Judge Tosses Charges Against Backpage Execs, Tells Kamala Harris To Take It Up With Congress

from the SENATOR-KAMALA-HARRIS...-thanks-2016 dept

California judge Michael Bowman hinted -- with a tentative ruling issued last month -- that he didn't think much of Attorney General (now US Senator)[ ಠ_ಠ ] Kamala Harris' grandstanding, misguided, First Amendment-damaging attempt to prosecute Backpage executives for pimping.

Not only did Harris pretend Section 230 immunization didn't exist, she actively fought to have the executives prosecuted for the actions of others. The twisted legal rationale deployed by Harris didn't win over Judge Bowman, who noted Backpage had, at best, republished third-party content. If Harris wanted site owners to be punished for third-party content, she would have to ask the nation's legislators to fix 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.

[Once again, Kamala Harris is NOW A US SENATOR.]

The judge rolled back a little of his pre-judgment, asking the state of California for more input before making his final decision. Harris' office took this opportunity to dump another 70+ pages of "damning" evidence into the judge's lap -- mostly internal emails that detailed how Backpage handled the aggregation of third-party content at two affiliated sites.

This wasn't persuasive. Judge Bowman stands by his original decision, leaving the above paragraph intact except for added emphasis on the last sentence. The court isn't here to fix legislation Kamala Harris doesn't like. That's up to Congress, an entity Kamala Harris is now unfortunately a part of.

The decision [PDF] reiterates Bowman's points: that what Harris is seeking to prosecute is actually protected by Section 230 immunity.

After considering the state's new evidence, Bowman concluded in a December 9 decision that "defendants have, at most, republished material that was created by a third party." The judge pointed out that California's declaration in support of the defendants' arrest warrant even stated that EvilEmpire.com ads were "essentially identical" to their Backpage.com counterparts. "This demonstrates republication, not content creation," and "republication is entitled to immunity under the CDA," wrote Bowman.

Judge Bowman did take a little time to call out Harris' disingenuous prosecutorial claims, focusing on the state's assertion, that moderation which removed illegal content was somehow an illegal act.

Assuming that the People's assertion is true; that the ad went from expressing intent to advertise prostitution to express a desire to 'date,' the People are essentially complaining that Backpage staff scrubbed the original ad, removing any hint of illegality. If this was the alleged content 'manipulation,' the content was modified 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.

With that, the criminal charges against the Backpage executives have been vacated and their bond nullified. And the court helpfully reaffirms Section 230 protections at a time where they've been under increasing attack in California courtrooms.

Filed Under: congress, free speech, kamala harris, section 230
Companies: backpage


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  1. icon
    Roger Strong (profile), 12 Dec 2016 @ 8:10am

    If the costs a successful defense had to be refunded by the state, there would probably be a lot less malicious persecutions by that state. More lawyers willing to defend against malicious persecution, with their paycheque guaranteed by a successful defense rather than depending on the client's ability to pay.

    Granted, there's all sorts of ways this sort of system could be abused for profit.

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