Nov. 5, 2012)....................................................................................................28

Kimzey v. Yelp! Inc.,

836 F.3d 1263 (9th Cir. 2016) .................................................................................3, 16, 19

LaGrasta v. First Union Secs., Inc.,

358 F.3d 840 (11th Cir. 2004) ...........................................................................................28

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)...........................................................................................................25

M.A. v. Village Voice Media Holdings, LLC,

809 F. Supp. 2d 1041 (E.D. Mo. 2011)...................................................................... passim

Miljkovic v. Shafritz & Dinkin, P.A.,

791 F.3d 1291 (11th Cir. 2015) ...........................................................................................9

Mizzaro v. Home Depot, Inc.,

544 F.3d 1230 (11th Cir. 2008) .........................................................................................21

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250 (4th Cir. 2009) .........................................................................................9, 30

Nicklaw v. Citimortgage, Inc.,

839 F.3d 998 (11th Cir. 2016), reh’g en banc denied, 

2017 WL 1548204 (11th Cir. May 1, 2017)......................................................................24

Obado v. Magedson,

2014 WL 3778261 (D.N.J. July 31, 2014), 

aff’d, 612 F. App’x 90 (3d Cir. 2015)................................................................................21

People v. Ferrer,

2016 WL 7237305 (Sup. Ct. Sacramento Cty. Dec. 9, 2016).................................... passim

Pierson v. Orlando Reg’l Healthcare Sys., Inc.,

2010 WL 1408391 (M.D. Fla. Apr. 6, 2010), aff’d, 451 F. App’x 862 

(11th Cir. 2012)..................................................................................................................29

Schurz Commc’ns, Inc. v. FCC,

982 F.2d 1043 (7th Cir. 1992) .............................................................................................3

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Trujillo v. Banco Cen. Del Ecuador,

17 F. Supp. 2d 1334 (S.D. Fla. 1998) ................................................................................28

United States v. Ackerman,

831 F.3d 1292 (10th Cir. 2016) ...........................................................................................6

Universal Commc’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007)..................................................................................10, 11, 15

U.S. ex rel. Osheroff v. Humana Inc.,

776 F.3d 805 (11th Cir. 2015) .............................................................................................4

Wagner, Nugent v. Flanagan,

629 So. 2d 113 (Fla. 1993).................................................................................................28

Whitney Info. Net., Inc. v. Xcentric Ventures, LLC,

2008 WL 450095 (M.D. Fla. Feb. 15, 2008).....................................................................17

Wollschlaeger v. Governor of Fla.,

848 F.3d 1293 (11th Cir. 2017) ...................................................................................24, 25

Zeran v. Am. Online, Inc.,

129 F.3d 327 (4th Cir. 1997) .................................................................................10, 15, 23

Constitutional Provisions

U.S. Const. amend. I....................................................................................................1, 2, 9, 10

Federal Statutes

18 U.S.C.

§ 1591.......................................................................................................................8, 12, 30

§ 1595.................................................................................................................................22

§ 2255.................................................................................................................................22

47 U.S.C.

§ 230........................................................................................................................... passim

§ 230(c)(1) .......................................................................................................10, 15, 16, 19

§ 230(e)(1) .........................................................................................................................21

§ 230(e)(2) ...................................................................................................................21, 22

§ 230(e)(3) .........................................................................................................................10

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State Statutes

Fla. Stat.

§ 95.11(4)(g) ......................................................................................................................27

§ 540.08..............................................................................................................8, 21, 25, 26

§ 540.08(1).........................................................................................................................26

§ 770.07..............................................................................................................................28

Rules

Fed. R. Civ. P.

9(b).....................................................................................................................................21

12(b)(1) ..................................................................................................................1, 8, 9, 24

12(b)(6) ......................................................................................................................1, 8, 25

Other Authorities

Backpage.com Succumbing to Government Is Blow to Free Speech Online, 

Jan. 10, 2017, Center for Democracy & Technology, available at 

https://cdt.org/press/backpage-com-succumbing-to-government-is-blowto-free-speech-online/ ..........................................................................................................4

Black’s Law Dictionary (10th ed. 2014)..................................................................................22

Danah Boyd, Combating Sexual Exploitation Online: Focus on 

the Networks of People, not the Technology (Oct. 19, 2010), 

http://www.danah.org/papers/talks/2010/CombatingSexualExploitation

Online.pdf ....................................................................................................................23, 24

Mark Latonero, The Rise of Mobile and the Diffusion of TechnologyFacilitated Trafficking, Nov. 2012 (USC Annenberg Ctr. on Commc’ns 

Leadership & Policy Research Series on Tech. & Human Trafficking)............................24

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Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Defendants Backpage.com LLC, 

Evilempire.com, BigCity.com, Carl Ferrer, Michael Lacey, and James Larkin (collectively, 

“Defendants” or “Backpage”) hereby move to dismiss the Complaint.

INTRODUCTION

The Plaintiffs in this case, an advocacy organization and a young woman (Jane Doe), 

allege she was victimized by her drug-addicted mother and third-party criminals who involved her in sex trafficking by posting on the classified advertising website Backpage.com. 

They seek to blame the website, its CEO, and its former owners—not the perpetrators of the 

abuse and the sex trafficking scheme—despite scores of cases (including decisions involving 

some of the same defendants sued here) that hold such online publishing activities are protected by the First Amendment and immunized from liability under Section 230 of the Communications Decency Act. 47 U.S.C. § 230 (“Section 230”). These new claims add nothing 

to what is already well-trod ground, and their meritless allegations should be dismissed.

Numerous courts have addressed the allegations raised in this Complaint in various 

contexts and found them contrary to constitutional law and foreclosed by federal policy. The 

states of Washington, Tennessee, and New Jersey passed statutes targeting Backpage.com 

based on the assumption that ads in its adult section were for prostitution, and all were 

enjoined as violations of the First Amendment and Section 230. Backpage.com, LLC v. 

McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012); Backpage.com, LLC v. Hoffman, 2013 

WL 4502097 (D.N.J. Aug. 20, 2013); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 

(M.D. Tenn. 2013). California attempted to bring a criminal prosecution against Backpage, 

its principals and former owners, but the court rejected the State’s arguments and granted the 

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defendants’ demurer, holding the AG impermissibly sought to impose criminal liability for 

Backpage’s actions as a publisher, which are protected by the First Amendment principles 

embodied in Section 230. People v. Ferrer, 2016 WL 7237305, at *1, *4 (Sup. Ct. Sacramento Cty. Dec. 9, 2016). Even informal actions taken by local governments to suppress 

Backpage have been enjoined as violations of the First Amendment. Backpage.com, LLC v. 

Dart, 807 F.3d 229, 231 (7th Cir. 2015) (enjoining Sheriff’s actions as unconstitutional prior 

restraint), cert. denied, 137 S. Ct. 46 (2016).

Particularly relevant here, courts have granted motions to dismiss virtually identical civil 

claims against Backpage, finding them foreclosed by Section 230’s command that that “[n]o 

provider ... of an interactive computer service shall be treated as the publisher or speaker of any 

information provided by another information content provider.” In M.A. v. Village Voice Media 

Holdings, LLC, 809 F. Supp. 2d 1041, 1053-54 (E.D. Mo. 2011), the court dismissed all claims 

despite allegations that the website’s structure and operation, and Backpage’s alleged 

knowledge of illegal activity, made it culpable for sex trafficking. And in Doe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 152 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 2016), 

cert. denied, 137 S. Ct. 622 (2017), the district and appellate courts held Backpage’s editorial 

choices were protected, rejecting claims that the website’s policies were intended to promote 

“illicit sex trade” and “trafficking of children.” The district court dismissed all claims, holding 

Backpage’s practices “[s]ingly or in the aggregate ... amount to neither affirmative participation 

in an illegal venture nor active web content creation.” Id. at 157.

The Plaintiffs here try to avoid this growing body of law by peppering the Complaint 

with conclusory assertions that Backpage somehow “conspired” with those who purchased 

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ads on its site or in some way “created” content through editorial practices. But “[s]tripped 

of verbiage,” the Complaint, “like a Persian cat with its fur shaved, is alarmingly pale and 

thin.” Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1043, 1050 (7th Cir. 1992) (Posner, J.). The 

only specific factual allegation about the ad involving Ms. Doe is that it was conceived, 

created, and posted entirely by her abusers. Compl. ¶¶ 97-98. And the various practices that 

Plaintiffs’ assert make Backpage a “conspirator” or “content creator” are all publishing prerogatives that courts uniformly have found to be editorial policies that the law immunizes. 

The courts have been firm in holding such “artful” pleading cannot be used to “skirt[]” 

Section 230. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016). 

Backpage does not mean to minimize the grievous harms that Plaintiffs allege Ms. 

Doe suffered. But Congress made a considered policy judgment that plaintiffs should hold 

the actual wrongdoers liable rather than rather than cripple the Internet by imposing liability 

on websites that host third-party-created content. Cases like this illustrate “the importance of 

preserving free speech on the internet, even though that medium serves as a conduit for much 

that is distasteful or unlawful.” Google v. Hood, 822 F.3d 212, 220 (5th Cir. 2016). In 

accordance with that policy judgment, this case must be dismissed. 

BACKGROUND

A. Backpage.com and Affiliated Websites.

Backpage operates an online classified advertising service through which users can 

post ads in a variety of categories, including local places, buy/sell/trade, automotive, rentals, 

real estate, jobs, dating, and services. See Cooper, 939 F. Supp. 2d at 813. The site is 

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organized geographically, by state and municipality.1 Until January 2017, Backpage also 

included a category for “adult” services (such as escort services), which—following years of 

pressure from government actors, including a campaign that the Seventh Circuit described as 

an unconstitutional effort to “crush Backpage,” Backpage.com, LLC v. Dart, 807 F.3d at 

230—has now been shuttered.

2

Millions of ads are posted on the website every month, making Backpage.com the 

second-largest online classified ad service in the country, after Craigslist. See McKenna, 881 

F. Supp. 2d at 1266. Users provide all the content for ads they post on the website, using an 

automated interface; Backpage.com does not dictate or require any content. Compl. ¶¶ 30, 

40, 66, 97-98; Cooper, 939 F. Supp. 2d at 813 (“The website works by allowing users to post 

their own advertisements in a range of categories.”). Until July 2015, the website charged for 

ads in the adult and dating categories, while users could post ads for free in other categories. 

 

1

 See http://southflorida.backpage.com. See Complaint (ECF No. 1) (“Compl.”) ¶ 28. 

Plaintiffs reference the Backpage.com website throughout the Complaint, and the Court may 

consider it in deciding this motion. Bouton v. Ocean Props., Ltd., --- F. Supp. 3d --, 2016 

WL 7324145, at *4 (S.D. Fla. Dec. 12, 2016) (considering website on 12(b)(6) motion); 

Camp v. Alabama Telco Credit Union, 2013 WL 2106727, at *2 (N.D. Ala. May 13, 2013) 

(same) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th 

Cir. 1997) (complaint’s allegations based on documents central to plaintiff’s claim may be 

considered on 12(b)(6) motion)). The Court may also take judicial notice of court decisions 

about the site and similar claims. See Haddad v. Dudek, 784 F. Supp. 2d 1308, 1324 (M.D. 

Fla. 2011); U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811-12 & n.4 (11th Cir. 

2015).

2

 Compl. ¶¶ 27, 74. See http://www.backpage.com/classifieds/Media. See also Backpage.com Succumbing to Government Is Blow to Free Speech Online, Jan. 10, 2017, Center 

for Democracy & Technology, https://cdt.org/press/backpage-com-succumbing-to-government-is-blow-to-free-speech-online/. 

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EvilEmpire.com and BigCity.com—websites affiliated with Backpage.com—repost some of 

the same ads that customers create and post on Backpage.com. Compl. ¶¶ 79, 82. 

Backpage imposes rules for ads posted on its site, and all users must affirmatively 

accept those posting rules. Cooper, 939 F. Supp. 2d at 813-14. They are designed to prevent 

improper ads or misuse of the site. Before Backpage.com will accept such user-submitted 

ads, the user must agree to Backpage.com’s Terms of Use, and confirm (for ads in the dating 

section and, while it was active, the adult section) that he or she is 18 or older. Compl. ¶ 52; 

Cooper, 939 F. Supp. 2d at 813-14; Backpage.com Terms of Use ¶ 4(a)(2), available at 

http://www.backpage.com/classifieds/termsofuse. The Terms of Use prohibit illegal acts and 

nude or lewd photos. See id. ¶¶ 4(b), 5. They also specifically forbid: “[p]osting any solicitation directly or in ‘coded’ fashion for any illegal service exchanging sexual favors for 

money or other valuable consideration” (id. ¶ 4(c)); “[p]osting any material on the Site that 

exploits minors in any way” (id. ¶ 4(d)); “[p]osting any material on the Site that in any way 

constitutes or assists in human trafficking” (id. ¶ 4(e)); and posting any ad for products or 

services, use or sale of which is prohibited by any law or regulation” (id. ¶ 5). In addition, all 

Backpage.com users are directed to “report any violations of these Terms to: abuse@backpage.com.” Id. ¶ 18. See also Cooper, 939 F. Supp. 2d at 814. 

When a user attempts to post an ad in the dating section (or, while it was active, the 

adult section), the following notice appears:

Posting Rules

You agree to the following when posting in this category:

 I will not post obscene or lewd and lascivious graphics or photographs 

which depict genitalia, actual or simulated sexual acts or naked images;

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 I will not post any solicitation directly or in "coded" fashion for any illegal 

service, including exchanging sexual favors for money or other valuable 

consideration;

 I will not post any material on the Site that exploits minors in any way;

 I will not post any material on the Site that in any way constitutes or 

assists in human trafficking;

 I am at least 18 years of age or older and not considered to be a minor in 

my state of residence.

Any post exploiting a minor in any way will be subject to criminal 

prosecution and will be reported to the Cybertipline for law enforcement.

Postings violating these rules and our Terms of Use are subject to removal 

without refund.3

The “Cybertipline”—included as a hypertext link in the above warning—is an online 

tool operated by the National Center for Missing and Exploited Children (“NCMEC”), which 

helps law enforcement locate and rescue missing and exploited children. United States v. 

Ackerman, 831 F.3d 1292, 1294 (10th Cir. 2016). The site also contains numerous hyperlinks to a “User Safety” page which includes links to NCMEC and similar resources. 

McKenna, 881 F. Supp. 2d at 1266. Every ad contains a “Report Ad” button, and Backpage.com has an email address (abuse@backpage.com) for users to identify ads they believe 

improper or suspect. See Cooper, 939 F. Supp. 2d at 814.

Backpage takes additional measures to police user posts. See Compl. ¶¶ 40-41, 45 

(alluding to screening). “In addition to user reports, Backpage.com monitors ... ads through 

automated and manual reviews.” Cooper, 939 F. Supp. 2d at 814. Through this screening, 

Backpage blocks and removes posts and refers ads that may involve child exploitation to 

 

3

 http://posting.miami.backpage.com/online/classifieds/PostAdPPI.html/mia/posting.mia

mi.backpage.com/?serverName=miami.backpage.com&superRegion=Florida%20Keys&u=

mth§ion=4383&category=4454.

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NCMEC. See McKenna, 881 F. Supp. 2d at 1266-67; Cooper, 939 F. Supp. 2d at 814. 

“Backpage.com also regularly works with local, state, and federal law enforcement officials 

by responding to subpoena requests, providing officials with Internet search tools, and removing posts and blocking users at the request of officials.” Cooper, 939 F. Supp. 2d at 814. 

B. Plaintiffs’ Allegations and Claims.

Plaintiffs—an anti-trafficking organization and individual who alleges that she was 

victimized by traffickers who created and posted an ad selling her for sex on Backpage.com—seek to hold Backpage.com and its principals liable for ads on Backpage.com

that were created and submitted by third parties. Compl. ¶¶ 1, 17-18, 97-98. Jane Doe 

alleges that, in March 2013, her mother “sold her daughter for sex to support her addiction,” 

that third party traffickers took photos of her without her consent, “created an advertisement 

for Ms. Doe,” and posted the ad (along with photos of Ms. Doe) on Backpage.com, offering 

to “sell[] [her] for sex.” Id. ¶¶ 95-98. Ms. Doe alleges that she was subsequently raped by 

other third parties who responded to this ad. Id. ¶ 98. The institutional Plaintiff, Florida 

Abolitionist, identifies itself as an organization “whose mission is to end human trafficking,” 

and claims that, because of Backpage, it has “diverted its resources from its main mission”

and been “frustrated.” Id. ¶¶ 17, 103, 110.

Plaintiffs do not allege any of the Defendants created or developed the content of the 

single ad that allegedly resulted in Ms. Doe’s victimization. The Complaint contains only 

conclusory allegations that “Backpage takes an active role in creating the content of” the ads 

it hosts, id. ¶ 48, and vaguely alleges that Backpage “creates” and “develops” the content of 

certain “Sponsored Ads.” Id. ¶ 37. There is no suggestion that the ad that led to Ms. Doe’s 

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victimization was a Sponsored Ad, nor is there any attempt to connect other harms alleged in 

the Complaint to these ads. Plaintiffs also claim Backpage is liable for “reposting” on 

EvilEmpire.com and BigCity.com ads created by third-party users that were initially posted 

on Backpage.com. Compl. ¶¶ 79, 82. However, the Complaint contains no specific or 

plausible allegation that any of Defendants created the content of these reposted ads. See, 

e.g., id. ¶ 79 (“EvilEmpire organizes and reposts advertisements posted on Backpage.”).

Plaintiffs’ claims target Backpage’s editorial functions in general—as opposed to 

creation of the content of particular ads that allegedly harmed Plaintiffs. Plaintiffs allege, for 

example, that Backpage failed to take adequate measures to screen ads involving trafficking 

and deliberately facilitated such trafficking (for instance, by not requiring certain forms of 

identity verification and by allowing payment using prepaid credit cards and digital currency 

such as Bitcoin). See, e.g., Compl. ¶¶ 1, 52, 64, 65, 67-69. 

Plaintiffs assert seven causes of action. The first claim alleges civil liability based on 

18 U.S.C. § 1591 (the criminal anti-trafficking statute). Compl. Count I. The remaining 

claims are under Florida law: (1) imposing “distributor or publisher liability” for allegedly 

“defamatory matter” (Count II); (2) “outrage” (Count III); (3) common law invasion of 

privacy or right of publicity (Count IV); (4) statutory right of publicity (Fla. Stat. 540.08) 

(Count V); (5) civil conspiracy (Count VI); and (6) negligence (Count VII). 

STANDARDS UNDER RULES 12(B)(6) AND 12(B)(1)

Under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (citation omitted). “‘[C]onclusory allegations ... are not entitled to an assumption 

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of truth—legal conclusions must be supported by factual allegations.’” Miljkovic v. Shafritz 

& Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (citation omitted); Griffin Indus., Inc. 

v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007). “The plausibility standard is met only 

where the facts alleged enable ‘the court to draw the reasonable inference that the defendant 

is liable for the misconduct alleged.’” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 

2013) (citation omitted). Where plaintiffs lack standing to assert certain claims, dismissal for 

lack of subject matter jurisdiction is required under Rule 12(b)(1). See, e.g., Cone Corp. v. 

Florida Dep’t of Transp., 921 F.2d 1190, 1203 (11th Cir. 1991). Here, Plaintiffs’ claims are 

barred by Section 230 of the CDA, enforcement of which at the earliest phase of litigation is 

vital because it provides “immunity from suit rather than a mere defense to liability and it is 

effectively lost if a case is erroneously permitted to go to trial.” Nemet Chevrolet, Ltd. v. 

Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (quotation marks omitted); 

accord Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 417 (6th Cir. 2014) 

(“determinations of immunity ... should be resolved at an earlier stage of litigation” given 

the law’s role “in an open and robust internet”). 

ARGUMENT

I. SECTION 230 BARS ALL OF PLAINTIFFS’ CLAIMS

A. Section 230 Was Designed to Promote Free Speech Online and the 

Unfettered Growth of the Internet.

Section 230 is a statutory embodiment of First Amendment principles for online 

speech. Congress designed Section 230 to “to encourage the unfettered and unregulated 

development of free speech on the Internet,” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 

2003), “to promote the development of e-commerce,” id., and to encourage online providers 

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to “self-police” for potentially harmful or offensive material by providing immunity for such 

efforts, id. at 1028. Congress sought to eliminate the “‘obvious chilling effect’” that 

imposing liability on online providers would cause, “‘given the volume of material communicated through [the Internet], the difficulty of separating lawful from unlawful speech, and 

the relative lack of incentives to protect lawful speech.’” Universal Commc’n Sys., Inc. v. 

Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007) (citation omitted). “[T]he protections 

afforded by the First Amendment were the motivating factors behind” Section 230. People v. 

Ferrer, 2016 WL 7237305, at *3; Batzel, 333 F.3d at 1028.

4

To safeguard these important values, Section 230(c)(1) mandates that “[n]o 

provider ... of an interactive computer service shall be treated as the publisher or speaker of 

any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). 

Thus, the “plain language” of Section 230 “creates a federal immunity to any cause of action 

that would make service providers liable for information originating with a third-party user.” 

Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). Additionally, Section 

230(e)(3) expressly preempts all civil claims and all state-law claims, whether civil or 

criminal, barring any state-law claims against an online publisher such as Backpage.com (and 

 

4

 Because Section 230 immunity implements First Amendment principles, efforts to 

impose liability on editorial choices by online intermediaries may be barred even where the 

technical statutory requirements are not met. E.g., e-ventures Worldwide, LLC v. Google, 

Inc., No. 2:14-cv-646-FtM-PAM-CM (M.D. Fla., Feb. 8, 2017), slip op. at 9 (ECF No. 153) 

(“Google’s actions in formulating rankings for its search engine and in determining whether 

certain websites are contrary to Google’s guidelines and thereby subject to removal are the 

same as decisions by a newspaper editor regarding which content to publish, which article 

belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or 

altruism.”).

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the other Defendants) based on third-party content it publishes. Almeida v. Amazon.com, 

Inc., 456 F.3d 1316, 1321 (11th Cir. 2006).

B. Plaintiffs’ Claims are Barred Under Section 230’s Three-Part Test.

The consensus is that Section 230 immunity applies expansively, id. at 1321; Lycos, 

478 F.3d at 419, and that “close cases ... must be resolved in favor of immunity.” Jones, 755 

F.3d at 408 (quoting Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC,

521 F.3d 1157, 1174 (9th Cir. 2008) (en banc)). Immunity must be granted where three 

conditions are met: “(1) [the defendant] is a provider or user of an interactive computer 

service, (2) the claim is based on information provided by another information content 

provider; and (3) the claim would treat [the defendant] as the publisher or speaker of that 

information.” Doe No. 1, 817 F.3d at 19 (quoting Lycos at 418).

Applying this test, at least six courts have held that Backpage is immunized under 

Section 230, and the same conclusion is warranted here.

5

 First, “Backpage.com is the 

quintessential publisher contemplated by the CDA,” Cooper, 939 F. Supp. 2d at 823, and the 

same is true of affiliated websites Evil Empire and BigCity.com. People v. Ferrer, 2016 WL 

7237305, at *6. Second, Plaintiffs base their claims on an advertisement about Jane Doe that 

they allege third-party traffickers “created” and “posted” on Backpage.com. See Compl. ¶¶

97-98; see also infra § I.C. Such postings are the essence of “information provided by 

another content provider,” as contemplated in Section 230. E.g., Doe No. 1, 817 F.3d at 17-

21; M.A., 809 F. Supp. 2d at 1050-53. Third, Plaintiffs’ claims treat Backpage.com and its 

 

5

 Doe No. 1, 104 F. Supp. 3d at 157-58, aff’d, 817 F.3d at 20-22; Hoffman, 2013 WL 

4502097, at *8; Cooper, 939 F. Supp. 2d at 823-25; McKenna, 881 F. Supp. 2d at 1271-75; 

M.A., 809 F. Supp. 2d at 1050-54; People v. Ferrer, 2016 WL 7237305. 

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affiliated websites “as the publisher or speaker” of the ads, yet the factual allegations take 

Backpage to task for decisions about “whether to publish, withdraw, postpone or alter 

content,” the traditional editorial functions that Section 230 protects.6 

In Doe No. 1, for example, the plaintiffs invoked the same federal sex trafficking 

statute (18 U.S.C. § 1591), as well as theories of state tort law based on allegations traffickers 

posted ads for them on Backpage.com. Like Plaintiffs here, they alleged that Backpage—

“with an eye to maximizing its profits”—had “deliberate[ly] structur[ed] ... its website to 

facilitate sex trafficking” by, among other things, not requiring phone number verification for 

postings, failing to take sufficient measures to block postings by users who falsely claim to 

be 18 or older, accepting payment using prepaid credit cards and digital currencies such as 

Bitcoin, stripping out metadata from photos uploaded by users, editing ads to remove banned 

terms such as “barely legal” (while allowing users to instead use alternative terms such as 

“brly legal”), and creating “Sponsored Ads.” 817 F.3d at 16-17 & n.2.

7

 The district court 

dismissed the action, explaining that these general website features “amount to neither 

 

6

 Jones, 755 F.3d at 407 (citation omitted); Roommates.com, 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.”); Dart v. Craigslist, Inc., 

665 F. Supp. 2d 961, 967-68 (N.D. Ill. 2009) (“A claim against an online service provider for 

negligently publishing harmful information created by its users treats the defendant as the 

‘publisher’ of that information.”). As noted, other courts have rejected the exact same allegations made in this case, that Backpage’s editorial practices amount to participation in 

trafficking.

7

 Compare Compl. ¶¶ 68-69 (phone number verification), 52 (postings claiming that user 

is over 18 after prior attempts blocked), 64-65 (accepting prepaid credit cards and Bitcoin), 

67 (“strip[ping] out ... metadata”), 40-49 (banning certain terms, but allowing “brly legal”), 

37-39 (creating “Sponsored Ads”); see also Appendix A (comparing allegations in this case 

to those in Doe No. 1).

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affirmative participation in an illegal venture nor active web content creation,” and “courts 

have repeatedly rejected this ‘entire website’ theory as inconsistent with the substance and 

policy of section 230.” Doe No. 1, 104 F. Supp. 3d at 157, 162.8

The First Circuit affirmed. It held plaintiffs’ claims uniformly “address the structure 

and operation of the Backpage website”—in other words, “Backpage’s decisions about how 

to treat [third-party] postings.” Doe No. 1, 817 F.3d at 21. As with the allegations here, the

claims challenge features that are part and parcel of the overall design and 

operation of the website (such as the lack of phone number verification, the 

rules about whether a person may post after attempting to enter a forbidden 

term, and the procedure for uploading photographs). Features such as these, 

which reflect choices about what content can appear on the website and in 

what form, are editorial choices that fall within the purview of traditional 

publisher functions.

Id. (emphasis added).

Likewise, in M.A., the plaintiff alleged she was trafficked by a third party who posted 

ads on Backpage.com. 809 F. Supp. 2d at 1043-44. As do Plaintiffs here, M.A. attacked the 

website’s general features, alleging Backpage set out to create “a highly tuned marketing 

site” with a “ veil of legality,” but “had knowledge” that postings “were advertisements for 

prostitution” and “illegal sexual contact with minors.” Id. at 1044. And, like Plaintiffs here, 

she alleged Backpage sought to profit from the posters’ “illegal prostitution activities” and 

thus aided and abetted sex trafficking of minors. Id. at 1045, 1053. The court rejected the 

plaintiff’s arguments challenging general aspects of the site’s “construct and operation,” id.

at 1050, observing that a website is “immune under § 230 unless it created the offending 

 

8

 The court also dismissed other causes of action (including alleged violations of state 

consumer protection laws, and alleged violations of the plaintiffs’ rights of publicity and 

copyright interests) for failure to state a claim. Doe No. 1, 817 F.3d at 24-29. 

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ads,” and “however horrific the consequences to M.A., ... the ads were created by [the 

pimp].” Id. at 1051 (quotation marks and citation omitted). Similarly, it was “immaterial” 

that Backpage.com allegedly elicit[ed] online content for profit”; what matters is whether the 

website or third parties create the content at issue. Id. at 1050 (quotation marks omitted). 

The court rejected M.A.’s assertion that she was not seeking to hold Backpage liable as a 

publisher but rather “as an aider and abettor of minor sex trafficking.” Id. at 1053-54. 

Applying this same view of the law, another court recently dismissed a criminal 

indictment under Section 230—based on strikingly similar allegations to the Complaint in 

this case—against the same Backpage principals and former owners that Plaintiffs sued here. 

People v. Ferrer, 2016 WL 7237305, at *1-5. The prosecution alleged the defendants 

“actively ‘manipulated’ the content provided by third parties so that they could profit from 

activity resulting from the ad placement.” Id. at *5. But because “the substance of the ads 

came from the original ad placed on Backpage, the only ‘manipulation’ would be in the act 

of extracting the content from the original ad and/or from the act of physically posting the 

extracted content on a new site.” Id. The court concluded “[t]his is not prohibited activity. 

Indeed, it generally falls within the scope of protected editorial functions.” Id. (citing, inter 

alia, Doe No. 1, 817 F.3d at 20-21). Numerous other decisions are to the same effect.9 

 

9

 See, e.g., Doe v. MySpace, 528 F.3d 413, 419-20 (5th Cir. 2008) (Section 230 barred 

claims seeking to hold social networking site Myspace liable for sexual assault of 14-yearold victim by a man who met her on MySpace); Doe II v. MySpace Inc., 175 Cal. App. 4th 

561, 573 (2009) (plaintiffs “want MySpace to ensure that sexual predators do not gain access 

to (i.e., communicate with) minors on its Web site,” yet “[t]hat type of activity—to restrict or 

make available certain material—is expressly covered by section 230.”); Green v. AOL, 318 

F.3d 465, 471 (3d Cir. 2003) (plaintiff was “attempt[ing] to hold AOL liable for decisions 

relating to the monitoring, screening, and deletion of content from its network—actions quintessentially related to a publisher’s role”).

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The common thread throughout these cases is that plaintiffs may not hold a website 

operator liable for exercising its traditional editorial functions, including deciding what thirdparty-created content—including classified ads—to post, delete, or edit. Nor may plaintiffs 

evade the protections of Section 230 by attacking the fundamental design and configuration 

of a website. Where “third-party content ... appears as an essential component of each and 

all” of Plaintiffs’ claims, Doe No. 1, 817 F.3d at 22, Plaintiffs seek to do what Section 230 

expressly prohibits: impose liability on Defendants “as the publisher or speaker,” 47 U.S.C. 

§ 230(c)(1), of ads created by third parties. See, e.g., Compl. Count II (seeking to subject 

Defendants to “DISTRIBUTOR OR PUBLISHER LIABILITY”). 

Nor can Plaintiffs evade Section 230 by alleging that Defendants know (or should 

know) that third parties may misuse its websites for sex trafficking. See, e.g., Compl. ¶¶ 2, 

26. “It is ... well established that notice of the unlawful nature of the information provided is 

not enough to make it the service provider’s own speech.” Lycos, 478 F.3d at 420. The law 

under Section 230 is clear that, even if an online provider has actual knowledge of illegal 

content posted on its site, a failure to delete the offending content does not make it liable for 

that content. See, e.g., Zeran, 129 F.3d at 331-33. That is because “[l]iability upon notice 

would defeat the dual purposes advanced by § 230.” Id. at 333. Thus, in M.A., the court 

rejected the same argument Plaintiffs make here—that Backpage.com should be denied 

immunity because it allegedly knows or should know “of minors being sexually trafficked on 

its website.” M.A., 809 F. Supp. 2d at 1050-51; see also People v. Ferrer, 2016 WL 

7237305, at *7 (“[O]nline publishers are not subject to notice liability.”).

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C. Plaintiffs Cannot Evade Section 230 Through Artful Pleading.

Faced with this overwhelming body of law requiring dismissal of their claims, 

Plaintiffs—like others before them—resort to creative pleading in an effort to evade Section 

230’s protections. This Court should “decline to open the door to such artful skirting of the 

CDA’s safe harbor provision.” Kimzey, 836 F.3d at 1266. Efforts to plead around Section 

230 are common but typically fail. Doe v. MySpace, 528 F.3d at 419-20 (“No matter how 

artfully Plaintiffs seek to plead their claims, the Court views Plaintiffs’ claims as directed 

toward MySpace in its publishing, editorial, and/or screening capacities.”). See also Herrick 

v. Grindr, LLC, 2017 WL 744605, at *3 (S.D.N.Y. Feb. 24, 2017) (“[P]ast cases suggest 

strongly that Plaintiff’s attempt to artfully plead his case in order to separate the Defendant 

from the protections of [Section 230] is a losing proposition.”).

1. Plaintiffs Cannot Evade Section 230 By Alleging That a Website 

Encourages Posting Unlawful Content.

Just as Plaintiffs cannot bypass Section 230 by alleging the Backpage.com’s overall 

design “facilitates” unlawful content, they cannot get around the law by recasting their claims 

under an “encouragement theory.” See, e.g., Compl. ¶¶ 1, 23, 34, 49. To be clear, 

Defendants categorically deny these and other accusations in the Complaint—Backpage 

works to prevent misuse of the website and to combat sex trafficking. But even if such 

allegations were true, they would not salvage a defective Complaint. Such claims 

“necessarily treat the website as a publisher or speaker of content provided by third parties 

and, thus, are precluded by section 230(c)(1).” Doe No. 1, 817 F.3d at 22 (emphasis added).

The Sixth Circuit specifically rejected Plaintiffs’ “encouragement” theory in Jones, 

755 F.3d 398. There, the plaintiff sued a gossip website (TheDirty.com) for disparaging user 

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posts about her, and the district court refused to apply Section 230 because it concluded the 

site “intentionally encourage[d] illegal or actionable third-party postings.” Jones v. Dirty 

World Entm’t Recordings, LLC, 965 F. Supp. 2d 818, 821 (E.D. Ky. 2013). The circuit court 

reversed, noting that “[m]any websites not only allow but also actively invite and encourage 

users to post particular types of content,” which might be “unwelcome to others.” Jones, 755 

F.3d at 414. But such websites cannot be sued on an “encouragement” theory because that 

would “eclips[e] the immunity from publisher-liability that Congress established.” Id. 

“Congress envisioned an uninhibited, robust, and wide-open internet ... but the muddiness of 

an encouragement rule would cloud that vision.”10 

This precedent is essential to preserve Section 230’s purpose. Its grant of immunity 

“would serve little if any purpose if companies like Craigslist [or Backpage] were found 

liable ... for ‘causing’ or ‘inducing’ users to post unlawful content in this fashion.” Craigslist, 665 F. Supp. 2d at 969. In such cases, where “users routinely flout Craigslist’s guidelines, it is not because Craigslist has caused them to do so.” Id. “Or if it has, it is only ‘in the 

sense that no one could post [unlawful content] if craigslist did not offer a forum.’” Id.

(quoting Chicago Lawyers’ Comm. for Civil Rights Under the Law v. Craigslist, Inc., 519 

 

10

 Jones, 755 F.3d at 415. See also Whitney Info. Net., Inc. v. Xcentric Ventures, LLC, 

2008 WL 450095, at *10, *13 (M.D. Fla. Feb. 15, 2008) (Section 230 foreclosed defamation 

claim against operator of www.ripoffreport.com, a website devoted to exposing scams, even 

where evidence showed operator itself “created categories, such as ‘con artists,’ ‘corrupt 

companies’ and ‘false TV advertisements,’ from which a poster must make a selection to 

categorize his or her report as part of the submission process”); Ascentive, LLC v. Opinion 

Corp., 842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011) (“[T]here is simply ‘no authority for the 

proposition that [encouraging the publication of defamatory content] makes the website 

operator responsible, in whole or in part, for the “creation or development” of every post on 

the site.’”) (citation omitted). 

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F.3d 666, 671 (7th Cir. 2008)). In many cases, “a clever lawyer could argue that something 

the website operator did encouraged the illegality,” but such cases “must be resolved in favor 

of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten 

thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly 

assented to—the illegality of third parties.” Roommates.com, 521 F.3d at 1174. 

That principle applies fully here, where Plaintiffs allege the Defendants encourage 

criminal conduct by third parties. In People v Ferrer, for example, the court dismissed 

charges against the same Backpage executive and former owners sued in this case, rejecting

the prosecution’s knowing encouragement theory. 2016 WL 7237305, at *7 (citation 

omitted).

11

 Likewise, this Complaint should be dismissed for the same reasons. 

2. Plaintiffs’ Content-Creation Allegations Cannot Overcome Section 

230 Immunity.

Plaintiffs fare no better in trying to paint Backpage as a content creator of certain 

“Sponsored Advertisements.” See Compl. ¶ 37 (alleging “Backpage creates, develops, and 

posts illegal content ... in the ‘Sponsored Ads’ part of the ‘Adult Services’ section of its 

website.”). First, the suggestion that Backpage itself is the originator and creator of the 

allegedly actionable content is refuted by Plaintiffs’ own allegations. The Complaint’s only 

specific factual averments make clear that this alleged content creation actually involves 

 

11

 See also Doe v. AOL, 783 So. 2d 1010, 1017 (Fla. 2001) (AOL immune from claims it 

knowingly hosted chat rooms where users violated child pornography laws); GoDaddy.com, 

LLC v. Toups, 429 S.W.3d 752, 759-60 (Tex. App. 2014) (rejecting plaintiff’s allegations 

that a “revenge porn” website published and promoted “obscenity and child pornography”); 

Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1196 (N.D. Cal. 2009) (Google immune 

despite allegations it “encourages[,] collaborates in the development of [and] effectively, 

requires [illegal content]” in ad program).

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nothing more than “enhanc[ing]” user-submitted ads by “rewriting” and “reorganizing” those 

ads (including “adding” and “summarizing” the submitted text)—in other words, editing. 

Compl. ¶¶ 37-38. In this regard, the Complaint’s specific factual allegations undermine

Plaintiffs’ efforts to generalize and relabel them. See Griffin Indus., 496 F.3d at 1205-06 

(“Our duty to accept the facts in the complaint as true does not require us to ignore specific 

factual details of the pleading in favor of general or conclusory allegations.”); Franklin, 738 

F.3d at 1250 (“The district court’s ... error was finding purely conclusory allegations—i.e., a 

‘formulaic recitation of the elements of a cause of action’—sufficient ....”) (citation omitted).

Plaintiffs’ precise argument about content “creation” has been rejected before. The 

District Court in Doe No. 1 explained, “[t]he creation of sponsored ads with excerpts taken 

from the original posts reflects the illegality (or legality) of the original posts and nothing 

more.” 104 F. Supp. 3d at 157 (emphasis added). The First Circuit affirmed, finding such 

“attempted end runs” to recast editing as “content creation” “are futile, and do not cast the 

slightest doubt on our conclusion that the district court appropriately dismissed the 

appellants’ sex trafficking claims as barred by section 230(c)(1).” Doe No. 1, 817 F.3d at 17,

24. Similarly, here, Plaintiffs cannot circumvent Section 230 by alleging in conclusory 

fashion that Defendants “create” and “control” the content posted on Backpage-affiliated 

websites EvilEmpire.com and BigCity.com. Compl. ¶¶ 77, 82. As Plaintiffs concede, those 

websites simply “repost[]” ads posted by users on Backpage.com. See id. ¶¶ 79, 82. Once 

again, this same argument has been rejected. People v. Ferrer, 2016 WL 7237305, at *6.

12

 

 

12

 See also Kimzey, 836 F.3d at 1268 (plaintiff’s “threadbare allegations of fabrication of 

statements” were “insufficient to avoid immunity” under Section 230 where “careful reading 

of the complaint reveal[ed] that [plaintiff] never specifically alleged that Yelp authored or 

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Even more fundamentally, Plaintiffs make no effort to connect any particular ads to 

any allegedly unlawful conduct by Defendants. This is fatal to their effort to plead around 

Section 230, as courts uniformly hold that a website may be held liable only to the extent that 

it created or developed “specific content that was the source of the alleged liability.” FTC v. 

Accusearch, Inc., 570 F.3d 1187, 1198-99 (10th Cir. 2009) (emphasis added); see Jones, 755 

F.3d at 410 (to overcome Section 230 immunity, website must be “responsible for what 

makes the displayed content allegedly unlawful”); Carafano v. Metrosplash.com, Inc., 339 

F.3d 1119, 1125 (9th Cir. 2003) (service provider must have “created or developed the 

particular information at issue). Specifically with respect to Backpage, the court in M.A. 

agreed the relevant question was whether the website operator is “responsible for the 

development of the specific content that was the source of the alleged liability.” 809 F. 

Supp. 2d at 1051 (citation omitted). On that basis, it held Backpage not liable “for the 

content and consequences of the ads posted by [the pimp].” Id. The same goes here.13

Plaintiffs never allege that the harms asserted resulted from the particular ads that 

Backpage supposedly created. To the contrary, the Complaint makes clear that the harms 

sustained by Plaintiff Doe resulted from a single ad created by the third-party criminals who 

abused and trafficked her. See Compl. ¶¶ 97-98 (pimps “created an advertisement for Ms. 

 

created the content of the statements posted ..., but rather ... adopted them from another 

website and transformed them into its own stylized promotions on Yelp and Google”). 

13

 Any suggestion that J.S. v. Village Voice Media Holdings, LLC, 184 Wash. 2d 95

(2015), requires a different result would be meritless. That case, in which the Washington 

Supreme Court held a plaintiff’s complaint contained sufficient allegations that Backpage 

had created the relevant content at issue to survive a motion to dismiss, was decided under 

far more lenient pleadings standards than permitted in federal court. Moreover, the state 

court’s crabbed view of Section 230 immunity—a question of federal law—cannot trump the 

overwhelming body of federal law clearly establishing Section 230 in cases such as this. 

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Doe on Backpage.”). It further alleges that Plaintiff had been trafficked since the age of 11

and that, at the time the single ad appeared on Backpage.com in March 2013, Plaintiff was 26 

years old and had been victimized by her mother (and perhaps others) for 15 years. See id.

¶¶ 9, 95-96. In light of these allegations, Plaintiffs cannot rely on their vague and boilerplate 

recitations that “[a]s a direct and proximate cause of Defendants’ conduct”—conduct that is 

neither specified nor linked to the allegedly Backpage-created ads—“Plaintiff Doe” was 

injured. See, e.g., id. ¶¶ 118, 124, 129; see also infra at 24-25 (lack of standing to raise 

claims).14 And, for the same reasons, it is irrelevant whether Backpage creates some other

content that Plaintiffs do not plausibly allege harmed them.

D. Ms. Doe’s Right-of-Publicity Claims are Not Saved by Section 230’s

“Intellectual Property” Exception.

In Count V of the Complaint, Ms. Doe asserts a claim under Florida’s right-ofpublicity statute, Fla. Stat. § 540.08, and appears to assert an equivalent claim under Florida 

common law in Count IV. See Compl. ¶ 131. To the extent Ms. Doe asserts these claims in 

order to argue Section 230’s safe harbor does not apply pursuant to the exception for 

“intellectual property” claims, see 47 U.S.C. § 230(e)(2), she is mistaken.15 

 

14

 Nor can Plaintiffs shore up these shortcomings by relying on vague allegations that 

Defendants made false statements to third parties—i.e., unidentified payment processors and 

a child who was allegedly trafficked. See Compl. ¶¶ 86-88; see also Doe No. 1, 817 F.3d at 

24-25 (rejecting similar theory as relying on a “causal chain ... shot through with conjecture,” including speculation regarding the effect of “the alleged misrepresentations on an 

indeterminate number of third parties”). In any event, Plaintiffs fail to meet the exacting 

pleading requirements to “state with particularity the circumstances constituting [the] fraud,” 

Fed. R. Civ. P. 9(b)—in other words, “the who, what, when, where, and how of the allegedly 

false statements.” Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008). 

15

 Section 230 also contains an exception for federal criminal prosecutions. See 47 

U.S.C. § 230(e)(1). That exemption is inapplicable here, however, because it “applies to 

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While Section 230(e)(2) provides that immunity does not extend to claims pursuant to 

“any law pertaining to intellectual property,” id.—such as those under copyright, trademark, 

and patent law—a right-of-publicity claim is not one “pertaining to intellectual property.” 

“Intellectual property” is a “category of intangible rights protecting commercially valuable 

products of the human intellect.” Black’s Law Dictionary (10th ed. 2014). Here, Plaintiff 

Doe’s right-of-publicity claims allege misappropriation of her “image” and “personality.” 

Compl. ¶¶ 131, 136. But “a person’s image is not a ‘product of the human intellect.’” Doe 

No. 1, 104 F. Supp. 3d at 163 n.13. Rather, the right of publicity “‘flows from the right to 

privacy,’” id. (citation omitted). Indeed, Plaintiffs appear to acknowledge as much. See 

Count IV (captioned “INVASION OF PRIVACY OR RIGHT TO PUBLICITY”). 

To the extent Count IV alleges invasion of privacy based on “intrusion into Plaintiff 

Doe’s private affairs,” on “public disclosure” of private facts about Ms. Doe, and/or on “false 

light” (a claim no longer recognized under Florida law, see Jews for Jesus, Inc. v. Rapp, 997 

So. 2d 1098, 1114 (Fla. 2008)), see Compl. ¶¶ 131-132, those claims are even farther afield 

from any “law pertaining to intellectual property.” 47 U.S.C. § 230(e)(2). They are thus 

foreclosed by Section 230. See, e.g., Carafano, 339 F.3d at 1125; Dowbenko v. Google Inc., 

991 F. Supp. 2d 1219, 1220 (S.D. Fla. 2013), aff’d, 582 F. App’x 801 (11th Cir. 2014).

 

government prosecutions, not to civil private rights of action under [statutes] with criminal 

aspects.” Obado v. Magedson, 2014 WL 3778261, at *8 (D.N.J. July 31, 2014) (emphasis 

added), aff’d, 612 F. App’x 90 (3d Cir. 2015); see also M.A., 809 F. Supp. 2d at 1053-56 

(Section 230 barred civil claims predicated on alleged violations of criminal trafficking 

statutes, 18 U.S.C. §§ 2255 and 1595).

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E. Imposing Liability on Online Service Providers is Not the Solution to 

Preventing Trafficking.

Jane Doe’s tragic plight cannot help but evoke sympathy and concern, but the 

Complaint is far off base in alleging she “was repeatedly raped as a result of Backpage,” when, 

on the same page that statement appears, Ms. Doe reveals her mother sold her for sex, forced 

her to provide sexual services, and others then raped her, photographed her, and trafficked her. 

The bad acts of third parties are the very reason Congress provided immunity for “companies 

that serve as intermediaries for other parties’ potentially injurious messages.” Zeran, 129 F.3d 

at 330-31. Respecting Congress’ policy judgment does not condone the scourge of trafficking—especially child trafficking—nor does it undermine public safety. Doe v. Bates, 2006 

WL 3813758, *4 (E.D. Tex. Dec. 27, 2006). Rather, courts applying Section 230 have emphasized that the proper response is for law enforcement to pursue the actual wrongdoers (here, 

the criminals who trafficked Ms. Doe). M.A., 809 F. Supp. 2d at 1046 (“The actual injury 

suffered by M.A. is ... her victimization by [the pimp].”); Jones, 755 F.3d at 417 (plaintiff 

should go after the one who authored and posted the content).

Pursuing intermediaries because of the bad acts of others may satisfy an emotional 

impulse, but will not deter trafficking. It may even have unintended and counterproductive 

effects by making it harder for law enforcement to ferret out illegal trafficking and thus more 

difficult to aid its victims. Censorship of online content is not an effective or permissible 

approach to combat sex trafficking.16

 

16

 Many experts and law enforcement officials agree. See, e.g., Danah Boyd, Combating 

Sexual Exploitation Online: Focus on the Networks of People, not the Technology (Oct. 

19, 2010), http://www.danah.org/papers/talks/2010/CombatingSexualExploitationOnline.pdf 

(“Going after specific sites where exploitation becomes visible and attempting to eradicate 

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II. PLAINTIFFS’ CLAIMS FAIL AS A MATTER OF LAW

A. Plaintiffs Lack Standing.

Fundamental principles of Article III standing separately require dismissal of 

Plaintiffs’ claims. “To have standing under Article III, a plaintiff ‘must have suffered or be 

imminently threatened with a concrete and particularized “injury in fact” that is fairly 

traceable to the challenged action of the defendant and likely to be redressed by a favorable 

judicial decision.’” Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1303-04 (11th Cir. 

2017) (en banc) (emphasis added; citation omitted); see also Nicklaw v. Citimortgage, Inc., 

839 F.3d 998, 1001 (11th Cir. 2016) (“causation” is an element of the “‘irreducible 

constitutional minimum of standing’”) (citation omitted), reh’g en banc denied, 2017 WL 

1548204 (11th Cir. May 1, 2017). Here, there can be no causation where the Complaint 

alleges third parties created and posted the offending ads, not by any of the Defendants. 

Thus, even setting aside Section 230, Ms. Doe’s claims must be dismissed for lack of 

jurisdiction under Fed. R. Civ. P. 12(b)(1). See, e.g., Cone Corp., 921 F.2d at 1203.

For the same reasons, plaintiff Florida Abolitionist lacks standing. That organization 

vaguely alleges that, “[a]s a result of the increase in sex trafficking, Florida Abolitionist has 

diverted its resources from its main mission to end human trafficking to provide treatment 

and services to trafficking victims” (Compl. ¶ 110), but it makes no effort to link these 

 

the visibility does nothing to address the networks of supply and demand—it simply pushes 

them to evolve and exploiters find new digital haunts and go further underground.”); Mark 

Latonero, The Rise of Mobile and the Diffusion of Technology-Facilitated Trafficking, Nov. 

2012 (USC Annenberg Ctr. on Commc’ns Leadership & Policy Research Series on Tech. &

Human Trafficking), at 30 (“online classified ad sites like Backpage ... are visible, accessible, 

and well known to law enforcement staff,” and this helps law enforcement investigations); id.

at 26 (“[L]aw enforcement agents ... suggest[ed] that closing one site runs the risk of sending 

traffic to other online advertisement and social networking sites.”).

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alleged resource burdens to any ads specifically posted on Backpage.com. This is fatal. 

Even assuming the abstract harms Florida Abolitionist alleges were sufficiently “particularized,” see Wollschlaeger, 848 F.3d at 1303-04, there is no “causal connection between the 

injury and the conduct complained of.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992) (citation omitted). In particular, Florida Abolitionists’ claimed injury is not

“‘trace[able] to the challenged action of the defendant, and not ... the independent action of 

some third party not before the court.’” Id. Florida Abolitionists’ contention that the specific 

conduct of defendants resulted in an overall spike in sex trafficking, which, in turn, 

supposedly caused the diversion of their resources, is entirely speculative and cannot serve as 

a basis for standing.

17

B. The Right-of-Publicity Claims Fail.

As noted above, Ms. Doe’s right-of-publicity claims are foreclosed by Section 230. 

But they fail on their own weight as a matter of law. As in Doe No. 1, these claims are 

premised solely on the claim that ads posted by the third-party traffickers on Backpage.com 

“displayed” Ms. Doe’s “image, photograph, and likeness.” Compl. ¶¶ 97-98, 136-137. 

However, Ms. Doe cannot assert a claim under Fla. Stat. § 540.08 or Florida common law, 

because she does not (and cannot) allege Backpage.com used her image, photograph, and 

likenesses for its own commercial benefit. 

 

17

 Plaintiffs’ conceded “estimate[]” that “at least half of the victims” served by Florida 

Abolitionist “were trafficked via Backpage” (Compl. ¶ 114) is precisely the sort of speculation courts reject on motions to dismiss. See, e.g., Doe No. 1, 817 F.3d at 25 (refusing to 

“credit[] at the Rule 12(b)(6) stage” plaintiffs’ alleged “causal chain,” which “pyramids 

speculative inference upon speculative inference,” including surmise about “the real impact 

of Backpage’s behavior on the overall marketplace for sex trafficking”) (citation omitted). 

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Like its common law counterpart,18 Section 540.08 of the Florida Statutes requires a 

plaintiff to show her image, photograph, or likeness was published by the defendant “for 

purposes of trade or for any commercial or advertising purpose.” Fla. Stat. § 540.08(1). 

Florida “[c]ourts have interpreted the statute’s commercial purpose requirement to require 

that a defendant’s unauthorized use ‘directly promote’ a product or service.” Almeida, 456 

F.3d at 1325 (citations omitted). Here, however, the Complaint contains no plausible 

allegations that Backpage.com published photos of Ms. Doe to “directly promote” its own 

product or service. Id. Nor does Ms. Doe allege Backpage.com used her likenesses to 

advertise or promote the website itself. Rather, she alleges third-party traffickers used her 

photos “with an advertisement selling Ms. Doe for sex.” Compl. ¶ 97.

Ms. Doe therefore fails to state a legally cognizable claim for the same reasons the 

First Circuit rejected plaintiffs’ right-of-publicity claims in Doe No. 1. There, applying 

Massachusetts and Rhode Island law—which is in all relevant respects identical to Florida 

law19—the court explained that “there is no basis for an inference that Backpage appropriated 

the commercial value of the [plaintiffs’] images. Although Backpage does profit from the 

sale of advertisements, it is not the entity that benefits from the misappropriation.” 817 F.3d 

at 27 (emphasis added). Rather, “[a] publisher like Backpage is ‘merely the conduit through 

 

18

 Florida’s statutory and common law rights of publicity are “substantially identical.” 

Almeida, 456 F.3d at 1320 n.1; Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 2d 1255, 

1260 (S.D. Fla. 2010).

19

 Under the laws of all three states, (1) a right of publicity claim lies only when the 

defendant uses the plaintiff’s image or likeness for defendant’s own commercial benefit; (2) a 

defendant’s “incidental” use is not actionable; and (3) it is irrelevant that defendant is engaged in a profit-making enterprise. Compare Doe No. 1, 817 F.3d at 26-27 (Massachusetts 

and Rhode Island law), with Almeida, 456 F.3d at 1324-26 (Florida law).

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27

which the advertising and publicity matter of customers’ is conveyed,” while “the party who 

actually benefits ... is the advertiser.” Id. (citation omitted; emphasis added).

The Eleventh Circuit’s holding in Almeida—which affirmed dismissal of the same 

right-of-publicity claims under Florida law that Ms. Doe asserts here—is to similar effect. In 

that case, the plaintiff sought to hold Amazon.com liable for publishing a photo of her online 

that appeared on the cover of a book that the website advertised for sale. 456 F.3d at 1318-

19. Rejecting the argument that this was an actionable “commercial” use on a theory that 

Internet retailers use such content to promote sales and their “brand identity,” id. at 1325, the 

court held Amazon’s use was “merely incidental to, and customary for, the business of 

internet book sales.” Id. at 1326. These holdings equally apply here, and for good reason. 

As the First Circuit explained, “[t]here would be obviously deleterious consequences to a rule 

placing advertising media, such as newspapers, television stations, or websites, at risk of 

liability every time they sell an advertisement to a party who engages in misappropriation of 

another’s likeness.” Doe No. 1, 817 F.3d at 27. 

C. The Defamation Claim Is Time-Barred And Otherwise Defective.

Ms. Doe’s claim for defamation (Compl. Count II) must be dismissed on the independent grounds that (1) Plaintiffs never allege that they served Defendants with a retraction 

notice—a prerequisite for bringing a claim for defamation under Florida law, see Comins v. 

Vanvoorhis, 135 So. 3d 545 (Fla. 5th DCA 2014)—and (2) the claim is time-barred. As to 

the latter point, Florida’s statute of limitations for defamation is two years. See Fla. Stat. 

§ 95.11(4)(g); Giordano v. Romeo, 76 So. 3d 1100 (Fla. 3d DCA 2011). Here, the events 

giving rise to the defamation claim allegedly took place March 30, 2013 (the date on which 

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28

the ad about Ms. Doe allegedly was posted). Compl. ¶¶ 96-97. Ms. Doe filed the Complaint 

on February 7, 2017—almost two years too late. Nor can Plaintiffs salvage this by relying 

on a theory of subsequent publications or continuing publication. See Compl. ¶ 121 (alleging 

Defendants “failed to remove the defamatory matter”). Under Florida’s single publication 

rule, the two-year statute of limitations runs from date of first publication—not a subsequent 

publication or subsequent discovery of alleged defamatory matter. See Fla. Stat. § 770.07; 

Wagner, Nugent v. Flanagan, 629 So. 2d 113 (Fla. 1993). This claim must, therefore, be 

dismissed. See, e.g., LaGrasta v. First Union Secs., Inc., 358 F.3d 840 (11th Cir. 2004).

D. Other Claims Based on Publication of the Ad are Barred by the Single 

Action Rule. 

Plaintiffs’ other causes of action predicated on the same allegations as the defamation 

claim (i.e., the allegedly defamatory posting of the ad concerning Ms. Doe), also fail under 

Florida’s “single action rule.” See Byrd v. Hustler Magazine, 433 So. 2d 593, 595 (Fla. 4th 

DCA 1983); Fridovich v. Fridovich, 598 So. 2d 65, 69-70 (Fla. 1992). The rule “prevents [a 

plaintiff from] circumventing the short two-year statute of limitations by re-describing a 

slander action to fit a different category of intentional wrong.” Kamau v. Slate, 2012 WL 

5390001, at *7 (N.D. Fla. Oct. 1, 2012), adopted, 2012 WL 5389836 (N.D. Fla. Nov. 5, 

2012). For example, a claim for defamation “cannot be re-characterized in additional, 

separate counts” including “intentional infliction of emotional distress” where “the claim 

arises from the same publication.” Id. See also Trujillo v. Banco Cen. Del Ecuador, 17 F. 

Supp. 2d 1334, 1339-40 (S.D. Fla. 1998) (dismissing false light invasion of privacy claim 

based on single action rule, even though defamation claims survived dismissal). In this case, 

Plaintiffs’ claims for false light invasion of privacy (see Compl. ¶ 132), outrage (id. ¶ 126), 

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29

right of publicity (id. ¶¶ 131, 136), conspiracy (id. ¶ 141), and negligence (id. ¶ 146), all are 

predicated on the same facts as Ms. Doe’s defamation claim, and must be dismissed under 

the single action rule.

E. The Civil Conspiracy Claim Fails.

Plaintiffs also fail to plead a cognizable claim for civil conspiracy (Compl. Count VI). 

“A civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an 

unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in 

pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the 

conspiracy.” Pierson v. Orlando Reg’l Healthcare Sys., Inc., 2010 WL 1408391, at *23-24 

(M.D. Fla. Apr. 6, 2010), aff’d, 451 F. App’x 862 (11th Cir. 2012) (quotation marks and 

citation omitted). The Complaint falls far short of these basic requirements. 

Plaintiffs rest on the vague allegation that “Defendants had an agreement between 

themselves and an agreement with trafficker co-conspirators to traffic children and coerced 

adults.” Compl. ¶ 140. But they never identify the “who, what, when, where, and how” of 

this supposed agreement. While the Complaint dubs various third-parties who allegedly 

committed sex crimes Defendants’ “co-conspirators,” see id. ¶¶ 90-93, Plaintiffs make no 

effort to identify any specific “agreement(s)” between Defendants and these alleged coconspirators. Such “[c]onclusory allegations of an agreement are not sufficient to state a 

cause of action for conspiracy.” Pierson, 2010 WL 1408391, at *23-24; accord Bankers Life 

Ins. Co. v. Credit Suisse First Boston Corp., 2008 WL 1817294 (M.D. Fla. Apr. 22, 2008).

Thus, even setting aside Section 230, the allegations of civil conspiracy—which are in any 

event utterly false—must be dismissed.

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F. The Section 1591 Claim Fails.

For similar reasons, Ms. Doe’s claim under 18 U.S.C. § 1591 fails. Ms. Doe alleges 

that Backpage is liable for violating that statute because it knowingly posted the ad 

concerning her. See Compl. ¶¶ 117-118. But, as the government has acknowledged in 

another case involving Backpage, “[e]ven if an advertisement for illegal sex trafficking 

appeared on [its] website, [Backpage] could not be convicted under [Section 1591] without 

proving that [it] knew that the advertisement at issue related to illegal sex trafficking of a 

minor or of a victim of force, fraud, or coercion.” DOJ’s Reply in Support of Motion to 

Dismiss at 7-8 (“DOJ Brief”), Backpage.com, LLC v. Lynch, No. 1:15-2155(RBW), ECF No. 

13 (DDC); accord Backpage.com, LLC v. Lynch, 2016 WL 6208368, at *9 (D.D.C. Oct. 24, 

2016). Here, the Complaint contains no plausible allegation that, of the millions of ads 

posted on Backpage.com each month (see supra at 4), Defendants saw the ad concerning Ms. 

Doe and specifically knew it “related to illegal sex trafficking of a minor or of a victim of 

force, fraud, or coercion,” DOJ Brief at 7-8. Lacking the requisite allegations of scienter, this 

claim, too, must be dismissed. 

CONCLUSION

Consistent with Congress’ binding policy judgment in Section 230 that “plaintiffs 

may hold liable the person who creates or develops [the] unlawful content, but not the 

interactive computer service provider who merely enables that content to be posted online,”

Nemet Chevrolet, 591 F.3d at 254, this Court should dismiss the Complaint in its entirety. 

Dated: May 5, 2017

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Respectfully submitted,

Lawrence G. Walters

Florida Bar No.: 0776599

Walters Law Group

195 W. Pine Ave. 

Longwood, FL 32750-4104

Telephone: (407) 975-9150

Facsimile: (407) 774-6151

Email: Larry@FirstAmendment.com

Email: Paralegal@FirstAmendment.com

Robert Corn-Revere (pro hac vice)

Lead Trial Counsel 

Ronald G. London (pro hac vice)

Davis, Wright, Tremaine LLP

1919 Pennsylvania Ave. NW, Suite 800

Washington, D.C. 20006

Telephone: (202) 973-4200

Facsimile: (202) 973-4499

Email: bobcornrevere@dwt.com

ronnielondon@dwt.com

Attorneys for Defendants

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed 

through the CM/ECF system on May 5, 2017, which will serve a copy by email on the 

following: Karen C. Dyer, Esq., kdyer@bsfllp.com, Boies, Schiller, Flexner, LLP, 121 South 

Orange Avenue, Suite 840, Orlando, FL 32801; David Boies, Esq., dboies@bsfllp.com, 

Boies, Schiller, Flexner, LLP, 333 Main Street, Armonk, NY 10504; Karen Chesley, Esq.,

kchesley@bsfllp.com, Boies, Schiller, Flexner, LLP, 575 Lexington Avenue, New York, NY 

10022; Joanna Wright, Esq., jwright@bsfllp.com, Boies, Schiller, Flexner, LLP, 575 

Lexington Avenue, New York, NY 10022. Notice will be provided via email to Alexander 

Boies, Esq. (aboies@bsfllp.com), Boies, Schiller, Flexner, LLP, 575 Lexington Avenue, New 

York, NY 10022, and via U.S. Mail to Penny Venetis, Esq., Legal Momentum, 16 East 34th 

Street, New York, NY 10016.

 

Lawrence G. Walters

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Appendix A 

Allegations in This Case Compared With Allegations in Doe No. 1 v. Backpage

4851-3617-7223v.5 -

Florida Abolitionist and Doe v. Backpage.com et al. Doe No. 1 et al. v. Backpage.com et al. (D. Mass./1st 

Cir.)

“Because Backpage’s profitability and survival depends 

on sex trafficking, it has created tools ... to ensure that 

traffickers are not identified and apprehended by law 

enforcement.” (Compl. ¶63.)

Backpage “assist[ed] in the crafting, placement, and 

promotion of illegal advertisements offering the plaintiffs 

for sale that would attract potential customers yet 

escape detection by law enforcement.” (Compl. ¶ 4.) 

“Backpage’s ‘filter’ is nothing more than a coaching 

mechanism intentionally designed by Backpage to 

facilitate and profit from sex trafficking.” (Compl. ¶ 53.)

Backpage.com “attempts to essentially coach individuals 

about how to advertise the sale of sexual services and the 

exploitation of underage sex trafficking victims without 

including terms that will most likely trigger detection by 

law enforcement.” (Compl. ¶ 57.) 

“As a result of Backpage’s actions, trafficking victims 

regularly report being sold in multiple states in a single 

day or week.” (Compl. ¶ 62.)

Backpage “enables sellers to post advertisements in 

multiple cities and regions, allowing them to maximize 

profitability by traveling to the location with the highest 

amount of Backpage generated interest in their services.” 

(Compl. ¶ 42.) 

“[T]he Backpage website processes any photograph 

posted as part of an advertisement in the ‘Adult 

Services’ section and automatically strips it of all 

metadata.” (Compl. ¶ 67.)

“The Backpage Defendants deliberately adjusted their 

server software, at additional expense, to delete the 

metadata on each uploaded photo.” (Comp. ¶ 51.) 

“Defendants also allow traffickers to evade law 

enforcement by allowing traffickers to post their phone 

numbers by spelling out the digits of their telephone 

numbers instead of using Arabic numbers.... 

Defendants designed its [sic] website so that sex 

traffickers would not have to verify the phone numbers 

they post in connection with an advertisement for a 

trafficked child or adult.” (Compl. ¶¶ 68-69.)

“Backpage.com does not require phone number 

verification and allows posters to include phone numbers 

in obscured forms that include letters and numbers 

rather than strictly numeric characters.” (Compl. ¶ 49.)

“Defendants knowingly advertised, and financially 

benefitted from, ventures that they know (a) involved a 

person under 18 years of age engaging in ‘commercial 

sex acts’ and (b) involved persons (including under the 

age of 18) engaging in ‘commercial sex acts’ as the 

result of force, threats of force, fraud, and coercion in 

violation of 18 U.S.C. § 1591.” (Compl. ¶ 117.)

“The Backpage Defendants knowingly participated in and 

benefitted financially from the unlawful sexual 

exploitation suffered by the plaintiffs.... Jane Doe No. 1, 

Jane Doe No. 2, and Jane Doe No. 3 are victims of child 

sex trafficking within the meaning of 18 U.S.C. § 1591.”

(Compl. ¶¶ 4, 109.) 

“Traffickers are coached to use code words such as 

‘high schl’ and ‘brly legal’ rather than words that would 

explicitly state that a child being trafficked is under 

[legal age].” (Compl. ¶ 49.)

“Despite creating the appearance that it prohibits certain 

transactions, Backpage.com allows a poster to include 

close synonyms and misspellings of the non-permitted 

terms after receiving the advisory ‘Oops!’ message. For 

example, rather than ‘teenage’ or ‘schoolgirl,’ the poster 

may include the terms ‘girl,’ ‘young,’ ‘underage,’ or 

‘fresh.’ Similarly, while a poster may not include ‘barely 

legal’ or ‘high school,’ which are known to be code words 

for underage, Backpage.com permits ‘brly legal’ (as 

shown below) and ‘high schl.’

By flagging certain terms for posters and allowing the 

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Appendix A 

Allegations in This Case Compared With Allegations in Doe No. 1 v. Backpage

4851-3617-7223v.5 -

posters to adjust those terms and continue posting their 

advertisements, Backpage.com attempts to essentially 

coach individuals about how to advertise the sale of 

sexual services and the exploitation of underage sex 

trafficking victims without including terms that will most 

likely trigger detection by law enforcement.” (Compl. ¶¶ 

56-57.)

“Backpage also provides a ‘filter’ for traffickers who 

attempt to include in the advertisement that the child 

being sold is under 18 years of age... Backpage allows 

traffickers to input a different age for the same person 

in the same advertisement repeatedly—with absolutely 

no form of age verification—until the trafficker inputs 

an age of 18 or older.” (Compl. ¶ 52.) 

“Backpage.com also does not require any age verification 

to post an advertisement in the ‘Escorts’ section. While a 

poster must enter his or her age as part of the 

advertisement drafting interface prior to paying for and 

posting an advertisement in the ‘Escorts’ section, if the 

poster enters an age under 18, he or she receives a 

message that reads: ‘Oops! Sorry, the ad poster must be 

over 18 years of age.’ Then, no matter how many times 

the poster has entered an age under 18 along with other 

information necessary to complete the advertisement, 

the poster has the option to then enter an age above 18, 

but to otherwise use the same information entered 

previously, without being blocked from completing the 

advertisement.” (Compl. ¶ 48). 

“Backpage enabled traffickers to pay for advertisements 

in a covert manner by permitting the use of prepaid 

credit cards that did not need to be linked to a name, 

address, or any other identifying information.” (Compl. 

¶ 64.)

“Backpage.com allows users to pay for advertisements 

using prepaid credit cards that need not be linked to a 

name, address, or any other identifying information. This 

makes it more difficult to track these transactions, and 

allows users to maintain anonymity and evade law 

enforcement.” (Compl. ¶ 47.)

“Backpage emphasized its other anonymous payment 

options so that traffickers could pay to post their 

advertisements using the digital currency Bitcoin. 

Because Bitcoin is not linked to a bank and is largely 

untraceable, it allows traffickers to provide payment for 

advertisement enhancements without leaving any 

evidence of their identity.” (Compl. ¶ 65.)

“Backpage Defendants now accept Bitcoin as payment. 

Bitcoin is a digital currency that permits transactions to 

be completed without a bank. Backpage.com is the first 

adult website in the country to accept Bitcoin. The 

Backpage Defendants accept Bitcoin because they know 

that such payments are largely untraceable and therefore 

attractive to traffickers and other predators.” (Compl. 

¶ 47.)

Case 6:17-cv-00218-JA-TBS Document 42-1 Filed 05/05/17 Page 2 of 2 PageID 177 Case 2:18-cr-00422-DJH Document 118-11 Filed 04/25/18 Page 43 of 43