Polk County Sheriff Grady Judd is well known for his faith-based campaign against erotic entertainment. His morality police strike again, this time with a promise to go after the world’s second largest classified ad website, Backpage.com. The threats of prosecution come on the heels of a four day sting operation resulting in the arrest of almost 100 people, with charges ranging from offering to commit lewdness to aiding and abetting prostitution, deriving proceeds from prostitution, escape, traffic offenses, possession of illegal drugs, battery on a law enforcement officer and resisting arrest. According to deputies, the people arrested responded to advertisements posted by undercover detectives posing as prostitutes or were prostitutes who posted ads and came to the detectives’ location to offer services. Judd subsequently held a press conference stating that he now has permission from the State Attorney’s Office to launch a full criminal investigation into Backpage and its operators for facilitating organized prostitution and human trafficking, and plans to begin doing so.
Notably, this is the same sheriff who declared a so-called war on porn just a few short years ago. Having publicly vowed to eliminate all “smut” and “perverts” from his jurisdiction, by any means necessary, Judd has certainly kept working towards his goal of eradicating the “smut peddlers” who have the audacity to allow erotic speech to reach the residents of his county. Judd’s unique brand of Florida justice cuts off speech he disfavors at its source through threats, intimidation, and actual criminal prosecution against purveyors of such speech, with his most recent victims including website operators publishing interracial sex acts, and a convenience store operator selling girly videos. And nothing if not consistent, Sheriff Judd repeatedly justifies these tactics under the guise of enforcement of state obscenity laws, while disregarding bothersome legal constraints like jurisdictional boundaries, federal protection of website operations, and basic constitutional rights. During a previous obscenity case against a Netherlands-based website, he was quoted as saying that Polk County would have jurisdiction over anyone involved in running the website, even if they don’t live in Polk County, as long as Polk County residents are able to view that website. Dutch porn sites beware!
While not relying on obscenity principles to justify the threats against the Backpage.com publication, Sheriff Judd may be playing a bit fast and loose with the scope of potential accomplice liability as applied to online advertising outlets. Merely providing web-based advertising space to escorts does not automatically equate to aiding and abetting prostitution or solicitation. That theory was briefly explored by state law enforcement authorities, but generally abandoned after a humiliating loss in federal court by the South Carolina Attorney General. So how plausible is it for a local sheriff in Central Florida to bring down a globally disseminated website with Texas-based operations and out-of-state owners? It would not be surprising for Sheriff Judd to attempt to pave new legal ground with such a prosecution, and grab some headlines in the process. His constituents appear to support these dubious law enforcement efforts, as Sheriff Judd is routinely reelected or goes unchallenged at the polls. This mentality, coupled with Florida’s 2013 statutory amendment increasing prostitution-related civil penalties from $500 to $5,000 per offense – literally 1000% – is reason enough for Backpage to take note of Judd’s threats. Despite the fact that escort activity is not inherently illegal, but recognized and licensed as a valid occupation in numerous jurisdictions, online escort advertising sites are routinely targeted and pressured to censor their ads. Many readers will recall the voluntary demise of Craigslist’s ‘erotic services’ section despite years of censorship battles in and out of the courtroom, and shortly thereafter, the guilty plea entered into by Escorts.com in a federal prosecution, resulting in unprecedented financial penalties imposed on a site of its kind. With ambiguous accomplice theories like conspiracy and aiding and abetting dictating potential legal liability of online service providers, it’s really no wonder why Sheriff Judd feels emboldened to take action against Backbage.com, as part of his enforcement of an ultra-conservative, erotophobic agenda.
Agendas aside, there are still laws in place expressly designed to protect online advertising venues from legal liability derived from user-generated materials published on the sites. Specifically, Section 230 of the Communications Decency Act would allow an online service provider like Backpage to assert an immunity defense in response to any legal claims based on its third party advertisements. While Section 230 immunity is relatively well-settled in civil cases, it’s Judd’s threat of criminal prosecution that gives one pause for thought. Arguably, Section 230’s immunity would also extend to state criminal laws, and could present an insurmountable hurdle for Polk County law enforcement. However, this issue has not been conclusively determined in the courts.
Backpage would certainly also rely on free speech principles in defending against any criminal prosecution based on the content of its advertising. Because of the adult nature of escort ads, the line between prostitution-related offenses and free speech can often be blurred in these instances. But absent some sort of involvement by Backpage.com in the escorts’ day-to-day business activity, or clear knowledge that specific escorts were using its services to violate the law, the First Amendment may keep law enforcement at bay. Sheriff Judd counters that “Backpage.com charges for advertising and charges more for adult entertainment advertising. They are deriving profits from and facilitating prostitution.” This facile argument ignores the difference between “adult entertainment” and “prostitution,” in the same way that Judd’s office has ignored the difference between illegal “obscenity” and legal “pornography” in the past. But these threats of criminal prosecution have the makings for a good ole’ fashion, small town constitutional street fight.
Previous battles involving online escort advertisers have undoubtedly proven that eliminating one particular venue of disfavored expression will not eliminate the perceived problem, but will only result in a change of venue. Backpage reported an unprecedented increase in users almost immediately after Craigslist shut down its adult services category, and eventually became the U.S.’s largest escort service advertiser by 2012. This notion was reiterated by Backpage’s counsel, Liz McDougall, in her response to Sheriff Judd’s threats. “Unless the Internet is wholly shut down the end result of [Judd’s] strategy will be that our children are advertised through offshore websites who are outside the jurisdiction of U.S. law enforcement […].” With the circumstances at the mercy of one of the country’s most notorious moral crusaders, it’s difficult to envision Sheriff Judd doing anything but continuing down the path of draconian law enforcement, especially with such a newsworthy issue. Fortunately, the better of the legal arguments reside with Backpage, but the results of any politically-heated censorship battle are, as always, unpredictable.