Backpage owners case likely to be dismissed but AG will probably Appeal

 A California judge said he was likely to dismiss criminal pimping charges against the chief executive and controlling shareholders of Backpage.com, ruling that a federal immunity shield for tech companies protected them from prosecution for content posted by third parties.

The defendants argued that the ads on Backpage were posted by third parties and that the state offered no evidence that the defendants knew ads placed by escort services were solicitations for sex. Under the federal Communications Decency Act, the defendants argued that they could not be prosecuted for content posted by third parties.  In a tentative ruling a Sacramento County Superior Court Judge  agreed, saying Congress passed the Communications Decency Act to protect free speech online.  
“Congress has spoken on this matter and it is for Congress, not this Court, to revisit.”  

A office countered that the case was about conduct, not freedom of speech, and that Backpage had been expressly designed to profit from sexual exploitation, which made the defendants content creators, not merely publishers.

The judge said the AG’s office could file additional briefs on the issue and that he would make a final ruling by Dec. 9.The judge set a deadline of November 28 for AG to present additional evidence, and December 5 for the defense to respond.  

Judge Writes:
That legitimate state interest is not absolute, however, and must be constrained by the interests and protections of the First Amendment to the U.S. Constitution. In that vein, the United States Congress created the Communications Decency Act 47 USC section 230. The importance of the protection afforded by the First Amendment was the motivating factor behind the creation of CDA. Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.

California's pimping statute "does not apply to an individual who provides a legitimate professional service to a prostitute even if paid with proceeds earned from prostitution," he noted. Rather, the provider of the service garners income from his or her own services rendered, not the prostitute's.

"There is no dispute that Backpage charged money for the placement of advertisements. Does this qualify as services rendered for legal purposes? Given the services provided by the online publisher, the answer to that question is yes. Providing a forum for online publishing is a recognized legal purpose that is generally provided immunity under the CDA. This immunity has been extended by the courts to apply to functions traditionally associated with publishing decisions, such as accepting payment for services and editing."

Pointedly, the judge wrote that the prostitution that forms the basis of the state's case "took place as a result of an advertisement placed by a third party. Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility are all traditional publishing decisions and are generally immunized under the CDA. In short, the victimization resulted from the third party's placement of the ad, not because Backpage profiting [sic] from the ad placement."

The judge likewise rejected the prosecution's argument that because Backpage had allegedly reposted ads on two affiliated sites — EvilEmpire.com and BigCity.com — it had thereby become a creator of content, not just the content's publisher: "Republication is entitled to immunity under the CDA."

The AG will probably appeal