UPDATE: A California judge ruled tentatively on Nov. 16 that the charges against the three Backpage-related executives should be dismissed, although he deferred his formal ruling. Here’s our coverage of that ruling.

This article was distributed to clients as part of the AIM Group Global Classified Advertising annual. 

Backpage.com in the United States is in big trouble.

And just as with Facebook, but for entirely different reasons, every publisher of classified ads — indeed, every publisher of advertising worldwide — should be paying attention to this case.

Backpage is notorious for publishing escort ads — thinly disguised ads for prostitution. This may (or may not) be despicable, but it’s not illegal in the United States. In fact, it is specifically protected by Section 230 of the Communications Decency Act, which holds that publishers of advertising cannot be held responsible for ads placed by third parties.

It’s “black-letter law,” well established and upheld by federal appeals courts throughout the land. One of the bedrock principles of internet publishing, both internationally and in the United States, is that publishers are responsible for what they publish, but not what others publish on their platforms.

Otherwise, you could never have YouTube. How could YouTube-owner Google be responsible for all those videos? You could never have Facebook. How could Facebook be responsible for what people post on their personal pages? And you could never have classifieds online, because the classified advertising publishers would be responsible for the ads published by random individuals and businesses before they’re ever reviewed. (Imagine if the telephone company could be held responsible when two men use their telephones to plan a bank robbery.)

So, why is Backpage and its CEO and owners being targeted by Kamala Harris, the Democratic (!) attorney general in California and a candidate for the U.S. Senate? Politics. Pure and simple politics. Backpage CEO Carl Ferrer has been charged with pimping (among several other charges). The complaint alleges that by accepting money for ads, and screening them, he was a pimp. Nonsense.

Likewise, Backpage owners Michael Lacey and Jim Larkin were charged with benefiting from prostitution. Eventually, the charges will be dismissed. Meantime, Ferrer, Larkin and Lacy have all spent time in jail; have spent and will spend tens or hundreds of thousands of dollars on legal fees, and have become a public spectacle far beyond any notoriety already attached to their involvement with Backpage.

Here’s what Liz McDougall, the counsel for Backpage, said about the case: “The raid of Backpage.com’s Dallas office and the arrest of its CEO is an election-year stunt, not a good-faith action by law enforcement.

“The complaint and search warrant make clear that (1) prostitution ads violate Backpage.com’s policies against the posting of illegal content, (2) the company blocked the posting of ads using terms that violated those policies, and (3) Backpage.com removed ads when contacted by law enforcement. “The actions of the California and Texas attorneys general are flatly illegal. They ignore the holdings of numerous federal courts that the First Amendment protects the ads on Backpage.com. The actions of the attorneys general also violate Section 230 of the Communications Decency Act preempting state actions such as this one and immunizing web hosts of third-party created content.

“Backpage.com will take all steps necessary to end this frivolous prosecution and will pursue its full remedies under federal law against the state actors who chose to ignore the law, as it has done successfully in other cases.”

And here’s what Noah Feldman, a professor of constitutional and international law at Harvard University, said in a Bloomberg View column calling Ferrer an unlikely “First Amendment hero.” “Soliciting prostitution is very different from publishing an ad by a third party that might lead to such solicitation. Even if — as seems unlikely — the California pimping law extends to such conduct, the First Amendment wouldn’t allow the two acts to be treated the same way.

“Criminal prosecution is a dangerous weapon. State government needs to exercise that tool with care for constitutional protection — and the First Amendment. When it doesn’t, it turns even unappealing people like Ferrer into unlikely defenders of all our rights.”

Publishers everywhere have to be concerned. If you can be held to criminal standards for merely publishing ads, even if those ads lead to illegal conduct, you’ll be out of business. And the world will be a radically different place.

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