A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional
charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly
protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris' "investigator" using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.
The execs are now hitting back -- as they should. They've asked the court to dump the case
with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn't even satisfy the requirements for "pimping," which is what they're charged with.
The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to
impose criminal liability on a website simply because it published and received fees for third-party
ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to
websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230.
Escort ads on Backpage.com are protected speech under the First Amendment, as several courts
have held. The AG cannot arrest, imprison and refuse to release individuals associated with the
website simply based on an investigator’s opinions about what he believes is “obvious” about
escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have
rejected the same tack time and again. The First Amendment also expressly precludes state
authorities from imposing criminal liability on parties that publish or distribute speech absent
proof of scienter, i.e., that the publisher knew the specific information published was unlawful.
The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959),
recognizing the First Amendment prohibits states from imposing criminal liability that would
require publishers to review all materials they distribute, because such a requirement would
severely chill speech.
More specifically, the AG’s theory expressly violates Section 230, which Congress enacted
twenty years ago to preserve and promote free speech on the Internet by immunizing website
operators from liability for publishing content provided by third-party users. Section 230
preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris
has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has
now commenced a prosecution to do precisely what she admits Section 230 prohibits.
That point about Harris "acknowledging" that Section 230 bars this lawsuit is a big one. It's based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230
to grant state AGs the ability to go after Backpage. We had written about this letter
three years ago when it was sent, but I had forgotten that it explicitly
called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew
it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:
after instance, State and local authorities discover that the vehicles for
advertising the victims of the child sex trade to the world are online classified
ad services, such as Backpage.com. The involvement of these advertising
companies is not incidental—these companies have constructed their business
models around income gained from participants in the sex trade. But, as it has
most recently been interpreted, the Communications Decency Act of 1996
(“CDA”) prevents State and local law enforcement agencies from prosecuting
these companies. This must change. The undersigned Attorneys General
respectfully request that the U.S. Congress amend the CDA....
Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?
Separately, the lawyers have sent a letter to Harris directly
reminding her of this and asking her to drop the case:
Ads posted on Backpage.com are protected by the First Amendment, as several courts
have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County,
Illinois and rejecting much the same theories that the State asserts here: “[A] public official
who tries to shut down an avenue of expression of ideas and opinions through actual or
threatened imposition of government power or sanction is violating the First Amendment.”
... The State cannot prosecute a publisher
for publishing speech with absolutely no showing that the speech was unlawful, much less
any allegation that defendants ever even saw the specific ads that are the basis for its
charges. As the Supreme Court has long recognized, states cannot punish parties that
publish or distribute speech without proving they had knowledge of illegality, as any other
rule would severely chill speech.
More specifically, Section 230 precludes the charges the State seeks to assert. As you
know, Section 230 bars state-law claims against websites and other interactive computer
services based on the publication of third-party content. A website cannot be held liable for
publishing content submitted by users or for failing to block or remove such content,
notwithstanding any allegations that it knew or should have known the content concerned
unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state
laws. Literally hundreds of cases have applied and underscored the broad immunity that
Section 230 provides and that Congress intended so as to avoid government interference—
especially by state authorities—that would chill free speech on the Internet.
Indeed, in July 2013, you and other state attorneys general signed a letter to various
members of Congress urging that Section 230 be amended to exempt state criminal laws
from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from
National Association of Attorneys General.... It is
troubling that the State is now pursuing a prosecution you admitted you have no authority to
Accordingly, the State should dismiss the complaint and all charges against Messrs.
Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.
Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn't care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.
Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.
In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.
Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her “perp walk” on the evening news. Arpaio didn’t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.
And, as Kamala Harris knows, it probably won’t even make the evening news.
Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She's yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can't stick? That's a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it's the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.