12 ms·

The Backpage.com Case Is Testing the Limits of the First Amendment

61 points by danso 8y ago

makosdv 8y ago
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." - First Amendment to the Constitution of the United States of America (1789)
- pwned1 8y ago
  Just a correction, the First Amendment was adopted in 1791.
  - bdhess 8y ago
    After having been written in 1789...
- waterphone 8y ago
  "Except in all these situations…" —Courts
- craftyguy 8y ago
  That stopped being taken at face value a long time ago when SCOTUS decided to weaponize the Commerce Clause...
  - ailideex 8y ago
    Mind elaborating?
    - ryanlol 8y ago
      the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The courts and the congress have a very strange interpretation of this, for example in: https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich
      - ailideex 8y ago
        I meant more on how that is relevant to free speech. The case you cited seems to be about cannabis.
        deleted 8y ago
        [deleted]
        ryanlol 8y ago
        I'm not really sure. But the ever-expanding scope of the commerce clause is presumably what he refers to as weaponization.
        craftyguy 8y ago
        https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._United_States https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._Unit... (note: I am not saying I disagree with a decision to outlaw discrimination, just pointing out the absurdity that the Commerce Clause was 'interpreted' as being the only way to do this [which ultimately resulted in government limiting free speech])
      - sbuttgereit 8y ago
        This is my favorite example of this overreach... https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn In hand-wavy terms... in this case the commerce clause was used to prevent a farmer from growing wheat on his own land for use in feeding his own livestock. The federal government had established limits on wheat production at the time as part of the "New Deal".
        8y ago
- everdev 8y ago
  > since 1996 federal law has provided broad protections for online publishers of third-party content. Backpage has successfully argued that it can’t be held legally responsible for the criminal conduct of others—no matter how reprehensible. They're not arguing that they have the right to publish ads for illegal services. They're saying they're not liable for what 3rd parties post on their site. They're saying they're more like journalists, simply reporting what other people are saying (which happens to be promoting illegal services). While it sounds like they are pro-decriminalizing sex work, no one is arguing that it's legal to advertise criminal behavior (selling drugs, weapons, sex, etc.). They're just telling the courts to go after those advertisers individually rather than Backpage.
  - DanBC 8y ago
    Backpage's case would be stronger if they hadn't set themselves up to profit from this type of illegal advert, and if they hadn't hampered law enforcement at every opportunity.
    - everdev 8y ago
      Yeah it's a dubious case IMO. The 1st amendment is incredibly important and even more so in journalism, but this seems like a retroactive last ditch defense. They clearly wanted to profit off of the sex industry in places where it was still illegal to do so.
bediger4000 8y ago
Yeah, the 2nd Amendment is the only God Given, unlimited amendment, you should know that by now.
dannyw 8y ago
As an Australian, it seems like a great deal of the problems with human trafficking surface from the criminalisation of prostitution. Pimps hold far less power when the prostitutes have legal recourse and police on their side.
- AFNobody 8y ago
  This is largely correct but not something the US's religious right is willing to accept. Decriminalizing prostitution and criminalizing the person doing the "buying" in public is the maximum that is viable without encouraging abuse.
  - jack9 8y ago
    Both sides are criminalized in the US
    - AFNobody 8y ago
      Which is the problem.
  - deleted 8y ago
    [deleted]
  - pitaj 8y ago
    There no reason to paint this as a partisan issue. There are plenty of puritans on the left.
    - deleted 8y ago
      [deleted]
    - untog 8y ago
      There are plenty, but there are also definitely a lot more on the Republican side. A majority of self-identified Democrats favor legalization, while a majority of self-identified Republicans are against: https://today.yougov.com/topics/politics/articles-reports/2015/09/01/country-split-legalizing-prostitution https://today.yougov.com/topics/politics/articles-reports/20...
AndrewKemendo 8y ago
I remember being a kid in the 80s and grabbing a free Houston Press [1] whenever I could. Besides the great Alt-Comics section with Life in Hell and Red Meat, they had a sprawling "personals" section that read like a BDSM and fetish smorgasbord. Nobody seemed to mind that. [1]https://www.houstonpress.com/ https://www.houstonpress.com/
Consultant32452 8y ago
The difficulty with this case is that it's very difficult to find a source that genuinely steel-mans backpage. I noticed one thing, for example, which I will try to describe in a steel-manning way. It appears backpage, at least in part, was working with law enforcement and human trafficking activists. Perhaps not to the extent that those activists would have liked, but I suspect those activists would have preferred them to shut down completely. In assisting authorities/activists, certain keywords were filtered from ads, keywords which might have indicated that someone was under-age. This act of removing those keywords is what now has them in trouble, because the plaintiffs are arguing that backpage is now the "author" of that material rather than just a platform. If this is true, that seems like a dirty trick. The authorities/activists trick you into "helping" in such a way that you actually become a criminal, and then they come after you for it.
- Nasrudith 8y ago
  It is definitely a dirty trick and doing the typical win-oriented prosecutor thing of spinning every possible reaction as proof of guilt. Crying for your dead wife? Really remorse because you murdered her! Not crying? Remorseless psychopath! If that standard stands then they are asking for everything to be either user moderated or an absolute cesspool since taking any non-mandatory moderation action would make you responsible for contents. In which case they won't be able to beat up on social media companies for any of their content since they were the ones who tied their hands. That would make for a hilarious Zuckerberg congress meeting part two. "I would love to help with election meddling but my lawyers can't agree on anything that I could do that wouldn't leave me legally liable for high level felonies."
- DanBC 8y ago
  > It appears backpage, at least in part, was working with law enforcement and human trafficking activists. But it was not doing this. Backpage was in fact doing things that made it harder for law enforcement to take action. When people describe Backpage's actions as really fucking evil it's not because no-one is steel-manning backpage. It's because Backpage genuinely was really fucking evil. When someone posts an ad saying something like "16 year old escort" a non-evil company would have alerted law enforcement. Backpage didn't. Backpage returned an error message saying "Oops! Sorry, the ad poster must be over 18 years of age." (This is the real error message). It would then allow the poster to make an ammendment to the ad and re-submit it. Backpage would not keep this information. Please read this report, because it clearly details what Backpage did. And don't forget, this document just lists the things that Backpage have said they did. https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20FINAL.pdf https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report...
swyea 8y ago
ReplyAll has a whole episode dedicated to the subject https://www.gimletmedia.com/reply-all/119-no-more-safe-harbor https://www.gimletmedia.com/reply-all/119-no-more-safe-harbo...
deleted 8y ago
[deleted]

61 points by danso 8y ago

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." - First Amendment to the Constitution of the United States of America (1789)

pwned1 8y ago
Just a correction, the First Amendment was adopted in 1791.
- bdhess 8y ago
  After having been written in 1789...
waterphone 8y ago
"Except in all these situations…" —Courts
craftyguy 8y ago
That stopped being taken at face value a long time ago when SCOTUS decided to weaponize the Commerce Clause...
- ailideex 8y ago
  Mind elaborating?
  - ryanlol 8y ago
    the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The courts and the congress have a very strange interpretation of this, for example in: https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich
    - ailideex 8y ago
      I meant more on how that is relevant to free speech. The case you cited seems to be about cannabis.
      - deleted 8y ago
        [deleted]
      - ryanlol 8y ago
        I'm not really sure. But the ever-expanding scope of the commerce clause is presumably what he refers to as weaponization.
      - craftyguy 8y ago
        https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._United_States https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._Unit... (note: I am not saying I disagree with a decision to outlaw discrimination, just pointing out the absurdity that the Commerce Clause was 'interpreted' as being the only way to do this [which ultimately resulted in government limiting free speech])
    - sbuttgereit 8y ago
      This is my favorite example of this overreach... https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn In hand-wavy terms... in this case the commerce clause was used to prevent a farmer from growing wheat on his own land for use in feeding his own livestock. The federal government had established limits on wheat production at the time as part of the "New Deal".
      - 8y ago
everdev 8y ago
> since 1996 federal law has provided broad protections for online publishers of third-party content. Backpage has successfully argued that it can’t be held legally responsible for the criminal conduct of others—no matter how reprehensible. They're not arguing that they have the right to publish ads for illegal services. They're saying they're not liable for what 3rd parties post on their site. They're saying they're more like journalists, simply reporting what other people are saying (which happens to be promoting illegal services). While it sounds like they are pro-decriminalizing sex work, no one is arguing that it's legal to advertise criminal behavior (selling drugs, weapons, sex, etc.). They're just telling the courts to go after those advertisers individually rather than Backpage.
- DanBC 8y ago
  Backpage's case would be stronger if they hadn't set themselves up to profit from this type of illegal advert, and if they hadn't hampered law enforcement at every opportunity.
  - everdev 8y ago
    Yeah it's a dubious case IMO. The 1st amendment is incredibly important and even more so in journalism, but this seems like a retroactive last ditch defense. They clearly wanted to profit off of the sex industry in places where it was still illegal to do so.

bediger4000 8y ago

Yeah, the 2nd Amendment is the only God Given, unlimited amendment, you should know that by now.

dannyw 8y ago

As an Australian, it seems like a great deal of the problems with human trafficking surface from the criminalisation of prostitution. Pimps hold far less power when the prostitutes have legal recourse and police on their side.

AFNobody 8y ago
This is largely correct but not something the US's religious right is willing to accept. Decriminalizing prostitution and criminalizing the person doing the "buying" in public is the maximum that is viable without encouraging abuse.
- jack9 8y ago
  Both sides are criminalized in the US
  - AFNobody 8y ago
    Which is the problem.
- deleted 8y ago
  [deleted]
- pitaj 8y ago
  There no reason to paint this as a partisan issue. There are plenty of puritans on the left.
  - deleted 8y ago
    [deleted]
  - untog 8y ago
    There are plenty, but there are also definitely a lot more on the Republican side. A majority of self-identified Democrats favor legalization, while a majority of self-identified Republicans are against: https://today.yougov.com/topics/politics/articles-reports/2015/09/01/country-split-legalizing-prostitution https://today.yougov.com/topics/politics/articles-reports/20...

AndrewKemendo 8y ago

I remember being a kid in the 80s and grabbing a free Houston Press [1] whenever I could. Besides the great Alt-Comics section with Life in Hell and Red Meat, they had a sprawling "personals" section that read like a BDSM and fetish smorgasbord. Nobody seemed to mind that. [1]https://www.houstonpress.com/ https://www.houstonpress.com/

Consultant32452 8y ago

The difficulty with this case is that it's very difficult to find a source that genuinely steel-mans backpage. I noticed one thing, for example, which I will try to describe in a steel-manning way. It appears backpage, at least in part, was working with law enforcement and human trafficking activists. Perhaps not to the extent that those activists would have liked, but I suspect those activists would have preferred them to shut down completely. In assisting authorities/activists, certain keywords were filtered from ads, keywords which might have indicated that someone was under-age. This act of removing those keywords is what now has them in trouble, because the plaintiffs are arguing that backpage is now the "author" of that material rather than just a platform. If this is true, that seems like a dirty trick. The authorities/activists trick you into "helping" in such a way that you actually become a criminal, and then they come after you for it.

Nasrudith 8y ago
It is definitely a dirty trick and doing the typical win-oriented prosecutor thing of spinning every possible reaction as proof of guilt. Crying for your dead wife? Really remorse because you murdered her! Not crying? Remorseless psychopath! If that standard stands then they are asking for everything to be either user moderated or an absolute cesspool since taking any non-mandatory moderation action would make you responsible for contents. In which case they won't be able to beat up on social media companies for any of their content since they were the ones who tied their hands. That would make for a hilarious Zuckerberg congress meeting part two. "I would love to help with election meddling but my lawyers can't agree on anything that I could do that wouldn't leave me legally liable for high level felonies."
DanBC 8y ago
> It appears backpage, at least in part, was working with law enforcement and human trafficking activists. But it was not doing this. Backpage was in fact doing things that made it harder for law enforcement to take action. When people describe Backpage's actions as really fucking evil it's not because no-one is steel-manning backpage. It's because Backpage genuinely was really fucking evil. When someone posts an ad saying something like "16 year old escort" a non-evil company would have alerted law enforcement. Backpage didn't. Backpage returned an error message saying "Oops! Sorry, the ad poster must be over 18 years of age." (This is the real error message). It would then allow the poster to make an ammendment to the ad and re-submit it. Backpage would not keep this information. Please read this report, because it clearly details what Backpage did. And don't forget, this document just lists the things that Backpage have said they did. https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20FINAL.pdf https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report...

swyea 8y ago

ReplyAll has a whole episode dedicated to the subject https://www.gimletmedia.com/reply-all/119-no-more-safe-harbor https://www.gimletmedia.com/reply-all/119-no-more-safe-harbo...

deleted 8y ago

[deleted]