Backpage.com goes on attack against Kamala Harris over prosecution

The operators of the classified ad website Backpage.com have asked a Sacramento County judge to dismiss criminal charges filed by state Atty. Gen. Kamala Harris, who accused them of conspiring to profit off the prostitution and trafficking of women and girls.

In a motion filed Wednesday, attorneys for Backpage Chief Executive Carl Ferrer and the site’s two former owners, James Larkin and Michael Lacey, contend that federal law and the 1st Amendment shield the publisher from prosecution over the content of ads posted by customers.

The lawyers accused Harris of abusing her office by pursuing a case that tramples on free speech and unfairly demonizes a lawful international business.

“The A.G.’s complaint and theory of prosecution are frankly outrageous,” wrote James C. Grant, an attorney from Seattle who is representing the three men.

“The charges the state asserts amount to a brazen effort to intimidate or shut down an online publisher by using all the criminal sanctions at the A.G.’s disposal, despite that she has no authority whatsoever to do so.”

The Internet ad giant — which originated in the classified section in the back of alternative newspapers — lists apartments, cars and jobs. But state prosecutors allege in a criminal complaint filed Sept. 26 in Sacramento County Superior Court that the site earned more than 90% of its revenue from the “adult” section.

In that category, prosecutors contend that some of the paid ads offer thinly veiled prostitution of women and minors, with nearly nude photos and a menu of sex in coded language. 

During the state’s three-year inquiry, undercover agents responded to ads and met women and girls who described how they purchased ads on the website to sell sexual intercourse.

Lacey, 68, and Larkin, 67, founded Backpage and received earnings from the site, including a $10-million bonus that was paid in 2014 shortly before they sold their ownership interest, according to court papers. 

Ferrer, 55, oversaw the site’s operations, including screening, and is the sole named partner of Backpage’s parent company, according to prosecutors. He faces charges of pimping and pimping minors.

All three men face charges of conspiracy to commit pimping.

But their attorneys argue that Harris has scant evidence or legal authority to proceed with the case.

The lawyers point to the federal Communications Decency Act, which frees online publishers from liability over user postings and has been repeatedly interpreted to trump state criminal laws.

Harris, they said, is aware of the protections afforded by that act. They cite a July 2013 letter she signed with other state attorneys general that unsuccessfully lobbied for an amendment to the law that would allow for state-level criminal prosecutions.

They also contend Harris did not marshal evidence showing that the men knew about or were involved in any of the nine ads listed in the charging documents.

Lacey and Larkin — who had high-profile careers shepherding alternative weekly papers including the Village Voice and Phoenix New Times — also issued a joint statement Wednesday that blasted Harris for flouting legal norms to extract publicity so close to the election.

“If the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the 1st Amendment and federal law are finally adjudicated,” the two men said. “She won’t pay. The taxpayers of California will.”

Kristin Ford, a spokeswoman for Harris, said the issues raised by the defendants will be litigated in court. She pointed to an earlier statement from the attorney general.

“Raking in millions of dollars from the trafficking and exploitation of vulnerable victims is outrageous, despicable and illegal,” Harris said shortly after the prosecution was announced.

All three men have been released on bail. A hearing on the motion is scheduled for Nov. 16.

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