Backpage's Biggest Law Enforcement Critic Doesn't Think He Needs SESTA To Take Down Backpage

One of Backpage's most vocal critics in law enforcement has been Cook County Sheriff, Thomas Dart. As you may recall, this has been a nearly decade-long obsession with Sheriff Dart, in which he has been slapped down many, many times by courts. In 2009 he sued Craigslist for hosting adult ads, only to get slapped down pretty hard by a court explaining to him that you can't blame an online service for how its users use it. Once the ads on Craigslist moved to Backpage, Dart had a new target, which he regularly complained about in the press. In 2015, knowing he couldn't sue Backpage directly, he instead (successfully) strongarmed all the payment companies that worked with Backpage into cutting off service.

In response, Backpage sued Dart and very quickly won. The district court quickly pointed out that this seemed like a pretty clear First Amendment violation, with a government official using the law to attack non-criminal actions, creating classic prior restraint. The appeals court agreed with a masterful ruling by Judge Posner, about how this appeared to be a clear abuse of power by Sheriff Dart to bankrupt a company he disliked, but over whom he held no jurisdiction.

The case was then sent back to the lower court on a few points, and the two sides have been flinging paper back and forth for a while -- mostly to no avail. There had been little to no action in the case for many months... until last week Sheriff Dart suddenly sprung up to ask the court to reopen the process so he can issue subpoenas to Backpage, to dig more into what he insists must be criminal activity.

He's basing this on media reports related to a separate investigation into Backpage, which at the very least do raise some questions about whether Backpage is truly involved in the creation of its ads (which would take away its CDA 230 protections). Dart claims this proves that Backpage was lying to the court about how much of a hand it had in crafting ads on its site.

This July, THE WASHINGTON POST and NBC NEWS each published explosive articles reporting that Backpage is actively recruiting prostitutes and even creating ads for them to post on its website. Copies of these articles are attached as Exhibits A and B, respectively. While “Backpage has always claimed it doesn’t control sex-related ads, [n]ew documents show otherwise.” Exhibit A. Backpage has been “aggressively soliciting and creating sex-related ads.”...

The articles explain that the discovery of incriminating documents showing Backpage’ s solicitation and ad creation came about accidentally following the seizure of computers from one of Backpage’s Philippine agents in an unrelated civil lawsuit, but the fact that the revelations were accidental does not take away from their explosive character. The seized documents, if authentic and the reporting about them correct, prove that the essential premise of the original and amended complaints—that Backpage does not provide any of the content of the ads soliciting prostitution—is not well grounded in fact. Backpage has been lying to this Court...

[....]

Defendant now seeks leave to obtain through subpoena the very documents discussed in the two news articles—documents which, if authentic, corroborate the Red Beauty Sting and prove that Backpage has encouraged and participated in illegal activities, including the creation of advertisements that would destroy its Communications Decency Act defense that it is merely a web platform posting the advertisements of others.

Indeed, if it comes out that Backpage was actively involved in the creation of the content, it does not get CDA 230 protections. Under the Roommates.com standard, you can lose 230 protections if you "develop" the comment -- which means "materially contributing to its alleged unlawfulness." I have no idea if Backpage actually goes that far, but if it does, then its 230 protections go out the window and it's in a lot of trouble.

But here's the important point: for all the hubbub over the supposed "need" to break CDA 230 with SESTA in order to go after Backpage for this activity, Sheriff Dart's motion shows that there's no