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Doe v., LLC

United States Court of Appeals for the First Circuit

March 14, 2016, Decided

No. 15-1724


 [*15]  [***1674]   SELYA, Circuit Judge. This is a hard case — hard not in the sense that the legal issues defy resolution, but hard in the sense [**3]  that the law requires that we, like the court below, deny relief to plaintiffs whose circumstances evoke outrage. The result we must reach is rooted in positive law. Congress addressed the right to publish the speech of others in the Information Age when it enacted the Communications Decency Act of 1996 (CDA). See 47 U.S.C. § 230. Congress later addressed the need to guard against the evils of sex trafficking when it enacted the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), codified as relevant here at 18 U.S.C. §§ 1591, 1595. These laudable legislative efforts do not fit together seamlessly, and this case reflects the tension between them. Striking the balance in a way that we believe is consistent with both congressional intent and the teachings of precedent, we affirm the district court's order of dismissal. The tale follows.


] In reviewing the grant or denial of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),  [*16]  we draw upon the well-pleaded facts as they appear in the operative pleading (here, the second amended complaint). See SEC v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010) (en banc). provides online classified advertising, allowing users to post advertisements in a range of categories based on the product or service being sold.2 Among the [**4]  categories provided is one for "Adult Entertainment," which includes a subcategory labeled "Escorts." The site is differentiated by geographic area, enabling users to target their advertisements and permitting potential customers to see local postings.

This suit involves advertisements posted in the "Escorts" section for three young women — all minors at the relevant times — who claim to have been victims of sex trafficking. Suing pseudonymously, the women allege that Backpage, with an eye to maximizing its profits, engaged in a course of conduct designed to facilitate sex traffickers' efforts to advertise their victims on the website. This strategy, the appellants say, led to their victimization.

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817 F.3d 12 *; 2016 U.S. App. LEXIS 4671 **; 118 U.S.P.Q.2D (BNA) 1672 ***; 44 Media L. Rep. 1549; 64 Comm. Reg. (P & F) 483; 2016 WL 963848

JANE DOE NO. 1 ET AL., Plaintiffs, Appellants, v. BACKPAGE.COM, LLC ET AL., Defendants, Appellees.

Subsequent History: US Supreme Court certiorari denied by, Motion granted by Doe v., LLC, 137 S. Ct. 622, 196 L. Ed. 2d 579, 2017 U.S. LEXIS 441 (U.S., Jan. 9, 2017)


Doe v., LLC, 104 F. Supp. 3d 149, 2015 U.S. Dist. LEXIS 63889 (D. Mass., May 15, 2015)


advertisements, trafficking, website, sex, infringement, photographs, users, screen, picture, causal, display, chain, speculative, third-party, causation, deceptive, editorial, message, online, misappropriation, deliberately, blocking, unfair, site

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Appeals, Record on Appeal, Standards of Review, De Novo Review, Business & Corporate Compliance, Computer & Internet Law, Content Regulation, Communications Decency Act, Criminal Law & Procedure, Criminal Offenses, Crimes Against Persons, Sex Crimes, Torts, Intentional Torts, Governments, Legislation, Interpretation, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Pleadings, Complaints, Requirements for Complaint, Invasion of Privacy, Appropriation, Elements, Copyright Law, Damages, Types of Damages, Compensatory Damages, Remedies, Measurement of Damages, Civil Infringement Actions, Injunctions