Kamala Harris upstaged by Backpage: Sacramento judge dismisses attorney general’s case against online classified portal

Rejecting the state’s case that three men were running an online human trafficking business, a Sacramento County judge dismissed all charges against Backpage.com senior corporate officers Carl Ferrer, Michael Gerard Lacey and James Anthony Larkin last Friday.

The December 9 written ruling from Sacramento Superior Court Judge Michael Bowman dealt California Attorney General Kamala Harris a stinging defeat shortly before she leaves office to join the ranks of the U.S. Senate next month.

In a statement emailed to SN&R, Harris said she was “extremely disappointed” in the decision and that her office was “exploring all legal options.”

Harris’ office presided over a three-year investigation into the operation of Backpage, an online classified portal similar to Craigslist. Unlike Craigslist, though, Backpage still charges users to post ads in its adult services section, which the state claims functions as a poorly disguised prostitution clearinghouse.

In its criminal complaint, the California Department of Justice—the investigative arm of Harris’ office—identified nine victims who engaged in paid sex acts that were advertised in veiled terms on the site and sometimes reposted on two offshoots, EvilEmpire.com and BigCity.com. The victims included five minors, two of whom were contacted during sting operations after posting escort ads in Sacramento County.

All three defendants shared a felony charge of conspiring to commit the crime of pimping, while Backpage CEO Ferrer faced nine additional counts, four for pimping a minor.

Defense attorneys argued their clients were protected by the First Amendment and a section of the Communications Decency Act, which says online content providers aren’t responsible for the actions of third-party users. (In short, a website like Twitter isn’t legally liable for something one of its users does.)

While the CDA protects content providers who create an online forum for third-party speech, that shield doesn’t extend to content creators. The state tried to argue that Backpage fell under the latter category.

“That’s the linchpin of the prosecution’s case,” Supervising Deputy Attorney General Maggy Krell told Bowman during a November 16 hearing. “Essentially, your honor, we will show that these defendants are content creators.”

Bowman ruled the state failed that test, and actually showed that, “In fact, according to the exhibits attached by the People, Backpage moderators were instructed to look for offending material and remove it.” Bowman concluded that “the victimization resulted from the third party’s placement of the ad, not because Backpage [profited] from the ad placement.”

While this is the first time the Texas-based company faced criminal prosecution, it has prevailed in similar civil legal disputes in other states.

Harris’ statement left open the door for an appeal.

“The Communications Decency Act was not meant to be a shield from criminal prosecution for perpetrators of online brothels. The evidence is clear—these defendants are responsible for personally creating and publishing the content that was used to pimp and traffic victims on their websites,” it read. “We will not turn a blind eye to the defendants’ exploitative behavior simply because they conducted their criminal enterprise online rather than on a street corner. To all those who have been victimized by pimps online and trafficked through ‪Backpage.com, you are not alone and the fight for justice is not over.”

The Sex Workers Outreach Project and other harm-reduction groups opposed the Backpage prosecution, saying cracking down on sites like it does nothing to hold actual traffickers to account and forces vulnerable sex workers to the streets, where they’re more likely to be victimized.

“People turn to sex work because of economic need and because some people are socially discriminated against,” SWOP Sacramento member “Kimberlee Cline” said during a press conference in front of the county jail last month. “Sex work is a source of survival for many people. And when we shut down sites like Backpage.com, we create more problems for the individuals we’re most concerned about—the people who have the most economic vulnerability, who are the most vulnerable to violence.

“Whatever we might think about prostitution and whether anyone should do it or not, we can all agree that if we create laws that make it less safe for people to feed themselves, then we’re not really protecting people,” added Cline, who uses Backpage herself.

That story rang true for a pregnant sex worker who identified as “Monroe.” During the same press conference, she said the Backpage case reminded her of what happened when the FBI and IRS raided myRedBook.com three years earlier. Fighting through tears, Monroe said her pimp forced her to work the street, getting in and out of cars with men she didn’t know and suffering his wrath when she didn’t make enough.

The street is also where she picked up a series of arrests for solicitation, which, three years later, she’s still fighting to get expunged from her record so she can get a legal job.</p. <p>In August, she was fired from an airport job when her employer discovered her criminal history.

“When we get sites shut down, it’s unsafe for us,” she said.

Harris’ office didn’t respond to questions about how much the multiyear effort has cost the state, or answer charges that she knowingly pursued a losing case for the publicity it brought her during a successful Senate campaign.

In an October 19 statement announcing their intent to file for dismissal, defendants Ferrer, Larking and Lacey predicted the outcome and also leveled claims that Harris jailed them for political sport. “Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested,” they wrote.