Judge Tosses Charges Against Backpage Execs, Tells Kamala Harris To Take It Up With Congress

from the SENATOR-KAMALA-HARRIS...-thanks-2016 dept

Mon, Dec 12th 2016 6:29am — Tim Cushing

California judge Michael Bowman hinted -- with a tentative ruling issued last month -- that he didn't think much of Attorney General (now US Senator)[ ಠ_ಠ ] Kamala Harris' grandstanding, misguided, First Amendment-damaging attempt to prosecute Backpage executives for pimping.

Not only did Harris pretend Section 230 immunization didn't exist, she actively fought to have the executives prosecuted for the actions of others. The twisted legal rationale deployed by Harris didn't win over Judge Bowman, who noted Backpage had, at best, republished third-party content. If Harris wanted site owners to be punished for third-party content, she would have to ask the nation's legislators to fix it.

As stated above, 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.

[Once again, Kamala Harris is NOW A US SENATOR.]

The judge rolled back a little of his pre-judgment, asking the state of California for more input before making his final decision. Harris' office took this opportunity to dump another 70+ pages of "damning" evidence into the judge's lap -- mostly internal emails that detailed how Backpage handled the aggregation of third-party content at two affiliated sites.

This wasn't persuasive. Judge Bowman stands by his original decision, leaving the above paragraph intact except for added emphasis on the last sentence. The court isn't here to fix legislation Kamala Harris doesn't like. That's up to Congress, an entity Kamala Harris is now unfortunately a part of.

The decision [PDF] reiterates Bowman's points: that what Harris is seeking to prosecute is actually protected by Section 230 immunity.

After considering the state's new evidence, Bowman concluded in a December 9 decision that "defendants have, at most, republished material that was created by a third party." The judge pointed out that California's declaration in support of the defendants' arrest warrant even stated that EvilEmpire.com ads were "essentially identical" to their Backpage.com counterparts. "This demonstrates republication, not content creation," and "republication is entitled to immunity under the CDA," wrote Bowman.

Judge Bowman did take a little time to call out Harris' disingenuous prosecutorial claims, focusing on the state's assertion, that moderation which removed illegal content was somehow an illegal act.

Assuming that the People's assertion is true; that the ad went from expressing intent to advertise prostitution to express a desire to 'date,' the People are essentially complaining that Backpage staff scrubbed the original ad, removing any hint of illegality. If this was the alleged content 'manipulation,' the content was modified from being illegal to legal. Surely the AG is not seeking to hold Defendants liable for posting a legal ad; this behavior is exactly the type of 'good Samaritan' behavior that the CDA encourages through the grant of immunity.

With that, the criminal charges against the Backpage executives have been vacated and their bond nullified. And the court helpfully reaffirms Section 230 protections at a time where they've been under increasing attack in California courtrooms.

Final Ruling CA v Ferrer (PDF)Final Ruling CA v Ferrer (Text)

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Filed Under: congress, free speech, kamala harris, section 230
Companies: backpage

16 Comments

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Anonymous Coward, 12 Dec 2016 @ 6:37am

Some people just hate it when other will not help them to enforce their morals on society. Unfortunately, these are the same people who will stand for political office.
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- Lawrence D’Oliveiro, 12 Dec 2016 @ 5:28pm
  
  Re: enforce their morals on society
  Society has to be moral. But morality must not be based on religion. It has to come from our common humanity, not from some partisan doctrinaire ideology.
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timmaguire42 (profile), 12 Dec 2016 @ 6:58am

For so long as prosecutors are able to use high profile convictions as a spring board to a political career, for just that long will you see cases like this.

There should be a law that prosecutors can't run for public office until at least 5 years after leaving the attorney general's and district attorney's office.

We could call it the Giuliani rule, or the Giuliani-Christie rule, or the Giuliani-Christie-Harris rule. I'm sure there are other good names; those are just some that come to mind.
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- kallethen, 12 Dec 2016 @ 7:24am
  
  Re:
  Even one year would be good. I think most of these cases are while the election is happening.
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- Chuck, 22 Dec 2016 @ 7:56am
  
  Re:
  Ostracisms were for 10 years. The same principle applies here, so the same term should as well.
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Anonymous Coward, 12 Dec 2016 @ 7:08am

Now to counter-sue for violation of rights
The AG has personally signed documents showing that she understood the laws around section 230 and decided to prosecute anyway. She benefited from this grandstanding by winning he senate seat. She did so at the cost of rights and she needs to see consequences. Recall that moron and fill the seat with someone less idiotic.
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- Anonymous Coward, 12 Dec 2016 @ 7:45am
  
  Re: Now to counter-sue for violation of rights
  -- Recall that moron and fill the seat with someone less idiotic.
  
  How will you convince John/Jane Dumb Public to recall an elected leader who is proven tough on human trafficking and prostitution?
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  - Anonymous Coward, 12 Dec 2016 @ 7:58am
    
    Re: Re: Now to counter-sue for violation of rights
    By loudly and repeatedly pointing out how she pretended to be tough on human trafficking and prostitution while knowing that she was actually hurting innocent people and doing nothing helpful to curtail human trafficking or prosecution.
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Roger Strong (profile), 12 Dec 2016 @ 7:14am

I wonder how much money it cost them to be found innocent.
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- Anonymous Coward, 12 Dec 2016 @ 7:48am
  
  Re:
  I wonder how much money it will cost the tax payers to settle the human rights violations created from this malicious persecution.
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Roger Strong (profile), 12 Dec 2016 @ 8:10am

If the costs a successful defense had to be refunded by the state, there would probably be a lot less malicious persecutions by that state. More lawyers willing to defend against malicious persecution, with their paycheque guaranteed by a successful defense rather than depending on the client's ability to pay.

Granted, there's all sorts of ways this sort of system could be abused for profit.
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- Chryss (profile), 12 Dec 2016 @ 8:52am
  
  Re:
  Perhaps an anti-SLAPP type statute aimed at malicious criminal prosecution.
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Ninja (profile), 12 Dec 2016 @ 9:14am

"[Once again, Kamala Harris is NOW A US SENATOR.] "

Which means the grandstanding worked. At the expense of taxpaying money, results being charges tossed don't matter. That was the point from the beginning, no? Humans being humans ;)
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DB (profile), 12 Dec 2016 @ 9:22am

To be fair to the electorate, the election had poor choices
Much like the presidential election, there was no good choice. Harris was running against an even worse alternative. Check out videos of the Harris-Sanchez debate for wince-inducing behavior from both candidates.
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- MM_Dandy, 12 Dec 2016 @ 12:30pm
  
  Re: To be fair to the electorate, the election had poor choices
  I haven't watched anything yet, but one of the YouTube clips is titled "Loretta Sanchez Just Dabbed During a Debate." Damn.
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That Anonymous Coward (profile), 12 Dec 2016 @ 10:43am

They should move for fees & ask that she bear them herself.
As an AG she is expected to know the law & to brazenly bring a merit-less cases for headlines, she doubled down on it.

We need to stop electing people based on soundbites & demand better coverage. The media was to scared to mention she was running afoul of federal law & perhaps this had more to do with her run for congress than protecting the citizens. Must be nice to demand the tax payers fund your own personal crusade to get votes given the issues they have with their budget already.
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