red-umbrella-2The arrest of the CEO of Backpage, a website for sex work ads, as he stepped off a plane in Houston October 6, made headlines. Carl Ferrer, 55, was arrested on a California warrant and charged with pimping by the California Attorney General’s office. Two other men associated with Backpage were also charged with conspiracy to commit pimping.

The entire case, however, may soon be thrown out. In an interesting twist, a federal court judge in California last week tentatively ruled that Backpage’s content was protected by free speech under the Communications Decency Act, which grants immunity to website operators for content posted by users. The judge agreed not to make his ruling final, giving the attorney general’s office until Dec. 9 to convince him otherwise.

In my book, Getting Screwed: Sex Workers and the Law and in previous blogs, I have argued that shuttering online advertising venues like Backpage only makes it harder for sex workers to protect themselves — from physical harm and sexually transmitted diseases like HIV.

But what makes Judge Michael Bowman’s recent ruling so interesting is that it has ramifications that go far beyond whether websites that allow sex workers to place ads should be allowed to stay open. If Backpage’s operators are found guilty for posting sexually explicit content, then the operators of Twitter, Facebook and other social media sites could also be held liable, according to civil rights attorneys.

And that would be a serious blow to free speech. Without the section of the Communications Decency Act that protects websites from liability for content posted by others, platforms for exchanging ideas or information wouldn’t have an incentive to exist, another civil rights attorney recently told the AP.  

Judge Michael Bowman’s tentative ruling echoes previous court decisions. Since the dawn of the internet, court rulings based on the 1996 Communications Decency Act have protected online news sites like Yahoo, review sites like Yelp, and even former political gossip sites like Wonkette, from libelous or controversial content posted by third parties.

Most recently, a federal court dismissed a lawsuit against Backpage by several women who said they were trafficked through ads on Backpage beginning at age 15. The women had argued Backpage profited from their victimization, but the court rejected the case on the grounds that the website itself was not responsible for their victimization. That dismissal was upheld by a federal appeals court.

In its warrant against the Backpage executives, California prosecutors argued that in addition to making millions of dollars off the sale of “adult” ads, Backpage’s operators used data from the website to create other prostitution-related sites that essentially serve as an escort directory comprised of sex workers who advertise on the site. That active process of publishing, they argued, moves Backpage beyond being a passive forum for ads into more active involvement with prostitution.

Bowman, however, didn’t buy that argument — at least in his tentative ruling last week. But in giving the California prosecutors another two weeks to present more convincing arguments for why Backpage’s operators should be convicted, he opened the door to the possibility that he might change his mind.

All eyes are on his final ruling in mid-December. Will Backpage, which has been the target of law enforcement for years, survive for another day? Or will it go down in flames, along with a 20-year-old federal law designed to protect free speech?



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