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Freedom, Commerce, Bodies, Harm: the Case of Backpage.Com

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Freedom, Commerce, Bodies, Harm: the Case of Backpage.Com Social Inclusion (ISSN: 2183–2803) 2017, Volume 5, Issue 2, Pages 3–15 DOI: 10.17645/si.v5i2.925 Article Freedom, Commerce, Bodies, Harm: The Case of Backpage.com Elizabeth Swanson Arts and Humanities Division, Babson College, MA 02457 Wellesley, USA; E-Mail: [email protected] Submitted: 23 February 2017 | Accepted: 4 May 2017 | Published: 23 June 2017 Abstract This article situates lawsuits against Backpage.com in the context of changing laws and norms of sexual commerce and trafficking, and of evolving legal interpretations of Section 230 of the Communications Decency Act. Section 230 has been used repeatedly to shield internet service providers such as Backpage.com from liability for content generated by third parties that has led to criminal harm to others; in this case, the trafficking and commercial sexual exploitation of minors. Moving to a critique of the law as at times grievously detached from the realities it addresses, I compare the legal strategies and decisions in three prominent cases brought against Backpage.com in St. Louis, Tacoma, and Boston, respectively. This critique identifies the evacuation of gendered bodies and the harm done to them from the court opinions as an example of what Robert Cover has called the “interpretive violence” of the law, and of the judges who interpret and dispense it. I conclude by calling for courts and Congress to act together to disrupt the accumulation of interpretive precedent favoring freedom of commerce and speech over the protection of bodies from harm. Keywords Backpage.com; Communications Decency Act; human trafficking; legal theory; minors; sex trafficking; sexual commerce Issue This article is part of the issue “Perspectives on Human Trafficking and Modern Forms of Slavery”, edited by Siddharth Kara (Harvard Kennedy School, USA). © 2017 by the author; licensee Cogitatio (Lisbon, Portugal). This article is licensed under a Creative Commons Attribu- tion 4.0 International License (CC BY). “Legal interpretation takes place in a the country, and even the Senate Permanent Subcom- field of pain and death.” mittee on Investigations. Like other powerful people Robert Cover (1986) charged with unethical or criminal behavior, Ferrer’s eva- sion of even the question of the charges only added to 1. Introduction the sense of invulnerability attached to his image as an international corporate CEO—that is, until his arrest in A simple internet search for information about Back- October 2016 on felony charges of pimping and conspir- page.com CEO Carl Ferrer yields little. Based on the re- acy, at which point his mug shot became the primary im- sults, it would seem that Ferrer’s life began in 2004, when age radiating from internet search engines. he teamed up with New Times Media principles Michael This article considers the role of the law in pro- Lacey and James Larkin to launch Backpage.com, the ducing the gap between the Ferrer empowered to re- world’s largest online purveyor of “adult services” adver- pel inquiry with the phrase “no comment” and the tisements, as a strategic response to the market-driven Ferrer compelled to respond to allegations as a crim- migration of classified ads from print to internet vehi- inal defendant in a court of law—in other words, be- cles. Since then, Ferrer’s persona is best grasped through tween Ferrer the CEO and Ferrer the alleged pimp and the phrase “no comment,” repeated on camera and in trafficker. The crux of the matter—justice and redress print to reporters, judges, and legislators seeking his re- for minors trafficked through advertisements posted on sponse to charges of trafficking adults and minors on Backpage.com—remains stuck in that breach, reminding Backpage.com—charges arising from law enforcement, us that the law is a flexible instrument, a power-tool as trafficking victims and their amici in state courts around likely to preclude as to produce justice. What lies in the Social Inclusion, 2017, Volume 5, Issue 2, Pages 3–15 3 space between justice and its foreclosure is precisely the this potentially precedent overturning (and re-setting) paradox that legal scholars Robert Cover and Colin Dayan case, the Washington Supreme Court decided that there have identified as the violence of the law, wielded pur- was enough evidence against Backpage.com to support posefully or not by legislators (makers of the law) and moving to discovery and litigation in a trial set for May judges (interpreters and distributors of the law). If the 2017. law came into being as an instrument to prevent the com- The final case against Backpage.com was brought by mission of violence, and to protect the weak from the Boston law firm Ropes and Gray in 2014 on behalf of strong, then, as Colin Dayan (2011) writes, “legal reason- three minor children trafficked for sex in Massachusetts ing [must be made] as vital as the lives of persons lethally and Rhode Island via online advertisements on Back- affected by it” (p. x). page.com. Like the others, this suit sought to hold Back- I take up Dayan’s challenge here, commencing by page.com accountable for alleged criminal actions to fa- briefly situating suits against Backpage.com within the cilitate the efforts of sex traffickers to sell children on its context of changing laws and norms of sexual commerce site. Backpage.com’s Motion to Dismiss was granted by and trafficking, and of evolving legal interpretations of the federal district court judge in May, 2015, on the ba- Section 230 of the Communications Decency Act (CDA), sis that Backpage.com was acting as a publisher of third which has been evoked repeatedly to shield internet ser- party content and thus, was protected by Section 230. vice providers such as Backpage.com from liability for The 1st Circuit Court of Appeals upheld that ruling in content generated by third parties that has led to crim- March of 2016, expanding the protective coverage of Sec- inal harm to others. Moving to a critique of the technol- tion 230 to an unprecedented extent: that Section 230 ogy of law as at times grievously detached from the re- would protect a publisher who was a co-conspirator in a alities it addresses and the spirit of justice it is meant to federal crime—in this case, the crime of child sex traffick- bring into being, I compare the legal strategies and de- ing. A last challenge was filed on behalf of the Jane Does cisions in three prominent cases brought against Back- in the US Supreme Court, which declined in January 2017 page.com in St. Louis, Tacoma, and Boston, respectively, to hear the case. identifying the evacuation of gendered bodies and the Unfortunately, the outcomes on behalf of the Jane harm done to them from the court opinions as an exam- Does are not surprising. Cases brought on behalf of mi- ple of the “interpretive violence” of the law, and calling nor children trafficked online for commercial sex unfold for courts and congress to act together to disrupt the pro- within a turbulent social and political field dominated by ceduralist accumulation of precedent favoring freedom a split between, on one hand, those who seek to decrim- of commerce and speech over the protection of bodies inalize prostitution, defining it as labor and arguing that from harm.1 criminal stigma and consequences cause far graver vio- lence to sex workers than the harm typically associated 2. Commercial Sex, Human Trafficking, and Slavery2 with the act of commercial sex itself, and, on the other, those who seek to end trafficking by employing vari- I begin with a brief description of the three cases un- ous models of prevention and criminalization of transac- der consideration here. The first, filed on September 16, tional sex. Consensus among those in the latter camps 2010 in US District Court, Missouri, sought justice for has converged around what has come to be known as M.A., a 13-year old child who was recruited at a fast food the Nordic Model, whereby the purchase of sex is crimi- restaurant after she snuck out of her mother’s home to nalized but the sale is not, thereby shifting attention to attend a party. The child was missing for 270 days and the demand side of the transaction and correcting the raped repeatedly as a result of being sold online via Back- previous legal travesty by which those who sold sex suf- page.com. On August 15, 2011, the Court decided against fered criminal consequences while those who purchased M.A., dismissing the case on the basis that Backpage.com it walked free. At the same time, international agencies is protected under Section 230 of the CDA. No appeals such as the United Nations, the World Health Organiza- were filed. tion, and the International Labor Organization (ILO) have The second case involves a 15-year old who ran away advocated for the rights of sex workers, and Amnesty In- from home and was recruited at a teen homeless shel- ternational, arguably the world’s largest human rights or- ter in Tacoma by an older woman to “go to the beach.” ganization, formally adopted in 2015 a policy that calls Within hours, the child was being sold repeatedly on for the end of decriminalization of all consensual sex Backpage.com. She was missing for 180 days. This case, work. The trouble with that policy, of course, is iden- originally filed in 2013, is the only case brought by a child tifying “consensual” v. “nonconsensual” sexual transac- against Backpage.com to survive a motion to dismiss. In tions in a fundamentally coercive environment where 1 The cases under discussion here are explored in depth in the documentary feature I Am Jane Doe, Dir.
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