Fault Lines Debate: Pimpin’ Shouldn’t Be So Easy
October 11, 2016 (Fault Lines) — Ed. Note: In light of the decisions of the Attorneys General of California and Texas to indict and arrest the CEO of website Backpage.com, we have charged Josh Kendrick and Greg Prickett to debate the question: Should there be a §230 Safe Harbor exception for state criminal laws? This is Josh Kendrick’s argument:
Where ignorance is bliss, ‘tis folly to be wise. Things aren’t so blissful at the corporate headquarters of Backpage.com, the online brothel marketplace that has generated a fortune by offering a home to ads for sex. The Attorneys General of Texas and California have teamed up to put a stop to the scheme. Despite the common refrain that Section 230 of the Communications Decency Act somehow protects Internet providers from any of the consequences of their actions, it doesn’t, and shouldn’t, stop the enforcement of state criminal laws. Especially when those laws are used to combat legitimate criminal activity.
It’s one thing to protect the ability of people to say whatever the hell they want on the Internet. It is a deep tradition in our country that idiots be allowed to display their idiocy on the world wide web for all to see. Somebody has to provide a forum for the peanut gallery, and Section 230 keeps the forum from being responsible for the nuts. Welcome to America.
It’s quite another thing to claim that Section 23o operates to immunize co-conspirators from prosecution for their criminal activity. The difference involves exactly what all criminal actions should involve: intent. And, bad news for all you pimps, conspiracy laws change the game when it comes to intent.
In California, like most places, you can be punished for committing a crime by conspiracy. There is no real difference between actually going out and committing the crime and agreeing to commit it. The government punishes your criminal mind as harshly as your criminal acts. But in defense of conspiracy*, there is usually an overt act required. In other words, a conspiracy becomes a crime when you make an actual step towards completing the crime. You don’t actually have to commit the crime. If at first you don’t succeed, you still get tried.
So what is Backpage actually doing? Performing the most vital service required for prostitution; putting the customer with the provider. What used to require a short skirt and a sidewalk presentation now spans the world with the click of a mouse. What used to be not easy is now as simple as Facebooking your expert political opinion. Sexual services advertising makes up the vast majority of the Backpage site.
And, according to the California Department of Justice, those ads account for pretty much all of the revenue Backpage earns.
The BACKPAGE revenue report obtained includes California-based revenue covering the time period of January 2013 through May 2015, broken down into six regions. BACKPAGE internal records break out the percentage of revenue attributable to Adult Services. From January 2013 through March 2015, 99% of BACKPAGE’s gross revenue (worldwide income) was directly attributable to Adult ads.
So…99% of your money comes from pimping. That makes you a pimp. What kind of pimp? In this case, a rich pimp.
During this reporting period (Jan 2013 – May 2015), BACKPAGE self-reported $51,723,615.23 in revenue derived from California. Approximately $50,920,739.36 of this derived from adult entertainment advertising (98.43%).
Selling sex is prostitution, right? And the salesperson is a pimp, right? So that the hell does any of this have to do with the Communications Decency Act? Pimp Backpage lawyer Liz McDougall says the Act immunizes her clients:
“The actions of the California and Texas Attorneys General are flatly illegal. They ignore the holdings of numerous federal courts that the First Amendment protects the ads on Backpage.com,” McDougall said. She also contended that they also violate the U.S. Communications Decency Act “pre-empting state actions such as this one and immunizing web hosts of third-party created content.”
What exactly does Section 230 say? The United States Court of Appeals for the First Circuit recently considered a sex-trafficking case that arose in the civil arena. In Jane Doe No. 1 v. Backpage.com, LLC, sex trafficking victims sued Backpage for its part in their trafficking. The Court noted Section 23o’s plain language:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Seems simple, unless words matter to you. And words always matter in a courtroom. Under the First Circuit’s analysis, Backpage could not be held civilly liable because the causes of action against it turned entirely on its role as a speaker or publisher of the information that formed the cause of action.
As an actual participant in the activity, the analysis changes. Even the First Circuit admits that line exists.
Though a website conceivably might display a degree of involvement sufficient to render its operator both a publisher and a participant in a sex trafficking venture (say, that the website operator helped to procure the underaged youths who were being trafficked), the facts pleaded in the second amended complaint do not appear to achieve this duality.
It doesn’t appear that line has been drawn, but it certainly should be. And in this case, it looks like that line is going to be drawn in a way that Backpage won’t appreciate. Their claim of blissful ignorance (which seems to be the only real claim that holds water) is pretty weak when you take a look at the numbers discussed above. Fifty million dollars, almost all of which were collected for sex ads.
It certainly doesn’t help Backpage that the California Department of Justice Investigator who drafted the request for the arrest warrant pointed out that it cost him about a dollar to post an ad for a sofa, but over $100 for a sex ad.
That price difference tells you Backpage is not ignorant of what its site is used for. It’s not some innocent patsy. Backpage and its operators are aware of what is going on. That difference in price also makes them more than a publisher. Charging 100 times more for a sex ad suggests Backpage recognizes it is essential to prostitution, and it should get paid. Like Ice Cube said, pimpin ain’t easy, but it’s necessary. And when you are a necessary part of a criminal act, you get the expected treatment; arrest and prosecution.
Being a necessary part of the action takes Backpage right out of Section 230’s protections.
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
Section 23o protects Internet speech. It protects the exchange of ideas. It protects the freedom to be a nut, or to publish a nut. But it doesn’t protect a pimp from the consequences of pimpin’. No offense to Ms. McDougall, but Backpage might want to get a criminal defense lawyer for that.
Rebuttal: I like Greg Prickett’s argument against prosecuting the operators of Backpage. It has a lot of appeal. But it also uses Section 230 for far more than it was meant to do.
Harris isn’t prosecuting Backpage and its pimp crew for what they say; she is prosecuting them for what they do. And what they do is provide the essential link for the world’s oldest profession.
I argue they must have known what was going on because they are charging 100 times more for the sex ads than the sofa ads. Same ad. Same amount of work. Same process. But costs 100 times more. That suggests knowledge. It also suggests they know how to get their piece of the action.
As those civil cases cited by Greg hold, Backpage shouldn’t be prosecuted for what it says, but for what it does. That’s what Harris is doing. Maybe a jury will buy the argument that Backpage’s $50 million business doesn’t make them a bunch of pimps. But it doesn’t mean a prosecutor has to.
* Enjoy. You will never, ever, ever hear me defend conspiracy laws again.