California Atty. Gen. Kamala Harris has doubled down on prosecuting three men behind the classified ad website Backpage.com, releasing a trove of company emails to support pimping charges after a Sacramento County judge said he was inclined to reject the case outright.
Judge Michael Bowman had said in a tentative ruling last month that the federal Communications Decency Act shielded Backpage from prosecution over the content of users’ ads. The judge let both sides submit new arguments before issuing a final decision, expected to be released Friday.
To salvage the case, Harris’ office filed 74 pages of briefing and internal emails obtained from its investigation into Backpage, which the attorney general has derided as “the world’s top online brothel.” Prosecutors contend the evidence shows the website knowingly profited from prostitution, and that site operators were not passive publishers but entered into the realm of content creators.
The case largely hinges on whether the court views former owners James Larkin and Michael Lacey and the current CEO, Carl Ferrer, as publishers of third-party content or creators.
The state claims the latter and cites the example of two affiliated websites, Evil Empire and Big City.
On Evil Empire, profiles were made with altered content from Backpage users’ ads — unbeknownst to the users themselves — and linked to the original Backpage.com ads, prosecutors allege.
On Big City, prosecutors contend that Backpage ads were used to create pages resembling dating profiles. Staff would remove a “disclaimer” text that said requests for donations were for companionship, not sex, and also decide whether the user was interested in men, women or “everyone,” according to court papers.
In one email, Backpage’s operations manager offered instructions to moderators of Big City, apparently on how to alter the original ads: “Rates can be listed if sex acts are not; sex acts can be described if rates are not,” the email said. “The two, however, should never appear together.”
Backpage gave conflicting answers about its relationship to Evil Empire, according to the emails. One user emailed Backpage and asked that her phone number be taken down from Evil Empire, but the company told her the sites were not affiliated. However, when an El Paso police detective inquired about the relationship between the sites, Ferrer told a staffer to give “transparency.” The staffer described the site as Backpage’s in-house ad directory.
Before the release of the emails, Bowman, the judge, had said that republishing material was not the same as creating it, and he upheld the immunity enjoyed by publishers for posting material from 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.
Harris said the emails and other evidence show the trio used the multiple platforms to exploit vulnerable women and children and enrich themselves. Backpage earned more than 90% of its revenue from its “adult” ads, which sometimes offer thinly veiled prostitution of women and minors and coded sexual language, prosecutors alleged.
The state asked the judge to proceed with a preliminary hearing where prosecutors can fully present their evidence.
Ferrer, 55, has been charged with pimping a minor, pimping and conspiracy to commit pimping. The site’s two former owners, Larkin, 67, and Lacey, 68, were each charged with conspiracy to commit pimping.
All three have pleaded not guilty.
Filed on Sept. 26, the case is the most vigorous effort yet to blunt Backpage, which was founded in 2004 and is now owned by a Dutch company that lists Ferrer as its sole partner.
From the outset, the trio’s attorneys have attacked the prosecution’s legal foundations.
“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,” defense attorney James C. Grant wrote.
Lacey and Larkin also launched a counter-strike against Harris, saying she overstepped her legal authority to score political capital in the weeks before 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.”
This story will be updated.