Mimesis Law
26 February 2020

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.

10 Comments on this post.

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  • Brian
    11 October 2016 at 10:18 am - Reply

    It’s a pretty good argument…but I see one big problem. Backpage can (and should) easily argue that the higher pricing is designed to drive down the number of adult ads. Basic supply and demand shows that increasing the cost of doing business will reduce the number of people doing business.

  • Ben
    11 October 2016 at 11:24 am - Reply

    The problem with this argument is that it is 100% legal to provide escort services. If that is being used as a cover for prostitution, why is that the newspaper’s fault? If your argument is accepted by the courts, that basically shuts down the ability of any actual legitimate escort to ever advertise his/her services ever again.

  • william the stout
    11 October 2016 at 1:48 pm - Reply

    California law has a “knowledge” requirement in both their definition of “pimping” and their definition of “pandering”. California has to prove beyond a reasonable doubt that Backpage knew that the service provided by their customers was prostitution rather than simple escort or massage services.

    You’re inferring knowledge from the difference in cost between an escort ad and an ad to sell a couch. But there are several other plausible explanations. Brian gives one. Another could be simple economics – supply and demand. There certainly seems to be more demand for escort ads than ads for selling junk based on the revenue numbers. A business model that relied on charging people $100 to sell used crap that is worth $50 would not be viable.

    Backpage was not a “pimp” in the usual sense – they didn’t control the transaction nor did they take a portion of the proceeds. Hell, they didn’t even know if a transaction took place.

    Is the inference of knowledge from the difference in the cost of ads for different services really enough to overcome California’s burden of proof?

  • maz
    11 October 2016 at 7:20 pm - Reply

    I’d also argue the higher price of adult services ads were in part to offset the additional cost of running such ads, given the need — for the benefit of the community — to create and maintain a user account database (to place an adult ad, one must be a registered, verified user of Backpage), to ensure such ads contain no nudity or explicit sexual content and are not advertisements for prostitution, to process take-down orders and field LEO queries, and the like. Rarely must one vet a ‘sofa for sale’ ad so closely….

    Besides, Backpage’s adult ads are *free*; those $100+ fees cited in the complaint were all reached by the advertiser choosing additional ‘sweetening’ features: cross-posting in nearby cities; regular renewal of the ad, returning it to the top of the stack; posting in a special ‘featured advertiser’ area. Each of these represents a value-added feature not part of the core Backpage system — features that cost the company extra to develop and maintain. Are they not to be allowed to recover their investment?

    The official weeping and wailing over adult advertising revenues has always come with a hefty dose of cynicism. It’s been a while since I placed an ad in Backpage’s adult section, but as I recall back then all such ads cost a buck or two, as based on the Craigslist model. (Initially, Craigslist didn’t charge for adult services ads — until a bevy [posse? gaggle? harangue?] of state attorneys general strong-armed them into, among other things, charging a nominal fee to ensure the advertiser had use of a valid credit card, allegedly proof of majority. Wisely, Craig Newmark announced upfront that all net proceeds from the sale of adult ads would be donated to charity, because, sure enough, a year later a few state AGs [presumably those facing re-election] started squawking again — but now they were horrified, in part, by how much of Craiglist’s gross revenue came from adult ads.) When Backpage found itself the only game in town after Craigslist threw in the towel, they followed CL’s lead and implemented a proof-of-age charge. The AGs screwed that pooch, though, by pressuring MasterCard and Visa no longer to allow such ads to be charged to their cards. As a result, Backpage dropped their mandatory charge requirement — thus making it easier for minors to place ads.

  • darin_stevens
    11 October 2016 at 10:48 pm - Reply

    Great debate, thank you for contributing, this case fascinates me.

    The argument provides that “putting customers with providers” is what Backpage actually does replacing what used to require a short skirt and sidewalk presentation. This is an argument for the community benefit of platforms like Backpage. Street walking, or kerb krawling, involves higher incidence for violence and abuse as well as exploitation by third parties. It is far more dangerous. Backpage allows a provider to verify a client from a distance and not under the pressure of time.

    I also find the use of Facebooking in your argument. Taking a high profile internet platform and making it a verb. This lends to the slippery slope argument. 2010 Dart v Craigslist a conclusion was provided that Sheriff Dart may continue to use Craigslist’s website to identify and pursue individuals who post unlawful conduct. But, he cannot sue for their conduct. In spite of the anti-trafficking advocate’s wishes, the issue of trafficking does not find resolution, it gets pushed to other avenues, for instance Ave Facebooking.

    Another element to the argument, selling sex is prostitution; the salesperson is the pimp. But, actually the content provider is the sex worker/pimp, or person placing the ad. By making Backpage, the tool or platform for the content, into the pimp by extension Samsung/Apple could be a pimp, or AT&T/Verizon could also be the pimp. Clear lines not subject to the predilections of prosecution need to be acknowledged.

    1st Circuit admits to a line. How flexible that line is in question. There is a heavy influence from the rescue industry/anti-trafficking/Kristoff&MCclain crowd to move that line. The courts have been clear that active content creation of illegal content is that line. It doesn’t exist here. But, this insane anti-trafficking movement is about storytelling and stories will create fantasy. Elizabeth Nolan Brown portrayed prosecutorial misconduct in WA State with regards to a January bust supposedly about trafficking. Bob Ferguson WA State’s AG filed another motion to attack Backpage, citing Shared Hope’s Linda Smith, who is obviously driving the purpose.

    Scary times. The First Amendment is under attack and it won’t do a damn thing to help with trafficking.

  • bacchys
    12 October 2016 at 1:07 am - Reply

    You seem to have confused your speculation with facts. In your defense, the AG of California does the same thing.

    Backpage charges more for *adult* ads. They aren’t necessarily “sex ads.” Pretending that the entirety of the revenue came from prostitution ads is part of what needs to be proven, it’s not a fact already in existence.

    • maz
      13 October 2016 at 6:57 am - Reply

      Again, a minor point, but Backpage doesn’t charge more for adult ads: The ads are free. They charge for various “sweeteners” — automatic renewal of the ad, listing the ad in a ‘featured’ section, and so on. I’m not sure if these additional options are available outside the adult area or not.

  • Tommy Gilley
    12 October 2016 at 1:35 pm - Reply

    Is there any doubt that once there’s a crack in the 230 protections that the authorities will turn that crack into a chasm within 30 years? Will prosecuting Backpage through this crack stop prostitution or even reduce it by any real percentage?

    • darin_stevens
      12 October 2016 at 10:03 pm - Reply

      Agreed! This is a dirty fight as well.

      Naming it pimping is not that simple by legal definition. But that’s what makes the re-framing of sex work so frightening, the terms are being abused.

      MN is a perfect example. Sen Klobuchar releases a press statement celebrating the arrest because…sex trafficking, including the selling of children…She also noted 48(?) arrests around Mankato for sex trafficking.  Those arrests were all adult men caught in stings financed by Women’s Press and a $50k grant. They must have the American-carceral version of the Nordic Model because many or all are at the felony level, according to a quick news search.

      When that group released the grant they made a statement as well: ” Correctly labeling the crime as sex trafficking, as opposed to prostitution, changes the dialogue. Correctly identifying the crime as sex trafficking recognizes the severity of the act and reframes the dialogue from prostitute, pimp and john to victim, trafficker and predator.”

      Calling Backpage a pimp is just that, more reframing, more storytelling.

  • Neil
    13 October 2016 at 11:25 pm - Reply