U.S. Supreme Court building. (The NLJ/ Diego M. Radzinschi)
The U.S. Supreme Court on Monday turned away a Communications Decency Act challenge to the operators of the Backpage.com online advertising site, but the company’s owner and operators continue to face criminal allegations in California and increased political scrutiny in Washington.
Backpage’s chief executive officer, Carl Ferrer, two of its former owners, its chief counsel and its chief operations office are scheduled to appear Tuesday before a U.S. Senate investigations panel that’s exploring the company’s alleged role in facilitating online sex trafficking. The parents of two alleged sex trafficking victims are scheduled to testify at the hearing.
In California, then-state Attorney General Kamala Harris in December charged Ferrer and former owners Michael Lacey and James Larkin with 13 counts of pimping and conspiracy to commit pimping, and 26 counts of money laundering.
“By creating an online brothel—a hotbed of illicit and exploitative activity—Carl Ferrer, Michael Lacey, and James Larkin preyed on vulnerable victims, including children, and profited from their exploitation,” Harris said in a statement then. “My office will not turn a blind eye to this criminal behavior simply because the defendants are exploiting and pimping victims on the internet rather than on a street corner.”
The California charges came two weeks after a Sacramento County judge, citing First Amendment and federal law, dismissed charges against the men. Harris claimed the new charges are based on new evidence.
Backpage, citing an “accumulation of acts of government censorship,” announced late Monday it would remove its “adult” section in the United States.
“This act of censorship will not reduce the problem of human trafficking, and those who suggest otherwise are deluding themselves and their constituencies,” the company said in a statement. “Instead, it undermines efforts by Backpage.com to cooperate with law enforcement and provide information to identify, arrest and prosecute those who engage in human trafficking.”
The company said its decision to shutter the adult section “will not end the fight for online freedom of speech. Backpage.com will continue to pursue its efforts in court to vindicate its First Amendment rights and those of other online platforms for third party expression.”
The justices denied review in the civil case Jane Doe v. Backpage.com, a case that challenged a decision by the U.S. Court of Appeals for the First Circuit. The appeals court barred claims that the website violated federal and state anti-trafficking laws.
The Communications Decency Act’s Section 230 provides wide liability-protection to internet service providers that serve as intermediaries for hosting third-party content. The First Circuit said Jane Doe’s claims treated Backpage.com as a publisher because advertisements from third parties were part of the chain of causation that led to the girls’ alleged injuries.
In the petition, Doe, represented by Ropes & Gray’s Douglas Hallward-Driemeier, argued that the appellate court interpreted the immunity too broadly and in conflict with other courts. The Human Trafficking Institute and the National Center for Missing and Exploited Children were among the groups that filed briefs in support of the claims against Backpage.
The law firms Davis Wright Tremaine and Prince Lobel Tye defended Backpage in the Supreme Court. Davis Wright’s Robert Corn-Revere, a First Amendment specialist, was counsel of record.
“The First Circuit’s decision was directly in line with the consensus among the circuit courts that Section 230 precludes claims against websites for their actions and practices in publishing third-party content,” Corn-Revere wrote in a brief in the high court.
Update: This post was updated with details about Backpage.com’s announcement Monday night about the removal of its “adult” section on the company’s site.