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Backpage.com and the thin line between free speech and sex crime

July 30, 2012|By Matt Pearce

You could say Backpage.com is a page nearly everyone wants to rip out of the Internet, crumple up and throw away.

Last week, two legal cases out of Washington state illustrated how the popular website, known for its promotion of adult escort services, has to cling by its nails to the generosity of American law to survive.

On Friday, three girls — two 13 and one 15  at the time they ran away from home — filed suit in Pierce County Superior Court against Backpage.com, alleging it allowed them to be bought and sold over the site for sex by the pimps who captured them.

According to the News Tribune, the lawsuit says pimps photographed the 13-year-old in lingerie to post on Backpage.com, which drew “many, many adult men” as customers. The suit linked the 15-year-old to a 33-year-old pimp named Baruti Hopson, now serving a 26-year prison term for child rape, assault and promoting sexual abuse of a minor.

The lawsuit blames Backpage.com — a subsidiary of Village Voice Media, New York’s most famous alternative weekly — for allowing the girls' torment to happen.

“I don’t think we can stop prostitution,” Erik Bauer, one of the girls' attorneys, told the News Tribune. “But you don’t sell kids. It’s not OK to advertise and sell kids anywhere, ever. You don’t do that.”

The suit, like other such suits against sex-powered, envelope-pushing websites, puts Backpage.com attorney Liz McDougall in the awkward position of trying to bat down a lawsuit from sex-trafficking victims with an argument that third-party Internet content is protected under the Communications Decency Act of 1996.

The Communications Decency Act allows service providers like Facebook or Google to operate with less fear of being sued for the things that their users say and post on their services; the law allows businesses to thrive in the current climate of hypersocial Internet services.

So challenging Backpage.com can mean challenging the Communications Decency Act itself, which brought Backpage.com an unlikely bedfellow in another Washington lawsuit — this time, one filed by the website.

On Friday, a federal judge granted a preliminary injunction to block a new Washington law that would require Backpage.com to verify the ages of those who appear in sex ads. Backpage.com was joined in the suit by Internet Archive, which runs the much-blander Web archival site known as the Wayback Machine. Together, they alleged that the law violated the Communications Decency Act, the 1st and 5th  Amendments, and the Commerce Clause of the U.S. Constitution.

Those are broad arguments, but Backpage.com and Internet Archive saw themselves staring down a similarly broad threat in the form of the new Washington law.

“Because of its expansive language (i.e. “indirectly” “causes”), the law applies not only to online classified ad pages like Backpage.com, but also to any website that allows third parties to post content, including user comments, reviews, chats and discussion forums, and to social networking sites, search engines, internet service providers and more,” the suit said.

U.S. District Judge Ricardo S. Martinez agreed the law should be put on hold  long enough for the lawsuit to be heard. Prosecutors opposing the Backpage.com suit were disappointed.

"Rather than fight the selling of children through responsible business practices, Backpage has chosen to fight in our courts those who battle human trafficking,” Washington Atty. Gen.  Rob McKenna said in a statement, according to the Associated Press. “While they are entitled to do that, we will do all that is within our power to see that they fail.”

How the twin suits will turn out  is anyone’s guess.

Unmentioned in all of this, and unnamed in either of the suits, are the endless stream of anonymous customers who give Backpage.com and sex trafficking such a profitable reason to exist. Like the young girls given acronyms in the suit against Backpage.com, they may never be named at all.

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