Arrested Backpage Execs Ask Kamala Harris To Drop Bogus Case She Herself Has Admitted She Has No Authority To Bring

from the grandstanding dept

Thu, Oct 20th 2016 9:33am — Mike Masnick

A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris' "investigator" using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.

The execs are now hitting back -- as they should. They've asked the court to dump the case with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn't even satisfy the requirements for "pimping," which is what they're charged with.

The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to impose criminal liability on a website simply because it published and received fees for third-party ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. Escort ads on Backpage.com are protected speech under the First Amendment, as several courts have held. The AG cannot arrest, imprison and refuse to release individuals associated with the website simply based on an investigator’s opinions about what he believes is “obvious” about escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have rejected the same tack time and again. The First Amendment also expressly precludes state authorities from imposing criminal liability on parties that publish or distribute speech absent proof of scienter, i.e., that the publisher knew the specific information published was unlawful. The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959), recognizing the First Amendment prohibits states from imposing criminal liability that would require publishers to review all materials they distribute, because such a requirement would severely chill speech. More specifically, the AG’s theory expressly violates Section 230, which Congress enacted twenty years ago to preserve and promote free speech on the Internet by immunizing website operators from liability for publishing content provided by third-party users. Section 230 preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has now commenced a prosecution to do precisely what she admits Section 230 prohibits.

That point about Harris "acknowledging" that Section 230 bars this lawsuit is a big one. It's based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230 to grant state AGs the ability to go after Backpage. We had written about this letter three years ago when it was sent, but I had forgotten that it explicitly called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:

In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental—these companies have constructed their business models around income gained from participants in the sex trade. But, as it has most recently been interpreted, the Communications Decency Act of 1996 (“CDA”) prevents State and local law enforcement agencies from prosecuting these companies. This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA....

Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?

Separately, the lawyers have sent a letter to Harris directly reminding her of this and asking her to drop the case:

Ads posted on Backpage.com are protected by the First Amendment, as several courts have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County, Illinois and rejecting much the same theories that the State asserts here: “[A] public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.” ... The State cannot prosecute a publisher for publishing speech with absolutely no showing that the speech was unlawful, much less any allegation that defendants ever even saw the specific ads that are the basis for its charges. As the Supreme Court has long recognized, states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality, as any other rule would severely chill speech.

More specifically, Section 230 precludes the charges the State seeks to assert. As you know, Section 230 bars state-law claims against websites and other interactive computer services based on the publication of third-party content. A website cannot be held liable for publishing content submitted by users or for failing to block or remove such content, notwithstanding any allegations that it knew or should have known the content concerned unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state laws. Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet.

Indeed, in July 2013, you and other state attorneys general signed a letter to various members of Congress urging that Section 230 be amended to exempt state criminal laws from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from National Association of Attorneys General.... It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring.

Accordingly, the State should dismiss the complaint and all charges against Messrs. Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.

Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn't care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.

Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.

In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.

[....]

Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her “perp walk” on the evening news. Arpaio didn’t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.

And, as Kamala Harris knows, it probably won’t even make the evening news.

Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She's yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can't stick? That's a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it's the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.

People-v-Ferrer-Et-Al-Demurrer-Filed-10-19-16 (PDF)People-v-Ferrer-Et-Al-Demurrer-Filed-10-19-16 (Text)

Letter-to-Attorney-General-Harris-10-17-16 (PDF)Letter-to-Attorney-General-Harris-10-17-16 (Text)

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Filed Under: california, carl ferrer, cda 230, first amendment, free speech, grandstanding, intermediary liability, james larkin, kamala harris, ken paxton, michael lacey, pimping, prostitution, section 230
Companies: backpage.com

29 Comments

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Anonymous Coward, 20 Oct 2016 @ 9:57am

You can beat the rap but you can never beat the ride.
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Jordan Chandler, 20 Oct 2016 @ 10:00am

Betrayal of the law
People like Kamala Harris are basically traitors to the law. They trained to be lawyers and use the alw, but they betray it every chance they get. They;'re not interested in justice, just punishment of those they do not like.

I look forward to them winning another case.
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cynoclast (profile), 20 Oct 2016 @ 10:03am

Arresting people for this is like prayer. It doesn't do shit, but makes fools feel better.
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Anonymous Coward, 20 Oct 2016 @ 10:08am

Harris is screwed
Since the letter she signed showed direct knowledge of this prosecution being illegal, she should not be covered by any shield laws. I would sue her directly, not the state.
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Roger Strong (profile), 20 Oct 2016 @ 10:35am

Re: Harris is screwed
It's the state that grants her the power. By herself she could do nothing.

The state is responsible for ensuring that the power is not abused, and lacking checks and balances, responsible for the consequences when it is.
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Now is the time yesterday is the place, 20 Oct 2016 @ 10:46am

Hey!
You took away my chance to make $7000 a month with facebook!!

on this I was reminded of this:

http://mimesislaw.com/fault-lines/special-victims-special-unit/13678

that I read this morning perhaps fake charges will become more popular in future, ratting will sore!
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Quiet Lurcker, 20 Oct 2016 @ 11:08am

If only there were someone who would discipline this prosecutor for doing something to outrageous and - well, let's face it - wrong.
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Padpaw (profile), 20 Oct 2016 @ 12:01pm

They have no reason to stop abusing their powers to go after people out of spite. the common citizens will make noise but in the end those in charge know their actions will not be held accountable as long as they keep paying off the right people. Be it a literal cash payoff or lip service.
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Groaker (profile), 20 Oct 2016 @ 12:01pm

I can only assume that she remains completely immune to criminal and civil liability for false arrest, false imprisonment, defamation, etc. Even after she has admitted she had no right to commit these actions.

Where is the judge who signed the warrants? Is it not that person's responsibility to protect us from law enforcement when it behaves in such a manner?
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Digitari, 20 Oct 2016 @ 12:15pm

good for the goose
Politicians should be real careful, they "could" be subject to pandering laws locally.

(pandering as in "contributions")
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AnonCow, 20 Oct 2016 @ 12:20pm

Threaten to go to court. Kamala Harris loves a headline, but hates actually being in a courtroom. She's also much more skilled at getting a headline than in actually prosecuting anyone.
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dr evil, 20 Oct 2016 @ 1:04pm

can she be disbarred?
jus askin...
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That Anonymous Coward (profile), 20 Oct 2016 @ 1:42pm

Its a pity that bringing a merit-less case doesn't result in a criminal charge that would harm her ability to move up in office to gain the power to screw over even more people because she needs a soundbite.

Would be nice to see the voters asking why they are going to have to foot the bill for her publicity stunt, and remember that when its time to hit the ballot box. She screwed the state out of what will most likely be a few million for good press & a pay raise... imagine the sort of shit she'll pull to get another 'donation' to her cause.
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Anonymous Coward, 20 Oct 2016 @ 2:06pm

Re: Betrayal of the law

People like Kamala Harris are basically traitors to the law. They trained to be lawyers and use the alw, but they betray it every chance they get.

And then they turn right around depend on the law for protection.
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Aaron Walkhouse (profile), 20 Oct 2016 @ 3:31pm

Any elected official can be impeached…
…even now, while running for re-election.

…just sayin'… ‌ ;]
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Anonymous Coward, 20 Oct 2016 @ 3:35pm

It takes a special kind of idiot
It takes a special kind of idiot to attack and want taken offline the very same platform that would allow then to locate illegal sex workers, pimps, and human trafficking victims.

How stupid do you have to be for this to be your thought process?:
"Backpage.com has advertising for prostitutes who may be victims of human trafficking. Instead of having agents go undercover and respond to these adds I demand we simply take down the adds. Human trafficking problem solved!"
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Norahc (profile), 20 Oct 2016 @ 4:14pm

Just another example
This is just another example of a bureaucrat with an agenda not letting the law or the Constitution stand in their way. It is also a prime example of something a time when the government official needs to bear the burden of their actions and not saddle the taxpayers with it.
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Anonymous Coward, 20 Oct 2016 @ 4:56pm

Re: It takes a special kind of idiot
How stupid do you have to be?

Ask Whatever!
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Padpaw (profile), 20 Oct 2016 @ 5:54pm

Re: It takes a special kind of idiot
If they are involved in backing said trade they would want it to be harder to be taken down.

Be interesting if this is not just grandstanding but an attempt to cover up any involvement she might have by distracting everyone.
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briny, 20 Oct 2016 @ 7:24pm

Response to: That Anonymous Coward on Oct 20th, 2016 @ 1:42pm
Funny, I happen to have my absentee ballot sitting in front of me.
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Anonymous Coward, 21 Oct 2016 @ 12:02am

Re: Any elected official can be impeached…
Impeachment is a tool that can only be used by politicians against their peers, they avoid its use because of MAD.
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Donald Meaker, 21 Oct 2016 @ 11:54am

There are 40 million people who could do something about a prosecutor who usurps power, and under color of authority commits kidnapping. If she goes outside the law, then she loses protection from people who retain the right to self defense, using deadly force, against criminals.

When one goes outside the law, one loses protection of the law. Reciprocity. To every action, there is an equal and opposite reaction.

I wonder what she would think if she were kidnapped by a private organization which charged her with laws that they made up, scheduled her for a court date for its claimed jurisdiction, and put her in striped prison uniform for a news cycle before the election. I imagine she would think herself ill used. She would, actually be richly deserving of such treatment.
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phwest`, 21 Oct 2016 @ 12:28pm

Cr*p like this is why I have always felt that Attorneys-General should be banned for running for other offices while in office and for at least 5 years after leaving. I will personally NEVER vote for a serving AG running for any other office, and never support a former AG in a primary.
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snic (profile), 21 Oct 2016 @ 1:20pm

AG Harris may have immunity from a civil suit against her, but she still has to answer to whatever state commission registers and disciplines attorneys. It seems to me that a complaint to the CA bar would do more to hurt her than any civil suit (since, as was pointed out, she wouldn't actually pay any judgment against her).
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legalcon (profile), 21 Oct 2016 @ 2:20pm

They can file a complaint with the California State Bar, which can investigate even if she's in the U.S. Senate.
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Dave Mc, 21 Oct 2016 @ 3:28pm

Re: Re: Harris is screwed
Ever hear of a 42 U.S.C. s. 1983 suit?
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Anonymous Coward, 21 Oct 2016 @ 9:44pm

Re: Re: Re: Harris is screwed
"Ever hear of a 42 U.S.C. s. 1983 suit?"

Is that back when they had those really skinny ties?
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Anonymous woman, 25 Oct 2016 @ 12:42am

Thats right! It is bullshit. Carl is not a pimp and if you ask me, backpage is not to blame for what happened to those kids. Seems to me their parents should have taken more responsibility in watching them and made sure they knew where they were at and who they associated with and then the shit would have never happened. You cant blame backpage. Backpage didnt get a hold of your kids and do that crap to them, it was just used as a means to exploit them and if it hadnt been thru backpage it would have been thru something else. its not the website that is the problem ,its the psychos that are out in the world nowadays that are to blame. Just like all these mass shootings we are having and obama saying we need to change gun laws and take guns away. Guns are not the problem. The problem is the psycho who gets a hold of the gun. That is who needs to be gone after. The psychos who cant control theirselves. And parents need to get a tighter rein on their children at all times. Sick people taking advantage of children IS a terrible thing but I think these parents are just going after backpage for the money. Blaming backpage is absurd. They didnt do the crap to your kid. The idiot who got a hold of your kid did and you are to blame too for not being a responsible parent like you should be.
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Anonymous Woman, 25 Oct 2016 @ 12:49am

Re: It takes a special kind of idiot
You know what? I advertise on bp and I am NOT a victim. Human trafficking my ass. Some of us have to do this to survive and put a roof over our heads. Take down bp and I will just post my ad elsewhere. I do not have a pimp and this whole mess is just a load of bs. I am not fat, ugly or on drugs either. Traffic children my ass. Why would anyone want to hurt a innocent child is beyond me. I am NOT going to give up the only income I have and I am NOT a PRO.
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