THE FOLLOWING REPRESENTS THE OPINIONS OF THE AUTHOR AND NO ONE ELSE.

Amid the media frenzy to anoint Vice President Kamala Harris as President Biden’s successor, it’s worth remembering certain inconvenient facts: i.e., hype aside, Harris was not a “progressive prosecutor”; as San Francisco’s DA, she backed a regressive truancy law and oversaw more than 1,900 convictions for marijuana-related offenses; as Cali’s Attorney General, she looked the other way at police corruption and refused to open an investigation into cops caught sexually exploiting a minor; and she cut a sweetheart plea deal with a Dem accused of being a serial sexual harasser.

Harris also has been no friend of the First Amendment. Some progressives may agree with her illiberal call in 2019 for Twitter to deplatform President Donald Trump, but her vote in favor of the deadly, pro-censorship law FOSTA/SESTA and her crusade against the classified listings giant Backpage.com should have them re-examining Harris’ support for a moral panic that led to the censoring of 1A-protected speech.

In 2019, after an interview with The Root, news headlines screamed that Harris supported the decriminalization of sex work between consensual adults, but what she seemed to describe was a regime in which the government stopped “arresting these prostitutes” and went after “the johns” instead. That’s the definition of what’s referred to as “the Nordic model” by sex worker rights advocates, not true decriminalization.

In the same interview, Harris defended her support for FOSTA/SESTA, a federal law that created an exception to the grant of internet immunity known as Section 230, making the “promotion or facilitation of prostitution and reckless disregard of sex trafficking” a crime.

Politicians claimed FOSTA/SESTA was needed to go after websites like Backpage and to combat sex trafficking. But that was the proverbial Big Lie. FOSTA/SESTA was signed into law by President Trump on April 11, 2018, but in an orchestrated move, the U.S. Department of Justice seized and destroyed Backpage just days before on April 6.

Ex-Backpage owners and renowned journalists Michael Lacey and Jim Larkin, and four others, were arrested, in part, for multiple alleged violations of the U.S. Travel Act, a Kennedy-era law that makes it illegal to use a mechanism of interstate commerce to facilitate a business enterprise engaging in certain illegal acts in violation of state laws, such as prostitution.

The takedown of Backpage and the passage of FOSTA/SESTA led to widespread self-censorship on the internet, effectively silencing a whole swath of adult-themed speech online that websites feared could get them indicted criminally, regardless of its legality.

For at-risk women and children, the effect of this double-whammy was disastrous. Secret DOJ memos from 2012 and 2013 published by Reason magazine showed that Backpage was enormously cooperative with state, federal and local law enforcement in helping to rescue victims and prosecute their abusers.

According to a 2021 report from the U.S. Government Accountability Office, “the FBI’s ability to identify and locate sex trafficking victims and perpetrators was significantly decreased following the takedown of backpage.com.” Adult listings fled to websites headquartered overseas, beyond the reach of U.S. subpoenas and warrants, significantly impairing the ability of U.S. law enforcement to rescue sex trafficking victims and bring cases against sex traffickers.

Worse still, the feds’ Backpage takedown and the passage of FOSTA/SESTA drove sex workers into the arms of traffickers.

A survey of 260 sex workers by COYOTE-RI, the Rhode Island chapter of the venerable pro-sex worker organization, Call Off Your Old Tired Ethics, found that 45% of participants “reported an increase in recruitment by pimps.” It also found that 55% “reported feeling pressured to agree to acts with which they were not comfortable.”

FOSTA/SESTA also robbed sex workers of the ability to screen clients and keep blacklists of dangerous individuals, important guardrails given that sex workers have historically been the preferred victims of serial killers and other violent predators.

The COYOTE study observed that the term “sex work” casts a wide net. “Sex workers include cam models, strippers, exotic dancers, phone sex providers, pornography performers, fetish providers, and online content providers,” the study said. “These activities are legal and have no relation to sex trafficking.”

Kamala’s War

Harris’ pursuit of Backpage as California Attorney General was self-serving, uniquely rotten and so disingenuous that one wonders how she avoided the fate of rogue prosecutors such as Mike Nifong and Andrew Thomas.

In 2013, Harris joined scores of other state Attorneys General in calling on Congress to amend Section 230 of the Communications Decency Act to allow state AGs to prosecute Backpage. In a letter to Congress, the AGs falsely accused Backpage of “advertising the victims of the child sex trade,” writing that “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.”

But in Oct. 2016, as Harris was in the final stages of a tough race to succeed California’s outgoing U.S. Senator Barbara Boxer, the Cali AG tossed the law aside, indicting Lacey, Larkin and the man they sold Backpage to in 2015, Carl Ferrer, on pimping charges, alleging the three men had derived proceeds from prostitution due to ads placed by third parties on Backpage.

Harris announced the indictments one month before the general election, labeling Backpage “the world’s top online brothel” and accusing the company of complicity in sex trafficking. Lacey, Larkin and Ferrer were arraigned as they stood in a jail cell located in a Sacramento courtroom, wearing orange jumpsuits, as local TV stations filmed the proceedings for the evening news.

But one week after Harris was elected U.S. Senator, Sacramento County Superior Court Judge Michael Bowman tentatively rejected the prosecution’s theory of the case, pointing out that though the state of California had “a strong and legitimate interest in combating human trafficking by all available legal means,” that interest was limited.

Bowman wrote:

That legitimate state interest is not absolute, however, and must be constrained by the interests and protections of the First Amendment to the U.S. Constitution. In that vein, the United States Congress created the Communications Decency Act 47 USC section 230. The importance of the protection afforded by the First Amendment was the motivating factor behind the creation of CDA. Congress struck 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.

Bowman later confirmed his tentative ruling, tossing all charges against the defendants. Not to be undone, at the end of December 2016, just as she was leaving the state AG’s office for Washington, DC, Harris refiled the pimping charges against the three men, tacking on dozens of other counts involving pimping, fraud and money-laundering.

Not only had Harris brought her original prosecution knowing the law did not allow her to do so — a clear breach of her ethical obligations as a prosecutor — she doubled down after a judge told her she was barred by law from pursuing the criminal complaint.

Inevitably, all of the pimping charges and most of the financial crimes were thrown out by a second judge in August 2017. By then, Harris was ensconced in Washington, having effectively used the Backpage case to help her achieve higher office.

The two California state court rulings were not outliers.  Throughout Backpage’s existence, federal courts consistently upheld the site’s right under the U.S. Constitution to publish adult advertising, including striking down three state laws that sought to criminalize Backpage’s publication of adult ads.

One ruling in Backpage’s favor was particularly perceptive. Written by noted Seventh Circuit Appellate Court Judge Richard Posner, the 2015 decision addressed Cook County, Illinois Sheriff Tom Dart’s threatened prosecution of credit card companies that continued to do business with Backpage.

Posner ruled that Dart’s threat violated the First Amendment, rejecting the sheriff’s claim that all the adult ads on Backpage related to illegal activities.

Posner wrote:

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.

Backpage forbade blatant offers of sex-for-money and numerous law enforcement officers testified at Lacey’s two federal trials that the vague language and risqué photos in the ads did not give them probable cause to make an arrest. In other words, the content of the ads did not establish a fair probability that a crime had been committed.

During one preceding, Harris’ top investigator in the California case admitted under cross-examination that ads for strippers, escorts, erotic massage and dominatrices were not unlawful California unless there was an offer of sex for money, which was unknowable unless you were in the room where the deal was done.

Harris’ Continued Duplicity

Can the American people trust a rank opportunist who flagrantly engaged in prosecutorial misconduct? Democrats want voters to ignore Harris’s abuses of the public trust while in office, using the looming threat of a Trump presidency to distract from any thorough examination of her record.

Assuming Harris succeeds in becoming Biden’s replacement at the top of the Democratic ticket, some will no doubt argue that Harris is a lesser evil than Trump, who has jokingly promised to be a dictator on “day one” of his second administration. But given Harris’ past, the public should also be concerned about Harris’s adherence to the rule of law.

The old rule of caveat emptor should apply. Harris is a grandstanding menace who’s showed no qualms about violating the free speech rights of legendary newspapermen such as Lacey and Larkin or misusing her prosecutorial powers to advance her career.

Take for example Harris’ showboating at Sen. Joe McCarthy’s old stomping grounds, the U.S. Senate’s Permanent Subcommittee on Investigations. There, on Jan. 10, 2017, Lacey, Larkin and three others were hauled before a hearing on Backpage to be lambasted by self-righteous politicians, such as Lacey and Larkin’s old nemesis, Sen. John McCain and PSI chairman Rob Portman, Senator from Ohio.

The recently-sworn-in Harris was there as well, and though she was not a member of the subcommittee, Harris was allowed to harangue Lacey, Larkin, et al., all of whom refused to testify based on their rights under the Fifth and First Amendments to the U.S. Constitution.

Harris boasted of having personally handled human trafficking cases, accusing Backpage of “clear and pure exploitation for profit.” She praised herself and her colleagues for their collective good works, saying she was “heartened to hear that these hearings have  exposed the fact that one cannot cowardly sit behind a computer committing their crime and then suppose that the Communications  Decency Act (CDA) would shield them.”

She added:

“These individuals must be held accountable. These allegations must be given voice. And we have to do all that is right to make sure that we as a civil society protect always the most vulnerable among us and not take advantage of them, assuming nobody will care. These hearings have made clear we care.”

What Harris did not explain is that the witnesses before the committee could not defend themselves because of the pending charges against three of them in California — charges Harris herself had resubmitted.

The PSI subsequently forwarded a one-sided report to the U.S. Department of Justice, urging the prosecution of Backpage for the facilitation of sex trafficking. Never mind that none of the eventual Backpage defendants were charged with sex trafficking.

The slanted report led to the federal government’s seizure of Backpage, a blatant violation of the First Amendment rights of millions of Americans. It also served as a blueprint for the indictment of the Backpage defendants, a prosecution now in its seventh year with no sign of abating, even as three defendants await sentencing on August 27.

After an 11-week trial in 2023, two employees of Backpage, charged by prosecutors in an attempt to make them roll on their co-defendants, were found not guilty of all charges. Lacey was found guilty of one charge of international concealment money laundering, despite having followed the law in a transfer of money offshore.

The jury was hung on 84 counts against Lacey. A federal judge acquitted Lacey on 50 of those counts in April, leaving 34 counts that the government may retry him on.

Larkin, driven to despair by an interminable prosecution and the seizure of nearly all of his assets, committed suicide on July 31, 2023, days before the start of the second trial in the case, the first having ended in a mistrial due to egregious prosecutorial misconduct.

Two former Backpage execs were found guilty on multiple charges. Like Lacey, both men are in their 70s and face the prospect of dying behind bars for the crime of refusing to stop publishing adult advertisements despite repeated calls that they censor such content.

This human misery is compounded by the suffering of countless vulnerable women and children, who were needlessly exposed to victimization as a result of Backpage’s downfall and the passage of FOSTA/SESTA.

Needless to say, if this is the form Kamala’s “caring” takes, the American people should hope for far less of it.

Please also see:
Prosecutors Want Lacey Sentenced on Bogus Allegations
and
Judge Acquits Journalist Michael Lacey on 50 of 84 Counts in Backpage Case (w/Update)