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Village Voice - Memorandum and Order Aug 15, 2011

Village Voice - Memorandum and Order Aug 15, 2011

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MISSOURIEASTERN DIVISIONM.A., a minor, by and through her)Natural Mother and Next Friend, P.K.,))Plaintiff,))vs.) Case No. 4:10cv1740 TCM)VILLAGE VOICE MEDIA)HOLDINGS, LLC., d/b/a backpage.com,)and BACKPAGE.COM, LLC,))Defendants.)MEMORANDUM AND ORDER
This is a two-count civil action having its genesis in the horrific victimization of M.A.by Latasha Jewell McFarland.
M.A. seeks to hold defendants Village Voice MediaHoldings, LLC, and Backpage.com, LLC (hereinafter collectively referred to as Backpage)liable for this victimization. Backpage moves to dismiss the amended complaint.
McFarland was indicted in May 2010 for violations of 18 U.S.C. § 1591(b)(2)(prohibiting sex trafficking of children), 18 U.S.C. § 1952(a)(3) (prohibiting the use of interstate commerce to "promote, manage, establish, carry on, or facilitate the promotion,management, establishment, or carrying on, of any unlawful activity"), and 18 U.S.C.§ 2422(b) (prohibiting the use of interstate commerce to "knowingly persuade[], induce[],entice[], or coerce[] any individual who has not attained the age of 18 years, to engage in
The case is before the undersigned United States Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c).
Case: 4:10-cv-01740-TCM Doc. #: 39 Filed: 08/15/11 Page: 1 of 31 PageID #: 185
prostitution . . . ."). See United States v. McFarland, No. 4:10cr0266 SNLJ (E.D. Mo. May12, 2010). Four months later, she pled guilty to one of the three counts; specifically, to thecount alleging a violation of § 1952(a)(3). Id. Her sentence includes a restitutionrequirement of $16,830.18 plus additional costs, "including future counseling costs of victim." Id.Shortly after McFarland pled guilty, M.A. filed this action. In Count I, she seeks tohold Backpage liable under 18 U.S.C. § 2255.
Because the question before the Court mustbe answered by an examination of the amended complaint, portions of that complaint are setforth below. The allegations focusing on the injury to M.A. are as follows.That in 2009 and 2010 Plaintiff M.A., a minor, while being a fourteenyear old runaway child, was being sexually trafficked by Latasha JewellMcFarland, an adult, who has pled guilty to criminal charges and has beensentenced relating to the allegations herein and has admitted to the followingfacts in open court which are stated as facts hereinafter; she photographedminor M.A. displaying private body parts in sexual pornographic poses; sheposted this child pornography on [Backpage's] website, backpage.com inadvertisements seeking payment for sex; she paid backpage.com for these sexad postings; she reposted ads; she transported minor M.A. for the purposes of multiple sexual liaisons for money with adult male customers obtained through[Backpage's] website; she collected money for minor M.A.'s sexual servicesfrom these customers; and she purchased goods to facilitate these sexualservices.(Am. Compl. ¶ 10.)
Section 2255 provides, in relevant part:(a)
In general.
— Any person who, while a minor, was a victim of a violation of section 2241(c), 2242, 2243, 2251A, 2252A, 2260, 2421, 2422, or 2423 of thistitle and who suffers personal injury as a result of such violation . . . may sue in anyappropriate United States District Court and shall recover the actual damages suchperson sustains and the cost of the suit, including a reasonable attorney's fees.- 2 -
Case: 4:10-cv-01740-TCM Doc. #: 39 Filed: 08/15/11 Page: 2 of 31 PageID #: 186
Anticipating Backpage's defense of immunity under the Communications Decency Act(CDA), 47 U.S.C. § 230, M.A. describes Backpage as follows.8. [A]t all relevant times herein [Backpage] operated an online classifiedmarketing advertisement website in interstate commerce that allows the publicto post for a fee, classified advertising for goods and services includingcategorized advertising for escorts under the adult section which also includescategories for transsexuals, strippers, body rubs, domination and fetish, andadult jobs . . . .9. [Backpage is an] Information Content Provider[ ] within 47 U.S.C.230 in that [Backpage was] responsible in part for the development and/orcreation of information provided through the internet or other internetcomputer service in that: [Backpage's] website also has a search engine toallow focused searches by keywords of the postings; [Backpage] developed thevalue and impact of the posted ad alleged herein by creating the highly viewedwebsite, wherein [Backpage] advertised that there are billions of page viewsof their ads per week and the website is a highly tuned marketing site withsearch tools, adult sex focused categories, and directions and features offeredregarding how to increase the impact of your ad for a fee; [Backpage] offer[s]special ad placement for a fee; [Backpage] offer[s] automatic reposting to a topspot for a fee; [Backpage] offer[s] knowledge regarding how to post ads andpay anonymously; [Backpage] advertise[s] its website to increase page viewsof the ads; [Backpage] remove[s] spam from its website to increase page viewsof placed ad; [Backpage] offer[s] commissions to customers for referrals of other customers; and [Backpage] enable[s] viewers and posters to search andreview popular searches; [Backpage has] posting rules and limitations whichaid in the sight veiling of illegal sex services ads to create the veil of legality.. . . .11. In 2009 and 2010, [Backpage] posted many advertisements whichincluded explicit nude photographs of Plaintiff, M.A., a minor, advertising herservices as an escort for sex on backpage.com and received fees for eachposting.12. That [Backpage] had knowledge that: explicit sexual pornographicphotographs were being posted on its website; that postings on their websitewere advertisements for prostitution; that numerous minors were included inthese postings for prostitution on its website; that sex trafficking of minors isprolific in the United States of America; that the internet, including theirwebsite, was used for advertisements for illegal sexual contact with minors;
- 3 -
Case: 4:10-cv-01740-TCM Doc. #: 39 Filed: 08/15/11 Page: 3 of 31 PageID #: 187

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Village Voice Media, owner of backpage.com, was accused of aiding child prostitution. A federal judge dismissed the charges.
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