(CN) — South Dakota Attorney General Marty Jackley, along with 20 of his counterparts in others states, has added his name to an amicus brief filed in hopes of holding Backpage.com liable for sex trafficking.
The brief was filed in the Supreme Court case of Doe v. Backpage.com, and says the Communications Decency Act (CDA) does not shield website operators from liability when they use language designed to attract sex traffickers in advertisements.
The First Circuit previously upheld a dismissal of the case by U.S. District Judge Richard Stearns in Boston.
Three underage women claimed the website allowed advertisements for their trafficking in its "escorts" section.
In upholding Stearn's decision, U.S. Circuit Judge Bruce Selya wrote that "if the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation."
The attorneys general argue the First Circuit overstepped its bounds when it "expanded the CDA to preclude a cause of action against websites that both publish third party content and assist in developing the content.
"This sweeping expansion of the law preempts state laws criminalizing sex trafficking, leaving the states and victims without a cause of action against web pages that knowingly devise means of altering content, metadata, and payment practices to prevent law enforcement from detecting traffickers and locating victims."
The brief cites opinions from the Seventh, Ninth and Tenth Circuit, all of which "have rejected the premise that 'a website operator's decisions in structuring its website and post requirements are publisher functions.'
"For example, in Fair Housing Council v. Roommates.com, the Ninth Circuit held that an action cannot be pursued against a website operator that 'passively displays content that is created entirely by third parties,' but a website operator can be subject to liability for content it is wholly or partially responsible for creating, including elements of the structure of the website itself if they facilitate illegal conduct."
The attorneys general argue that Backpage's conduct — which includes "encouraging use of language that will attract customers seeking children for sex ... stripping metadata to impair law enforcement's ability to locate victims, and deleting 'sting ads' posted by law enforcement" — falls under this category.
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