Backpage back in court

Prepared to toss out the state’s case on First Amendment grounds last week, a Sacramento Superior Court judge instead gave outgoing Attorney General Kamala Harris one more chance to explain why an online classified business should be held criminally responsible for the prostitution ads of its customers.

The criminal case against Backpage.com’s three principals was wobbling on constitutional grounds when Judge Michael Bowman accepted Deputy Attorney General Maggy Krell’s request to file a detailed brief alleging the ways that Backpage actually produced content advertising prostitution services, rather than just hosting them.

Backpage attorneys had argued that defendants Carl Ferrer, Michael Gerard Lacey and James Larkin were protected both by the First Amendment and a section of the federal Communications Decency Act, which immunizes online publishers from the actions of its third-party users.

Bowman was leaning in agreement, even writing a tentative ruling dismissing the case, but held it after Krell said she would be able to lay out explicit evidence why the CDA didn’t apply. As for why she hadn’t sooner, she told the court, “I didn’t think we had to.”

The state’s brief is due November 28. Backpage will have the opportunity to respond to it, after which Bowman expects to issue a final ruling on the request for dismissal on December 16.

In a press conference held after last week’s ruling, members of the Sacramento chapter of the Sex Workers Outreach Project said closing websites like Backpage forces those who have no choice but to prostitute themselves for survival into even more dangerous working conditions.

Whether that is true or not isn’t something the court will be considering.