Adult classifieds site Backpage is suing the Justice Department, weeks after a federal judge issued a stinging decision against attempts to cut the company off from the financial system.
Those efforts were led by the sheriff of Cook County, Illinois, who was ordered to stop pressing payment networks to boycott the site. Now Backpage is protesting the Stop Advertising Victims of Exploitation (SAVE) Act, a federal law signed by President Obama in May.
The SAVE Act amended sex-trafficking laws to criminalize advertising sex acts by trafficked or underage people. The law, according to its sponsor Rep. Ann Wagner, a Missouri Republican, would "make it unlawful for Backpage.com and similar websites to knowingly distribute advertising" that offers sex acts that breach existing sex-trafficking laws.
But in a lawsuit filed Friday against Attorney General Loretta Lynch, Backpage argued the law breaches the First and Fifth amendments, and sought an injunction preventing prosecution of websites and publishers under the new law.
The discussion of advertising in the bill, Backpage said in the complaint, "creates an ambiguity regarding whether and how websites and others that publish advertisements may be subject to the Act."
"By all customary definitions," it says, "websites and newspapers where advertisements appear are not advertisers." Federal law gives wide berth to publishers and websites that host content posted by third parties, and generally holds that such companies are not responsible for the speech of their users.
As the company has done repeatedly during its long tussle with politicians and law enforcement officials, it also sought protection of its right to free speech. "Websites and newspapers are publishers entitled to First Amendment protection, which cannot be held criminally liable absent proof they had knowledge that a specific ad or other communication was illegal," Backpage argued in its complaint.
The company pointed to lawmakers specifically saying they were targeting the site. Wagner has argued that procuring a child prostitute was "as easy as ordering a pizza" thanks to sites like Backpage.
In three cases, Backpage has successfully struck down state laws that would censor its ads. It also won a federal court order against the Cook County sheriff, who had written letters to Visa and MasterCard that a federal judge described as threats. After receiving the letters, the credit card companies cut off Backpage from their payment networks. As of Tuesday, it is still unable to accept credit card payments.
When SAVE Act was being proposed and debated, a broad range of technology and civil liberties groups opposed it, saying that it would chill free speech for a wide range of sites that host outside content, not just Backpage.
"Nothing in the bill limits its application to self-identified advertising sites; potentially any tweet, status update, video, reblog, or pin could include content that advertises a commercial sex act," Emma Lanso, of the Center for Democracy and Technology's Free Expression Project, wrote last year. "The bill therefore is likely to give rise to a de facto notice-and-takedown regime for online content platforms across the board."
Ron Wyden, the Oregon Democratic senator, was one of two senators to vote against the SAVE Act and tweeted, "Instead of focusing on going after traffickers, it would enable prosecutors to go after websites Americans use for non-nefarious purposes."
Websites like Twitter, for example, could end up being described as "advertisers" under a broad reading of the law. "It would be quite unsurprising to see prosecutors use this amended language to argue that operators of online ad platforms themselves 'advertise' within the meaning of the bill," Lanso wrote. "Considered in this light, the bill represents an end-run around crucial liability protections that Congress has previously enacted for online intermediaries."
Mark Kirk, a SAVE Act sponsor, said, "I intended to go after Backpage.com," and Wagner, the Missouri House member said, “Intervention is necessary to end facilitation of sex trafficking by Web sites like Backpage.com and others who commercially advertise this criminal activity."
She also said that companies like Backpage "should not be allowed to operate."
Here is Backpage.com's complaint.
