Backpage Founders’ Free Speech Defense Is Flailing

Table of Contents The case against BackpageWhat about FOSTA-SESTA?Section 230The free speech debate Photo: Former…

Image for article titled As Trial for Backpage's Founders Begins, Their Free Speech Defense Is Flailing

Photo: Former Backpage.com owners, James Larkin, left, and Michael Lacey wait on Capitol Hill in Washington, to appear at a congressional hearing on Jan. 10, 2017. (Cliff Owen) (AP)

Last week, the trial against Backpage began, commencing a long-awaited battle over either a massive criminal conspiracy or the fate of free speech online—all ultimately sideswiping sex workers who depended on the site. Prosecutors allege that the site facilitated sex work and sex trafficking; the founders have branded the criminal case over user-generated content as “epic government overreach and an unprecedented assault on the First Amendment and freedom of speech.” They’ve struggled to make that case, and some internet free speech advocates aren’t buying it.

Opening arguments began three years after the federal government seized and shuttered the classifieds site. Prosecutors for the Department of Justice have accused seven people, including Backpage co-founders Michael Lacey and Jim Larkin, of a plot to make hundreds of millions of dollars from knowingly selling ads for sex trafficking and sex work, as well as laundering the profits by collecting payments in bitcoin, gift cards, and checks sent to a P.O. box, which they deposited in overseas accounts. (Banks and credit card companies refused to serve Backpage.) They’ve been charged with 93 counts, falling under, among other charges, facilitating prostitution (the legal term) and conspiring, concealing, and promoting money laundering. Both journalists and former owners of the alt-weekly empire Village Voice Media, the pair sold Backpage in 2015 but retained sizeable stakes in the company.

The prosecution will need to provide proof that Backpage’s leadership knew that the ads were for criminalized activity and actively participated in it; the indictment presents an abundance of quoted emails, moderator training documents, financial records, PR communications, and more. According to the indictment, a training document instructed moderators not to send reports of suspected child trafficking to the National Center for Missing and Exploited Children (NCMEC) if they were submitted by the child’s family members. The NCMEC allegedly told them that they’d found a litany of “prostitution” ads, some featuring children. After the meeting, it says, Backpage’s leadership scrubbed words like “lolita,” “fresh,” “high school,” “tight,” and “young,” but left the posts online. An internal email said that Backpage would allow policy violators to come back after brief bans and only get rid of the “worst apples.” When discussing whether to post a warning message about child sex trafficking, some of the defendants joked in the past that the site could be called “entrapment.com.” These are just a few examples from the 61-page document.

On Wednesday, a judge denied a motion from Backpage’s founders and former executives for a mistrial. Backpage argued that the case should be dismissed because the prosecution’s opening argument was unconstitutional and improper. The defense called the government’s presentation—which opened with a devastating account of an alleged trafficking victim who’d been featured on Backpage at age 14—an inflammatory “parade of horribles.” The prosecution called a trafficking victim to testify on Friday.

“The government’s opening argument relied heavily on child sex trafficking and human trafficking, referencing ‘children’ at least 47 different times and ‘trafficking’ at least 13 times,” Backpage’s counsel wrote. “But the government never charged any such crimes under 18 U.S.C. 1951; it only charged facilitation of state prostitution.” The defense also protested that the prosecution misrepresented Backpage’s “adult” ads universally as sex work—for example, broadly stating, without proof, that 94 percent of Backpage’s revenue came from “prostitution ads.”

The case against Backpage

Law enforcement and alleged victims have tried to topple Backpage in court for years. In April 2018, the FBI finally raided Backpage founders Lacey and Larkin’s homes, arrested them, and a group of federal enforcement agencies shut down the site. (It still displays a notice informing visitors that the seizure was “part of an enforcement action” by the FBI, US Postal Service, and IRS.) In May 2018, a grand jury approved the charges against Lacey and Larkin; in the indictment, the prosecution demands that they forfeit their assets.

On its face, it’s hard to empathize with Backpage. Fatally, in 2017, a Senate subcommittee obtained emails showing that Backpage had both manually and automatically scrubbed words like “amber alert” while allowing those ads to stand, suggesting that it actively approved posts that led to child abuse. By 2010, they found, Backpage itself estimated that it was editing 70 to 80 percent of its ads.

To Backpage’s credit, government officials found that the company also worked to stop trafficking. In a 2012 memo obtained by Reason, as part of an investigation, Washington assistant U.S. attorneys agreed that “unlike virtually every other website that is used for prostitution and sex trafficking,” Backpage had been “remarkably responsive” and “proactive” in aiding law enforcement. They cited an FBI agent, who, like numerous officials have testified that Backpage had been an important investigative tool.

What about FOSTA-SESTA?

The Backpage shutdown happened to coincide with the passage of the widely-criticized anti-sex trafficking law FOSTA-SESTA, which was sold as a package of sex trafficking bills without much consideration of collateral damage. The rushed, bipartisan combination of House and Senate legislation amended Section 230, the foundational internet speech policy, which largely shields providers from liability for user-generated posts. Section 230 now criminalizes websites operating with “the intent to promote or facilitate the prostitution of another person.” Messing with 230 poses a massive risk to online speech; many have argued that, without it, we wouldn’t have social media. (Soon after FOSTA-SESTA passed, Craigslist preemptively shut down its personals ads.)

Sex workers have already suffered real-world collateral damage. Soon after that law passed, the largest sex worker conference was canceled for fear of endangering participants. Last year, a small survey by the sex worker-led group Hacking//Hustling found that 33.8 percent of online and street-based sex worker respondents reported an increase in violence from clients, and 72.4 percent faced more economic instability. They pointed out that FOSTA-SESTA’s “vague parameters” endanger “bad-date lists” that warn of violent, non-paying, and/or law enforcement-related customers.

Prosecutors aren’t trying Backpage under FOSTA-SESTA, though, which went into effect after the grand jury charged Backpage. Instead, they’re accusing Backpage of violating the Travel Act, a broader federal prostitution law that criminalizes the promotion and facilitation of prostitution.

A guilty verdict could embolden lawmakers to keep chipping away at internet freedoms with similarly bad bills, and Backpage itself may have done nearly as much damage. If the material in the indictment is accurately contextualized, then they could put another feather in law enforcement’s cap.

But the prosecution’s initial arguments didn’t focus so much on the legal particulars, hewing more toward the panicky narrative used to push FOSTA-SESTA. The prosecution opened with a horrific story of an alleged 14-year-old sex trafficking victim along with photos of her and her mother. Possibly most dangerously, they promote common misconceptions lumping together sex work with sex trafficking with legal sexually-related services, a bias that leads credit card companies and banks (for example) to cut sex workers off from essential services. The Backpage team’s attorneys point out that the government “wrongly (factually and legally)” swapped the word “escort” for “prostitute” and referred broadly to escort services as “so-called escort” services.

Section 230

The defense’s most obvious route (which, again, has gotten Backpage founders off the hook in other cases), would seem to be arguing that Section 230 still shields them from liability for user-generated content. In 2019, they held up a Section 230 defense in a motion to dismiss, writing that “[i]n the instant case, defendants cannot be found of state prostitution. They are publishers, and are not alleged to have acted as pimps, johns or prostitutes.”

In her denial, Judge Susan Brnovich wrote that, according to the allegations, Backpage wasn’t acting like a normal website but a criminal enterprise.

“The cases Defendants rely on do not persuade the Court that the above practices alleged in the SI [the federal grand jury’s superseding indictment] were merely traditional, editorial functions,” Brnovich wrote. She added:

The SI does not allege Defendants are criminally liable because they unknowingly and unintentionally operated a website used by third parties to post prostitution ads. Rather, it alleges Defendants purposely sought out opportunities to increase prostitution advertising on Backpage. The SI alleges the Defendants intentionally identified prostitutes, created free Backpage ads for them, and used those ads to try to secure future business.

In a call-in hearing on Friday, she again reiterated that Section 230 doesn’t apply in this case.

The Section 230 defense historically worked for Backpage in numerous cases. In one brought by Kamala Harris in 2016, Superior Court Judge Lawrence Brown wrote that charging Backpage CEO Carl Ferrer with pimping tried to skew the law in favor of wishful virtuosity:

…the People’s allegations attempt to assign criminal liability to Defendants who offered an online forum, on which other people posted advertisements that led to prostitution, and that Defendants realized profits instead of ‘actively preventing’ the sale of sex. These allegations confuse moral obligations with legal ones and have been rejected in other jurisdictions.

But Brown allowed conspiracy and money laundering charges to stand. The following year Ferrer pleaded guilty to the charges, agreed to testify against Backpage’s founders, and shut down the site as part of a plea deal.

The free speech debate

Some Section 230 scholars seem unconvinced that this Backpage case is the harrowing menace to free speech that Backpage wants us to believe. Derek Bambauer, professor of internet law at the University of Arizona, wrote that Section 230 is “a red herring in this case, although the prosecution has been widely trumpeted as a victory despite the law’s obstacles (which isn’t true).”

He added that Section 230 wouldn’t block the general prostitution and money laundering charges, since none relate to “treating the owners / operators of Backpage as the speaker or publisher of, say, ads for prostitution on their site.”

“The Backpage prosecutions aren’t the poster child for problems with Section 230 – just the opposite,” he added. “Prosecutors charged the defendants before FOSTA/SESTA; no one in this prosecution at least has been charged with sex trafficking; Section 230 doesn’t apply to federal criminal offenses; and, at a policy level, there is widespread skepticism that FOSTA/SESTA achieved their policy goals instead of operating as a public relations stunt.”

“While we should all be leery of efforts to undercut Section 230, these provisions address criminal activity, not the sharing of ideas,” Ken Paulson, director of the Free Speech Center at Middle Tennessee State University, told Gizmodo via email.

“I don’t see this prosecution as a threat to free speech, just as I wouldn’t be alarmed by someone being charged with fraud for using their speech to con others,” he added. “The First Amendment guarantees our right to freely share ideas, but it’s not a get-out-of-jail card for those who use their speech to engage in criminal behavior.”