In an apparent rebuke of California Attorney General and U.S. Senator-elect Kamala Harris, a Sacramento judge has found in favor of the current CEO and two former owners of online classified site Backpage.com, granting a tentative ruling dismissing criminal charges against the three men on Wednesday, hours before oral arguments are to occur.
Sacramento County Superior Court Judge Michael Bowman was unconvinced by the prosecution's argument that Backpage CEO Carl Ferrer and former owners Jim Larkin and Michael Lacey knowingly profited from prostitution via adult ads on the site. Bowman ruled that Backpage did not create the ads and thus its owners are immune to prosecution under Section 230 of the federal Communications Decency Act (CDA).
Based on paid ads placed in Backpage's adult section, all three men had been charged in early October with conspiracy to pimp; additionally Ferrer faced nine counts of pimping, with five of those counts involving minors. If found guilty, Lacey and Larkin were looking at a possible punishment of six years in prison, Ferrer up to 21 years.
Lawyers for the three men moved for a dismissal of the charges in mid-October, claiming their First Amendment rights to publish had been violated and asserting that Section 230 grants them immunity from state criminal charges. Harris' office countered that the case was about conduct, not freedom of speech, and that Backpage had been expressly designed to profit from sexual exploitation, which made the defendants content creators, not merely publishers.
Though Bowman's final decision will not come until after oral arguments that are scheduled to occur this afternoon in his downtown Sacramento courtroom, the judge sided with the defense.
In the tentative ruling, he writes that California has "a strong and legitimate interest in combating human trafficking by all available legal means," and that "any rational mind would concur that the selling of minors for the purpose of sex is particularly horrifying and the government has a right and a duty to protect those most vulnerable victims."
But law enforcement has its limits, including the First Amendment and the CDA.
That legitimate state interest is not absolute, however, and must be constrained by the interests and protections of the First Amendment to the U.S. Constitution. In that vein, the United States Congress created the Communications Decency Act 47 USC section 230. The importance of the protection afforded by the First Amendment was the motivating factor behind the creation of CDA. Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit. [Emphasis in the original.]
Bowman didn't buy the prosecution's central contention: that the principals of Backpage acted as pimps.
California's pimping statute "does not apply to an individual who provides a legitimate professional service to a prostitute even if paid with proceeds earned from prostitution," he noted. Rather, the provider of the service garners income from his or her own services rendered, not the prostitute's.
"[T]here is no dispute that Backpage charged money for the placement of advertisements," Bowman wrote. "Does this qualify as services rendered for legal purposes? Given the services provided by the online publisher, the answer to that question is yes. Providing a forum for online publishing is a recognized legal purpose that is generally provided immunity under the CDA. This immunity has been extended by the courts to apply to functions traditionally associated with publishing decisions, such as accepting payment for services and editing."
Pointedly, the judge wrote that the prostitution that forms the basis of the state's case "took place as a result of an advertisement placed by a third party. Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility are all traditional publishing decisions and are generally immunized under the CDA. In short, the victimization resulted from the third party's placement of the ad, not because Backpage profiting [sic] from the ad placement."
The judge likewise rejected the prosecution's argument that because Backpage had allegedly reposted ads on two affiliated sites — EvilEmpire.com and BigCity.com — it had thereby become a creator of content, not just the content's publisher: "Republication is entitled to immunity under the CDA."
Attorneys for Lacey, Larkin, and Ferrer did not immediately reply to a request for comment.
Asked for a comment on the apparent smackdown, Kristin Ford, a spokeswoman for Kamala Harris, said the attorney general will issue a statement after the hearing.
In October, Harris held the defendants in jail for four days and opposed their release on bond, arguing unsuccessfully that any money they put up would be tainted by illegal activity.
Internet law expert Eric Goldman, a professor at Santa Clara University School of Law, co-director of the school's High Tech Law Institute, and the author of the well-respected Technology & Marketing Blog, tells New Times via e-mail that Judge Bowman's tentative ruling appears to be a big win for Backpage and "a stinging rejection of the AG's theories."
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But Goldman says he'd be surprised if the AG doesn't appeal the ruling.
It's "logical," he adds, that the court would reject the prosecution's arguments concerning EvilEmpire.com and BigCity.com; Bowman's ruling on that aspect "is completely consistent with Section 230 jurisprudence."
Read Sacramento County Superior Court Judge Michael Bowman's tentative ruling dismissing the criminal case against Backpage's former owners and current CEO: