Lawyers for the Backpage executives charged with pimping a minor, pimping, and conspiracy to commit pimping demanded that charges be dismissed on the grounds that the prosecution violates the First Amendment and is preempted by Section 230 of the Communications Decency Act.
First Amendment
The State cannot prosecute a publisher for publishing speech with absolutely no showing that the speech was unlawful, much less any allegation that defendants ever even saw the specific ads that are the basis for its charges. As the Supreme Court has long recognized, states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality, as any other rule would severely chill speech. Smith v. California, 361 U.S. 147 (1959).
CDA Immunity
The thrust of their argument, however, is that the charges are preempted by Section 230 of the Communications Decency Act.
As you know, Section 230 bars state-law claims against websites and other interactive computer services based on the publication of third-party content. A website cannot be held liable for publishing content submitted by users or for failing to block or remove such content, notwithstanding any allegations that it knew or should have known the content concerned unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state laws. Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet.
Indeed, in July 2013, you and other state attorneys general signed a letter to various members of Congress urging that Section 230 be amended to exempt state criminal laws from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from National Association of Attorneys General, https://www.eff.org/files/cda-ag-letter.pdf. It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring. Accordingly, the State should dismiss the complaint and all charges against Messrs. Ferrer, Lacey and Larkin.
The NAAG letter referenced was written following a 2012 Washington federal court ruling that held the CDA preempted state criminal law. Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1262 (W.D. Wash., July 27, 2012).
Lawyers for the Defendants have filed the below demurrer or motion to dismiss the complaint which will be heard on November 16.
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