This week, two federal courts released opinions addressing prostitution, commercial sexual exploitation (“CSE”), and human trafficking. On January 16, the United States District Court for the District of Massachusetts denied defendants’ motion to dismiss in Jane Doe v. Backpage.com, LLC, granting plaintiffs leave to conduct limited discovery into the actions of Backpage.com. The following day, on January 17, in ESPLERP v. Gascon, the Ninth Circuit affirmed a lower court’s dismissal of a case which challenged the constitutionality of California’s statute prohibiting prostitution. Though relating to distinct issues, each of these decisions will benefit victims of trafficking and, thus, the CSE Institute commends these courts.
On Tuesday, the United States District Court for the District of Massachusetts, in Jane Doe v. Backpage.com, LLC, permitted limited discovery for the plaintiffs, three survivors of trafficking who were advertised on Backpage’s website. With this decision, Judge Leo Sorokin correctly identified that the “Good Samaritan” immunity provisions contained in the Communications Decency Act of 1996 (“CDA”), 42 U.S.C. § 230, are not intended to function as an automatic bar to all litigation; instead, these provisions are meant to provide limited immunity only to those defendants who can show that they passively post third-party content on their websites and do not engage in content creation or development. By permitting limited discovery, the District of Massachusetts did not foreclose the ability of the Jane Does to recover against Backpage.com for its complicity in their victimization. For more about the CDA and its immunity provisions, see here.
The court’s decision in Jane Doe signifies a departure from previous First Circuit precedent, which permitted Backpage.com to hide behind the CDA immunity provisions. See Jane Doe v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017). In Jane Doe v. Backpage.com (2016), the First Circuit held that Backpage.com was an interactive computer service provider, and thus subject to the CDA immunity provisions, without permitting plaintiffs to engage in discovery to show otherwise. Following the First Circuit’s decision, the United States Senate Investigatory Committee released a Report indicating that Backpage.com has actively edited users’ posts advertising the sale of sex to mask the illegality of the actions. In their complaint, the plaintiffs in the current case relied on the Senate Report to support their allegations against Backpage.com.
Across the country in the Ninth Circuit case of ESPLERP v. Gascon, the Court of Appeals affirmed the decision of the United States District Court for the Northern District of California to dismiss the plaintiff’s claim that the California statute prohibiting prostitution is unconstitutional. In a thorough discussion of the applicable constitutional principles, the Ninth Circuit concluded that there is no constitutionally-protected liberty interest in engaging in commercial sex, no First Amendment protections for relationship between the prostituted person and the sex buyer, and no right to engage in a commercial transaction exchanging sexual acts for money. In finding that the California statute is constitutional, the Ninth Circuit recognized that prostitution has been shown to be related to an increase in human trafficking, an increase in violence against women, and an increase in illegal drug activity and the spread of sexually transmitted infections and HIV. By recognizing these very real dangers associated with prostitution, the Ninth Circuit grounded its decision on both foundational constitutional principles and its recognition of the trauma that prostituted persons face.
These cases exemplify how careful consideration of existing laws can fortify protections for victims and survivors of CSE and can increase victims’ access to justice. The CSE Institute commends both the United States District Court for the District of Massachusetts and the Ninth Circuit for their careful consideration of the reality, dangers, and harms of CSE.
All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.