Judge sides with Backpage.com operators and leans toward tossing out pimping charges

A Sacramento County judge has tentatively rejected pimping charges against the operators of Backpage.com, a website that state Atty. Gen. Kamala D. Harris condemned as the “world’s top online brothel” when she announced the high-profile prosecution last month.

Citing the need to crack down on the trafficking of women and children, Harris had charged Backpage Chief Executive Carl Ferrer, 55, with pimping a minor, pimping and conspiracy to commit pimping. The site’s two former owners, James Larkin, 67, and Michael Lacey, 68, were each charged with conspiracy to commit pimping.

But Judge Michael Bowman said in his tentative ruling issued Wednesday that Harris overstepped her authority in filing the case because the Communications Decency Act, a federal statute, immunized Backpage and other website operators from the content of users’ ads.

“Any rational mind would concur that the selling of minors for the purpose of sex is particularly horrifying and the government has a right and a duty to protect those most vulnerable victims,” Bowman wrote in his seven-page decision.

But, he said, prosecutors were constrained by 1st Amendment rights and existing law.

“Congress has spoken on this matter and it is for Congress, not this Court, to revisit,” Bowman wrote at the end of the decision, underscoring its importance with bold font.

The judge gave each side additional time to submit briefs and further argue their positions. A final judgment is expected by Dec. 9.

If upheld, the decision would strike a blow to Harris while she winds down her tenure as the state’s top law enforcement official. The Democrat was elected to the U.S. Senate last week.

Lacey and Larkin had previously accused Harris of flouting her legal authority by even filing the case, pointing out that she had unsuccessfully sought an amendment to the Communications Decency Act that would allow for state-level criminal prosecutions.

The pair said Harris was trying to score political points for the Nov. 8 election.

“Kamala Harris has won all that she was looking to win when she had us arrested,” Lacey and Larkin wrote. “She issued her sanctimonious public statement, controlled her media cycle and got her ‘perp walk’ on the evening news.”

State prosecutors announced the prosecution in early October, when Ferrer was arrested at Bush Intercontinental Airport in Houston after arriving from Amsterdam. The company’s Dallas headquarters was raided, and authorities said Lacey and Larkin had warrants issued for their arrests.

State prosecutors had alleged in a criminal complaint filed Sept. 26 that the website earned more than 90% of its revenue from its “adult” ads. Prosecutors contend the advertisements offer thinly veiled prostitution of women and minors, with scantily clad photos and coded sexual language.

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Prosecutors contended that the men knowingly profited from prostitution and argued that they exceeded their roles as publishers by putting Backpage ads onto affiliated sites such as EvilEmpire.com and BigCity.com, according to court papers.

The judge was not swayed. He stated that republishing material was not the same as creating it, and he upheld the immunity enjoyed by publishers for advertising material posted by third parties.

“The victimization resulted from the third party’s placement of the ad, not because [of] Backpage profiting from the ad placement,” Bowman wrote.

Kristin Ford, a spokesman for the attorney general’s office, declined to comment.

matt.hamilton@latimes.com

Twitter: @MattHjourno.

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