Oct 07, 2016 Don’t let the Backpage prostitution-advertising prosecution chill free speech
Many of my clients charged with soliciting prostitutes are alleged to have used Backpage to find the alleged prostitute, who turned out to be part of a John-catching sting.
Not satisfied simply to scare Craigslist to stop or curb its adult services ads, law enforcement is now moving in on Backpage — apparently trying to chill other potential advertisers of adult services — getting Backpage CEO Carl Ferrer arrested on October 6 on his return from Texas.
Ferrer was arrested for a California prosecution for pimping a minor, pimping, and conspiracy to commit pimping.
Although I have limited time to blog on this story, I point out the following:
– This prosecution is troubling under First Amendment, free expression, free enterprise and general grounds for seeking criminal liability against people who run advertisements, rather than against the people who place the advertisements.
– This prosecution does without the veneer of also seeking corporate liability, by only prosecuting Ferrer and Backpage’s two principal shareholders, rather than prosecuting Backpage in its corporate capacity as well.
– This prosecution is troubling to the extent that it seeks criminal liability against corporate shareholders merely for being shareholders in a corporation allegedly violating the criminal law.
– To what extent is California Attorney General Kamala Harris timing the prosecution, spanning 2010 to 2016, to bolster her current run for the United States Senate?
– Will California’s Governor Gerry Brown — who has fashioned himself as the people’s champion — decry this prosecution?
– If the courts allow this prosecution to proceed, all carriers of advertising should be concerned about where the line gets drawn before they get criminally prosecuted for the ads they carry.
– The very nature of criminal conspiracy laws can clash with people’s First Amendment and free expression rights.
– I have looked at some of the recent local Backpage ads for adult escort services (still being posted after Ferrer’s arrest), to see that they run from being vague about whether anything but massages and nude viewings are offered, to some being more bolder and suggestive that possibly anything goes. I would be naive to think that Ferrer did not expect that prostitution resulted from many or most of these ads, but that should be on the shoulders of the provider, alleged pimp, and customer, and not on Backpage. It is a far stretch to call a carrier of advertising a pimp, even if the applicable statute stretches the definition of pimping.
– Consensual adult prostitution should be legalized. Prosecution of any other kind of prostitution and pimping activities should not draw in people who merely carry advertising, by effectively inferring knowledge to the advertising carrier that the advertising carrier may not have.