Crime - Sacto 911 case pits alleged ‘online brothel’ against free speech

A Sacramento Superior Court judge will decide in December whether criminal pimping and conspiracy charges brought by state prosecutors against executives of the website can proceed as the website’s attorneys again called for the case to be thrown out on constitutional grounds and prosecutors promised still more allegations.

Sacramento Superior Court Judge Michael Bowman said Wednesday that he will render his decision Dec. 9.

Backpage CEO Carl Ferrer and partners Michael Lacey and James Larkin were arrested in October after a three-year California Department of Justice investigation that led to accusations that the three operated the website knowing that it was an advertising hub for prostitution and a funnel for adult and child sex trafficking.

At issue in the case is whether created sex-for-sale content in a multimillion-dollar scheme to turn the site into a worldwide online brothel as state prosecutors allege, or whether the site merely republished ads created by third parties – speech protected by the First Amendment and federal communications statutes.

“They acted in whole or in part to create content – that is the linchpin of the case,” attorney general’s prosecutor Maggy Krell told Bowman. Krell said state prosecutors planned to add allegations that Backpage executives created profiles for visitors to the site, placed phone numbers for visitors on affiliated websites, concealed references to monetary exchanges and failed to properly monitor its site.

Attorneys for Backpage demanded immunity for Backpage from prosecution under the federal Communications Decency Act, which generally grants protections for online publishers that publish content from third parties.

Ferrer faces 10 counts, including pimping. Lacey and Larkin, co-founders of alternative newspapers Village Voice and Phoenix New Times, face conspiracy charges.

The three are free on bail in a case that has drawn the attention of civil libertarians, Internet industry watchers and sex workers among others.

California Attorney General Kamala Harris, who is leaving office after winning a U.S. Senate seat, said in a statement announcing the arrests that nearly all of’s worldwide income could be traced to its adult section and that more than $51 million in revenue from January 2013 to March 2015 came from California.

Backpage’s attorneys in October demanded the case be dismissed, calling the charges baseless election-time political posturing that violated free-speech rights and federal protections for online publishers.

Bowman, in a tentative ruling issued before the hearing, had appeared to side with Backpage, writing that Backpage did not appear to create content – only republish it – leaving its executives immune from prosecution under the Communications Decency Act.

But the ruling “is tentative,” Bowman emphasized at the hearing. “I’m going to keep an open mind.”

As Larkin and attorneys paused at a downtown street corner, Larkin, the Phoenix New Times co-founder, left with a parting shot.

“Kamala Harris is wrong,” Larkin said. “I’m looking forward to her being in the U.S. Senate, where we can cover her more closely.”

Darrell Smith: 916-321-1040, @dvaughnsmith

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