A Tale of Two Principles

In the January 16 issue of the New Yorker magazine is a short piece, “End of Innocence” by Tad Friend which describes how the Internet has enabled child sex trafficking in the US. The article quotes a Senate report claiming that over 80% of online sex-ads revenue is generated by the website Backpage.com. Prosecutors have alleged that more than 90 % of Backpage's revenue — millions of dollars each month — comes from adult escort ads that use coded language and nearly nude photos to offer sex for money.

According to USA Today, law enforcement officials across the country have complained for years that the adult services ads on Backpage have given pimps the ability to easily advertise and set up meetings with johns. Now, with the aid of the seamy side of the Internet, prostitutes no longer need to troll the streets for customers and pimps can collect their fees automatically when the transaction is electronic. Unfortunately these ads disguise that the children may be underage, so this system allows children to be exploited which is, of course, against the law. The issue here is to decide which right is paramount: the right to free speech as embodied in the Bill of Rights as the First Amendment to the US Constitution or the right of minors not to be exploited which is part of every state’s statute law.


The right to protect children is easy to understand so let’s examine that first. Backpage claims that they are, in fact, protecting children from sex trafficking by working with police departments to help them root out those slimey advertisers who use code words like “young, Lolita, fresh, schoolgirl” to indicate the “escort” is a child. “Backpage offered... testimonials from law enforcement agencies, including the FBI, praising the site for assisting investigations. “I know your company is vilified nationally because it is an easy target,” read one testimonial, attributed to the Denver Police Department...I have told numerous people that Backpage is law enforcement friendly and does not support human trafficking.”

https://www.washingtonpost.com/news/morning-mix/

Backpage also claims that they are actually providing a service to sex workers that makes their job safer as the ads serve as a buffer between client and provider. Here is a link to a website which argues for the right of Backpage to provide sex-related ads under the protection of free speech.

https://reason.com/blog/2016/10/07/charges-against-backpage-ceo-listed/print

The case against Backpage is more complicated. Most all media, including websites are protected by the First amendment which guarantees citizens free speech and under Section 230 of the Communications Decency Act (CDA).

CDA Section 230 provides that internet service providers and website operators can not be held liable for content originating from a third-party. So, for example, if I use a social network like Facebook to harass someone, I can be successfully sued, but Facebook could not. This precedent was established when a suit was brought against AT&T because a stalker was using their phone lines to harass a customer and AT&T successfully argued they could not be held liable for illegal acts performed by others in much the same way that gun manufacturers are protected from prosecution when their gun is used in a crime. There are, however, provisions made If the host (Backpage.com) assists the third party (the Advertiser) in breaking the law because they become an accessory and are subject fines and imprisonment. In the instance of Backpage, prosecutors are claiming that Backpage actively helped the advertisers disguise the underage of the prostitutes so Backpage would also be liable. But this would be very difficult to prove. As a result Backpage has won two lawsuits, one in California and one in the Supreme Court which denied the lower court’s decision to prosecute.

This seems like an overly-complicated big mess but there may be a happy ending to this story. The latest twist has Backpage as of Jan 9 removing the “adult” ads section of their site. They continue to claim that their first amendment rights have been violated by the mean old feds harassing them until they had no choice but to acquiesce. Poor babies.