Mimesis Law
27 January 2022

Despite Law & Sanity, Backpage’s Adult Section Falls

January 13, 2017 (Fault Lines) – Backpage.com, the world’s second-largest classified-ads website, has finally yielded to years of state-sponsored pressure and shut down its adult section. In doing so, it joins Craigslist, its even bigger competitor, in the Government Coercion Hall of Shame.

And there’s almost certainly more to come: Backpage amounts to the latest victim of a campaign by county, state and federal officials to close down the sites on which adult-service providers advertise. Previous casualties include MyRedbook.com in 2014; Rentboy.com, a gay site, in 2015; and The Review Board, a forum for escorts and their clients, in 2016. While this culling has yet to hit adult sites such as XNXX and PornHub, this may be because these sites are international and aren’t governed solely by US borders. In other words, people would find a way to unblock XNXX, PornHub, and YouPorn as well as other similar sites.

Even against this deplorable backdrop of shutdowns, Backpage stands out because the company, its CEO, Carl Ferrer, and its two founders and controlling shareholders, Michael Lacey and James Larkin, only gave in after they were subjected to a remarkably intense and lawless blitz of subpoenas, criminal charges, lawsuits and economic warfare from a bipartisan-but-mostly-Democratic group of legislators and law enforcement. These officials, including Cook County, IL Sheriff Thomas Dart, former California Attorney General Kamala Harris and the members of the Senate’s Permanent Subcommittee on Investigations (PSI,) went after Backpage and its operators because, they claimed, the site’s adult-ads section was a haven for child sex traffickers.

As a result, Ferrer, Lacey, Larkin – who, it bears repeating, are nothing more than the operators of a site where anyone can buy ads – and their company were persecuted over alleged content they didn’t create and for which they aren’t liable under Section 230 of the Communications Decency Act. Here’s just some of what happened to them:

  • a 2016 prosecution at the hands of AG Harris on charges including pimping and pimping of a minor (the case was thrown out by a Sacramento Superior Court judge in December; Harris has since filed new charges)
  • prosecutions in New Jersey, Tennessee and Washington for advertising the sex trafficking of a minor (Backpage won in 2014, 2012 and 2012 respectively)
  • an attempt by Sheriff Dart to intimidate credit card companies out of doing business with Backpage (permanently enjoined by the Seventh Circuit in December, 2015)
  • a PSI human-trafficking investigation into Backpage that prompted what Cato’s Ilya Shapiro describes as “onerous subpoenas targeting Backpage’s editorial practices” (Ferrer has since challenged his subpoena before the D.C. Circuit; the case is pending)

As a legal matter, the witch hunt against Backpage and its execs is a complete debacle: a messy, ongoing violation of the Constitution and the CDA. As a practical matter, the fact that the government managed to wear Backpage down is no less bad. Not only will the disappearance of the adult section make it harder, not easier, to go after child sex traffickers, but as sex-workers’ rights advocates contend, closing down the sites where they prefer to ply their trade puts them at risk.

First, the government’s campaign against Backpage is unconstitutional. Take Sheriff Dart’s pseudo-unofficial letters to Visa and MasterCard – written on Sheriff-of-Cook-County stationery, but, as he claimed, in his capacity as “a father and a caring citizen” – in which he threatened them with legal consequences if they didn’t stop processing payments to Backpage. When the Seventh Circuit, in a blistering ruling by Judge Posner, enjoined Dart and his minions from taking “actions, formal or informal, to coerce or threaten credit card companies with sanctions,” it was because the First Amendment blocked the sheriff from intimidating Visa and MasterCard over protected speech (i.e. adult ads). Posner summarized it very neatly when he shut down Dart’s “campaign of suffocation”:

While [Dart] has a First Amendment right to express his views about Backpage, a public official who tries to shut down an avenue of expression of ideas and opinions through “actual or threatened imposition of government power or sanction” is violating the First Amendment.

Backpage CEO Ferrer’s challenge to PSI’s Congressional subpoena relies in part on the same argument. What’s more, as Cato’s Shapiro argues in an amicus-curiae brief on Ferrer’s behalf, PSI and Sheriff Dart have actually been working together to put Backpage, or at least its adult section, out of business. As Shapiro points out:

Before the PSI served its first subpoena on Backpage, subcommittee counsel corresponded with Dart’s staff, praising the sheriff and assuring him that their investigation was “rapidly progressing down a parallel track.” When PSI issued its initial document subpoena, [it came] with five sets of demands that were identical to those served by Sheriff Dart.

Shapiro contends that PSI, like Dart before it, is wielding its authority as a bludgeon. And while that was bad enough when the sheriff was doing it, it’s doubly unacceptable in PSI’s case, given that a senatorial subcommittee is a legislative body that’s supposed to issue its subpoenas in furtherance of an investigation. For it to usurp an executive function to punish people who publish speech it doesn’t like (something PSI used to do back in the Fifties, when Joe McCarthy chaired it) is an especially crass abuse of power.

And because adult ads, as several courts have held, are indeed protected speech, efforts like those of then-California AG Harris to prosecute Backpage’s executives for publishing them are constitutionally doomed to failure. What’s more, they’re unlawful under Section 230 of the CDA, which shields website operators from civil liability and prosecution under state law for the third-party content they publish. Section 230 is the backbone of the internet: without it, websites that rely on user-generated content would cease to exist. As Reason’s Elizabeth Nolan Brown puts it:

Section 230 doesn’t just stop sites like Craigslist and Backpage from getting in trouble if someone posts a prostitution ad there but allows Reddit to exist without its CEO getting charged for every credible user threat, keeps Facebook from being shut down after some 20-year-old picks up a 17-year-old girl there, prevents Craigslist from being found guilty every time someone rips someone off over a used washer, and stops the feds from coming after Reason.com when the comments section contains unsavory content.

Just in case the lawless nature of Backpage’s persecutors’ conduct was in doubt, it’s a guarantee that Harris knows what she’s trying to do is blocked by federal law. Why? Because back in 2013, she and other state AGs signed a letter to Congress asking it to amend Section 230 to allow them, but only them, to bring cases against website operators. Even better, the letter called out Backpage by name. Congress refused to act on their request, but as is now clear, she didn’t let that stop her from flaunting the law and repeatedly bringing meritless, thuggish cases against the company’s executives.

As if the illegality of the government’s conduct weren’t enough, there’s also a pragmatic argument to be made that shutting down Backpage’s adult section is actively counterproductive to the goal of getting rid of the market for underage prostitution. This is in large part because, as Reason‘s Nolan Brown points out, Backpage has already been helping law enforcement make cases against sex traffickers:

Backpage has helped law-enforcement in hundreds of investigations into missing minors and potential sex-trafficking victims by turning over their contact and financial info (or that of those who posted their ads) to authorities when such ads are discovered, as well as flagging ads that contain images of suspiciously young individuals. And because Backpage operates across the country, authorities searching for victim[s] or perpetrators on the move could sometimes trace their movements via Backpage ads.

When the cops close down a market where illegal goods are sold in the real world, the primary goal isn’t to take an eyesore off the street, but to catch criminals. Assuming, arguendo, that Backpage’s adult section was the digital analogue to that kind of place despite the execs’ efforts to keep a clean house and help law enforcement, what the government’s done by closing it down is nothing short of a fiasco. No criminals were caught, Backpage can no longer assist and the underlying problem, far from being dealt with, is going to be even harder to tackle going forward as sex traffickers go deeper underground.

Notably, the head of at least one sex-trafficking victims’ organization, Lois Lee of Children of the Night, has already spoken out against the move. The only saving grace, for elected officials, anyway, is that what they’ve done will let them put out more self-congratulatory press releases.

Finally, shutting down the sites where sex workers who voluntarily do the work advertise costs them money and arguably endangers them. This is the vast majority of sex workers, and they, too, will have to find a new place to put up ads if they relied on Backpage. To deprive them of customers is to deprive them of income. And most established communities, like the one that existed at MyRedbook, have screening systems in place to help sex workers vet prospective clients. As such, forcing them to start from scratch puts them at greater risk of being robbed, raped, injured or killed by abusive johns or arrested by police.

The government campaign that forced Backpage, despite its repeated legal victories, to yield to pressure and shut down part of its site can only be described as lawless, wanton and completely contrary to legitimate law-enforcement objectives. That self-interested officials chose to wage a war of attrition against website operators in th name of “saving the children,” got away with it and thereby endangered any children being trafficked as well as voluntary sex-workers is a travesty. This is a massive step backward for sane policymaking and the rule of law.

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  • When Even Prosecutors Think Backpage’s Shutdown Sucked
    7 February 2017 at 11:14 am - Reply

    […] the methods Backpage’s enemies used to put pressure on the site ranged from the wildly lawless to the flagrantly unconstitutional. Thanks to Section 230 of the Communications Decency Act and the First Amendment, Backpage and its […]

  • Backpage and the Texas Tribune’s Tinfoil Hat
    17 February 2017 at 9:35 am - Reply

    […] officials to put pressure on the company. Courts consistently held that the government’s actions violated the Constitution and were blocked by Section 230 of the Communications Decency Act. What’s more, closing the adult […]