California Attorney General Kamala Harris, a rising star in the Democratic Party, handily won election in November to become the Golden State's next U.S. senator, but her courtroom crusade against the online-classifieds giant Backpage.com is a nonstarter.
Late Friday afternoon, Sacramento County Superior Court Judge Michael Bowman issued his final decision, dismissing criminal charges against Michael Lacey and Jim Larkin, the co-founders of Phoenix New Times, and Backpage CEO Carl Ferrer. In 2012, Lacey and Larkin sold New Times' parent company to longtime company executives. Though Lacey and Larkin say they sold their interest in Backpage in 2014, Harris had charged all three men with one count of conspiracy to pimp and hit Ferrer with nine additional counts of pimping, five of those involving minors.
In his ruling, Bowman reaffirmed a tentative decision he made on November 16, finding that Section 230 of the federal Communications Decency Act of 1996 (CDA) shields the defendants from prosecution for content created by a third party. At times the judge used language almost identical to that of his earlier decision, right down to the boldface he deployed in the final sentence.
"Congress has precluded liability for 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," Bowman writes in Friday's ruling. "Congress has spoken on this matter and it is for Congress, not this Court, to revisit." [Emphasis in original.]
Harris had all three men arrested in early October on the shaky legal theory that they could be held accountable for ads placed in Backpage's "adult" section for body rubs, escort services, strippers, and the like, which allegedly led to acts of prostitution. The AG had to have known she was on unstable ground; in 2013, she was one of 47 state attorneys general who asked Congress to amend the Section 230 to allow local prosecutors to take on Backpage. By signing that letter, she acknowledged that she lacked the authority to bring charges against the company's current and former executives.
Perhaps she was distracted by — or inspired by — her campaign to replace California's junior senator, Barbara Boxer. Though Harris was way ahead in the polls in October, her prosecution of the Backpage Three dovetailed nicely with one of her priorities in office: combating "human trafficking," a term that is often conflated with prostitution involving consenting adults.
If there were a third-strike law for prosecutors, Harris would be out. In October, she sought to deny bail to the Backpage defendants, presenting the trio in orange jumpsuits as they stood before Bowman in a jail cell located in the courtroom. The news cameras ate it up, but Bowman didn't bite: Ferrer was released on a $500,000 bond, Lacey and Larkin on bonds of $250,000 apiece.
In a hearing held a few hours after Bowman issued his tentative ruling on November 16, attorneys for the AG's office asked the judge to allow them to offer additional arguments and evidence that they said would show that Backpage had crossed the line into creating content rather than publishing or aggregating material supplied by third parties, which might make them liable for criminal conduct. Over the objections of the defense, Bowman granted the request.
On November 28, Harris filed a 74-page supplemental brief, contending that because Backpage had repackaged content from its adult section on two sister sites — EvilEmpire.com and BigCity.com (the latter is also an app) — it did not fall under Section 230's immunity provision. Essentially, the AG's main argument boiled down to this: In exercising some editorial control in choosing what information and photos from Backpage's adult ads to republish, the defendants had become content providers, who are not exempt from civil and criminal liability under the CDA.
Prosecutors alleged that the defendants designed Evil Empire as an escort phone number directory, featuring provocative pics of female advertisers and their phone numbers, along with a link to the original Backpage ad that provided the content. This was a way to improve Backpage's search results and, according to the AG, increase Backpage's "prostitution-related revenue."
As for Big City, the supplemental brief alleged that it was designed as a dating site for Backpage escort users, which Backpage reps also pitched as an app to Apple's App Store. Company emails that are offered in exhibits to the brief show that the App Store initially rejected the Big City app as too sexually explicit.
As a means to an end, the brief argues that Big City stripped explicit content to "conceal the illegal nature of the original ads." This involved the use of more "wholesome" photos and making the site and app seem like just another dating site by dividing profiles into three categories: "Interested in Men," "Interested in Women," "Interested in Everyone." In doing so, prosecutors stated, the defendants created new content not protected by Section 230.
Prosecutors also argued in their brief that by republishing Backpage content on the other two sites without the knowledge of the original posters, Backpage violated its customers' privacy and intellectual-property rights.
In their response to the prosecution's brief, defense attorneys for the firm Davis, Wright, Tremaine countered that "the AG does not get it," noting that the judge had rejected the content-creation argument in his tentative ruling. "The AG cannot cast defendants as 'content creators' simply because they designed and launched websites," they wrote. "[I]f that were the rule, Section 230 would be a dead letter."
Indeed, Congress created Section 230 in order to allow innovation to flourish online. If interactive sites could be held accountable for everything their users post, the internet as we know it would cease to exist.
That's not hyperbole. For example, one federal lawsuit filed in California attempted to hold Twitter accountable for its use by ISIS terrorists. Citing Section 230, sometimes described as the CDA's "safe harbor" provision, a judge dismissed the complaint.
But judges in other jurisdictions have made rulings adverse to Section 230, tearing holes in the blanket of immunity the law offers websites.
"[C]ourts have repeatedly held that an online service provider is protected whether he publishes third-party content for the first time, or republishes it for the nth time," Bowman wrote. "To find the source of the liability for the unlawful or actionable content, one must trace the pedigree of the statement."
Bowman rejected the prosecution's contention that the defendants had created new content by manipulating or sanitizing content to "pre-populate" Big City with profiles. The judge stated that reformatting original content is a traditional editorial function. As for removing explicit content, Bowman noted the irony: essentially, the AG was arguing that the defendants had modified ads to go from being illegal to legal.
"Surely the AG is not seeking to hold defendants liable for posting a legal ad; this behavior is exactly the type of 'good Samaritan' behavior that the CDA encourages through the grant of immunity," the judge wrote.
As for the charges against the men for pimping under the theory that they had profited from prostitution, Bowman deemed it irrelevant that Backpage profits by charging for adult ads. Any "victimization" was the result of a third party placing the ad in the first place, not Backpage's fee or subsequent republication.
Immediately following the ruling, the Attorney General's Office released a statement quoting Harris as "extremely disappointed" with Bowman's ruling and insisting that the CDA does not protect "online brothels." She reiterated her allegation that the defendants personally created and published content that was used to pimp and traffic victims, and promised that her office was "exploring all legal options," which might include an appeal.
"I remain undeterred in my commitment to fight human trafficking and pursue every avenue under the law to hold them accountable," Harris said in the statement. "We will not turn a blind eye to the defendants' exploitative behavior simply because they conducted their criminal enterprise online rather than on a street corner."
When New Times reached out to Lacey for a response to Harris' comments, the paper's former executive editor emailed the following:
"Our arrest and jailing by California Attorney General Kamala Harris was a political stunt she executed in front of television cameras. Her self-righteous statement continues to ignore the U.S. Constitution, Congressional intent, and statute, as well as Judge Michael Bowman's ruling. She knows best. This level of arrogance should serve her well in the swamps of Washington, D.C., where she is headed."
Read Judge Michael Bowman's final ruling in the Backpage case:
Read the defense's response to the California Attorney General's supplemental brief in the Backpage case:
Read the California Attorney General's supplemental brief in the Backpage case: