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Publisher of Sex-Trafficking Ads Isn't the Criminal

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It takes a lot to turn a publisher of sex ads into a First Amendment hero. But the attorney general of California has managed the feat. By charging Carl Ferrer, the chief executive of Backpage.com, with pimping and sex trafficking in minors, Kamala Harris has seriously breached the constitutional wall meant to protect the free press. Ferrer -- and the two controlling shareholders of the online classified marketplace Backpage -- aren’t charged with actually arranging sex for pay. They’ve been criminally charged based on a claim that Backpage is designed to, and does, publish third-party ads for sex trafficking. On this theory, essentially any publication that sells ads could be outlawed -- and that’s almost any publication on earth.

When I last wrote about Backpage, it was to point out that the company has a valid First Amendment argument to deny a U.S. Senate subcommittee access to its editorial policies. In retrospect, a Senate subpoena and a highly unusual vote to hold Backpage in contempt was small potatoes, constitutionally speaking.

Last week, Ferrer was arrested in Texas on charges filed by Harris, the charismatic attorney general who’s running for U.S. Senate this year.

The criminal complaint is a fairly astonishing document. First it recites the crimes of “pimping conspiracy.”  As for the overt acts that are necessary to prove Ferrer and the shareholders  committed the crime, the complaint simply says that Backpage requires escort advertisements to appear in the adult services section and that Ferrer “developed and oversaw a process to screen ads” on the site. Then it says that Backpage received credit card payments for ads that featured nine minors.

The rest of the complaint lists various crimes of pimping minors. Here the complaint makes no attempt to fit Ferrer’s actions into the legal definition of pimping, which includes soliciting and receiving compensation for soliciting on behalf of a prostitute.

It seems relatively unlikely that, under California law, a person has conspired to act as a pimp by publishing a third-party advertisement though which totally unrelated people meet and commit an act of prostitution.

At a minimum, you would think the publisher would have to have actual knowledge that the ad was for prostitution. That would arguably create the agreement between parties that is ordinarily necessary for conspiracy to be created.

But, of course, the ads in Backpage don’t literally say that a minor is being trafficked for sex any more than other escort ads expressly state that they are for paid sex. The difference matters. The First Amendment doesn’t protect speech that directly solicits criminal behavior. But it does protect speech that might lead to criminal behavior, and also might not. That’s crucial, because lots of speech could potentially lead people who meet each other to agree on a criminal course of conduct. Free speech law requires that government censorship not go so far as to chill lawful speech in order to punish some unlawful speech.

But even if California law would extend to criminalizing the Backpage ads, it would almost certainly violate the First Amendment in doing so. The law would then be targeting speech on the basis of its content, and would have to satisfy the highest degree of judicial scrutiny. The law would have to serve a compelling state interest, and be narrowly tailored to achieve that interest.

Preventing sex trafficking of children is a compelling state interest. But criminalizing the publication of ads for escorts almost certainly would not count as narrowly tailored to achieving that goal. Criminalizing the ads would cover plenty of conduct that is legal. Narrow tailoring would be to prohibit the illegal act, not to prohibit ads that might lead to the illegal act.

Maybe Harris plans to allege that Ferrer’s design of the screening process for the ads showed he knew that sex trafficking was happening on the site. But I don’t think general knowledge would be enough to overcome the First Amendment hurdle. Otherwise, any publisher could be criminally liable for illegal conduct by people who place ads -- which would clearly infringe on the freedom of the press.

The direct pimping charges chill free speech to a still greater degree, because the charges push the meaning of the statute to its breaking point. Soliciting prostitution is very different from publishing an ad by a third party that might lead to such solicitation. Even if -- as seems unlikely -- the California pimping law extends to such conduct, the First Amendment wouldn’t allow the two acts to be treated the same way.

Criminal prosecution is a dangerous weapon. State government needs to exercise that tool with care for constitutional protection -- and the First Amendment. When it doesn’t, it turns even unappealing people like Ferrer into unlikely defenders of all our rights.

  1. That’s not slang -- California law actually uses the word “pimping.”

  2. The shareholders can’t be held liable for conspiracy unless they also took overt acts, which don’t seem to be alleged in the complaint.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net