Exhibit E 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 1 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

James C. Grant (admitted pro hac vice)

DAVIS WRIGHT TREMAINE LLP 

1201 Third Avenue, Suite 2200 

Seattle, WA 98101 

Telephone: (206) 622-3150 

Facsimile: (206) 757-7700 

Email: jamesgrant@dwt.com 

Counsel for Defendants Carl Ferrer, Michael Lacey and James Larkin 

Cristina C. Arguedas (SBN 87787) 

Ted W. Cassman (SBN 98932) 

ARGUEDAS CASSMAN & HEADLEY LLP

803 Hearst Ave 

Berkeley, CA 94710 

Telephone: (510) 845-3000 

Facsimile: (510) 845-3003 

Email: arguedas@achlaw.com 

 cassman@achlaw.com 

Counsel for Defendants Michael Lacey and James Larkin 

Tom Henze (admitted pro hac vice)

Janey Henze Cook (SBN 244088) 

HENZE COOK MURPHY PLLC 

4645 N. 32nd St., Suite 150

Phoenix, AZ 85018 

Telephone: (602) 956-1730 

Facsimile: (602) 956-1220 

Email: tom@henzecookmurphy.com 

 janey@henzecookmurphy.com 

Counsel for Defendant Carl Ferrer

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 

IN AND FOR THE COUNTY OF SACRAMENTO 

PEOPLE OF THE STATE OF 

CALIFORNIA,

 Plaintiff, 

 v. 

CARL FERRER, MICHAEL LACEY, and

JAMES LARKIN,

 Defendants. 

 Case No. 16FE019224, Dept. No. 61 

NOTICE OF DEMURRER AND 

DEMURRER OF DEFENDANTS; 

SUPPORTING MEMORANDUM OF 

POINTS AND AUTHORITIES 

[California Penal Code § 1004] 

Opposition Due: November 4, 2016 

Reply Due: November 10, 2016 

Hearing Date: November 16, 2016 

Time: 1:30 p.m. 

Complaint Filed: September 26, 2016 

Trial Date: N/A 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 2 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Additional Counsel:

Don Bennett Moon (pro hac vice application to be filed) 

500 Downer Trail 

Prescott, AZ 86305 

Telephone: (928) 778-7934 

Email: don.moon@azbar.org 

Counsel for Defendants Michael Lacey and James Larkin 

Robert Corn-Revere (pro hac vice application to be filed)

DAVIS WRIGHT TREMAINE LLP 

1919 Pennsylvania Avenue, NW, Suite 800 

Washington, D.C. 20006 

Telephone: (202) 973-4200 

Facsimile: (202) 973-4499 

Email: bobcornrevere@dwt.com 

Rochelle L. Wilcox (SBN 197790) 

DAVIS WRIGHT TREMAINE LLP 

505 Montgomery Street, Suite 800 

San Francisco, California 94111 

Telephone: (415) 276-6500 

Facsimile: (415) 276-6599 

Email: rochellewilcox@dwt.com 

Counsel for Defendants Carl Ferrer, Michael Lacey and James Larkin 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 3 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 1 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE that, on November 16, 2016, at 1:30 p.m. or as soon thereafter 

as the matter may be heard in Department 61 of the Sacramento County Superior Court, 651 

I Street, Sacramento, California 95814, defendants Carl Ferrer, Michael Lacey and James Larkin, 

respectively the CEO and former owners of an online publisher, Backpage.com, LLC, pursuant to 

California Penal Code §§ 1002-1005, will and hereby do demur to the criminal Complaint filed by 

California Attorney General Kamala D. Harris and all charges asserted on the following grounds: 

1. The Demurrer should be sustained under Penal Code §§ 1004(4) and (5) because 

the Complaint and the prosecution are legally barred under the First Amendment to the United 

States Constitution, as the Attorney General seeks to hold an online publisher of third-party speech 

criminally liable, with no allegation of scienter that Backpage.com knew the specific speech upon 

which the charges are based was unlawful, much less that the named Defendants had any 

knowledge of or participated in any way in the creation or posting of the speech. The First 

Amendment bars the prosecution because imposing an obligation on publishers to review all 

speech to ensure that none is unlawful would severely chill free expression. 

2. The Demurrer should be sustained under Penal Code §§ 1004(4) and (5) because 

the Complaint and prosecution are legally barred by Section 230 of the Communications Decency 

Act, 47 U.S.C. § 230, which grants immunity to interactive computer services such as 

Backpage.com for any liability based on publishing third-party content or for failing to remove 

any such content, regardless of any allegations that the website knew or should have known of 

illegal content. Section 230 expressly preempts all state criminal laws and absolutely precludes 

the prosecution in this case. Indeed, the Attorney General has admitted she has no authority to 

bring state criminal charges against Backpage.com for publishing third-party content. 

3. The Demurrer should be sustained under Penal Code §§ 1004(2) and (4) because 

the Complaint does not state facts that constitute public offenses under the criminal statutes 

charged. Contrary to Penal Code § 950, the Complaint (and the supporting declaration it 

incorporates) fails to allege facts supporting each element of the charged offenses. 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 4 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 2 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

a. With regard to the charges of pimping under Cal. Penal Code § 266h, the 

Complaint alleges no facts that Mr. Ferrer knew anything about the nine individuals who 

posted ads that are the premise for the charges, much less that they were prostitutes, as 

required by section 266h. See Wooten v. Superior Court, 93 Cal. App. 4th 422, 437-38 

(2001) (directing dismissal of claims based on failure to show defendants had any 

knowledge of alleged prostitution, and holding that allegations of generalized knowledge 

are insufficient under Section 266h). Moreover, the First Amendment requires that, as 

essential elements of the charges against Mr. Ferrer, the State must allege facts (and 

ultimately prove) that he knew of the unlawful nature and content of the specific ads that 

are the subject of the charges, and, for Counts Two-Six, knew that the individuals involved 

were minors. Yet, the Complaint and declaration allege no such facts, and do not even 

allege that Mr. Ferrer ever saw the subject ads or knew anything about them or the 

individuals who posted the ads. 

b. With regard to the charges of conspiracy under Penal Code § 182, the 

Complaint fails to allege any facts to establish the elements of the crime charged. The 

Complaint and supporting declaration do not anywhere allege that Messrs. Lacey, Larkin 

and Ferrer entered into any agreement with anyone, or that they had any specific intent to 

commit a public offense of pimping as to any individual or engaged in any overt acts even 

remotely showing a purpose of accomplishing the illegal objective of any such 

(nonexistent) agreement. 

The demurrer should be sustained without leave to amend, because the charges contained 

in the Complaint and the Attorney General’s prosecution are absolutely barred by the First 

Amendment and Section 230 of the CDA and cannot be cured by amendment, and the Complaint 

does not and cannot state facts that constitute public offenses under the criminal statutes charged. 

This Demurrer is supported by the concurrently filed Memorandum of Points and 

Authorities, Request for Judicial Notice (with accompanying Declaration of James C. Grant), and 

the papers and pleadings on file in this matter. 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 5 of 39
Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 6 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 i 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

TABLE OF CONTENTS 

Page

MEMORANDUM OF POINTS AND AUTHORITIES .................................................................. 1

I. INTRODUCTION ................................................................................................................. 1

II. BACKGROUND ................................................................................................................... 2

A. Backpage.com. .......................................................................................................... 3

B. Unsuccessful Efforts of AG Harris and Other AGs to Shut Down Adult Online 

Advertising and Admissions that CDA Section 230 Bars State Prosecutions. ......... 4

C. The Criminal Complaint and Arrest Warrant Declaration. ....................................... 6

D. The AG’s Arrests and Incarceration of Defendants, Searches and Seizures, and 

Opposition to Defendants’ Efforts to Post Bail. ........................................................ 7

III. ARGUMENT ........................................................................................................................ 8

A. Standards for a Demurrer Under Penal Code § 1004. ............................................... 8

B. The Complaint and Prosecution Are Legally Barred By the First Amendment. ...... 9

C. The Complaint and Prosecution Are Legally Deficient Under Section 230 of 

the CDA, as the Attorney General Has Admitted. .................................................. 14

D. The Complaint Does Not State Facts that Constitute Public Offenses under the 

Criminal Statutes Charged. ..................................................................................... 21

1. The “Pimping” Allegations Against Mr. Ferrer Are Wholly Deficient. ..... 23

2. The Conspiracy Charges Against Defendants Are Likewise Deficient. ..... 25

IV. CONCLUSION ................................................................................................................... 27

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 7 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 ii 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

TABLE OF AUTHORITIES 

Page(s)

Cases

Almeida v. Amazon.com, Inc.,

456 F.3d 1316 (11th Cir. 2006) ..................................................................................................16 

Ashcroft v. ACLU,

542 U.S. 656 (2004) ...................................................................................................................10 

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) ...................................................................................................................12 

Backpage.com, LLC v. Cooper,

939 F. Supp. 2d 805 (M.D. Tenn. 2013) ............................................................................ passim

Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015) ..........................................................................................11, 12, 22 

Backpage.com, LLC v. Hoffman,

2013 WL 4502097 (D.N.J. Aug. 20, 2013) ................................................................5, 11, 18, 19 

Backpage.com, LLC v. McKenna,

881 F. Supp. 2d 1262 (W.D. Wash. 2012) ......................................................................... passim

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) .....................................................................................................................11

Barrett v. Rosenthal,

40 Cal. 4th 33 (2006) ................................................................................................14, 15, 16, 17 

Batzel v. Smith,

333 F.3d 1018 (9th Cir. 2003) ..............................................................................................15, 16 

Ben Ezra, Weinstein & Co. v. America Online, Inc.,

206 F.3d 980, 985 n.3 (10th Cir. 2000) ......................................................................................17 

Berry v. City of Santa Barbara,

40 Cal. App. 4th 1075 (1995) .....................................................................................................13 

Bursey v. United States,

466 F.2d 1059 (9th Cir. 1972) ....................................................................................................23

Carafano v. Metrosplash.com, Inc.,

339 F.3d 1119 (9th Cir. 2003) ..............................................................................................16, 17 

Dart v. Craigslist, Inc.,

665 F. Supp. 2d 961 (N.D. Ill. 2009) .........................................................................................22 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 8 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 iii 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Delfino v. Agilent Techs., Inc.,

145 Cal. App. 4th 790 (2006) .........................................................................................15, 16, 20 

Doe ex rel. Roe v. Backpage.com, LLC,

104 F. Supp. 3d 149, 156 (D. Mass. 2015) ............................................................................5, 22 

Doe II v. MySpace Inc.,

175 Cal. App. 4th 561 (2009) ............................................................................................. passim

Doe v. GTE Corp.,

347 F.3d 655 (7th Cir. 2003) ................................................................................................22, 26 

Doe v. MySpace, Inc.,

528 F.3d 413 (5th Cir. 2008) ......................................................................................................16 

Doe v. MySpace, Inc.,

629 F. Supp. 2d 663 (E.D. Tex. 2009) .......................................................................................20

Dombrowski v. Pfister,

380 U.S. 479 (1965) ...................................................................................................................14 

Dulaney v. Municipal Court,

11 Cal. 3d 77 (1974) .....................................................................................................................9 

Elrod v. Burns,

427 U.S. 347 (1976) ...................................................................................................................14 

Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC,

521 F.3d 1157 (9th Cir. 2008) ..................................................................................17, 18, 19, 20

Gentry v. eBay, Inc.,

99 Cal. App. 4th 816 (2002) ...........................................................................................15, 19, 20 

Goddard v. Google, Inc.,

640 F. Supp. 2d 1193 (N.D. Cal. 2009) .....................................................................................20 

Green v. Am. Online,

318 F.3d 465 (3d Cir. 2003) .......................................................................................................16 

Hupp v. Freedom Commc’ns, Inc.,

221 Cal. App. 4th 398 (2013) .....................................................................................................14 

Johnson v. Arden,

614 F.3d 785 (8th Cir. 2010) ......................................................................................................16 

Jones v. Dirty World Entertainment Recordings LLC,

755 F.3d 398 (6th Cir. 2014) ................................................................................................16, 18 

Klayman v. Zuckerberg,

753 F.3d 1354 (D.C. Cir. 2014) ...........................................................................................16, 19 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 9 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 iv 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc.,

519 F.3d 666, 671 (7th Cir. 2008) ..............................................................................................16

M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC,

809 F. Supp. 2d 1041 (E.D. Mo. 2011) ................................................................................21, 22 

Mandel v. Municipal Court,

276 Cal. App. 2d 649 (1969) ........................................................................................................9 

Mishkin v. New York,

383 U.S. 502 (1966) ...................................................................................................................12 

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250 (4th Cir. 2009) ................................................................................................16, 18 

Osman v. Appellate Div. of Superior Court,

134 Cal. App. 4th 32 (2005) .........................................................................................................9 

People v. Bollaert,

248 Cal. App. 699 (2016) ...........................................................................................................20 

People v. Gourlay,

2009 WL 529216 (Mich. Ct. App. Mar. 3, 2009) ......................................................................18 

People v. Morante,

20 Cal. 4th 403 (1999) ..........................................................................................................25, 26 

People v. Osorio,

235 Cal. App. 4th 1408 (2015) .....................................................................................................8 

People v. Superior Court,

49 Cal. 3d 14 (1989) .....................................................................................................................9 

People v. Tolbert,

176 Cal. App. 3d 685 (1986) ........................................................................................................8 

People v. Toledo,

26 Cal. 4th 221 (2001) ................................................................................................................25

Reno v. American Civil Liberties Union,

521 U.S. 844, 872 (1997) ...............................................................................................10, 13, 17 

Ricci v. Teamsters Union Local 456,

781 F.3d 25 (2d Cir. 2015) .........................................................................................................17 

Sea Horse Ranch, Inc. v. Superior Court,

24 Cal. App. 4th 446 (1994) .......................................................................................................26 

Smith v. California,

361 U.S. 147 (1959) ...............................................................................................................1, 12 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 10 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 v 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Stratton Oakmont, Inc. v. Prodigy Services Co.,

1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) .......................................................................15 

United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000) ...................................................................................................................12 

United States v. United States District Court,

858 F.2d 534 (9th Cir. 1988) ......................................................................................................13 

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994) .....................................................................................................................13

Universal Commc’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007) ................................................................................................15, 17 

Video Software Dealers Ass’n v. Webster,

968 F.2d 684 (8th Cir. 1992) ......................................................................................................13 

Voicenet Commn’cns, Inc. v. Corbett,

2006 WL 2506318 (E.D. Pa. Aug. 30, 2006) .............................................................................18 

Whitney v. Municipal Court,

58 Cal. 2d 907 (1962) ...................................................................................................................9 

Williams v. Superior Court,

111 Cal. App. 4th Supp. 1 (Cal. App. Dep’t Super. Ct. 2003) .....................................................8 

Wooten v. Superior Court,

93 Cal. App. 4th 422 (2001) .......................................................................................................25 

Zeran v. Am. Online, Inc.,

129 F.3d 327 (4th Cir. 1997) ................................................................................................16, 17 

Statutes

18 U.S.C.§ 2 .....................................................................................................................................21

18 U.S.C.§ 2255 ...............................................................................................................................21

47 U.S.C.§ 230(a) ..................................................................................................................... passim

47 U.S.C.§ 230(b) .................................................................................................................... passim

47 U.S.C.§ 230(c) ..................................................................................................................... passim

47 U.S.C.§ 230(e) .......................................................................................................................14, 17 

47 U.S.C.§ 230(f) .............................................................................................................................14

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 11 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 vi 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

California Penal Code § 182 ..........................................................................................................1, 2 

California Penal Code § 266h .................................................................................................. passim

California Penal Code § 664 ....................................................................................................... 2, 25 

California Penal Code § 1004 .................................................................................................. passim

California Penal Code § 1275.1 .....................................................................................................7, 8 

Los Angeles County Code Chapter 7.38 ..........................................................................................10 

Orange County Code, Title 5, Article 22 .........................................................................................10 

Sacramento City Code Chapter 5.04 ................................................................................................10

San Francisco Police Code, art. 15.6 ................................................................................................10 

Other Authorities 

California Criminal Jury Instructions for Judges and Attorneys (CALCRIM) 1150 .......................24 

Fed. R. Crim. P. 17 ...........................................................................................................................23 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 12 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 1 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION

The Attorney General arrested and incarcerated the CEO of Backpage.com, LLC 

(“Backpage.com”), charging him with “pimping” under Penal Code § 266h, as well as two former 

owners of the company (Michael Lacey and James Larkin) on charges of conspiring to commit 

pimping, Penal Code § 182. The basis for the AG’s charges is that third-party users posted ads on 

Backpage.com, and the AG’s office determined by responding to the ads that the users were 

offering prostitution. With no allegations that Backpage.com had any knowledge of this—much 

less that any of the individual Defendants had knowledge or participated in any way in the ads that 

were created and posted by users—the Complaint alleges that Defendants are guilty of pimping 

and conspiracy because the users paid to post their ads.

The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to 

impose criminal liability on a website simply because it published and received fees for third-party 

ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to 

websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230.

Escort ads on Backpage.com are protected speech under the First Amendment, as several courts 

have held. The AG cannot arrest, imprison and refuse to release individuals associated with the 

website simply based on an investigator’s opinions about what he believes is “obvious” about 

escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have 

rejected the same tack time and again. The First Amendment also expressly precludes state 

authorities from imposing criminal liability on parties that publish or distribute speech absent 

proof of scienter, i.e., that the publisher knew the specific information published was unlawful. 

The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959), 

recognizing the First Amendment prohibits states from imposing criminal liability that would 

require publishers to review all materials they distribute, because such a requirement would 

severely chill speech.

More specifically, the AG’s theory expressly violates Section 230, which Congress enacted 

twenty years ago to preserve and promote free speech on the Internet by immunizing website 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 13 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 2 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

operators from liability for publishing content provided by third-party users. Section 230 

preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris 

has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has 

now commenced a prosecution to do precisely what she admits Section 230 prohibits.

The AG’s Complaint should be dismissed immediately. The charges the state asserts 

amount to a brazen effort to intimidate or shut down an online publisher by using all the criminal 

sanctions at the AG’s disposal, despite that she has no authority whatsoever to do so.

II. BACKGROUND

On September 26, 2016, the Attorney General’s office filed the Complaint, charging 

Mr. Ferrer with nine counts of pimping and attempted pimping under Cal. Penal Code § 266h, and 

charging him and Messrs. Lacey and Larkin with one count of conspiracy based on the same 

alleged pimping charges.1

 In support of arrest warrants, the AG submitted a declaration of Special 

Agent Brian Fichtner of the California Department of Justice (“Fitchner Decl.”).2 The Complaint 

also expressly incorporates the supporting declaration. Complaint at 9.

The AG coordinated with Texas authorities to arrest Mr. Ferrer at the Houston airport on 

October 6, 2016, transferring him to California and holding him in custody. Messrs. Lacey and 

Larkin voluntarily traveled to and appeared in Sacramento, California on October 10, and were 

arrested and incarcerated that day. In the meantime, on October 6-7, Texas authorities executed 

search warrants for Backpage.com’s offices in Dallas and Mr. Ferrer’s home. 

1

 More specifically, the Complaint alleges against Mr. Ferrer four counts of pimping under Penal 

Code § 266h(b)(2) (Counts Two-Four and Six), one count of attempting pimping under Sections 

266h(b)(2) and 664 (Count Five), and four counts of pimping under Section 266h(a) (Counts 

Seven-Ten). The Complaint also charges Mr. Ferrer in the single conspiracy count under Penal 

Code § 182 (Count One), along with Messrs. Lacey and Larkin. 

2

 Materials supporting this motion are provided with the accompanying Motion for Judicial Notice 

with Declaration of James C. Grant (“MJN”). For the Court’s convenience, the Complaint, the 

Fitchner Declaration and the Texas search warrant for Backpage.com offices are attached to this 

Demurrer as Exhibits A, B and C, respectively. 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 14 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 3 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

A. Backpage.com.

Backpage.com operates an online classified advertising service through which users can 

post ads in a variety of categories, including local places, buy/sell/trade, automotive, rentals, real 

estate, jobs, dating, adult, and services. See Fitchner Decl. at 2-3; Backpage.com, LLC v. Cooper,

939 F. Supp. 2d 805, 813 (M.D. Tenn. 2013). The site is organized geographically, by state and 

municipality. Id. Users post millions of ads every month, making Backpage.com the secondlargest online classified ad service in the country, after Craigslist. See Fitchner Decl. at 2 

(“BACKPAGE is similar to Craigslist.org”); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 

1262, 1266 (W.D. Wash. 2012).

Users provide all the content for ads they post on the website, using an automated 

interface; Backpage.com does not dictate or require any content. Until July 2015, the website 

charged for ads in the adult and dating categories, while users could post ads for free in other 

categories. See Fitchner Decl. at 12; Cooper, 939 F. Supp. 2d at 813, 815 (noting the charges 

helped to discourage improper posting and state AGs originally encouraged Craigslist to impose 

charges to aid law enforcement). 

Backpage.com imposes rules for ads posted on the site, and all users must affirmatively 

accept the posting rules. Cooper, 939 F. Supp. 2d at 813-14. The rules are designed to prevent

improper ads or misuse of the website. The site’s Terms of Use also prohibit illegal acts and warn 

that improper posts will be reported to law enforcement and subject to criminal prosecution. See

McKenna, 881 F. Supp. 2d at 1266. The site contains numerous hyperlinks to a “User Safety” 

page, which includes phone numbers and links for the National Center for Missing and Exploited 

Children (“NCMEC”) and similar resources. Id. Every ad contains a “Report Ad” button, and 

Backpage.com has an email address (abuse@backpage.com) for users to identify ads they believe 

improper or suspect. See Cooper, 939 F. Supp. 2d at 814.

“In addition to user reports, Backpage.com monitors potentially inappropriate ads through 

automated and manual reviews.” Id. Through this screening, Backpage.com blocks and removes 

posts and refers any that may indicate child exploitation to NCMEC. See McKenna, 881 F. Supp. 

2d at 1266-67. In his declaration, Agent Fichtner confirms that Backpage.com’s practices are 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 15 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 4 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

effective. When he sought to post an escort ad “containing sexual verbiage indicative of a 

prostitution ad,” Backpage.com blocked the ad. Fitchner Decl. at 6-7. On another occasion, 

Agent Fichtner attempted to repost an ad that had been removed, “but Backpage.com did not allow 

it to go through.” Id. at 6. 

“Backpage.com also regularly works with local, state and federal law enforcement officials 

by responding to subpoena requests, providing officials with Internet search tools, and removing 

posts and blocking users at the request of officials.” Cooper, 939 F. Supp. 2d at 814. Here again, 

Agent Fichtner attests to Backpage.com’s cooperation with law enforcement. After he posted 

“undercover ads” on the website, he contacted Mr. Ferrer, identified himself as law enforcement, 

said that he “had identified a prostitution ad,” and asked that it be removed. Backpage.com 

removed the ad that day (as well as another ad Agent Fichtner had posted), and would not allow it 

to be re-posted. Fichtner Decl. at 6. 

B. Unsuccessful Efforts of AG Harris and Other AGs to Shut Down Adult Online 

Advertising and Admissions that CDA Section 230 Bars State Prosecutions. 

In 2010, Craigslist shut down its adult services category in response to pressure from a 

group of state attorneys general.3

 Less than a week later, the AGs targeted Backpage.com, 

demanding it shut down its adult category.4

 Attorney General Harris joined and signed an 

August 31, 2011 letter from the National Association of Attorneys General (“NAAG”) to 

Backpage.com (which was publicly released and promoted by NAAG) demanding that it remove 

its adult category as Craigslist had done.5

 Yet, NAAG’s president at the time admitted the state 

AGs “have little legal standing to forcibly shut down” Backpage.com, because Section 230 

3 See M. Lindenberger, Craigslist Comes Clean: No More ‘Adult Services,’ Ever, TIME, Sept. 16, 

2010, http://content.time.com/time/nation/article/0,8599,2019499,00.html. 

4 See State Attorney General Letter, http://www.illinoisattorneygeneral.gov/

pressroom/2010_09/Backpage_com9-20-2010.pdf). 

5 See MJN Ex. D (NAAG August 31, 2011 letter to Backpage.com counsel, http://www.ct.gov/ag/ 

lib/ag/press_releases/2011/083111backpageletter.pdf).

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 16 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 5 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

provides “broad immunity” to websites for third-party content, presenting a “high barrier” 

precluding any action by the state AGs.6

In July 2013, AG Harris signed on to another NAAG letter addressed to various members 

of Congress, urging that Section 230 be amended to exempt state criminal laws from immunity so 

that state authorities could pursue Backpage.com. The letter acknowledged that “[f]ederal courts 

have broadly interpreted the immunity provided by the CDA,” to “prevent[] State and local law 

enforcement agencies from prosecuting” Backpage.com and insisted that “[t]his must change.”7

The efforts of NAAG and Attorney General Harris to amend Section 230 to allow state 

prosecutions of websites have been unsuccessful, as have their other efforts to censor 

Backpage.com. As discussed below, see Section III.B, three states (Washington, Tennessee and 

New Jersey) passed criminal laws aimed at Backpage.com, but courts promptly enjoined and 

struck down all three laws as unconstitutional and preempted by Section 230. See McKenna, 881 

F. Supp. 2d 1262; Cooper, 939 F. Supp. 2d 805; Backpage.com, LLC v. Hoffman, 2013 WL 

4502097 (D.N.J. Aug. 20, 2013). And, rather than lessen the CDA’s strong immunity to websites, 

Congress has “ratcheted it up ... by expanding the scope of Section 230 immunity to preempt the 

enforcement of inconsistent foreign judgments.” Doe ex rel. Roe v. Backpage.com, LLC, 104 F. 

Supp. 3d 149, 156 (D. Mass. 2015) (dismissing under Section 230 private claims alleging 

Backpage.com violated federal sex trafficking laws), aff’d sub nom. Jane Doe No. 1 v. 

Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), cert. petition filed, No. 16-276 (U.S. Aug. 31, 

2016).

6 See MJN Ex. E (Washington AG gubernatorial campaign website quoting press statements about 

AG’s efforts against Backpage.com and the bar presented by Section 230). 

7 See MJN Ex. F (NAAG July 23, 2013 letter to members of Congress, https://www.eff.org/files/

cda-ag-letter.pdf). This letter was promoted by a group within NAAG called the “Backpage 

Executive Committee,” which explained that the purpose of the proposed Section 230 amendment 

was to “extend[] criminal jurisdiction ... to state and local governments,” because under the law 

only the federal government has authority to prosecute websites. See id. Ex. G (June 14, 2013 

letter from the Backpage Executive Committee to all Attorneys General, Chief Deputies, and 

Executive Assistants, https://www.cdt.org/files/file/AG-Letter-Section-230.pdf).

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 17 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 6 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

C. The Criminal Complaint and Arrest Warrant Declaration. 

The AG asserts eight charges of pimping and one charge of attempted pimping against 

Mr. Ferrer based on allegations that nine individuals posted and paid for ads on Backpage.com. 

Complaint at 4-9 (Counts Two-Ten).8

 The Complaint and declaration provide no basis for these 

charges except that Mr. Ferrer is the CEO of Backpage.com and the named partner of the 

corporate parent of Backpage.com, LLC. Fichtner Decl. at 3. Agent Fichtner’s declaration 

explains that all of the ads about these individuals were written and posted by the individuals 

themselves. Id. at 7-11. The AG does not allege that Mr.Ferrer had any role in or any knowledge 

of the ads or that he ever even saw them. Indeed, Agent Fichtner alleges the individuals who 

posted ads evaded the website’s rules and restrictions, so that Backpage.com could not have 

known the ads were improper or concerned prostitution. Id. at 8, 10 (including statement by one 

individual: “how are they supposed to know I’m underage?”). The only specific allegations 

Agent Fitchner offers concerning Mr. Ferrer relating to ads on the website are that he promptly 

removed ads when requested and he was copied on Backpage.com’s responses to “numerous law 

enforcement subpoenas and search warrants.” Fitchner Decl. at 4, 6. 

Instead, the Complaint charges that Mr. Ferrer is guilty of pimping because the individuals 

paid for their ads (in amounts totaling $79.60, see Complaint at 3-4), Backpage.com received these 

payments, and therefore Mr. Ferrer “did live and derive support and maintenance” from persons 

engaged in prostitution or “solicit[ed] and receive[d] compensation for soliciting for said 

prostitute[s].” Complaint at 5 (see Penal Code § 266h). 

The one-count conspiracy charge alleged against Messrs. Ferrer, Lacey and Larkin is even 

more attenuated. These gentlemen were, respectively, the chief editor and publisher of Village 

Voice Media Holdings, the company that formerly owned Backpage.com as well as fourteen 

weekly newspapers across the country. As Agent Fichtner asserts, they no longer own interests in 

Backpage.com and haven’t for almost two years. Fichtner Decl. at 3. Nonetheless, the AG 

charges them with conspiracy to commit pimping as to the nine individuals who advertised on the 

8

 The nine individuals are identified as: A.C., E.V., L.F., E.S., Z.G., A.H, S.C., L.B., and K.A. 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 18 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 7 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

website (the ads that are the predicate for the claims against Mr. Ferrer) based solely on their 

former ownership interests in Backpage.com and that the website charged for escort ads, 

employed a process to screen ads, arranged for a processor to handle credit card transactions; and 

the nine individuals paid for the ads. Complaint at 2-4. As with Mr. Ferrer, the Complaint and 

declaration offer no allegations that Messrs. Lacey and Larkin ever had anything to do with or 

knew anything about these ads.

D. The AG’s Arrests and Incarceration of Defendants, Searches and Seizures, 

and Opposition to Defendants’ Efforts to Post Bail. 

The Attorney General’s office did not contact Backpage.com, its counsel, or the 

Defendants before moving forward with arrests and searches based on the Complaint 

(notwithstanding that Backpage.com has cooperated with the AG’s office many times before). 

Rather, the AG enlisted Texas law enforcement authorities to arrest Mr. Ferrer on October 6, 

2016, as he deplaned in Houston from a flight from Amsterdam, based on the California AG’s 

Complaint and arrest warrant. The Texas authorities jailed Mr. Ferrer, while the California AG’s 

office sought to extradite him. Through counsel, Mr. Ferrer agreed to be transferred to California, 

and he was flown to Sacramento and incarcerated there on October 7.

On October 6 and 7, 2016, Texas authorities executed search warrants based on the 

declaration supplied by the California AG. In a two-day search of Backpage.com’s offices in 

Dallas, authorities seized computers, servers, passwords, and scores of boxes of documents, 

effectively anything relating to Backpage.com’s operation of its business and the website.9

 Texas 

law enforcement also searched Mr. Ferrer’s home. 

In the meantime, the AG obtained an order requiring bail of $500,000 to secure 

Mr. Ferrer’s release. Counsel for Mr. Ferrer sought to make arrangements to post bail, but the 

AG’s office insisted it would object to any payment of the bail or posting of a bond under Cal. 

Penal Code § 1275.1, and would demand proof that funds were not “tainted” as being connected in 

some way to revenues from Backpage.com (notwithstanding that AG lacked authority to prosecute 

and the Complaint did not and could not allege that all funds associated with Backpage.com were 

9 See Texas search warrant for Backpage.com offices, attached as Exhibit C. 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 19 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 8 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

unlawful). Mr. Ferrer’s counsel communicated to the AG’s office that bond could be posted based 

on funds unrelated to Backpage.com (and offered to provide proof), but the AG still insisted that 

Mr. Ferrer remain incarcerated until a hearing could be held on its demands under Penal Code 

§ 1275.1.

Messrs. Lacey and Larkin agreed to voluntarily travel to and appear to state authorities in 

Sacramento on October 10, 2016. They expected and were prepared to post bail (set at $250,000 

for each), but, again, the AG insisted that it would contest any bond or bail under Section 1275.1. 

As a consequence, these gentlemen were also taken into custody.

While defendants’ counsel sought to resolve the bail issues as soon as possible, the AG 

asked for a delay until after the defendants appeared for a public arraignment, which they did on 

October 12, 2016. The next day, the Court held the 1275.1 hearing and promptly ordered that the 

defendants be released on bail. Mr. Ferrer was finally released in the early hours of October 14, 

after he had been held in custody for a week, and Messrs. Lacey and Larkin were released after 

being incarcerated for four days. 

III. ARGUMENT 

A. Standards for a Demurrer Under Penal Code § 1004. 

Penal Code § 1004 authorizes a defendant to demur to an accusatory pleading that (1) fails 

to “substantially conform” to the provisions of Sections 950 and 952, which govern the form and 

content of accusatory pleadings, (2) alleges facts that “do not constitute a public offense,” or 

(3) “contains matter which, if true, would constitute a legal justification or excuse of the offense 

charged, or other legal bar to the prosecution.” Id. §§ 1004(2), (4), (5). A demurrer “tests only 

those defects appearing on the face of [the accusatory] pleading,” and is appropriate when it 

“raises an issue of law as to the sufficiency of the ... pleading.” People v. Osorio, 235 Cal. App. 

4th 1408, 1412 (2015) (quoting People v. Manfredi, 169 Cal. App. 4th 622, 626 (2008)). “[F]or 

purposes of demurrer ... matters which may be judicially noticed may be said to appear 

constructively on the face of the pleading.” People v. Tolbert, 176 Cal. App. 3d 685, 689 (1986).

A demurrer is appropriate to dismiss charges that are unconstitutional or preempted. See

Williams v. Superior Court, 111 Cal. App. 4th Supp. 1, 6 (Cal. App. Dep’t Super. Ct. 2003) (“A 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 20 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 9 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

demurrer’s purpose under section 1004 is dismissal of a pleading which lacks adequate notice of 

the public offense charged or charges one that is unconstitutional so as to generate a legally 

sufficient accusation.”), disagreed with on other grounds, Osman v. Appellate Div. of Superior 

Court, 134 Cal. App. 4th 32 (2005). Indeed, the California Supreme Court has often sustained 

demurrers dismissing criminal charges that violate the First Amendment. See, e.g., People v. 

Superior Court, 49 Cal. 3d 14, 27 (1989) (sustaining superior court demurrer to charges against 

theatre for unlawfully displaying adult films based on standard that violated the First 

Amendment); Dulaney v. Municipal Court, 11 Cal. 3d 77, 89 (1974) (sustaining demurrer and 

entering writ of prohibition prohibiting prosecution under municipal ordinance precluding posting 

of signs on utility poles as violating the First Amendment); Whitney v. Municipal Court, 58 Cal. 

2d 907, 910-11 (1962) (sustaining demurrer to prosecution under municipal obscenity ordinance 

preempted by state law); see also Mandel v. Municipal Court, 276 Cal. App. 2d 649, 673-74 

(1969) (reversing trial court decision refusing to grant demurrer and holding that prosecution of 

defendant under vagrancy ordinance for distributing anti-draft leaflets on high school campuses 

violated First Amendment). As the case law demonstrates, when the State seeks to prosecute 

criminal charges that violate the Constitution or as to which the State has no authority, a Section 

1004 demurrer is the proper remedy to dismiss the charges and stop the prosecution at the outset. 

B. The Complaint and Prosecution Are Legally Barred By the First Amendment. 

The Attorney General’s theory of prosecution violates basic principles of First Amendment 

law. The AG’s theory, reflected in the Complaint and supporting declaration, is that the State may 

prosecute individuals associated with an online publisher simply for publishing third-party speech 

if it turns out that some content implicates unlawful conduct, i.e. prostitution. Ample Supreme 

Court precedent expressly rejects such a theory of unknowing criminal liability, given the chilling 

effect it would have on free speech.

The AG initiated this prosecution in the face of an unbroken line of cases holding that 

online forums for classified ads—and specifically Backpage.com—are protected by the First 

Amendment. Government officials at various levels have attempted to censor such advertising 

forums in many ways, and each has been held to violate the Constitution. Speech through the 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 21 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 10 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Internet is subject to the same First Amendment protections and judicial scrutiny as applied to 

other media. Reno v. ACLU, 521 U.S. 844, 870 (1997). And, the First Amendment concerns in 

this case are particularly acute, where the state has commenced a criminal prosecution. Ashcroft v. 

ACLU, 542 U.S. 656, 660 (2004) (speech restrictions “enforced by severe criminal penalties, have 

the constant potential to be a repressive force in the lives and thoughts of a free people”). 

In a series of cases, federal courts enjoined state criminal laws that targeted Backpage.com, 

holding that escort ads on the website are protected speech and states’ efforts to criminalize 

publication violated the First Amendment. First, in Backpage.com, LLC v. McKenna, 881 F. 

Supp. 2d 1262, the court enjoined enforcement of a Washington state statute that made it a felony 

to publish, disseminate or display content that contained a “depiction of a minor” and any “explicit 

or implicit offer” of sex for “something of value.” 881 F. Supp. 2d at 1268. The court rejected the 

state’s argument that the law affected only speech proposing illegal transactions, noting that escort 

ads have long been permitted and escort services are licensed and regulated in many states. Id. at

1282;10 see also id. at 1280 (“The statue criminalizes more than offers to engage in illegal 

transactions because the statute encompasses transactions that are not illegal.”). The court went on 

to note that the Washington law was problematic not only because of “the protected speech that it 

regulates by its terms,” but also because it would “chill a substantial amount of protected speech,” 

by creating a Hobson’s choice for websites of either shutting down escort advertising or requiring 

age verification and risking prosecution. Id. at 1282.

The court in Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, struck down a similar 

Tennessee statute, likewise holding that third-party ads on Backpage.com are protected speech 

under the First Amendment.11 Here again, the court rejected the state’s argument that the statute 

“[did] not implicate First Amendment scrutiny because it criminalize[d] only offers to engage in 

10 The same is true in California, as many cities and counties in the state license and regulate 

escort services. See, e.g., Sacramento City Code ch. 5.04; San Francisco Police Code, art. 15.6; 

Los Angeles County Code ch. 7.38; Orange County Code, tit. 5, art. 22 

11 The Tennessee law made it a felony to sell or offer to sell “an advertisement that would appear 

to a reasonable person to be for the purpose of engaging in what would be a commercial sex act.” 

Cooper, 939 F.3d at 816. 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 22 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 11 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

illegal transactions,” noting that the “statute’s potential reach extend[ed] to notices related to legal, 

consensual activity by adults.” Id. at 833-34. As the court aptly said in that case: 

The Constitution tells us that—when freedom of speech hangs in the balance—the 

state may not use a butcher knife on a problem that requires a scalpel to fix. Nor 

may a state enforce a law that flatly conflicts with federal law. 

Id. at 813.

In the third case of the trilogy concerning state criminal laws aimed at Backpage.com, 

Backpage.com, LLC v. Hoffman, 2013 WL 4502097, the court struck down a New Jersey statute 

almost identical to the Washington law that had been invalidated, again rejecting arguments of the 

state that escort ads on the website are unprotected speech. Id. at *9-11 (accepting argument that 

the law would impermissibly burden any Internet “forum for communication ... if it does not 

police or eliminate user postings”). 

In each of these cases, state authorities falsely sought to cast all escort ads as ads for 

prostitution, and each time courts rejected the arguments because the states’ theories and laws 

would have burdened broad swaths of constitutionally protected speech. See McKenna, 881 F. 

Supp. 2d at 1280, 1282; Cooper, 939 F. Supp. 2d at 831; Hoffman, 2013 WL 4502097, at *9-11.12

More recently, the Seventh Circuit underscored this point when it enjoined efforts by the Sheriff 

of Cook County to bully credit card companies into terminating services to Backpage.com based 

on the same false premise. In Backpage.com, LLC v. Dart, 807 F.3d 229, 235-36 (7th Cir. 2015), 

cert. denied, 2016 WL 1723950 (U.S. Oct. 3, 2016), the Seventh Circuit held that Sheriff Dart’s 

threatening letters and other actions toward Visa and MasterCard constituted an unconstitutional 

prior restraint under Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). Here too, the Sheriff 

argued that all ads in the adult section of Backpage.com were unlawful, but the Seventh Circuit 

rejected the argument and held that First Amendment protections applied. 807 F.3d at 234 (“Nor 

12 The courts in the three cases discussed above barred enforcement of the respective state laws 

because they forced Backpage.com to choose between “foregoing the right to publish third-party 

content and risking felony charges.” Cooper, 939 F. Supp. 2d at 845. Here, there is not just a risk 

but the reality of criminal charges, coupled with incarceration of the individual defendants and 

dragnet searches and seizures of the publisher’s home and business offices. The constitutional 

stakes here exceed the possible chilling effect that persuaded courts to invalidate state laws in 

McKenna, Cooper, and Hoffman.

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 23 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 12 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage’s 

website is criminal, violent, or exploitive.... [N]ot all advertisements for sex are advertisements for 

illegal sex.”). As Judge Posner wrote, “a public official who tries to shut down an avenue of 

expression of ideas and opinions through actual or threatened imposition of government power or 

sanction is violating the First Amendment.” Id. at 230 (internal quotation marks omitted). 

The Attorney General’s Complaint and theory of prosecution is likewise based on the 

flawed (and oft-rejected) premise that the State can assert criminal charges based merely on 

allegations that escort ads are illegal or may concern unlawful conduct. The First Amendment 

does not permit such a blunderbuss approach. Under the First Amendment, in all contexts, it is the 

government’s burden to establish and justify actions that burden speech rights. United States v. 

Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, [it] 

bears the burden of proving the constitutionality of its actions.”). In short, the state may not 

merely presume that speech is unlawful. 

The Government may not suppress lawful speech as the means to suppress 

unlawful speech. Protected speech does not become unprotected merely because 

it resembles the latter. The Constitution requires the reverse. “[T]he possible 

harm to society in permitting some unprotected speech to go unpunished is 

outweighed by the possibility that protected speech of others will be muted ....” 

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002) (quoting Broadrick v. Oklahoma, 413 

U.S. 601, 612 (1973)).

Thus, it is a basic proposition of First Amendment law that states cannot criminally punish 

publishers or distributors of speech without proof of scienter, i.e., sufficient proof that a defendant 

knew that the specific speech that is the basis for criminal charges was unlawful. In Smith v. 

California, 361 U.S. 147, the Supreme Court struck down a Los Angeles ordinance imposing 

criminal sanctions on the sale of obscene books which required no scienter, because absent proof 

that a seller had knowledge, “he will tend to restrict the books he sells” and the law would 

“impose a severe limitation on the public’s access to constitutionally protected matter” because the 

threat of unknowing criminal liability would cause self-censorship, and “the bookseller’s burden 

would become the public’s burden.” Id. at 153-54. See also Mishkin v. New York, 383 U.S. 502, 

511 (1966) (“[t]he Constitution requires proof of scienter to avoid the hazard of self-censorship of 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 24 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 13 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

constitutionally protected material and to compensate for the ambiguities inherent in the definition 

of obscenity”). Similarly, in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), the 

Court interpreted a federal statute prohibiting interstate transfer of child pornography to require 

that the government prove a defendant had knowledge of “both ... the sexually explicit nature of 

the material and ... the age of the performers,” because a lack of such scienter requirements 

“would raise serious constitutional doubts.” Id. at 78.13 California cases recognize and follow 

these constitutional principles, holding that statutes criminalizing the distribution of obscene or 

unlawful materials must contain scienter requirements (or be fairly interpreted as doing so) 

because otherwise such laws “would have an unacceptable chilling effect on the public’s access to 

constitutionally protected materials.” Berry v. City of Santa Barbara, 40 Cal. App. 4th 1075, 1087 

(1995).

The AG’s Complaint in this case ignores and is irreparably deficient under these First 

Amendment principles. Nothing in the Complaint or Agent Ficthner’s declaration alleges that the 

advertisements posted by the nine individuals upon which the charges are based were unlawful on 

their face. The declaration states that all of the ads were written and posted by the individuals 

themselves. There is no allegation that the defendants or anyone from Backpage.com had any role 

in creating or posting the ads. The AG does not even allege that Mr. Ferrer ever saw or had any 

knowledge of the ads. The Complaint is still more deficient as to Messrs. Lacey and Larkin, as it 

alleges that their only connection is that they formerly owned interests in Backpage.com and so 

should be criminally liable because the website received payments of $79.60 for ads from the nine 

individuals. The allegations set forth in Agent Fitchner’s declaration do not even attempt to 

establish scienter as to any of the defendants for any of the ads that are the basis for the state’s 

prosecution. The First Amendment expressly forbids criminal charges on this premise. 

Criminal sanctions inhibiting free speech rights are among the most pernicious forms of 

government violations of the First Amendment. See Reno, 521 U.S. at 872 (“The severity of 

13 See also United States v. United States District Court, 858 F.2d 534, 540 (9th Cir. 1988) (“the 

first amendment does not permit the imposition of criminal sanctions on the basis of strict liability 

where doing so would seriously chill protected speech”); Video Software Dealers Ass’n v. 

Webster, 968 F.2d 684, 690 (8th Cir. 1992) (“Statutes that impose criminal responsibility for 

dissemination of unprotected speech must contain a knowledge requirement.”). 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 25 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 14 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

criminal sanctions may well cause speakers to remain silent rather than communicate even 

arguably unlawful words, ideas, and images.”); Dombrowski v. Pfister, 380 U.S. 479, 494 (1965) 

(even as to criminal charges that are groundless, the threat of prosecution “is a real and substantial 

one” that can have a “chilling effect on protected expression”). Here, the severity of the charges 

leveled, and the aggressiveness with which the AG has sought to demonize and punish the 

defendants on baseless charges illustrates why this Court should promptly dismiss this 

prosecution. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment 

freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). 

C. The Complaint and Prosecution Are Legally Deficient Under Section 230 of 

the CDA, as the Attorney General Has Admitted.

Free speech on the Internet is protected not only by the First Amendment, but also by 

Section 230 of the CDA. “[T]he plain language of section 230 ‘creates a federal immunity to any 

cause of action that would make service providers liable for information originating with a thirdparty user.’” Barrett v. Rosenthal, 40 Cal. 4th 33, 43 (2006) (quoting Zeran v. Am. Online, Inc.,

129 F.3d 327, 330 (4th Cir. 1997)). In simple terms, Section 230 bars any state-law claims—civil 

or criminal—against an online publisher such as Backpage.com (and the defendants) based on 

third-party content it publishes. Attorney General Harris knows and has admitted she has no 

authority to prosecute Backpage.com for ads it publishes, yet the Complaint and the prosecution 

here seek to do exactly that.

Section 230 states: “No provider ... of an interactive computer service shall be treated as 

the publisher or speaker of any information provided by another information content provider.” 

47 U.S.C. § 230(c)(1).14 The statute expressly preempts state laws: “No cause of action may be 

brought and no liability may be imposed under any State or local law that is inconsistent with this 

section.” Id. § 230(e)(3).15

14 An “information content provider” is one “responsible, in whole or in part, for the creation or 

development of information,” 47 U.S.C. § 230(f)(3), such as users who post on Backpage.com. 

15 California courts routinely reject claims based on Section 230 on preliminary motions. E.g.,

Barrett, 40 Cal. 4th 33 (2006) (affirming trial court order granting special motion to strike claims 

based on Section 230); Hupp v. Freedom Commc’ns, Inc., 221 Cal. App. 4th 398 (2013) (same); 

Doe II v. MySpace Inc., 175 Cal. App. 4th 561, 563, 566 (2009) (affirming trial court orders 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 26 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 15 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Congress enacted Section 230 to achieve two goals. First, the statute is meant “to 

encourage the unfettered and unregulated development of free speech on the Internet, and to 

promote the development of e-commerce.” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003); 

accord Barrett, 40 Cal. 4th at 56 (Section 230 reflects “legislative commitment to the value of 

maintaining a free market for online expression”); Delfino v. Agilent Techs., Inc., 145 Cal. App. 

4th 790, 802-03 (2006) (CDA was intended to “avoid the chilling effect upon Internet free speech” 

that would arise from imposing liability on “companies that do not create potentially harmful 

messages but are simply intermediaries for their delivery”). Congress recognized the Internet 

would be crippled if online providers could be held liable for third-party content, “given the 

volume of material communicated ..., the difficulty of separating lawful from unlawful speech, 

and the relative lack of incentives to protect lawful speech.” Universal Commc’n Sys., Inc. v. 

Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007); see Batzel, 333 F.3d at 1034 (absent Section 

230, “speech over the Internet will be chilled rather than encouraged”); see 47 U.S.C. § 230(a)(4) 

and (b)(2) (finding the Internet has “flourished, to the benefit of all Americans, with a minimum of 

government regulation,” and Section 230 is intended to “preserve the vibrant and competitive free 

market that presently exists for the Internet”). 

Second, Congress sought to encourage online providers to self-police for potentially 

harmful or offensive material by providing immunity for such efforts. See Doe II, 175 Cal. App. 

4th at 570 (emphasizing “Congress’ intent ‘to remove disincentives for the development and 

utilization of blocking and filtering technologies’” (quoting 47 U.S.C. § 230(b)(4)); Batzel, 333 

F.3d at 1028. Congress recognized that if websites undertook to screen or block improper content 

but could be held liable for doing so imperfectly, they likely would do no screening at all. See

Barrett, 40 Cal. 4th at 44 (noting that, in passing Section 230, Congress expressly rejected Stratton

Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), which 

applied common law principles to hold Prodigy liable as a publisher because it screened and 

edited some bulletin board messages to prevent offensive content but failed to delete the posts 

 

sustaining demurrers based on Section 230); Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 819 

(2002) (same).

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 27 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 16 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

about which the plaintiff claimed); see also Batzel, 333 F.3d at 1029 (“If efforts to review and 

omit third-party defamatory, obscene or inappropriate material make a computer service provider 

or user liable for posted speech, then website operators and Internet service providers are likely to 

abandon efforts to eliminate such material from their site[s].”). 

The purposes and scope of Section 230 immunity were summarized by the Fourth Circuit 

in Zeran, which California courts have followed as “[t]he leading case on immunity protection 

under Section 230,” Doe II, 175 Cal. App. 4th at 569; see Barrett, 40 Cal. 4th at 42-46; Delfino,

145 Cal. App. 4th at 802-803: 

Congress’ purpose in providing the § 230 immunity was thus evident. Interactive 

computer services have millions of users. The amount of information 

communicated via interactive computer services is therefore staggering. The 

specter of tort liability in an area of such prolific speech would have an obvious 

chilling effect. It would be impossible for service providers to screen each of 

their millions of postings for possible problems. Faced with potential liability for 

each message republished by their services, interactive computer service 

providers might choose to severely restrict the number and type of messages 

posted. Congress considered the weight of the speech interests implicated and 

chose to immunize service providers to avoid any such restrictive effect. 

Zeran, 129 F.3d at 331 (citations omitted), quoted in Doe II, 175 Cal. App. 4th at 569.16

Courts have interpreted Section 230 in accordance with its purposes. Thus, California 

courts have followed the uniform interpretation of the federal circuit courts in holding that Section 

230 establishes broad immunity for online providers. Barrett, 40 Cal. 4th at 53 (Section 230 

“broadly shield[s] all providers from liability for ‘publishing’ information received from third 

parties”); Doe II, 175 Cal. App. 4th at 572 (noting “consensus to interpret Section 230 broadly”).17

16 Congress recognized that some material on the Internet could be harmful, but made a policy 

choice that liability could be imposed on “the person who creates or develops unlawful content, 

but not the interactive computer service provider who merely enables that content to be posted 

online.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009). 

17 See Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (“circuits have 

interpreted [Section 230] to establish broad federal immunity”); Carafano v. Metrosplash.com, 

Inc., 339 F.3d 1119, 1123-24 (9th Cir. 2003) (noting “consensus” that “§ 230(c) provides broad 

immunity for publishing content provided primarily by third parties”); Green v. Am. Online, 318 

F.3d 465, 471 (3d Cir. 2003); Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010); Doe v. 

MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Chi. Lawyers’ Comm. for Civil Rights Under 

Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008); Jones v. Dirty World Entm’t 

Recordings LLC, 755 F.3d 398, 406-07 (6th Cir. 2014); Klayman v. Zuckerberg, 753 F.3d 1354, 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 28 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 17 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Likewise, the case law uniformly holds that Section 230 forbids claims against a website 

“for the exercise of its editorial and self-regulatory functions” about whether to block or allow 

content. Zeran, 129 F.3d at 331. “[A]ny activity that can be boiled down to deciding whether to 

exclude material that third parties seek to post online is perforce immune under section 230.” Fair

Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 

2008) (en banc); accord Doe II, 175 Cal. App. 4th at 572 (Section 230 protects “exercise of a

publisher’s traditional editorial functions, such as editing, altering, or deciding whether or not to 

publish certain material”); Carafano, 339 F.3d at 1124 (“[u]nder section 230(c), ... so long as a 

third party willingly provides the essential published content, the interactive service provider 

receives full immunity regardless of the specific editing or selection process”). 

Section 230 immunity applies and protects a website notwithstanding allegations that it 

knew or should have known of unlawful content or conduct, as “[s]ubjecting service providers to 

notice liability would defeat ‘the dual purposes’ of section 230, by encouraging providers to 

restrict speech and abstain from self-regulation.” Barrett, 40 Cal. 4th at 45 (quoting Zeran, 129 

F.3d at 333). “It is, by now, well established that notice of the unlawful nature of the information 

provided is not enough to make it the service provider’s own speech.” Lycos, 478 F.3d at 420 

(citing Barrett, 40 Cal. 4th at 51). 

By its terms, Section 230 preempts and precludes not only state civil claims but also 

charges under state criminal laws. Section 230(c)(1) states, without qualification, that “[n]o cause 

of action may be brought and no liability may be imposed under any State or local law that is 

inconsistent with this section.” 47 U.S.C. § 230(e)(3) (emphasis added). While immunity does 

not extend to prosecutions under a “Federal criminal statute,” id. § 230(e)(1) (emphasis added), 

state criminal statutes are not exempt from its reach. “If Congress had wanted all criminal statutes 

to trump the CDA, it could have written subsection [230(e)](1) to cover ‘any criminal statute’ or 

‘any similar State criminal statute.’ Instead, sub-subsection (1) is limited to federal criminal 

 

1359 (D.C. Cir. 2014); Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015); Ben

Ezra, Weinstein & Co. v. Am. Online Inc., 206 F.3d 980, 985 n.3 (10th Cir. 2000); Zeran, 129 F.3d 

at 330-31.

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 29 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 18 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

statutes.” Voicenet Commn’cns, Inc. v. Corbett, 2006 WL 2506318, at *4 (E.D. Pa. Aug. 30, 

2006) (emphasis added). Every court to consider this issue has reached the same conclusion, 

holding that Section 230 preempts state criminal laws. See McKenna, 881 F. Supp. 2d at 1275 (“If 

Congress did not want the CDA to apply in state criminal actions, it would have said so.”); 

Cooper, 939 F. Supp. 2d at 821-26; Hoffman, 2013 WL 4502097, at *6; People v. Gourlay, 2009 

WL 529216, at *3 (Mich. Ct. App. Mar. 3, 2009) (“the phrase ‘any State or local law’ includes 

civil and criminal laws”).18

Section 230 provides “an immunity from suit rather than a mere defense to liability.” Nemet 

Chevrolet, 591 F.3d at 254, and, as a result, courts uniformly hold that claims against online 

providers based on third-party content should be dismissed at the earliest possible opportunity, to 

avoid “costly and protracted legal battles,” Roommates.com, LLC, 521 F.3d at 1175. Congress’s 

intent to protect Internet free speech and the purpose of the immunity are “effectively lost if a case 

is erroneously permitted to go to trial” rather than being dismissed at the outset. Nemet Chevrolet,

591 F.3d at 254; accord Jones, 755 F.3d at 417 (“[g]iven the role that the CDA plays in an open 

and robust internet by preventing the speech-chilling threat of the heckler’s veto, we point out that 

determinations of immunity under the CDA should be resolved at an earlier stage of litigation”).

In the trilogy of cases striking down state laws aimed at Backpage.com, all three federal 

courts held that the laws were invalid and Backpage.com was entitled to immunity under Section 

230. In McKenna, the court held the Washington law “impos[ed] liability on Backpage.com ... 

for information created by third parties—namely ads for commercial sex acts depicting minors—

so long as it ‘knows’ that it is publishing, disseminating, displaying, or causing to be published, 

disseminated, or displayed such information.” 881 F. Supp. 2d at 1273. In doing so, the law 

“create[d] an incentive for online service providers not to monitor content ... precisely the 

situation that the CDA was enacted to remedy.” Id.; see also Cooper, 939 F. Supp. 2d at 823 

18 The legislative history of Section 230 reinforces this conclusion. As originally written, Section 

230(b)(5) stated “[i]t is the policy of the United States to... ensure vigorous enforcement of 

criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of 

computer.” H.R. 1978 (June 30, 1995). But it was later changed to say “[i]t is the policy of the 

United States ... to ensure vigorous enforcement of Federal criminal laws ....” 47 U.S.C. 

§ 230(b)(5) (emphasis added). 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 30 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 19 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

(enjoining Tennessee statute because it “impose[d] liability on websites such as Backpage.com for 

selling or offering to sell advertisements, activity inherent in their role as publishers”); Hoffman,

2013 WL 4502097, at *6 (similar law “r[a]n[] afoul of Section 230 by imposing liability ... for 

information created by third parties—namely ads for commercial sex acts depicting minors”). 

The AG’s tack to impose criminal liability on the Defendants for Backpage.com’s 

publication of third-party content is likewise expressly barred and preempted under Section 230. 

Section 230 immunity applies when: “(1) the defendant [is] a provider or user of an interactive 

computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of 

information; and (3) the information at issue [is] provided by another information content 

provider.” Gentry, 99 Cal. App. 4th at 830 (citing 47 U.S.C. § 230(c)(1)). All of the elements of 

the three-part test for Section 230 immunity are established here. 

First, Backpage.com indisputably is a “provider ... of an interactive computer service.” 47 

U.S.C. § 230(c)(1). See Roommates.com, 521 F.3d at 1162 n.6 (the “most common interactive 

computer services are websites”); Hoffman, 2013 WL 4502097, at *6 (Backpage is a “provider[] 

of an interactive computer service within the meaning of CDA Section 230.”). The defendants are 

also entitled to immunity, as Section 230 extends to individuals who operate websites, as well as 

to the websites themselves. See, e.g., Klayman, 753 F.3d at 1357-58 (“Mark Zuckerberg, too, 

qualifies for protection [under § 230] because he is a ‘provider’ of Facebook’s interactive 

computer service and Klayman’s complaint seeks to hold him accountable for his role in making 

that service available.”). 

Second, the AG’s charges against Defendants are based on third-party ads on the website, 

i.e., content provided by other information content providers. The AG nowhere alleges that 

Defendants authored, created, or participated in posting the ads of the nine individuals. To the 

contrary, the Complaint and declaration admit the opposite. See, e.g., Complaint at 2 (alleging 

that “users of Backpage.com ... post[ed] escort advertisements”); Fitchner Decl. at 2-3 

(“BACKPAGE is similar to Craigslist.org in that it is an on-line general classified advertising site” 

allowing “user[s] to post advertisements for ‘escorts’” for certain fees); id. at 7-10 (noting that 

users identified as A.H. , E.S., A.C. S.C. L.B. E.V. K.A. and L.F. stated that they posted ads on 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 31 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 20 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Backpage.com). See Delfino, 145 Cal. App. 4th at 807-08 (Section 230 provided immunity to

defendant where “the complaint consistently and repeatedly attributes authorship of the offensive 

messages to [a third party]”).19

Finally, the charges target Backpage.com for publishing information online and alleged 

harms “caused by content provided by ... third part[ies].” Gentry, 99 Cal. App. 4th at 830; see

also id. at 832 (Section 230 forbids putting a website “in the shoes” of individuals who misused 

the site for unlawful purposes). Indeed, the AG admits Backpage.com takes measures to screen 

and block inappropriate ads, see Complaint at 2 (alleging Mr. Ferrer “developed and oversaw a 

process to screen escort ads”); Fitchner Decl. at 4 (acknowledging screening process), and the only 

facts alleged concerning the website’s screening and removal of ads are that they were effective, 

see Fitchner Decl. at 6-7 (stating that he was unable to post ads with inappropriate terms, 

Mr. Ferrer removed ads as requested, and the website thereafter blocked reposting of the same 

ads). These are precisely the efforts the CDA was designed to protect, and the AG’s charges 

based on Agent Fichtner’s opinions about the “obvious nature” of escort ads or the efficacy of 

Backpage.com’s screening processes are precisely what the CDA prohibits. As Cooper held,

“Backpage.com is the quintessential publisher contemplated by the CDA: it hosts and maintains 

an ongoing forum for user-generated postings—some paid, others free—that it shares with the 

public at large.” 939 F. Supp. 2d at 823. See also Doe II v. Myspace Inc., 175 Cal. App. at 573 

19 Because there is no dispute here that third-party users created and posted the ads that are the 

premise of the AG’s charges, People v. Bollaert, 248 Cal. App. 699 (2016), is inapplicable.

There, the Court of Appeal held that a website was not immune under Section 230 because it 

forced users to provide information that was itself unlawful and violated privacy rights of 

individuals whose compromising photos were posted by other users (i.e., the website required 

users to provide names, locations and Facebook addresses of the persons photographed). Id. at

833-34. In so doing, the court followed the narrow exception to Section 230 immunity discussed 

in Roommates.com, 521 F.3d 1157. See Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1198 

(N.D. Cal. 2009) (Roommates.com “carved out only a narrow exception” that “turned entirely on 

the website’s decision to force subscribers to divulge the protected characteristics and 

discriminatory preferences as a condition of using its services.” (internal quotation marks 

omitted)); see also Doe v. MySpace, Inc., 629 F. Supp. 2d 663, 665 (E.D. Tex. 2009) 

(distinguishing Roommates.com because “[t]he Ninth Circuit repeatedly stated ... that the 

Roommates.com website required its users to provide certain information as a condition of its use 

....” (emphasis in original)). 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 32 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 21 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

(barring claims by four minors against social networking site where they met men who sexually 

assaulted them; plaintiffs wanted website “to ensure that sexual predators do not gain access to 

(i.e., communicate with) minors” and “[t]hat type of activity—to restrict or make available certain 

material—is expressly covered by section 230”). 

This case does not present a close question. The AG’s abuse of prosecutorial powers is 

obvious because she has admitted Section 230 preempts state laws and precludes a state criminal 

prosecution of Backpage.com. With other state attorneys general, in 2013 she urged Congress to 

amend Section 230 because the law “prevents State and local law enforcement agencies from 

prosecuting” Backpage.com, noting the McKenna decision, which “held that the CDA preempts 

state criminal law.” MJN Ex. F. The AG knows full well that Section 230 precludes the charges 

alleged in the Complaint. Yet, she has brought them anyway, in a blatant misuse of prosecutorial 

authority. This is particularly egregious in the context of threatening a publisher with criminal 

penalties—coupled with arrest and incarceration to enforce the threats.

D. The Complaint Does Not State Facts that Constitute Public Offenses under the 

Criminal Statutes Charged. 

Even setting aside that the AG’s prosecution is legally barred under the First Amendment 

and Section 230 of the CDA, the Court should grant the demurrer because the Complaint fails to 

allege any public offense. Indeed, the AG has failed to allege essentially all of the elements of the 

charges or any facts to support any claim. 

As noted, the AG’s theory is that the state can prosecute a website (and individuals 

associated with the website in some way, no matter how attenuated) based on allegations that 

users posted content allegedly relating to unlawful conduct, regardless of whether the defendants 

knew of or participated in the unlawful activity. Every court that has considered this theory has 

rejected it. 

For example, the court in M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC, 809 F. 

Supp. 2d 1041 (E.D. Mo. 2011), rejected arguments that Backpage.com could be held liable “as an 

aider and abettor of minor sex trafficking.” Id. at 1053-54 (under 18 U.S.C. §§ 2, 2255). Noting 

that such a charge requires the government to prove that a defendant participated in a specific 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 33 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 22 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

unlawful venture and acted to make the venture succeed, the court held that accusations attacking 

the website fell well short of “the specific intent required for aiding and abetting.” Id. at 1054.

Sheriff Dart raised and lost a similar claim in Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 

(N.D. Ill. 2009). The court rejected his argument that Craigslist violated criminal prostitution laws 

because it had an “adult services” category, holding this does not “cause” postings except “‘in the 

sense of providing a place where people can post,” and websites “are not culpable for ‘aiding and 

abetting’ their customers who misuse their services to commit unlawful acts.” Id. at 967, 969 

(“having an adult services category is not unlawful in itself nor does it necessarily call for 

unlawful content”).

More recently, the court in Doe v. Backpage.com, 104 F. Supp. 3d 149, held that 

accusations attacking the Backpage.com website could not establish “affirmative participation in 

an illegal venture” because having “an escorts section in a classified ad service, whatever its social 

merits, is not illegal” and other features of the website or allegations about its efforts to screen 

improper content could not be the basis for criminal liability. 104 F. Supp. 3d at 157. See also 

Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) (noting that “[e]ven entities that know the 

information’s content do not become liable for the sponsor’s deeds,” and asking rhetorically:

“Does a newspaper that carries an advertisement for ‘escort services’ or ‘massage parlors’ aid and 

abet the crime of prostitution, if it turns out that some (or many) of the advertisers make money 

from that activity?”). “A web host cannot be classified as an aider and abettor of criminal 

activities conducted through access to the Internet” any more so than a telephone company aids or 

abets the sale of tapes or narcotics sold by phone or the Postal Service aids and abets such sales 

delivered by mail. Id. Backpage.com simply cannot be subject to criminal liability as “an 

intermediary between the advertisers of adult services and visitors to [the] website.”

Backpage.com, LLC v. Dart, 807 F.3d at 234.

Similarly, the U.S. Department of Justice has expressly acknowledged that federal sex 

trafficking laws do not impose criminal liability on websites for publishing third-party content that 

may concern illegal acts. The DOJ’s National Coordinator for Child Exploitation Prevention and 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 34 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 23 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Interdiction was asked in Congressional hearings: “[W]hat laws apply to Internet providers like 

craigslist that would make them criminally liable for the postings?” She responded: 

I am not aware of any laws that would make them liable [for third-party postings], 

unless there was evidence that craigslist was a participant ... conspiring with those 

who were misusing their site, that is, knowingly conspiring to violate the laws. . .. 

[T]he standard for prosecution would be knowing or willful. ... I am not aware of 

anything that shows us that craigslist might be criminally liable. [A]t this point 

we have the proper tools. We have what we need to prosecute the guilty, that is, 

the people who are using the Internet.... And I don't think anyone ... here would 

propose closing the Internet.

Domestic Minor Sex Trafficking: Hearing Before Subcomm. on Crime, Terrorism, & Homeland 

Security of the H Comm. on the Judiciary, 11lth Cong. 215-16 (2010). 

In fact, when the U.S. Attorney for the Western District of Washington later launched a 

criminal investigation of Backpage.com, the federal court in that district quashed the grand jury 

subpoenas issued at the government’s behest. Backpage.com argued that the subpoenas and 

investigation violated the First Amendment, see, e.g., Bursey v. United States, 466 F.2d 1059, 

1087-88 (9th Cir. 1972) (“Were we to hold that the exercise of editorial judgments ... raised an 

inference that the persons involved in the judgments had or may have had criminal intent, we 

would destroy effective First Amendment protection ....”), were unreasonable and oppressive 

under Fed. R. Crim. P. 17, and reflected an improper motive rather than a legitimate investigation. 

The court’s orders remain sealed, but, as noted, the court quashed the government’s subpoenas, 

and the U.S. Attorney's Office then terminated its investigation. 

1. The “Pimping” Allegations Against Mr. Ferrer Are Wholly Deficient.

The allegations of the Complaint and incorporated declaration regarding all defendants are 

wholly deficient in that they allege nothing more than that they were associated with 

Backpage.com, which published and received $79.60 in payment for ads from nine individuals 

who allegedly were involved in prostitution. The Complaint and declaration provide no 

allegations of any knowledge, involvement or participation by any of the defendants in any illegal 

conduct of any of the nine individuals.

First, with regard to the charges against Mr. Ferrer for pimping, the Complaint and 

declaration allege only that he is the CEO of Backpage.com, Fitchner Decl. at 2; has been the sole 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 35 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 24 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

named partner of Backpage.com’s parent company since late 2014, id. at 3; “runs the day-to-day 

operations” of Backpage.com, id. at 4; was “copied on” Backpage.com’s responses to law 

enforcement subpoenas, id.; had been the recipient of communications from the National Center 

for Missing and Exploited Children (without mentioning whether this relates to Backpage.com’s 

regular reporting to NCMEC of suspect ads), id. at 3-4; has “publicly acknowledged” that 

“prostitution occurs on BACKPAGE” while acting to “mitigate[ ] criminal activity through a 

screening process,” id.; cooperated and promptly acted to remove an ad that Agent Fitchner had 

posted when he told Mr. Ferrer that he was “law enforcement” and had “identified a prostitution 

ad,” id. at 6; and emailed a payment processor about whether banks might be concerned about 

“sexy email address names” of customers, id. at 12.

Otherwise, Agent Fitchner describes information he and other DOJ personnel learned in 

interviews of the nine individuals about their activities, id. at 7-11; see also Complaint at 4-9; 

mentions unrelated “undercover operations” conducted by DOJ (i.e., posting sting ads on the 

website), id. at 4, and offers his opinion that “it [is] plain to any individual ... that BACKPAGE’s 

‘Escort’ ads are for prostitution,” id.

None of this shows or even alleges that Mr. Ferrer (or anyone at Backpage.com, for that 

matter) had any connection to any ads of the nine individuals that are the premise for the criminal 

charges. The AG alleges no facts that Mr. Ferrer ever saw any advertisements of these 

individuals, much less that he knew any of them were acting as prostitutes, which is the central 

element of Penal Code § 266h (liability applicable only to “any person who, knowing another 

person is a prostitute ....”); see also CALCRIM 1150. Similarly, there is no allegation whatsoever 

that Mr. Ferrer “derive[d] support or maintenance ... from the earnings or proceeds of [these] 

persons’ prostitution,” or that he knowingly “solicit[ed] or receiv[ed] compensation for soliciting 

[prostitution services] for [these] person[s].” Penal Code § 266h.20 Nor does the AG assert any 

20 Penal Codes § 266h(a) provides: 

[A]ny person who, knowing another person is a prostitute, lives or derives support 

or maintenance in whole or in part from the earnings or proceeds of the person’s 

prostitution, or from money loaned or advanced to or charged against that person 

by any keeper or manager or inmate of a house or other place where prostitution 

is practiced or allowed, or who solicits or receives compensation for soliciting for 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 36 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 25 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

allegations that Mr. Ferrer had any knowledge that the ads posted by the nine individuals were for 

unlawful conduct or knew that the individuals who are the subject of Counts Two-Six were 

minors, as is constitutionally required. 

California law does not allow a charge or conviction under Penal Code § 266h without 

proof that the defendant had knowledge that another person (from whom he obtained support) was 

acting as a prostitute. See Wooten v. Superior Court, 93 Cal. App. 4th 422, 437 (2001) (reversing 

trial court’s denial of motion to set aside information alleging pimping charges against strip club 

owners where there was no showing they had knowledge that a dancer had offered to perform a 

sex act; “pimping requires that a defendant know that another person is a prostitute”). So too, the 

government’s obligation is to allege and prove the defendant’s knowledge of specific acts of 

prostitution; allegations of “general knowledge” are not enough. Id. at 438 (rejecting argument 

that strip club owners could be convicted of pimping or pandering based on “general awareness of 

sex acts occurring at the club”). 21

2. The Conspiracy Charges Against Defendants Are Likewise Deficient. 

The Complaint’s charge of conspiracy to commit pimping against all three defendants, 

Complaint at 1-4 (Count One), is also completely deficient under California law.

To convict on a charge of conspiracy, the government must prove that the defendant and 

another person entered into an agreement with the specific intent to commit an offense, as well as 

the specific intent to commit the elements of that offense, together with proof of the commission 

of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy. 

People v. Morante, 20 Cal. 4th 403, 416 (1999) (quoting Penal Code § 184). The Complaint 

alleges none of these elements, and the declaration offers no facts to support any conspiracy 

charge.

 

the person, is guilty of pimping, a felony, and shall be punishable by 

imprisonment in the state prison for three, four, or six years.

21 Count Five alleges attempted pimping in violation of Penal Code §§ 266h and 664. Complaint 

at 6. This charge would require proof that the defendant had the specific intent to engage in 

pimping. People v. Toledo, 26 Cal. 4th 221, 229-30 (2001). 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 37 of 39
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 26 

DEMURRER TO CRIMINAL COMPLAINT, Case No. 16FE019224 

DAVIS WRIGHT TREMAINE LLP 

Again, the Complaint and declaration do not purport to allege that the defendants knew 

about any of the supposedly improper advertisements before they appeared on Backpage.com, or 

that the ads concerned any illegal activity, or that defendants knew of and agreed to commit any 

crime. The allegations concerning Mr. Ferrer (discussed above) do not assert or suggest he 

entered into any agreement with anyone with the intent to commit a crime. 

The allegations concerning Messrs. Lacey and Larkin are no better. The Complaint and 

declaration assert that these gentlemen founded Backpage.com in 2004 and remained controlling 

shareholders until 2012, when Backpage.com separated from its former parent company, Fitchner 

Decl. at 2; owned and participated in operating Backpage.com until late 2014, Complaint at 2, 

Fitchner Decl. at 3;22 received communications from NCMEC, as did Mr. Ferrer, Fitchner Decl. at 

3-4; received “regular updates, correspondence, and meeting notices” from Mr. Ferrer, id. at 4; 

received “bonuses” in September 2014 (before they sold their interests in Backpage.com), id. at 4; 

and revenues from Backpage.com were once used to pay them salaries and bonuses, id. at 6.

Nothing in these meager alleged facts suggests participation in a criminal conspiracy. 

There is no alleged agreement to commit a crime, no suggestion that Mr. Lacey, Mr. Larkin or Mr. 

Ferrer intended to commit the crime of pimping, no contention that any man knew that any of the 

subject ads concerned prostitution or any illegal activity, and not even a hint that they knew 

anything about or had anything to do with the ads. Instead, the AG charges Messrs. Lacey and 

Larkin with a criminal conspiracy on the sole basis that they once owned Backpage.com. Such 

allegations are a far cry from meeting the statutory definition of conspiracy. See Morante, 20 Cal. 

4th at 416; cf. Doe v. GTE Corp., 347 F.3d at 659 (“[Under] the ordinary understanding of 

culpable assistance to a wrongdoer,” the defendant must have “a desire to promote the wrongful 

venture’s success . ... That web hosting services ... may be used to carry out illegal activities does 

not justify condemning their provision whenever a given customer turns out to be crooked.”). 

22 The status of the defendants as corporate officers and shareholders is irrelevant. “It is well 

settled that ‘[a]n officer of a corporation is not criminally answerable for any act of a corporation 

in which he [or she] is not personally a participant.’” Sea Horse Ranch, Inc. v. Superior Court, 24 

Cal. App. 4th 446, 457 (1994) (alterations by Sea Horse Ranch court) (quoting Otis v. Superior 

Court, 148 Cal. 129, 131 (1905). 

Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 38 of 39
Case 2:18-cr-00422-DJH Document 118-5 Filed 04/25/18 Page 39 of 39