Lawsuits

The Battle Over Backpage.com Rages, Threatening Free Speech and the Internet as We Know It

Phoenix New Times co-founders and former Backpage.com owners Michael Lacey (left) and Jim Larkin, invoking their First and Fifth Amendment rights before a Senate panel on January 10.
Phoenix New Times co-founders and former Backpage.com owners Michael Lacey (left) and Jim Larkin, invoking their First and Fifth Amendment rights before a Senate panel on January 10. Permanent Subcommittee on Investigations

Page 2 of 2


Lacey jousts with reporters following his appearance before a Senate subcommittee investigating Backpage.
Stephen Lemons
Around 10 a.m. on a chilly Tuesday morning, Lacey, Larkin, Ferrer and two others — Backpage Chief Operating Officer Andrew Padilla and the company’s general counsel, Elizabeth McDougall — filed into a packed hearing room in Capitol Hill’s bland but functional Dirksen Senate Office Building to receive their punishment from the gloating pols, who sat on a wood-paneled dais, looking down upon them.

A scrum of journalists trained their cameras on the quintet, who would have looked more at home in a boardroom. Before being able to invoke their rights and exit stage left, the four men and one woman had to sit quietly and listen to these senatorial blowhards blow.

Portman crowed about Backpage’s shutdown of its adult section. “Backpage has not denied a word of these findings,” he said at the outset. “Instead, several hours after the report was issued yesterday afternoon, the company announced the closure of its adult section, claiming ‘censorship.’ But that’s not censorship, that’s validation of our findings.”

McCaskill, in her opening remarks, cast Backpage as “the market leader in selling sex online.” She then tried to clarify her point, insisting that Backpage is “a $600 million company built on selling sex, including sex with children,” a seemingly deliberate conflation of sex between consenting adults, prostitution, and child sex trafficking, a theme that persisted as the senators droned on.

At one point, McCaskill called Backpage’s policies “the definition of evil” and claimed that children were being sold into sex slavery via Backpage.

Republican Senator Steve Daines of Montana picked up on the slavery theme, offering as inspiration for the subcommittee the example of 18th-century English abolitionist William Wilberforce and the hymn “Amazing Grace,” written by a former slave trader.

Also on the dais was none other than the newly elected U.S. senator from California, Kamala Harris. She’s not a member of the subcommittee, per se, but instead was recently assigned a seat on PSI’s parent, the Senate Homeland Security and Governmental Affairs Committee. Previously, the PSI had praised Harris’ prosecutorial zeal in pursuing Lacey, Larkin, and Ferrer.

“To be clear, this is a crime,” Harris said of Backpage’s actions in running its adult section. “It is a crime that is rightly punishable by incarceration in prison, because of the nature of the harm to the victims and the outrageousness of the conduct that is predatory in nature.”

The panel of five Backpage witnesses was then sworn in by Portman, who advised them that they were free to invoke the Fifth Amendment, but warned that if they responded to any of the questions put to them, the subcommittee would consider that right waived. 

"To be clear, this is a crime … that is rightly punishable by incarceration in prison."— U.S. Senator Kamala Harris on Backpage's business practices.

tweet this


Portman and McCaskill did the questioning. At one point, Portman tried to trip up Ferrer by asking him to read a word from the list of Backpage’s verboten terms.

Ferrer paused, then replied as all of the witnesses did to the senators’ questions, with little variation:

“After consulting with counsel, I decline to answer your question based on the rights provided by the First and Fifth amendments.”

As each witness recited this, Lacey often gazed toward the ceiling. Larkin added a subtle stroke of rebelliousness by emphasizing the words “First Amendment” each time he spoke them.

Having absorbed their Senate shellacking, the five witnesses were dismissed. In the corridor outside the hearing room, Lacey bantered briefly with reporters as he made his way to the elevator, though he was proscribed by his attorneys from granting formal interviews.

When I asked his opinion on the hearing’s purpose, given that the subcommittee was fully aware he and the others would invoke their right not to speak, he smiled.

“Shame. Public shaming,” Lacey replied, adding, “What they don’t know is that I’m beyond shame.”

In the hubbub of the hearing and the aftermath of Backpage’s closing of its adult section, it was lost on most present that, also on January 9, the U.S. Supreme Court handed Backpage yet another win in federal court by denying an appeal of a 2016 ruling by the First U.S. Circuit Court of Appeals that upheld Section 230’s protections and Backpage’s right to exist.

Writing for the three-judge appeals court panel, Judge Bruce Selya laid out many of the arguments proffered by the subcommittee in its report and during the hearing. The suit was brought by three young women who, according to Selya, were trafficked on Backpage from 2010 to at least 2013 while underage and raped thousands of times.

The plaintiffs’ lawyers argued that because Backpage had censored certain forbidden words before publishing the ad, stripped metadata from accompanying photos, and accepted anonymous payments, it had forfeited its immunity under Section 230, which plainly states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker” of third-party content.

But the appeals court disagreed, referring to the law’s so-called “safe harbor” provision, which says that website owners cannot be held liable for “any action taken in good faith to restrict access to or availability of material” that the owner finds objectionable for any number of reasons, such as obscenity, lewdness, violence, and so on.

Congress had done this, writes Selya, in an effort to foster the growth of the internet and so that providers of online message boards, say, or newspaper comment sections, could not be sued for defamation because of something posted by a third party.

Through Section 230, Selya observes, “Congress sought to encourage websites to make efforts to screen content without fear of liability.”

Selya’s conclusion that Section 230 shields Backpage from state prosecution or civil liability is, by this time, black-letter law. Judges for the Ninth, Seventh, and other appeals court circuits have ruled similarly, and the U.S. Supreme Court has declined to review them. In fact, when Harris brought state criminal charges against Lacey, Larkin, and Ferrer last year, justifying that prosecution, in part, on the grounds that Backpage edited out words indicative of illicit sex, Bowman shot it down for similar reasons.

Responding to the claim from the AG that Backpage had edited and reposted its escort ads to other websites to make them more palatable, Bowman commented in his decision that the prosecution essentially was claiming that Backpage modified content to go from illegal to legal.

“Surely the AG is not seeking to hold Defendants liable for posting a legal ad,” wrote Bowman. “This behavior is exactly the type of ‘good Samaritan’ behavior that the CDA encourages through the grant of immunity.”

It’s no wonder that Silicon Valley is paying close attention to Backpage’s struggles over Section 230. Without that protection, Twitter could be held liable for supporting terrorists because of tweets made by followers of ISIS. Mark Zuckerberg could be sued for a libelous statement made on a user’s Facebook page. And various criminal acts — from fraud to murder — could rebound on Google if someone used Google Plus to plot them.

A screenshot from Backpage.com's Phoenix site on the evening of Monday, January 9, 2017.
Backpage.com screenshot

Yet there is another possibility when it comes to Backpage: federal criminal prosecution. In 2015, in an attempt to get around Section 230 and go after Backpage, Congress passed the Stop Advertising Victims of Exploitation Act, or SAVE Act, which makes it a crime to knowingly disseminate advertising that involves commercial sex acts or the sex trafficking of children or adults.

After it was passed, Backpage sued the government, seeking to invalidate the new law. The company lost, but according to Eric Goldman, a law professor with Santa Clara University and the co-director of that school’s High-Tech Law Institute, the listings leviathan scored a key interpretation of the law by the judge in Backpage v. Lynch, which establishes a higher level of what lawyers call scienter, or knowledge of wrongdoing, for publishers.

“In that case, the court laid out some really important parameters about the First Amendment limits of the SAVE Act,” Goldman says. “And those First Amendment limits are going to make it difficult, if not impossible, for the DOJ to win, if they ever choose to enforce the SAVE Act.”

But will Donald Trump’s presumptive U.S. attorney general, Alabama Senator Jeff Sessions, who has indicated that obscenity cases might be revved up under his tenure, go after Backpage if Portman and McCaskill forward the subcommittee’s report to him for further investigation?

“It wouldn’t surprise me if the DOJ decides it’s just not worth it,” says Goldman, who writes a go-to blog on law that affects the internet and tech companies.

Yet he admits that if Sessions goes after obscenity, he may also decide to go after ads offering sex services as well. Meanwhile, the online marketplace for such services continues.

Some of the escort ads on Backpage have already migrated to its personals section, just as happened on Craigslist when it eighty-sixed its adult section. And other, more direct websites, such as Eros.com, can expect a boost in business. 

Advocates for sex workers say Backpage’s decision will scatter those who advertised on the site’s adult section, perhaps into the encrypted nether regions of the dark web, where law enforcement will have difficulty identifying child sex trafficking victims.

But for Goldman, the most worrisome aspect of Backpage’s decision is the bad precedent it sets. “We have court rulings that Backpage is legal, and yet Backpage has exited the industry because of pressure placed on it by government actors,” he says.

“Whether we call that censorship or not, we should be extremely nervous that our government can [do this],” he adds. “That’s not an online prostitution ad problem. That’s a rule-of-law problem.”

E-mail [email protected].

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons