Backpage.com, LLC v. Lynch, Civil Action No. 15-2155 (RBW)

216 F.Supp.3d 96

BACKPAGE.COM, LLC, Plaintiff,

v.Loretta E. LYNCH, in her official capacity as Attorney General of the United States of America, Defendant.

Civil Action No. 15-2155 (RBW)

United States District Court, District of Columbia.

Signed October 24, 2016

James C. Grant, Davis Wright Tremaine LLP, Seattle, WA, Lisa Beth Zycherman, Ronald G. London, Robert Corn-Revere, Davis Wright Tremaine, LLP, Washington, DC, for Plaintiff.

Kathryn L. Wyer, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Backpage.com, LLC ("Backpage.com"), brought this action against the defendant, Loretta Lynch, in her official capacity as Attorney General of the United States of America ("the government"), challenging the constitutionality of the Stop Advertising Victims of Exploitation Act of 2015 ("SAVE Act"), which amended 18 U.S.C. § 1591 (2000), "a statute that prohibits certain conduct related to sex trafficking of children and those subjected to force, fraud, or coercion," and added "advertising to the types of conduct prohibited under § 1591(a)." Memorandum in Support of Defendant's Motion to Dismiss ("Gov't's Mem.") at 1; see also Complaint for Declaratory and Injunctive Relief ("Compl.") ¶ 1. Currently pending before the Court is the Defendant's Motion to Dismiss ("Gov't's Mot."), ECF No. 10, which seeks dismissal of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) (" Rule 12(b)(1)"), or alternatively, dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon careful consideration of the parties' submissions,¹ the Court concludes that it must grant the government's motion to dismiss this action for lack of subject matter jusrisdiction pursuant to Rule 12(b)(1).

I. BACKGROUND

A. Statutory Background

In 2000, Congress passed the Trafficking Victims Protection Act ("Trafficking Act"), Pub. L. No. 106–386, §§ 101–113, 114 Stat. 1464 (2000) (codified as amended in sections throughout Titles 8, 18, and 22 of the United States Code), "to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims," 22 U.S.C. § 7101(a) (2012). The legislation was enacted because "Congress recognized that human trafficking, particularly of women and children in the sex industry ‘is a modern form of slavery, and it is the largest manifestation of slavery today.’ " United States v. Walls , 784 F.3d 543, 548 (9th Cir. 2015) (quoting 22 U.S.C. § 7101(b)(1) ), cert. denied , ––– U.S. ––––, 136 S.Ct. 226, 193 L.Ed.2d 170 (2015). Accordingly, through the Trafficking Act, Congress adopted "a comprehensive regulatory scheme that criminalizes and attempts to prevent slavery, involuntary servitude, and human trafficking for commercial gain." Id.

This comprehensive scheme proscribes "severe forms of tracking in persons," including "sex trafficking in which a commercial sex act is induced by force, fraud, or coercion," and "sex trafficking ... in which the person induced to perform such act has not attained 18 years of age." 22 U.S.C § 7102(9)(A). Section 1591(a) of the statute, as originally enacted, imposed criminal penalties for any individual who knowingly

(1) in or affecting interstate commerce recruits, entices, harbors, transports, provides, or obtains by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing that force, fraud or coercion ... will be used to cause the person to engage in a commercial sex act, or that person has not attained the age of 18 years and will be caused to engage in a commercial sex act.

Pub. L. No. 106–386, § 112. However, in 2008, Congress amended the mens rea requirement of § 1591(a), allowing for the prosecution of a person who commits an "act identified in § 1591(a)(1) and (a)(2) where [the person] acted ‘knowing, or in reckless disregard of the fact ,’ that force, fraud, or coercion [would] be used or that the individual involved is a minor." Gov't's Mem. at 4 (citing the William Wilberforce Trafficking Victims Protection Act of 2008, Pub. L. No. 110–457, 122 Stat. 5044 (2008)). Moreover, Congress added subsection (c) to the statute, which eliminated the government's burden of demonstrating that the defendant had the requisite mens rea of either acting knowingly, or in reckless disregard of the fact that the individual caused to engaged in a commercial sexual act prohibited by subsection (a)(1) had not reached the age of eighteen, provided that "the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or solicited." Id.

Pertinent to this case, Congress, in 2015, further amended § 1591(a) through the SAVE Act to include "advertis[ing]" as a type of conduct made criminal for sex trafficking acts covered by § 1591(a)(1). Compl. ¶ 47; Gov't's Mem. at 5 (citing the SAVE Act, Pub. L. No. 114–22, § 118(b)(1)). Additionally, the SAVE Act "amended the mens rea requirement set forth in the language below § 1591(a)(2)." Gov't's Mem. at 5 (citing the SAVE Act, Pub. L. No. 114–22, § 118(b)(2)); see also Compl. ¶ 47. Consequently, § 1951(a) now provides:

(a) Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises , or maintains by any means a person; or

(2) benefits financially or by receiving anything of value from participation in a venture which has engaged in an act described in violation of paragraph (1),

knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact , that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).

18 U.S.C.A. § 1591(a) (2015) (emphasis added).

B. Factual Background

Backpage.com is a limited liability company, organized and existing under the laws of Delaware, with its principal place of business in Dallas, Texas. Compl. ¶ 8. Primarily, Backpage.com hosts an online classified advertising service ("web service") that was created in 2004 and is located at www.backpage.com. Id. ¶ 15. As the second-largest web service of its kind, after Craigslist, id. ; Gov't's Mem. at 5, Backpage.com's web service operates in all fifty states and the District of Columbia. Compl. ¶¶ 8, 15; Gov't's Mem. at 5. Users of Backpage.com's web service may post advertisements under a number of categories (e.g., local places, buy/sell/trade, automotive, rentals, real estate, jobs, dating, adult, and services) and various subcategories, and millions of advertisements are placed each month. Compl. ¶¶ 15–16; Gov't's Mem. at 5. Users "provide all content for their ad[vertisements] ..., including all text, titles, and photographs."

Compl. ¶ 17. But, even though "Backpage.com does not dictate any content, ... it does screen, block, and remove ad[vertisements] that violate the website's terms of use." Compl. ¶¶ 17–18. And, "Backpage.com prohibits illegal content and activity on its website and takes numerous steps to prevent such misuse, especially to guard against any human trafficking or child exploitation." Compl. ¶ 18; Gov't's Mem. at 5.

On or about October 2010, various public officials and state attorneys general began pressuring Backpage.com to remove the "adult services" category from its website.² Id. ¶¶ 20–21 (citing statements by politicians who had written to Backpage.com or made comments in regards to legislative resolutions that sought to pressure Backpage.com to eliminate its "adult services" category). "[M]aintain[ing] that censorship is not a solution to human trafficking or child exploitation," Compl. ¶ 23, Backpage.com has refused to remove the "adult services" category from its website, "advocat[ing] that a better approach is to use the Internet and to work with cooperative website providers such as [itself] to identify, investigate and prosecute illegal conduct and rescue victims," id.

In 2012, three states "expressly target[ed] Backpage.com," id. ¶ 24, when they "enacted criminal statutes to censor adult ads on [its website]," id. ¶ 2. Backpage.com challenged the constitutionality of these state laws, and "[i]n each instance, federal courts enjoined the laws, finding them unconstitutional under the First Amendment ... [because] the states' efforts to regulate or effectively block [escort] ads and [escort services] ‘would likely chill protected speech.’ " Id. ¶¶ 24–25 (citing cases) (quoting Backpage.com, LLC v. McKenna , 881 F.Supp.2d 1262, 1282 (W.D. Wash. 2012). And as noted above, in 2015, after these three cases were decided, Congress enacted the SAVE Act, which among other amendments, "added the term ‘advertises' among the predicate acts for criminal sex trafficking in [§] 1591." Id. ¶ 1.

Intending to maintain an "adult services" category as part of its web service, see id. ¶ 23; Gov't's Mem. at 10, Backpage.com filed this action, asserting a pre-enforcement challenge to the SAVE Act, see generally Compl.; Gov't's Mem. at 1. Specifically, Backpage.com contends that the "[p]rovisions of the SAVE Act ... are ... unconstitutionally vague, overbroad[,] and infringe First Amendment rights," id. ¶ 3. In response, the government moves to dismiss the Complaint on the grounds that Backpage.com "lacks standing to bring this pre-enforcement challenge," and thus, dismissal is required under Rule 12(b)(1) because the Court lacks subject...