One of the great ironies of the federal government’s criminal pursuit of veteran newspapermen and former Backpage owners, Michael Lacey and Jim Larkin, is Backpage’s winning record in court. Prior to their 2018 arrests, federal and state judges repeatedly upheld the classified listings site’s legality and right to publish adult-oriented ads posted by users of the website, based on Section 230 of the Communications Decency Act (aka, the “CDA”) and the First Amendment’s guarantee of free speech.

Known as “the First Amendment of the internet,” Section 230 states that “[no] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The law allows a site to restrict or remove objectionable or illicit content, without losing its immunity for content posted by users.

Many commentators have noted that Section 230 protected Backpage’s right to publish and edit third-party adult content. But they often overlook that: a) the First Amendment also protected Backpage’s publication and editing of that content; and b) numerous federal courts ruled that was so, even when faced with the same sort of allegations the government made in its 2018 indictment.

In other words, Backpage’s owners had every reason to believe the site was operating legally—because federal and state courts repeatedly told them it was.

During seven years of litigation preceding the federal government’s indictment:

• Three different federal district judges struck down the laws of three different states (Washington, Tennessee, and New Jersey) that sought to criminalize Backpage’s publication of adult ads, with each judge holding that the law at issue was invalid under both the First Amendment and Section 230.
• The Seventh Circuit Court of Appeals held that Backpage’s publication of adult ads was protected by the First Amendment and Cook County Sheriff Tom Dart violated the First Amendment by threatening MasterCard and VISA, leading them to discontinue processing credit card charges for ads on Backpage.
• Two federal district courts dismissed civil lawsuits against Backpage, with the First Circuit Court of Appeals affirming one in a strongly worded opinion and the U.S. Supreme Court declining to review that decision.
• Two different California state court judges dismissed pimping charges against Lacey, Larkin, and Carl Ferrer based on Backpage’s publication of adult-oriented ads.

As Lacey’s attorney Paul Cambria has observed, all speech and press is presumptively protected by the First Amendment. The onus is on the government to prove otherwise.

Note: Lacey, Larkin, and Ferrer created the Backpage classified listings site in 2004 to recoup revenue lost to Craigslist.org, which decimated the print news business by giving most classifieds away for free. Till 2012, Backpage was part of Village Voice Media (VVM), a 17-paper chain of newsweeklies once owned by Lacey and Larkin. Lacey and Larkin sold Backpage to Ferrer, Backpage’s longtime CEO, in 2015.

Before the filing of the 2018 indictment, Ferrer cut a generous deal with the feds, allowing him to plead guilty to one federal count of conspiracy, as well as state counts in Texas and California, in exchange for his cooperation and likely testimony. He was allowed to keep a considerable portion of his assets, and he was promised that he would do no more than five years tops for the state and federal charges combined. Most observers believe he will do no time behind bars.

1) Backpage.com, LLC , et al. v. McKenna

Washington state passed a law, SB 6251, making it a felony to knowingly publish, or “directly or indirectly” cause to be published, an ad featuring a depiction of a minor and any “explicit or implicit offer” of sex for “something of value.” Ignorance of the age of the person depicted was not a defense. The only defense would have been to obtain and retain a record of the government or school-issued ID of the person depicted.

Washington supported its position with the declaration of a Seattle police officer who claimed he had reviewed escort advertisements on several websites, including Backpage, and saw what he maintained were “hundreds of advertisements for what appeared to be prostitution services.”

Backpage sued; in July 2012, U.S. District Court Judge Ricardo Martinez enjoined the law, ruling not only that Section 230 preempted SB 6251, but also that the statute ran afoul of the U.S. Constitution’s First Amendment and its Commerce Clause. Judge Martinez found the statute’s language unconstitutionally vague and overbroad, writing that “an advertisement for escort services may be just that.” Shutting down escort advertising or even requiring age verification, he wrote, would “likely chill protected speech in the course of doing so.”

Importantly, Judge Martinez rejected Washington’s argument that SB 6251 targeted only offers to engage in illegal transactions unprotected by the First Amendment, because, even if an ad was an offer to engage in an illegal transaction, the “third-party publication of offers to engage in illegal transactions does not fall within ‘well-defined and narrowly limited classes of speech’ that fall outside of First Amendment protection.”

In other words, Judge Martinez recognized that the First Amendment protects a publisher’s publication of a third-party’s ad even if the First Amendment does not protect the person posting the ad—a critical distinction seemingly lost on federal prosecutors.

2) Backpage.com, LLC v. Cooper

Inspired by Washington’s law, the Tennessee legislature passed a law with similar language. Backpage filed suit, and in March 2013, Judge John T. Nixon of U.S. District Court in Tennessee ruled that the law was likely preempted by Section 230 because it would impose liability on interactive computer services based on third-party content.

Tennessee defended the law with the affidavit of an agent from the Tennessee Bureau of Investigation claiming that Backpage was “known to be the primary source” of “paid advertising of child sex trafficking” and made “money selling advertisements that would appear to a reasonable person to be for the purpose of engaging in a commercial sex act with a minor.”

Judge Nixon found the law “likely violates the First Amendment’s scienter requirement” (scienter being legalese for “knowledge of wrongdoing”) because the law required “no actual knowledge of the age of anyone featured in the advertisement—nor d[id] it require that the person featured be a minor.”

The judge also found the statute likely violated the First Amendment because it was “substantially broader than required for its regulatory purpose to protect the health and safety of minors trafficked in Tennessee, and would likely include constitutionally protected speech,” because it “could impose liability for advertisements, notices, announcements and online postings that do not involve minors at all, or that appear suggestive without actually involving a paid-for sexual act.”

The judge noted that the law could apply to, say, a 25-year-old advertising as an escort and referring to herself as “barely legal” or advertising on a dating website using “coy and playful” language. Nixon also concluded that the law likely was “unconstitutionally vague and invalid on its face.”

Nixon wrote:

“The Constitution tells us that—when freedom of speech hangs in the balance—the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue.”

3) Backpage.com, LLC v. Hoffman

The third time was not the charm for New Jersey’s version of the above two statutes, A. 3352, which made it a crime if a person “knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor.”

Again, Backpage sued, and again, the law was enjoined by the federal court. In August 2013, Judge Dennis M. Cavanaugh of U.S. District Court in New Jersey noted the fate of the Washington and Tennessee laws, quoting Judge Nixon’s “butcher knife” paragraph. Predictably, Judge Cavanaugh found that the New Jersey act violated Section 230 “by imposing liability on [Backpage] for information created by third parties.”

Cavanaugh also found that the law likely violated the First Amendment on numerous grounds.  First, the judge found the law likely violated the First Amendment because it imposed strict liability on publishers, without scienter, as it required “no actual knowledge of the person’s age.”  The judge wrote: “While a state can bar unprotected speech, it cannot do so without a scienter requirement.”

Cavanaugh also held that the law was a “clear cut example of a content based restriction on speech” that could not survive the First Amendment’s “strict scrutiny,” because it was not “narrowly tailored to promote a compelling government interest.”

Finally, the judge found the law likely was both unconstitutionally “over broad as it criminalizes fully protected speech and unduly vague as it imposes severe criminal liability without providing reasonable notice of which speech is prohibited,” as well as likely transgressing the Commerce Clause. Strike three for state efforts to criminalize Backpage’s publication of adult advertising.

4) Backpage.com, LLC v. Dart

Sheriff Tom Dart of Cook County, Illinois, is an avowed foe of online adult ads. As mentioned above, Dart sued Craigslist in 2009 alleging that the site facilitated prostitution, but his suit ran smack dab into Section 230 and failed. Craigslist ended its adult section in 2010, making Backpage Dart’s new bull’s eye.

With Backpage, Dart took a different tack, writing letters to the credit card companies that processed Backpage’s transactions and demanding that they “immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com” as the ads might be for prostitution. Dart also threatened the companies with legal sanctions.

Spooked, the credit card companies stopped doing business with Backpage. Backpage then sued Dart, alleging his actions violated the First Amendment.

The case made it to the Seventh Circuit Court of Appeals, where, in November 2015, a three-judge panel, headed by eminent jurist Judge Richard A. Posner, issued a literal smack-down of Dart and enjoined the sheriff and his employees from coercing or threatening any credit card companies with the aim of stopping them from doing business with Backpage.

Posner found Dart’s threats not just “violations of the First Amendment,” but “a prior restraint”—“the quintessential first-amendment violation.” The judge rejected Dart’s claim that the First Amendment did not apply to Backpage because everything in its adult section was unlawful, with the following memorable passage:

Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the category ‘dom & fetish’ is for the services of a ‘professional dominatrix’—a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually . . . It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution. The district judge remarked ‘that the majority of the advertisements [in Backpage’s adult section] are for sex’—but a majority is not all, and not all advertisements for sex are advertisements for illegal sex. There is no estimate of how many ads in Backpage’s adult section promote illegal activity; we just gave examples of some that do not.

5) M.A., et al. v. Village Voice Media LLC

M.A., a 14-year-old runaway, was prostituted by a pimp, Latasha Jewell McFarland, who later pled guilty to sex trafficking. McFarland posted advertisements featuring photos of M.A. to Backpage, in violation of the site’s terms of service. M.A. later sued Backpage, seeking to hold the site liable for her victimization by McFarland.

M.A.’s lawyers claimed she was not suing Backpage based on the content of McFarland’s posts, but for “the creation and maintenance of a particular website.”

M.A. further claimed “no reasonable person could review” Backpage adult ads and “deny prostitution was the object of almost each and every ad,” but Backpage “did nothing to stop the ads from being posted and instead profited from such ads.”

Despite these allegations, U.S. Magistrate Judge Thomas C. Mummert, III of the U.S. District Court for the Eastern Division of Missouri dismissed M.A.’s claims against Backpage in August 2011, holding that M.A. had been injured by McFarland’s ads. Backpage did not create the content of those ads, and, therefore, under Section 230 Backpage was immune from liability for content of McFarland’s ads.

Mummert drew on several precedents, including a 2009 ruling by a U.S. District Court in Northern Illinois, Dart v. Craigslist, which held that Section 230 shielded Craigslist from claims the website facilitated prostitution. He also cited Doe v. MySpace, Inc. , in which the Fifth Circuit ruled that MySpace could not be found negligent for failing to prevent a 14-year-old from meeting a predator online.

6) Jane Doe, et al. v. Backpage.com LLC

Jane Does 1, 2 and 3 sued Backpage in 2014, alleging sex traffickers used ads on Backpage to facilitate their trafficking as minors.  U.S. District Judge Richard G. Stearns dismissed the suit, rejecting claims that Backpage’s moderation practices (including its use of automated filters) and its failure to verify the identity of users or the ages of escorts could make Backpage liable for the content of ads.

Judge Stearns wrote that, “singly or in the aggregate,” Backpage’s alleged practices “amount to neither affirmative participation in an illegal venture nor active web content creation . . . The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal.”

Judge Stearns also held that it is “well established that notice of the unlawful nature of the information provided is not enough to make it the service provider’s own speech.”

In March 2016, a three-judge panel of the First Circuit Court of Appeals, led by federal Judge Bruce M. Selya upheld the lower court’s dismissal of the case, rejecting the plaintiffs’ claims that Backpage allegedly designed its website to “facilitate sex traffickers’ efforts to advertise their victims on the website” and therefore should be liable.  Section 230 shielded Backpage from liability, the judges ruled.

The panel found that Backpage’s decisions concerning what words or phrases were or were not permitted on the site were “traditional publisher functions under any coherent definition of the term.” The panel held that “claims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by section 230(c)(1).”

The panel also rejected claims that Backpage failed to design its site to protect users, saying decisions about how the site operated (such as whether to verify users, whether to accept anonymous payment methods, etc.) “were no less publisher choices, entitled to the protection of Section 230.”  Moreover, the panel also rejected the plaintiffs’ attempts to impugn Backpage’s motives, ruling that“[w]hatever Backpage’s motivations, those motivations do not alter the fact that the complaint premises liability on the decisions that Backpage is making as a publisher with respect to third-party content.”

After finding the plaintiffs’ claims barred by Section 230, the First Circuit concluded by saying “Congress did not sound an uncertain trumpet when it enacted the CDA,” which was driven by “First Amendment values,” and any changes to the protections Congress provided to internet publishers had to be “through legislation, not through litigation.”

The plaintiffs appealed to the U.S. Supreme Court, but SCOTUS declined to review the case, allowing the dismissal to stand.

7) Backpage.com, LLC v. Lynch

Technically, the U.S. District Court for D.C. handed Backpage a loss in October 2016, finding that Backpage did not have standing to bring a pre-enforcement challenge to the federal Stop Advertising Victims of Exploitation Act, or SAVE Act, a Congressional effort targeting Backpage that made it illegal for individuals to advertise or benefit from advertising sex trafficking.

Backpage challenged the SAVE Act in federal court, arguing that it would chill First Amendment protected speech, was unconstitutionally vague and overbroad, could not withstand strict scrutiny under the First Amendment, and lacked sufficient scienter requirements.  (Scienter, also known as mens rea, is the intent to engage in criminal conduct—i.e. the “guilty mind” necessary to commit a criminal act.) Backpage argued that the statute did not use the constitutionally-required “knowingly” standard, but would allow a prosecution based on the lesser standard of “reckless disregard,” making the statute unconstitutional.

The government moved to dismiss Backpage’s suit for lack of standing, arguing that 1) Backpage failed to show a threat of prosecution under the SAVE Act and 2) the SAVE Act required a “‘knowing’ mens rea,” so a prosecution for advertising could not be based on evidence of reckless disregard.

Federal Judge Reggie B. Walton ruled that “the plain reading” of the statute did not support Backpage’s interpretation and that Congress intended “to exclude the act of ‘advertising’ from the mens rea standard of reckless disregard.” A conviction under the statute for advertising sex trafficking “requires a ‘knowing’ mens rea standard,” Walton wrote.

In his Technology and Marketing Law Blog, internet law savant Eric Goldman commented that “the court’s interpretation of the SAVE Act’s high scienter requirement (Backpage’s violation must be ‘knowing’) likely deters the DOJ from enforcing it any time soon.”

In fact, when the feds finally went after Backpage in 2018, they used another law that had been on the books for decades, the U.S. Travel Act.

8) Kamala Harris’ failed prosecution

In the fall of 2016, then-California Attorney General Kamala Harris was in a tight race for the U.S. Senate when she had Lacey, Larkin and Ferrer arrested on trumped-up “pimping” charges. The future Veep fought the trio’s release on bond, showcasing them for the TV cameras in orange jumpsuits, behind the bars of a jail cell in a Sacramento courtroom.

Harris knew she did not have the authority to bring state charges against the men for the content on Backpage. In 2013, Harris signed a letter to Congress along with 48 other state AGs, asking that Congress change federal law, specifically Section 230, to allow for Backpage’s prosecution under state statutes.

At a news conference announcing the arrests, Harris called Backpage “the world’s top online brothel.” Less than a month after the arrests, she was elected to the U.S. Senate.

Shortly after the arrests, the defendants moved to dismiss all the charges.  By November 16, California Judge Michael Bowman had issued a preliminary ruling on their motion to dismiss. Bowman said he did not need to undertake a “traditional First Amendment analysis,” but wrote that the First Amendment was implicated and its protections “were the motivating factors behind the CDA.” Bowman said the relevant question was “whether, and to what extent, Defendants’ activities entitle them to protection of their First Amendment rights through the immunity provision of the CDA.”

Bowman held that Section 230’s broad grant of immunity barred the state’s prosecution. He also rejected the state’s claim that Backpage’s receipt of fees for the placement of ads constituted deriving support from the earnings of another’s acts of prostitution, ruling that the statute did not apply to a person providing a legal service like advertising to a prostitute, even if paid from the proceeds the prostitute earned from prostitution.

On December 9, Bowman issued his final ruling, mirroring his preliminary judgment, tossing all the charges against all three men.

Undeterred, Harris refiled the pimping charges just before leaving office for D.C., tacking on a slew of questionable money laundering charges as well. In August 2017, a second California judge, Lawrence G. Brown, again tossed the pimping charges, as well as most of the money laundering counts.

Judge Brown allowed a few money laundering charges based on alleged bank fraud to stand, though Brown seemed skeptical of those charges, which were still pending when the federal government lowered the boom in April 2018, seizing Backpage, arresting Lacey and Larkin, and charging them with facilitating misdemeanor state prostitution offenses in violation of the federal Travel Act.

Although the bank fraud-related charges remain pending, California has not pursued the prosecution of those charges since the federal charges were filed.