A lawyer for Backpage.com told the Washington Supreme Court on Tuesday that a lawsuit filed by three young girls who were sold as prostitutes on the website should be thrown out because the company didn't write the ads, so it's not liable.
But the victims' lawyer said Backpage doesn't have immunity under the federal Communications Decency Act because the website markets itself as a place to sell "escort services" and provides pimps with instructions on how to write an ad that works, making them a participant in the largest human-trafficking website in the US.
The justices plan to rule on the case at a later date.
Before the hearing several dozen people stood in the rain on the court steps with signs that read: "People's bodies are not commodities," ''End Child Slavery" and "Stop Buying Our Girls."
"No one has the right to sell a kid for sex," said Jo Lembo, with Shared Hope International. "That's why we're here. Someone has to speak up for them. They're kids."
A similar case was filed last week in federal court in Boston, but a previous case in Missouri was dismissed, said Yiota Souras, a lawyer with the National Center for Missing & Exploited Children. "The Washington state case has gone further than any previous case," she said.
Suggesting they might be skeptical about Backpage's argument, the justices asked lawyer Jim Grant about the website's content.
"Your client wouldn't say with a straight face that 'escort service' doesn't mean something else most of the time," Justice Steven Gonzalez asked.
Justice Charles Johnson asked whether this was an "ostrich issue."
"We escape liability if we stick our head in the sand and not pay any attention — as long as you don't affirmatively contribute?" Johnson asked.
Grant said when Congress wrote the communications act, it wanted to preserve free speech on the Internet so it gave immunity to websites like Backpage for things posted by users or members of the site.
"Backpage did not create or develop the ads," he said. And holding it responsible would chill that speech, he said.
But Erik Bauer, the victims' lawyer, said his clients were in 7th and 9th grade when adult professional sex traffickers sold the girls as prostitutes on Backpage. The pimps knew they could run their ads anonymously, he said.
"They claim they have immunity from having pimps sell children on their website," Bauer said. "There's a massive amount of human sex trafficking on their website."
While Backpage didn't write the ads, it helps develop them in part, he said. It also gives advertisers specific instructions on what the ads should say in order to be successful, Bauer said.
Justice Debra Stephens asked Bauer if the website has a tool to scrub information to make it anonymous. If it did, it might be liable for that tool, she said.
Justice Mary Yu asked if Bauer thought he would find more evidence that Backpage was creating or writing ads if the case went forward and he said he believes the records reveal how deeply it's involved in the developing and marketing the ads.
Rachel La Corte in Olympia contributed to this story.