First Amendment Lawyers Ask New Calif. Attorney General to Drop 'Abusive' Crusade Against Backpage and User-Info Dragnet

A subpoena calls for copies of all Backpage ads posted over several years, all billing records, and the identities of all of the website's users.


Thomas Hawk/Flickr

The First Amendment Lawyers Association (FALA) is asking new Attorney General of California Xavier Becerra to end the "abuse of governmental power" perpetuated by predecessor Kamala Harris against current and former executives of the classified-ad site Backpage.

On March 14, FALA—a nonprofit membership association launched in the late '60s that has boasted some of the country's top constitutional lawyers—sent a letter to Becerra condemning "the abusive prosecution of individuals associated with the online classified advertising website, and also the use of expansive search warrants seeking vast amounts of constitutionally-protected material, including personally identifiable information about all of the website's users." In the letter, FALA President Marc Randazza says he can identify "no theory under the First Amendment that would countenance such an abusive use of prosecutorial discretion or such a dragnet demand for information."

Kamala Harris' crusade against Backpage began last fall, when she had current chief executive Carl Ferrer and former owners Michael Lacey and Jim Larson arrested for pimping and conspiracy. The premise of the charges was that Backpage—a user-generated advertising site much like Craigslist—received payment for "escort" ads that eventually resulted in prostitution, thereby making Ferrer, Lacey, and Larkin the "pimps." But it's an argument that California Judge Michael Bowman rejected, on the grounds that Section 230 of the Communications Decency Act (CDA) prohibits the criminal prosecution of web publishers for content posted by users. "The protections afforded by the First Amendment were the motivating factors behind the enactment of the CDA," noted Bowman, whose decision to dismiss the indictments is consistent with numerous other cases against classified ad sites like Backpage.

As the FALA letter points out, "at least seven other courts have expressly rejected the assumption underlying the California indictment that ads for escorts or those posted in an adult services section involve illegal speech, and none have concluded otherwise." Given this, and the fact that Harris previously signed a letter acknowledging Section 230's limit on Backpage prosecutions, "it is alarming that the State sought to bring a prosecution in the first place," writes Randazza.

But it didn't stop there: after Bowman's ruling, Harris' office filed another criminal complaint against Backpage, this time asserting the same pimping and conspiracy charges and adding a few counts of money laundering, too. The new complaint simply restates the previously rejected arguments for why Ferrer, Lacey, and Larkin are guilty of criminal activity.

Note that the normal process would have been for the state to appeal Bowman's final ruling, but instead, Harris—who is now in the U.S. Senate—and her office tried to simply bring the same failed criminal case in another court. This sort of "forum shopping" is "a gross abuse of prosecutorial discretion and a serious violation fo the First Amendment," FALA alleges. And that's still not all:

Beyond the fact of the prosecution itself, the methods employed by the prosecutors also exhibit an utter disregard for established First Amendment limits. We have learned that a subpoena was served on that calls for the production of massive amounts of information for a several-year period, including copies of all advertisements posted (in all content categories), all billing records, the identities of all of the website's users and their account histories, all internal communications, and even the source code for the operation of the website. This goes beyond the despised "General Warrants" that prompted the Constitution's Framer's to adopt the Fourth Amendment's protections against unreasonable searches, and violates numerous Supreme Court decisions limiting such demands for materials protected by the First Amendment.

Randazza told Becerra that FALA members are encouraged by the new attorney general's pledge to guard against civil liberties abuses in California. While seeking confirmation, Becerra said he would "vigorously defend the First Amendment" and hold police and prosecutors accountable for misconduct, ensuring that abuses committed by law enforcement would be "addressed and remedied transparently and without undue delay."

The FALA letter asks Becerra to take these principles seriously when it comes to the prosecution of Backpage. "To the extent you have not previously been briefed on the facts of this case," they write, "we hope that you will review them and take the steps necessary to ensure that the rule of law is followed in the State of California."