We have previously reported about Backpage executives being arrested and charged on felony charges of pimping a minor, pimping, and conspiracy to commit pimping by California Attorney General (and Senator-elect) Kamala Harris and Backpage’s effort to get the claim dismissed under CDA Section 230.
Sacramento County Superior Court Judge Michael Bowman issued a tentative ruling in favor of Backpage.
Here, the People allege that Defendants “created” content and are not entitled to immunity. However, on the face of the allegations, Defendants have, at most, republished material that was created by a third party. The People allege that the content was taken from ads placed by Backpage Escort users and posted onto EvilEmpire.com. The declaration in support of Defendants’ arrest warrant states that the ads placed in EvilEmpire.com were “essentially identical” to the ads placed by the third party on Backpage.com and that EvilEmpire was an “additional platform for Backpage Escort ads.” This demonstrates republication, not content creation. Republication is entitled to immunity under the CDA. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63.) As stated above, Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.
However, the Judge then also postponed his decision and asked for more briefing on the matter.