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Wednesday, July 24, 2024 | Back issues
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Backpage Sex Ad Fight Thrown Out of Court

WASHINGTON (CN) — A federal judge Monday threw out Backpage.com's claim that the U.S. attorney general is enforcing an unconstitutional law against advertising the sex trafficking of children.

Law enforcement agencies for years have claimed that Backpage.com's online "Escort" and "Adult Services" ads are thinly disguised ads for prostitution, sometimes forced prostitution, sometimes of children.

Backpage, a Delaware LLC created in 2000 and based in Dallas, has sued several states that enacted laws against its alleged prostitution ads.

In its lawsuit against Attorney General Loretta Lynch, Backpage challenged the constitutionality of the Stop Advertising Victims of Exploitation Act of 2015, the latest federal iteration of the congressional Trafficking Victims Protection Act, of 2000. Backpage said it feared prosecution if it did not comply with the law by removing the "adult" category from its website, a requirement that it claims violates the First Amendment.

But despite its successful constitutional challenges to laws in three states, U.S. District Judge Reggie Walton on Monday said the company lacks standing.

"Backpage.com has not presented evidence that Congress sought to eliminate all advertisements of a sexual nature from its website through the adoption of the SAVE Act; rather, the legislation is directed only at those advertisements concerning illegal sex trafficking, which do not constitute constitutionally protected speech," Walton wrote.

Backpage filed a pre-enforcement challenge to the SAVE Act, which it called overbroad and specifically aimed at it.

But Backpage could not demonstrate a credible threat of prosecution this time, because hosting illegal sex trafficking advertisements is not constitutionally protected, Walton ruled.

Backpage has said it screens, blocks and removes such content, "and takes numerous steps to prevent such misuse, especially to guard against human trafficking or child exploitation," Walton wrote.

Though Supreme Court precedent does not require Backpage to admit it will violate the law before challenging its constitutionality, it must show that its intended conduct is both legally prohibited and will be constitutionally affected, Walton said.

In a successful constitutional challenge to a Washington state law that criminalized the advertising of commercial sexual abuse of minors, Backpage was able to show that the law was aimed directly at it, and that it would be forced to review and censor all third-party content.

But because the company has said that it works with law enforcement to support investigations of improper content, Walton said, it cannot allege that it would be burdened by compliance measures in this case.

Backpage attorney Robert Corn-Revere portrayed the ruling as a sort of win for his client.

"We are gratified that the court recognized that prosecution under section 1591 as amended requires actual knowledge that criminal activity is going on," said the attorney, who is with Davis Wright Tremaine.

Backpage feared that Congress was targeting Backpage, and trying to make prosecution easier under a more lax legal standard, which prompted the lawsuit, Corn-Revere said.

He said the ruling clarified that the law means what it did before.

"The ruling confirms that it would not be appropriate to prosecute Backpage under the SAVE Act," Corn-Revere said.

It's been a rough two months for Backpage. In September, the Supreme Court refused to block a congressional subpoena seeking information on how the company screens classified ads for sex trafficking. It's been a rough two months for Backpage. In September, the Supreme Court refused to block a congressional subpoena seeking information on how the company screens classified ads for sex trafficking.

This month, 21 state attorneys general added their names to an amicus brief in the Supreme Court case of Doe v. Backpage.com. The states said the Communications Decency Act does not shield website operators from liability when their advertisements use language designed to attract sex traffickers.

And on Oct. 7, Backpage CEO Carl Ferrer, 55, was arrested on charges of running a "pimping conspiracy" with online escort ads featuring minors.

On Oct. 20, Ferrer's attorney demanded that California Attorney General Kamala Harris drop those criminal charges because the company's online adult advertisements are constitutionally protected.

Walton dismissed Backpage's lawsuit against the U.S. attorney general for failure to state a claim.

The Justice Department and attorneys for Backpage did not immediately respond to requests for comment.

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