Mimesis Law
15 December 2017

Fault Lines Debate: Who’s Pimping & Pandering? Backpage CEO Ferrer or California AG Harris?

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 Greg Prickett and Josh Kendrick to debate the question: Should there be a §230 Safe Harbor exception for state criminal laws? This is Greg Prickett’s argument:

Most people are aware that Backpage is an online classified service. Last week the CEO of Backpage, Carl Ferrer, was arrested on a California warrant for pimping a minor, pimping, and conspiracy. The charges, filed by California Attorney General Kamala Harris, claimed that Backpage was “the world’s top online brothel.” There’s pimping alright, but it is more connected to her current political campaign for the U.S. Senate[1] than to any real attempt to protect minors. You see, Harris knows that Ferrer, and Backpage are protected by federal law.

Section 230 of the Communications Decency Act[2] provides civil liability protection for an internet publisher of material, and provides for protection against state laws. The government (any government) has yet to successfully prosecute a single case against an online provider. Not one. This is no different.

Look, I get that people don’t like the fact that Backpage has an advertising section for Escorts. So law enforcement agencies have gone after the publishers in a type of criminal extortion attempt to get them to stop publishing ads. Marc Randazza commented on the attempts of the Orlando police to shut down the Orlando Weekly’s escort advertisements by arresting three members of the newspaper’s staff for “aiding and abetting prostitution” in 2007. By the next year, the police got what they wanted, the paper stopped accepting ads for escorts and they agreed to pre-trial diversion for the three employees.

This is more of the same, and similar to other attempts to shut down online advertising. Let’s look at some of the cases:

  • New Jersey: Backpage won a permanent injunction in U.S. District Court prohibiting the State from criminally prosecuting Backpage for crimes affecting minors.
  • Tennessee: Backpage won in this case, where the same basic law was attempted to be used against the publisher.
  • Washington: Backpage obtained an injunction here, too, along with attorney fees.

In all of these, the state attempted to criminalize conduct of a publication for the actions of the actual advertiser. The District Court in New Jersey was crystal clear on this, that an effort to hold the publisher criminally liable for the sexual mistreatment of minors was a clear infringement on the free speech rights of the publisher based on the content of the speech. At that point, the state threw in the towel and agreed to a permanent injunction.

In Chicago, the sheriff, Thomas Dart, went after Backpage, threatening the credit card companies used by advertisers to pay for the ads. The Seventh Circuit Court of Appeals shut that down. Judge Richard Posner pointed out:

The Sheriff of Cook County, Tom Dart, has embarked on a campaign intended to crush Backpage’s adult section—crush Backpage, period, it seems—by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution. Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal activities.[3]

The Court shut down Dart’s efforts, granting Backpage a permanent injunction. The Court stated that if Dart could prove criminal activity on Backpage’s part, that he could prosecute them for those crimes. No criminal charges have been filed. Dart just wanted to shut them down, in much the same way that Harris wants to shut Backpage down.

Backpage offers online advertising. Some of it is free, some of it is paid for. Much of it is obviously legitimate, such as ads for legal services. If you get arrested for DUI in Los Angeles, you can find a lawyer on Backpage. If you want a couch, you can find one in Chicago on Backpage. If you want an escort[4] in Austin, you can find one on Backpage.

But lets look at the above areas. If you hire a lawyer from Backpage, and you lose, do you have any recourse against the publisher for the performance of your attorney? Of course not. All Backpage did is provide the space for the attorney to advertise. If you bought the couch in Chicago, and it turned out to be stolen, is Backpage responsible? Are you able to go after them to get your $50 back? Of course not. Backpage isn’t involved in the actual transaction between you and the thief who sold it to you.

The same thing applies in prostitution. Exactly how was Ferrer to know that these were prostitutes? Even more than that, exactly how was he supposed to know that these were underage prostitutes? Beyond that, did Ferrer every have any actual contact with any of the alleged prostitutes that advertised with Backpage? Where is the proof that Ferrer knew that the individual with whom he interacted with was a prostitute? Without that knowledge, there can be no conviction for pimping, and Harris knows this (or should).

I looked at the Backpage ads. Many of the services advertised on Backpage are risqué. None overtly offer sex for money. At most, the ads say that the client will be “satisfied” or “happy.” And not a single ad I could find stated that the escort was “barely legal,” “teenage” or anything else that would indicate that she was underage.

What Harris is doing is akin to the old Mafia boss comment to a businessman.

“Nice little business you got here, mister. It’d be a shame if something were to happen to it, know what I mean?”[5]

She’s telling Ferrer that unless he does what she wants, she’s going to hurt him. It’s bad enough when gangsters do that. We don’t need our politicians to do so in an effort to look good for election. And we sure don’t need our top law enforcement attorneys doing it.

There’s pandering going on, all right. It’s just not Ferrer who’s doing it.

Rebuttal: I admire and respect my colleague, Josh Kendrick. He’s a good attorney, but he’s been assigned to the wrong side of this issue, so while he’s doing the best that he can with what he’s given, it’s just not enough to tip the scales.

Here, he’s arguing that Ferrer must have known. You know, that’s the same argument that Harris was making back in 2013, when others were going after Backpage and being slapped down by the courts, and when she wasn’t doing a single thing against the publisher. At that time, the Washington Post was describing how this anti-prostitution campaign could destroy free speech. The sole comment on that article says everything that needs to be said:
Only an ATTORNEY would want to hold SOMEONE liable for SOMEONE ELSES actions !! IDIOCY !!!
That comment was by a user named “fourbrri.” I don’t know that I have anything else to add to that. Harris wants to hold Ferrer responsible for someone else’s actions. It’s not appropriate.

[1] Harris is running to replace Sen. Barbara Boxer, who is retiring.

[2] 47 USC § 230.

[3] Backpage.com LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2015).

[4] No, I’m not going to post a link. If you want to see the ads, use Google.

[5] Blatantly stolen from Charles H. Green, Huffington Post, Nice Business You Got Here, Be a Shame if Something Happened to it….

3 Comments on this post.

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  • darin_stevens
    11 October 2016 at 10:58 pm - Reply

    Fantastic! I will add that the decision on Dart V Craigslist provided a similar opinion: Sheriff Dart may continue to use Craigslist’s website to identify and pursue individuals who post unlawful content. But, he cannot sue Craigslist for their conduct.

    Also, the issue of Southwest Companions answered the questioned of online brothels. The case involved a New Mexico internet platform. The judge decided that the forum was in fact not a place where prostitution was conducted; it was not a brothel despite Mrs. Harris’ wishes.

    At what point does the continued attack of internet platforms become malicious prosecution? At what point can the rescue industry and anti-trafficking lobbyists become exposed for the emptiness of their purpose. Craigslist shut down their adult section and the trafficking migrated to Backpage. If Backpage is shut down who will be the next platform? That is precisely why Section 230 exists.

  • darin_stevens
    11 October 2016 at 11:01 pm - Reply

    I would also like to add that Elizabeth Nolan Brown did a great three piece write-up of the WA State trafficking bust from January that wasn’t. It demonstrates the prosecutorial misconduct that is behind these acts, which is being driven by NGO’s like CEASE, Demand Abolition and other rescue orgs. This is driven not only by politics but 3rd party, faith based NGO’s financed by the Hunt Alternative Fund.

  • Despite Law & Sanity, Backpage’s Adult Section Falls
    14 January 2017 at 11:33 am - Reply

    […] in New Jersey, Tennessee and Washington for advertising the sex trafficking of a minor (Backpage won in 2014, 2012 and 2012 […]