Backpage.com pimping case will turn on what officials knew about escort ads

October 21, 2016

(Reuters) – Defense lawyers for Backpage.com CEO Carl Ferrer and two former owners of the online ad site, Michael Lacey and James Larkin, moved Thursday to toss felony pimping charges filed earlier this month by California Attorney General Kamala Harris.

As usual, Backpage is counting on the First Amendment and the Communications Decency Act as saviors. Lawyers for the executives facing criminal charges – Davis Wright Tremaine, Arguedas Cassman & Headley, and Henze Cook Murphy – argue that California has offered no evidence to show the CEO and co-owners knew ads placed by escort services were solicitations for sex. According to their brief, the ads were all placed by outsiders acting in accordance with Backpage.com’s rules for advertising. Backpage’s lawyers contend that under U.S. Supreme Court precedent, including 1959’s Smith v. California, publishers cannot be prosecuted for distributing other people’s speech unless they knew the speech was illegal.

Defense lawyers also cited three recent federal court decisions that struck down state laws attempting to impose criminal liability for running ads that sexually exploit children. Judges in Washington, Tennessee and New Jersey concluded the proposed laws likely violated the First Amendment and the Communications Decency Act because the statutes would block protected speech and purported to hold Backpage responsible for the speech of others.

The officials facing charges in California contend that the state AG knew of her colleagues’ failed attempts to legislate against Backpage.com and is using the “frankly outrageous” pimping charges as an alternative. “The Attorney General’s theory of prosecution violates basic principles of First Amendment law,” the brief said. “The AG initiated this prosecution in the face of an unbroken line of cases holding that online forums for classified ads – and specifically Backpage.com – are protected by the First Amendment. Government officials at various levels have attempted to censor such advertising forums in many ways, and each has been held to violate the Constitution.”

I went back to the affidavit underlying the California AG’s charges, filed by special agent Brian Fichtner of the state’s Justice Department. It details his evidence that escort services ads on Backpage.com turned out to be promoting sex services, including prostitution by girls as young as 15. But it’s also true, as Backpage’s dismissal brief argues, that Fichtner’s affidavit does not offer specific allegations that the site or the charged executives knew these particular ads were illegal or that Backpage generally facilitates ads promoting prostitution and sex trafficking.

Those allegations have, of course, been leveled at the site by state and federal officials and anti-trafficking activists. The U.S. Senate Permanent Subcommittee on Investigations, as I’ve reported, is deep into a probe of Backpage.com’s internal processes for screening ads. The Senate contends the site edits the ads to conceal evidence of advertisers’ criminal intent. Backpage.com has repeatedly denied those allegations. The site says that it works with law enforcement and the Center for Missing and Exploited Children to assure that minors are not being trafficked through Backpage.com ads.

Last month the U.S. Supreme Court refused to delay enforcement of a Senate subpoena for the site’s records. Under a subsequent order by the trial judge overseeing the subpoena, Backpage must turn over even privileged documents between its lawyers and corporate officials.

If those records prove the Senate’s theory that Backpage is abetting sex traffickers, Backpage is going to have a much harder time persuading judges that it is a mere conduit for communications by other people. But until and unless opponents can prove Backpage and its executives knew specific ads promoted illegal sex acts, the site’s officials seem to have a good shot at getting the charges against them thrown out.

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