McCain, Flake Join Epic First Amendment Battle Versus Backpage.com

McCain, Flake Join Epic First Amendment Battle Versus Backpage.com
Backpage.com screenshot/New Times photoillustration

The campaign to crack down on Backpage.com as a conduit for trafficking underage sex workers cranked up again on Thursday, promising to become the free-speech battle of our time, some experts say.

Arizona Senators John McCain and Jeff Flake joined 18 lawmakers to unveil the Stop Enabling Sex Traffickers Act, which takes direct aim at the controversial website.

The bill, they said, was the natural offshoot of a two-year Senate investigation of Backpage, which was highlighted by hearings involving founders (and former New Times owners) Michael Lacey and James Larkin and culminated in a scathing report.

The proposed legislation, introduced Tuesday, would amend the key Section 230 of the Communications Act of 1934, to allow prosecutors to go after publishers of sex-trafficking ads.

Senate investigators accuse Lacey and Larkin of knowingly accepting money for ads selling underage girls for sex, and making hundreds of millions of dollars on the unseemly trade.

Lacey and Larkin have argued the First Amendment insulates them from prosecution because they only published the ads, they didn’t create them or sell the illicit service.

An attorney representing Backpage declined comment, saying he was not authorized to discuss the bill.

Lacey and Larkin did not immediately respond to requests for comment.

However, the American Civil Liberties Union, in anticipation of the bill, wrote that it was “understandably concerned” by a bill “that would result in severe unintended consequences for free speech online.”

“Why should we care? After all, this stuff is unsavory, and trafficking is about as evil as it gets,” the ACLU wrote. “The short answer is because the bill would unintentionally shut down lawful speech.”

Lacey and Larkin co-founded Phoenix New Times than 40 years ago, but sold it in 2012 to company insiders. They sold their interests in Backpage.com in 2014.

The language of the bill  would “amend the Communications Act of 1934 to clarify that section 230 of that Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sex trafficking.”

The bill says a 1996 change to the act, called the Communications Decency Act, “was never intended to provide legal protection to websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims,” adding that the proposed change now “is warranted to ensure that section does not provide such protection to such websites.”

Arizona’s senators had some choice words for Backpage in a prepared statement.

"Sex trafficking is a deplorable crime and companies like Backpage.com that knowingly facilitate it are reprehensible. Congress needs to act to hold these criminal actors liable for their victimization of innocent women and girls. I thank my colleagues for working together to introduce this important legislation, and I look forward to its swift passage," said Flake.

Added McCain, "For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls. It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us."

But First Amendment and technology rights advocates cringed at changes to the communications act.

In January, Sophia Cope wrote for the Electronic Frontier Foundation, “Any changes to Section 230 itself, to make it easier to impose liability on companies for user-generated content, would be devastating to the web as we know it — as a thriving online metropolis of free speech and innovation.”

“Section 230 is not some clever loophole, but rather a conscious policy decision by Congress to protect individuals and companies who would otherwise be vulnerable targets to litigants who want to silence speech to which they object,” she added.

The group, EFF, has filed legal briefs in support of Backpage.

“EFF and other civil liberties organizations are all too familiar with the fact that First Amendment rights are often championed by those accused of disseminating unpopular or harmful speech. And when First Amendment rights are weakened for one unsavory person or entity, First Amendment rights become weakened for everyone,” Cope explained.

The ACLU argues that lawful and responsible website owners will fear being painted with the broad brush as underage sex-traffickers and will excessively self-censor.

“Crucially, this bill won't just permit an anti-Backpage crusade. It'll apply to any website where you might potentially find prostitution ads, including Tinder, Grindr, OkCupid, Plenty of Fish, and even Twitter, Facebook, Tumblr, and, yes, the supposedly reformed Craigslist,” the ACLU said.

Backpage.com has taken down its adult-ads section.


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