A California judge has agreed to give the state attorney general's office more time to persuade him that the operators of what she called "the world's top online brothel" should face charges of pimping after he tentatively rejected them in a ruling.
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California Attorney General Kamala Harris, who referred to Backpage.com as an online brothel, had charged Backpage.com CEO Carl Ferrer, 55, with pimping a minor, pimping and conspiracy to commit pimping. Lacey, 68, and Larkin, 67, both from Arizona, were charged with conspiracy to commit pimping.
Sacramento County Superior Court Judge Michael Bowman, however, said in a tentative ruling Wednesday that Harris lacked authority to bring the charges because the federal Communications Decency Act, as a way of promoting free speech, grants immunity to website operators for content posted by users.
"Congress has spoken on this matter and it is for Congress, not this court, to revisit," Bowman wrote in his seven-page tentative ruling, emphasizing the sentence in bold type.
He agreed after a brief court hearing Wednesday not to make the ruling final, allowing time for the attorney general's office and defendants to submit briefs before releasing a final ruling by Dec. 9.
Eric Goldman, a professor at the Santa Clara University School of Law, said he was surprised by the initial charges because Harris was among 47 state attorneys general who asked Congress in 2013 to help change a provision of the Communications Decency Act that they acknowledged protected Backpage from prosecution.
If the judge upholds his tentative ruling and tosses out the charges, "it would be a pretty stinging rebuke of the attorney general's office," he said.
Goldman said he wondered how Harris, known for being cautious, had brought a case her office knew was pre-empted by the law.
"Why bring this crazy legal theory if they're proceeding so cautiously and then have it go nowhere?" Goldman said.
Ferrer was arrested Oct. 6 at Houston's Bush Intercontinental Airport, having arrived from Amsterdam after his Dallas headquarters was raided.
Harris, a Democrat who was elected to the U.S. Senate last week, alleged that more than 90 percent of Backpage revenue — millions of dollars each month — comes from adult escort ads that use coded language and nearly nude photos to offer sex for money.
Bowman said that was not enough for criminal charges against the site's operators.
"The victimization resulted from the third party's placement of the ad, not because (of) Backpage profiting from the ad placement," he wrote.
The section of the Communications Decency Act that applies to the case protects websites from content posted by third parties, said David Greene, civil liberties director for the Electronic Frontier Foundation. It immunizes sites such as Yelp.com from being held accountable for scathing reviews left by customers or online news sites from vicious reader comments.
Without it, platforms for exchanging ideas or information wouldn't have an incentive to exist, he said.
"Our interest isn't Backpage per se, it's preserving the structure of the internet where people can freely post information because these intermediary platforms exist," Greene said.
Harris spokeswoman Kristin Ford declined comment. Backpage lawyer Liz McDougall said she and her clients were optimistic, but she did not immediately respond to a telephone message after the hearing.
The company and its operators have previously prevailed in four other legal actions, defense attorneys said previously.
Bowman cited several of those cases in his ruling, including a decision by a federal judge to reject a lawsuit by women who said they were trafficked through ads on Backpage.com beginning at age 15 and that Backpage profited from their victimization.
That dismissal was upheld by a federal appeals court.
The Washington state Supreme Court last year allowed a civil lawsuit by three minors to proceed. Their attorneys said they were in the seventh and ninth grades when professional sex traffickers used Backpage to sell them as prostitutes.
Bowman said in his ruling Wednesday that the California attorney general's complaint did not include enough allegations to support a similar ruling.
In September, the U.S. Supreme Court refused to block a subpoena from a U.S. Senate committee seeking information on how Backpage screens the ads for possible sex trafficking. The U.S. Senate voted 96-0 in March to hold the website in contempt for failing to provide the information.
Associated Press correspondent Juliet Williams also contributed to this report.