Latest Backpage Lawsuit by Sojourner Center Offers More of the Same Losing Legal Arguments

Former Backpage owners Michael Lacey and Jim Larkin, refusing to testify before the U.S. Senate's Permanent Subcommittee on Investigations, invoking their First and Fifth Amendment rights under the Constitution.
Former Backpage owners Michael Lacey and Jim Larkin, refusing to testify before the U.S. Senate's Permanent Subcommittee on Investigations, invoking their First and Fifth Amendment rights under the Constitution.
Coincidence likely plays no part in the timing of the latest lawsuit against the online listings giant by the Phoenix domestic violence shelter Sojourner Center.

The complaint was filed Tuesday in Arizona's U.S. District Court, within 48 hours of an arraignment in Sacramento County Superior Court for former Backpage owners Michael Lacey and Jim Larkin and current Backpage CEO Carl Ferrer, on charges of pimping and money laundering.

Using information gleaned from a report issued in early January by the U.S. Senate's Permanent Subcommittee on Investigations — which alleged that Backpage knowingly facilitated online sex trafficking — the suit claims Sojourner Center was harmed because it had to care for women and minors bought and sold on Backpage's now-shuttered adult section.

As a result, the lawsuit states that "significant resources, time, staff and funds" were "diverted and drained" from Sojourner Center's core mission of helping victims of domestic violence. The complaint also alleges that Backpage engaged in a criminal RICO conspiracy with actual pimps to profit from the illicit sex trade.

In doing so, the complaint traverses well-worn legal ground, proffering arguments that have been shot down, time and again, by state and federal courts. It's one of a number of new lawsuits brought against Backpage in several states, using the aforementioned senate subcommittee report as support for their claims.

The gist of these lawsuits is the same as the long parade of those that have come before: That Backpage is responsible for ads posted on its erstwhile adult section that led to coerced acts of prostitution involving both adults and children, which activists and politicians now refer to almost exclusively as human trafficking.

There are many problems with this tack. On Backpage's adult section — part of a larger online, Craigslist-like marketplace — advertisers offered everything from escort services and body rubs to foot worship and bondage and discipline, all of which are perfectly legal within certain bounds when they occur between consenting adults.

More importantly, both state and federal courts have consistently held that Section 230 of the federal Communications Decency Act of 1996 offers immunity from both civil and state criminal liability for third-party content posted on interactive websites such as Backpage.

Section 230 explicitly states that the provider of an interactive platform like Backpage cannot be treated as "the publisher or speaker" of third-party content. Also, the law has a safe-harbor provision for website owners who attempt to police their sites, by restricting access or availability of "material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."

Based on Section 230, in early December, Sacramento Judge Michael Bowman tossed criminal charges against Lacey, Larkin and Ferrer that had been brought two months before by former California Attorney General and now-U.S. Senator Kamala Harris.

In his final decision, Bowman concluded that through Section 230, Congress "precluded liability for online publishers for the action of publishing third party speech," and that it was "for Congress, not this Court, to revisit."

Harris, who was still California AG at the time, refiled the pimping charges a couple of days before Christmas, tacking on 27 counts of money laundering. The three men will be arraigned Thursday on these charges before another Sacramento judge.

Still, the new charges are based on the same, oft-defeated legal theory: that Backpage is responsible for the third party posts. As in the Sojourner lawsuit, the prosecution contends there is a plethora of evidence showing Backpage's culpability, because Backpage reposted content to other sites it owns and because it forbade the use of certain words by advertisers, such as "lolita," "young," "barely legal," and "teen."

Interestingly, the lawyer who filed this lawsuit, New York attorney David Boies — famous for being on the losing side of the 2000 Bush v. Gore Supreme Court ruling — is aware that the anti-Backpage arguments have failed before.

Last year, on behalf of the Sojourner Center, Senator John McCain's wife Cindy McCain and others, Boies filed an amicus brief with the U.S. Supreme Court, pleading with it to take up an appeal of a First Circuit decision that held Backpage is protected by Section 230's blanket of immunity.

But on January 9, the same day that Backpage closed its adult section in the United States, labeling it "censored" less than 24 hours before a hearing on Backpage by the permanent subcommittee, the Supreme Court declined to review Jane Doe, et al. v., letting stand the lower court's decision.

That lawsuit out of Massachusetts originally was seen by Backpage's foes as the best chance of getting a case involving Section 230 to the Supreme Court, and, in fact,  almost all of the arguments against Backpage in the recent Sojourner suit were addressed in Jane Doe.

However, the First Circuit decision rejected all of these arguments, as have other appellate court rulings, noting that the ads in question were either posted by the alleged victims or their traffickers. Without approving of Backpage's business model, the court declared that the letter of the law was firm.

"Congress did not sound an uncertain trumpet when it enacted the CDA," the court concluded, "and it chose to grant broad protections to internet publishers."

Any remedy for the plaintiffs, the court stated, would have to be "through legislation, not through litigation."

Backpage's attorneys could not be reached for comment, as they all seem to be en route to Sacramento for tomorrow's hearing. Section 230's protection of Backpage is well-established, but the website's enemies seem content, for the time being, to inflict death by ten-thousand duck bites, as one court comically referred to it.

There remains the possibility that the U.S. Justice Department under President Trump's pick for Attorney General Jeff Sessions might try to go after Backpage for violations of federal criminal statutes, against which Section 230 does not protect.

After the PSI hearing in January, where Lacey, Larkin and others caught up in the Backpage brouhaha refused to testify based on their First and Fifth Amendment rights under the Constitution, Senator Rob Portman of Ohio, the PSI's chairman, signaled that he might refer the matter to the DOJ for possible prosecution.

If so, Backpage may be facing a whole new ball game.

(Note: Michael Lacey and Jim Larkin are co-founders of Phoenix New Times, and former owners of the alt-weekly chain Village Voice Media, now Voice Media Group, which they sold in 2012 to company executives.)