Stephen Lemons Column

Liberal Fascism Checked: California Attorney General's Backpage Prosecution Hits a Roadblock

You know you’re in blue country when you see dudes hanging on a city corner in the middle of the day, within a stone’s throw of the county jail, smoking spliffs.

Granted, this was Sacramento, capital of one of the bluest of blue states, where Hillary Clinton bested our now president-elect, Donald Trump, by a two-to-one margin. On November 8, California voters also overwhelmingly approved the legalization of marijuana for recreational purposes, which likely explains the cavalier smokers I saw while walking through the heart of the city last Wednesday.

The local headlines portrayed a liberal nirvana. Old-school Democratic governor Jerry Brown was facing a strike by a government union whose members didn’t think his proffered 12 percent raise was high enough, and 300 protesters had demonstrated in downtown Sacramento against the Dakota Access Pipeline during a nationwide day of action.

A similar demonstration in Phoenix – a city three times the size of Sac-town – reportedly drew a crowd half that size. Maybe more people here have to work for a living.

But when it comes to freedom of speech, so-called progressives can be just as censorious as right-wingers. In fact, that lefty hunger for censorship is what brought me to Sacramento on November 16, to catch a hearing in the Backpage case against that company’s CEO, Carl Ferrer, and the former owners of this paper, Jim Larkin and Michael Lacey, who at one time co-owned Backpage with Ferrer.

As I outlined in this space last week, Lacey, Larkin, and Ferrer were arrested in early October on charges related to pimping, in connection to ads placed in the online classified giant, founded in 2004 as a competitor to Craigslist.

When Craigslist dumped its adult ad section in 2010, the listings for body rubs, escorts, and the like migrated to Backpage, which now has classified sites geared to more than 800 cities worldwide. Though the website features listings for all manner of more mundane goods and services, it is the adult section — placed by advertisers who tout themselves as “Young, chocolate and flirty” or “Big booty blonde,” among other attributes — that have captured the attention of politicians and prosecutors from both ends of the political spectrum.

The arrests of the Backpage Three brought together unlikely bedfellows in the person of California Attorney General Kamala Harris, who on November 8 was elected to a U.S. Senate seat, and Texas Attorney General Ken Paxton, a Tea Party Republican. Paxton had Ferrer, 55, arrested in Houston and extradited him to the Golden State, where Harris charged him with nine counts of pimping plus one count of conspiracy to pimp, all felonies. Faced with that same conspiracy charge, Larkin, 67, and Lacey, 68, turned themselves in.

Alleging that the defendants had conspired to create and profit from the world’s “top online brothel,” Harris fought their release on bond. After four days in jail, the Backpage Three were brought before Judge Michael Bowman — while caged in a jail cell located within the courtroom and dressed in orange jumpsuits.

Theatrics notwithstanding, Bowman rejected Harris’ contention that any bail money the defendants might cough up would come from ill-gotten gains and freed the three men on bond.

That was the first bad sign for Harris’ witch hunt.

Though a press release heralding the charges against the Backpage Three reeked of moral indignation, accusing the defendants of “[r]aking in millions of dollars from the trafficking and exploitation of vulnerable victims,” what Backpage actually does is far more prosaic: Users post their own ads; in order to be listed in the adult section, they must pay a fee.

Attorneys for the defense filed a motion to dismiss the charges, arguing that Ferrer, Lacey, and Larkin are protected both by the First Amendment and by Section 230 of the federal Communications Decency Act of 1996, which says that, with few exceptions, owners and operators of interactive websites cannot be held criminally or civilly liable for content created and posted to their sites by third parties.

Harris ought to know all about Section 230: In 2013, she was one of 47 state attorneys general who unsuccessfully petitioned Congress to change the law to allow them to go after Backpage.

But perhaps she needed a refresher.

On the morning of November 16, hours before oral arguments were set to begin on the defense’s motion to dismiss the case, Judge Bowman issued a seven-page tentative ruling that would throw out all the charges.

In Section 230, Bowman wrote, “Congress struck a balance in favor of free speech” by not holding online publishers liable for the transgressions of third-party content.

“Congress has spoken on this matter, and it is for Congress, not this Court, to revisit,” he wrote.

The tentative ruling rendered the subsequent hearing anticlimactic. Attorneys for the state asked the judge to allow them to submit a brief that would prove the defendants were involved in creating content, not simply allowing its publication.

The request seemed odd, given that Bowman appeared to have rejected that line of argument in his tentative ruling, in which he wrote that Backpage’s reposting of ads on its affiliate sites EvilEmpire and BigCity amounted to republication, and “[r]epublication is entitled to immunity under the CDA.”

Attorney James Grant spoke on behalf of the Backpage Three, objecting to further delay and pointing out that the charges against his clients were purportedly the result of a three-year investigation, and by asking to submit another briefing, Harris was “taking another shot at it.”

Bowman deferred to the attorney general, explaining that his tentative ruling represents his reading of the statutes and relevant case law.

“It’s a complicated issue,” said the judge. “I want to get it right.”

Bowman set a deadline of November 28 for Harris to present additional arguments, and December 5 for the defense to respond. He intends to issue a ruling by December 9.

Of the defendants, only Lacey was present. On the advice of his counsel, he had little to say to reporters after the hearing.

“We’re happy with the ruling,” he told the press outside the courtroom. “We obviously believe that Kamala Harris doesn’t know what she’s talking about. And we wish her luck in the U.S. Senate.”

Even if the Backpage Three are spared any further ado, Harris got her public perp walk out of them, not to mention four days in the county lockup for the crime of being publishers.

As our “free” country prepares to embark upon four years under President Donald J. Trump, Harris ought to serve as a reminder that abusing one’s authority and trampling upon the First Amendment are not the sole province of the far right.

Even liberals in a liberal land can cop a fascist line.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons