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Online Immunity Threatens Case Against Backpage.com

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By William Vogeler, Esq. on November 23, 2016 2:59 PM

A prostitute may post a classified ad online, but the online publisher is not responsible for the content. This isn't news, but a judge had to spell it out for prosecutors in Sacramento.

Superior Court Judge Michael Bowman said recently that Backpage.com, which is facing prostitution charges for publishing adult services advertisements, is protected under the Communications Decency Act. Enacted in 1996, the CDA provides civil and criminal immunity to internet service providers and others who republish information online.

Will Criminal Charges Be Dismissed?

"Republication is entitled to immunity under the CDA," Judge Bowman wrote in his tentative decision. "Congress struck a balance in favor of free speech in that Congress did not want to hold liable online publishers for the action of publishing third-party speech and thus provided both a foreclosure from prosecution and an affirmative defense at trial."

The ruling, if it becomes final, will result in criminal charges being dismissed against the company's officers and two shareholders.

The case arose after the high-profile arrest of Backpage CEO Karl Ferrer on Oct. 6, 2016. Former shareholders James Larkin and Michael Lacey also were charged. Prosecutors alleged that they were operating an online brothel.

First Amendment and CDA

California AG Kamala Harris made headlines for prosecuting the case, which has been criticized by civil liberties lawyers. They claim the prostitution charges violate the First Amendment and the Communications Decency Act. James Grant, representing the defendants in the case, said the government presented no evidence that could penetrate the federal immunities.

The CDA, which suffered a defeat in 1997 when the U.S. Supreme Court struck down its ban of online pornography, has continuously been under legal attack. In 2013, the attorneys general of 47 states called upon Congress to repeal the law. It was the first time Backpage.com was sued either.

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