Mistrial Declared in Backpage Case

DOJ agent, Public domain, via Wikimedia Commons

Three years ago, in my omnibus post on the sex trafficking hysteria sweeping our nation, I wrote about Backpage:

The prelude to FOSTA was a war on the website Backpage, which has been the focus of multiple lawsuits and accusations of sex trafficking due to its advertisement of sexual services. Federal judges had ruled that Backpage was protected by Section 230 of the Communications Decency Act, which insulates websites from being punished for user content. It was also not clear what exactly they were being accused of since the evidence that they were allowing the site to be used for sex trafficking was … information Backpage had given to authorities on ads they worried might involve trafficking or underage sex workers. And the Feds had previously sharpened their teeth by taking out MyRedBook and Rentboy, neither of which was accused of trafficking. Backpage shut down shortly after the passage of FOSTA amidst federal charges. But the charges were for facilitating prostitution and money laundering, not sex trafficking.

This week saw the Backpage trial get going. And right away, it went off the rails. In his opening statement, the prosecutor raged about the evils of sex trafficking, including telling awful stories about girls supposedly trafficked on the site and even showing the jury pornographic images. But Backpage is not and has never been charged with “sex trafficking”. They are charged with facilitating prostitution and money laundering.

Backpage was a platform, much like Twitter or Facebook, to which the public could upload content, in this case, ads for things like car sales, apartments, jobs and adult-oriented ads, the publication of which has been deemed 100% legal by the courts. Backpage charged users to post ads in legal categories. It basically sold temporary space on an interactive website.

It did not countenance children on the site or illegality of any kind, both banned by the site’s terms of use. And Backpage cooperated with law enforcement to such a degree that its absence has severely damaged law enforcement’s ability to protect endangered women and children.

The defense immediately demanded a mistrial, but the judge agreed to let the prosecution begin presenting their case. They responded by putting up an “expert” who has, among other things, worked with the anti-sex and anti-porn group NCOSE (formerly known as Morality in Media). This expert again delved into terrifying stories of sex trafficking and child sex abuse that were irrelevant to the specific charges being leveled against Backpage. And when that wasn’t enough, she began to weigh in on the supposed hidden language of sex ads so that the prosecution could pretend Backpage was engaged in sex trafficking.

Presented as an expert on online ads for commercial sex, Cooper made a bevy of dubious claims about the language in such ads, describing all sorts of terms used by adult sex workers as evidence of sexual victimization and child sex trafficking. For instance, Cooper suggested that the phrase “100% independent”—used by escorts to denote that they’re not affiliated with an agency—was language meant to trick “buyers” into thinking they weren’t patronizing trafficking victims. At another point, Cooper claimed “wifey” means “a female who is under the control of a male trafficker.”

It’s hard to get across just how crazy this all is. There is cottage industry of “experts” on sex trafficking who make these sorts of claims. It is not based on any real knowledge, research or experience. It is based on people sitting around and thinking about what sex traffickers might do. Or looking at the evidence and trying to wedge it into a sex-trafficker shaped mold, using whatever nonsensical arguments they can. In other words, they start with the conclusion that all sex work is trafficking and all terms in sex ads relate to trafficking. Then it’s only a matter of figuring out how the pieces fit together.

This approach is a familiar one to those of us who remember the 80’s Satanic Cult panic. In West Memphis Three case, for example, an extremely dubious expert took every piece of evidence and proclaimed it to be proof of Satanism, even claiming the victims were castrated so that the supposed Satanists could harvest their non-existent sperm. In the infamous McMartin preschool case, every utterance, every movement and every word were interpreted through the lens of a Satanic cult. It was a quite literal witch hunt.

Witch hunts have gone out of fashion, however, so sex trafficker hunts are what we have now. The main difference is that, unlike witches, traffickers actually do exist. But for the most part, they aren’t advertising on Backpage. Sex trafficking usually involves abuse by someone known to the victim with connections made through channels that don’t screen ads.

That’s hard to track down, however. And it doesn’t help that such actual trafficking cases are thankfully rare. In the end, it’s just easier to conflate consensual sex work with trafficking and call it a day.

This morning, U.S. District Judge Susan Brnovich had apparently had enough of this and granted the defense’s motion for mistrial. One of our brilliant legal eagles can speak to the legal issues better than I can. But the gripping hand here is that you can’t just go into a trial and say, “There are bad things in this world. And the defendant is kind of bad-adjacent. Here’s horror stories about bad things they are not actually charged with doing.” Your arguments and testimony have to be relevant to what you’re, you know, charging them with. And in this case, neither the opening statement nor the first witness were. And so, Judge Brnovich, whose objectivity Backpage supporters were concerned about, did the right thing and declared a mistrial.

This does not mean that the charges go away. It means that a new trial — complete with new legal expenses — will have to start. I don’t know what is going through the prosecution’s mind here. But we’ve seen prosecutors — such as the current sitting Vice President — bring charges against Backpage they knew would be squashed so they could grandstand about sex-trafficking.

I have suspected from the beginning that this trial was more political theater than legal proceeding, an excuse to justify more intrusive laws, more abuse of our constitutional rights and an even tighter clamp down on internet content. Nothing I have seen this week had dissuaded me from that opinion.