United States District Court, D. Arizona
ORDER
Honorable Susan M. Brnovich United States District Judge
Pending
before the Court is Defendants Motion to Dismiss Indictment
Based on Section 230 of the Communications Decency Act or,
Alternatively, as Void for Vagueness. (Doc. 783,
“Motion”.) The Government responded, (Doc. 809,
“Resp.”), and Defendants replied (Doc. 830,
“Reply”). The Court has considered the pleadings
and enters the following Order.
I.
BACKGROUND
Defendants
are former officers, executives, and employees of
Backpage.com, a classified advertisement website specializing
in “adult” services largely used as forums for
soliciting prostitution.[1] (See generally Doc. 230,
“SI”.) On July 25, 2018, a federal grand jury
returned a 100-count Superseding Indictment against
Defendants. (Id.) The Superseding Indictment alleges
Defendants engaged in numerous criminal acts- conspiracy,
violations of the Travel Act, and money laundering-while
operating the website Backpage.com
(“Backpage”).[2] Count 1 alleges Defendants
“knowingly and intentionally” entered into a
conspiracy, 18 U.S.C. § 371, to commit violations of the
Travel Act, 18 U.S.C § 1952 (a)(3)(A), against all
defendants. (SI ¶¶ 195-99.) Counts 2-51 allege
Defendants:
“used the mail and any facility in interstate and
foreign commerce with intent to otherwise promote, manage,
establish, carry on, and facilitate the promotion,
management, establishment, and carrying on of an unlawful
activity, to wit: prostitution offenses in violation of the
laws of the State in which they are committed and of the
United States, including but not limited to [A.R.S.] Section
13-3214, and thereafter performed and attempted to perform,
manage, establish, carry on, and facilitate the promotion,
management, establishment, and carrying on of unlawful
activity.”
(SI ¶ 201.) The fifty advertisements supporting Counts
2-51 market the sale of women or minors using coded-terms
common to prostitution. (Id.) The ads specifically
depict a range of prostitution-related business activities
and transactions. Some of the ads depict specific victims,
(Counts 2, 4-5, 12-17, 19-24), whose services were offered in
multiple ads. (SI ¶¶ 160-76.) The Superseding
Indictment alleges Defendants employed three distinct
strategies to attract ads they knew were for prostitution.
(SI ¶ 34.) Particularly relevant here, Backpage also
created prostitution ads by copying content from
other prostitution websites and then soliciting pimps and
prostitutes by offering free trials. (SI ¶¶ 35-44.)
Defendants created a business relationship with
TheExoticReview.com (“TER”), a
“prostitution website” where clients, known as
“johns”, could rate escorts. (SI ¶¶
45-67.) Further, the Superseding Indictment outlines detailed
moderation practices Backpage used to evade detection by law
enforcement and create a “veneer of deniability.”
(SI ¶ 13.) Among other techniques, Defendants stripped
known prostitution terms from advertisements but allowed ads
to be posted with the underlying message unchanged.
Defendants, at various points, assisted known pimps and
prostitutes in changing ads to avoid deletion by Backpage
moderators. (SI ¶¶ 45-67.)
Defendants
previously argued this alleged conduct was consistent with
traditional editorial functions protected by the First
Amendment. (See generally Doc. 583.) Applying
Section 230 of the Communications Decency Act
(“CDA” or “§ 230”), 47 U.S.C.
§ 230, to the Superseding Indictment, Defendants now
make a similar argument. That is, because § 230
immunizes publishers like Backpage from prosecution under all
state criminal law, the Superseding Indictment fails to state
an offense and should be dismissed pursuant to Federal Rule
of Criminal Procedure 12(b)(3)(B)(v). (Mot. at 4-11.)
Alternatively, Defendants claim the Travel Act, as applied by
the Superseding Indictment, fails to give adequate notice of
criminality, meriting dismissal of all counts as void for
vagueness. (Id. at 11-13.)
II.
LEGAL STANDARD
“An
indictment is sufficient if it, first, contains the essential
elements of the offense charged and fairly informs a
defendant of the charge against which he must defend, and,
second, enables him to plead acquittal or conviction in bar
of future prosecutions for the same offense.”
Hamling v. United States, 418 U.S. 87, 117 (1974).
Since federal crimes are “solely creatures of statute,
” Dowling v. United States, 473 U.S. 207, 213,
105 S.Ct. 3127, 87 L.Ed.2d 152 (1985) (internal quotation
marks omitted), a federal indictment can be challenged on the
ground that it fails to allege a crime within the terms of
the applicable statute. United States v. Pirro, 212
F.3d 86, 91-92 (2d Cir. 2000). Accordingly, Federal Rule of
Criminal Procedure 12 allows a defendant to file a pretrial
motion to dismiss for failure to state a defense if the
motion “can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3)(B)(v). Such a motion
“is generally capable of determination before trial if
it involves questions of law rather than fact.”
United States v. Kelly, 874 F.3d 1037, 1046 (9th
Cir. 2017) (quoting United States v. Nukida, 8 F.3d
665, 669 (9th Cir. 1993). An indictment must “set forth
all the elements necessary to constitute the offense intended
to be punished.” Hamling v. United States, 418
U.S. 87, 117 (1974) (quoting United States v. Carll,
105 U.S. 611, 612 (1882)). Therefore, when a count charged by
an indictment fails to recite an essential element of the
offense, that count is facially defective and must be
dismissed. United States v. Pernillo-Fuentes, 252
F.3d 1030, 1032 (9th Cir. 2001). In determining whether an
indictment charges a cognizable offense, courts are bound by
the four corners of the indictment, must accept the truth of
the allegations in the indictment, and cannot consider
evidence that does not appear on the face of the indictment.
United States v. Lyle, 742 F.3d 434, 436 (9th Cir.
2014); United States v. Boren, 278 F.3d 911, 914
(9th Cir. 2002); United States v. Jensen, 93 F.3d
667, 669 (9th Cir. 1996).
Defendants
Motion implicates two federal statutes-the CDA and Travel
Act. Statutory construction “must begin with the
language employed by Congress and the assumption that the
ordinary meaning of that language accurately expresses the
legislative purpose.” United States v.
Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d
536 (1985) (quoting Park ‘N Fly, Inc., v. Dollar
Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658,
83 L.Ed.2d 582 (1985)). “Due respect for the
prerogatives of Congress in defining federal crimes prompts
restraint in this area, where we typically find a narrow
interpretation appropriate.” Dowling, 473 U.S.
at 213, 105 S.Ct. 3127 (internal quotation marks omitted).
III.
DISCUSSION
Defendants
claim immunity from prosecution in the manner charged by the
Superseding Indictment. That is, § 230 of the CDA grants
publishers of third-party content, like Defendants here,
immunity from violations of state criminal laws. (Mot. at 4)
Specifically, § 230 grants immunity to interactive
computer services for liability based on publishing
third-party content or for failing to remove any such
content, regardless of whether the website knew or should
have known that third parties were posting illegal content.
(Id.) Defendants argument is straightforward:
Section 230 preempts all state criminal laws; the instant
Travel Act charge is based on violation of underlying state
criminal laws prohibiting prostitution; Thus, § 230
precludes prosecution in the manner charged. (Id.)
Even if not precluded by § 230, Defendants contend the
Travel Act charges are impermissibly vague and merit
dismissal on that basis alone. (Mot. at 11.) Both arguments
fail.
a.
Does the CDA preclude Travel Act charges?
i.
Section 230 of the ...