Judge Leaning Strongly Towards Tossing Pimping Charges Against Backpage Executives

Legal Issues

from the when-all-you-have-is-a-grandstand... dept

Because there doesn’t seem to be a politician out there that can interact with Backpages without grandstanding, the attorneys general of two states — California’s Kamala Harris and Texas’ Ken Paxton — combined forces to have company executives arrested on pimping charges.

The criminal complaint somehow tried to portray the fees charged by Backpage as profiting from prostitution. While it should have been explicitly clear Backpages was immune from prosecution thanks to Section 230, the two AGs decided to close their eyes, ears, and brains and press forward.

It’s likely nothing will come of this misguided prosecution — one that appeared to be instigated almost solely for the press it would generate, rather than for its legal merits. The California court handling the case has pretty much thrown the whole thing out.

It’s a tentative ruling that doesn’t have the full force of a published opinion behind it, but it does give the solid impression that any dreams of being able to prosecute site owners for third-party content will have to be taken to Congress, rather than local courts — though, the judge has said he’ll allow the parties to present more arguments before making a final decision. As it stands now, Section 230 prevents the sort of thing these two AGs are pursuing.

From the opinion [PDF]:

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 from the ad placement.

This does some pretty severe damage the state’s argument that charging for ads means profiting from sex trafficking. The last paragraph of the ruling similarly upholds Backpage’s Section 230 immunity, even as it moved content from site to site.

Here, the People allege that Defendants “created” content and are not entitled to immunity. However, on the face of the allegations, Defendants have, at most, republished material that was created by a third party. The People allege that the content was taken from ads placed by Backpage Escort users and posted onto EvilEmpire.com. The declaration in support of Defendants’ arrest warrant states that the ads placed in EvilEmpire.com were “essentially identical” to the ads placed by the third party on Backpage.com and that EvilEmpire was an “additional platform for Backpage Escort ads.” This demonstrates republication, not content creation. Republication is entitled to immunity under the CDA. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63.)

To make the charges stick, the state would have to prove that the Backpage actually participated in sex trafficking — something no one has even alleged at this point. Instead, those fighting Backpage have simply chosen to attack the most visible target, rather than those posting ads and/or exploiting underage prostitutes.

The ruling says there’s only one way to have the supposed immunity “problem” addressed and that’s to push Congress into doing something about it.

As stated above, 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.

No one should be in any hurry for Congress to take another look at Section 230 immunity. Right now, it does a very solid job protecting websites and social media platforms from the speech and actions of their users. Without it, the internet would be a much smaller, more-locked down venue for communication and nowhere near as useful for disseminating information. Anything Congress would do at this point would only harm it.

Politicians and prosecutors need to stop taking the easy route and go after those actually breaking the law. If cops want to track down sex traffickers and haul them to court, fantastic. But it does no one any good to pursue baseless pimping charges against site owners, rather than those actually engaged in criminal activity.

Filed Under: cda 230, intermediary liability, kamala harris, ken paxton, pimping, section 230
Companies: backpage