As was eminently foreseeable, a California judge has issued a tentative ruling dismissing pimping and other charges against the owners and operators of Backpage.com. As the judge recognized but the California AG apparently failed to appreciate, the Communications Decency Act of 1996 protects internet platforms from liability for information posted by third parties. (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”) In prior Backpage.com litigation the CDA has been held to preempt state criminal law, as was at issue here. See, e.g.Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. Jul. 27, 2012).
The danger for the Backpage.com defendants comes from the allegation that they themselves knowingly re-posted ads for prostitutes, as the AG alleged. If true, that puts them in a very different situation from passive internet forum owners whom the CDA was designed to protect. It is these types of allegations that have kept cases against Backpage.com alive in other districts, where the plaintiffs (or in this case law enforcement) allege conduct going beyond passive hosting of third-party content. The judge kept his ruling tentative while he examined the AG’s contentions.
While some people will no doubt be upset by this result, let’s not forget that the CDA was designed to encourage the development of the internet and free speech online, and has been hugely successful in this regard. The idea is to protect platforms like Facebook, Twitter, and yes, Backpage.com, from liability for what their users may post online. And since the CDA has an express carve-out for federal criminal law – meaning that it has no effect on enforcement of federal criminal statutes – truly bad actors can still be prosecuted by the US DOJ. But the First Amendment remains protected.