Backpage & Government’s Contempt for the Constitution & Sex Work

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Sex Work

The Fall Of A Classifieds Empire

One year ago today, news broke on Michael Lacey and James Larkin, founders of Backpage, the classified ads site that was continually criticized for allowing ads for sex services, having their homes raided by federal agents where they seized the website and affiliates as a part of an “enforcement action.” According to Reason, Lacey reported there being 25 agents in flak jackets with guns inside his home and them pulling his 80-year-old mother naked from the shower.

Eventually, word would arise that not only had the founder’s home been invaded, but that every office for the website as well. Backpage had reportedly been under investigation for months for soliciting child trafficking, and the site was shut down. Lacey and Larkin were indicted with 93 counts, and both are under house arrest until their 2020 trial.

The charges that would eventually be given were money laundering, conspiracy to facilitate prostitution and violating the Travel Act, which states when local crimes cross state lines, they become federal cases; nothing dealing with sex trafficking. Some called this a violation of the site’s free speech, but others had more concrete concerns. Little did the country know that this entire sequence of events would lead to legislation against sex work in general.

Sex workers were reportedly devastated after the site’s shutdown having concerns that without the online advertising there would be no means to screen clients and they would be “forced back out to the bars and into the streets.” One sex worker named Vegas, explained days after the founders’ arrests that the site offered her more anonymity, and a plethora of ways to meet clients where she could ensure her safety. This would merely be the beginning, and these workers would receive an even bigger hammer to their already uncertain future.

Unintended Consequences

Many politicians called the raid a victory against the exploitation of underage girls, including Senators John McCain and Heidi Heitkamp. The latter of those Senators helped pass legislation a month prior that took away websites’ ability to be unaccountable for their third-party content, and made it easier for federal prosecutors to sue for “knowingly [enabling] sex trafficking through advertisements, posts or other means.” President Trump would sign this bill, entitled the Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA-SESTA), into law five days after this supposed victory.

The results were more hurtful than helpful. Firstly, the bill also included ads for prostitution, not just sex trafficking, and caused Craigslist to take down their “personals” section. As Vox reports, the act does little to actually fight sex trafficking, and causes more confusion for websites in regards to the third-party content for which they are liable.

Police lost one of their largest resources to catch traffickers with the shutdown of Backpage and other sites running scared after FOSTA-SESTA’s passing. Indianapolis police noted the following July they were “blinded” by the legislation, and that many of their leads came from Backpage, where they would set up stings to catch criminals. The National Center for Missing and Exploited Children also reported that 73% of their trafficking reports came from leads on Backpage.

Since it would appear that sex trafficking is on the rise (The Polaris Project reported a 13% increase from 2016-2017, the most recent statistics published), it makes little sense to make law enforcement’s job any harder. This whole cycle of events has proven once again that congressman will ignore the unintended consequences of their laws and policy when it promotes a goal they believe is worth pursuing.

Vocal critics of Backpage, including current presidential candidate and then Attorney General Kamala Harris, were continually frustrated that the law was protecting the classifieds website from what they felt were intentionally aiding sex traffickers. When they couldn’t find a way to have them shut down, they simply changed the law to allow it. It’s an action that echoes today’s “immigration crisis”, where the president seems to be changing the definition of a national emergency in order to fund a policy.

The Constitutional Ramifications

What few realize is that this practice is unconstitutional, not simply for the potential free speech violations, but is specifically prohibited under Article 1, Section 9, which bans ex post facto laws. These are laws that makes retroactive actions illegal when passed. History shows that the United States ignores this section when it comes to illegal sexual activities.

The Adam Walsh Child Protection and Safety Act was one such law that required all sex offenders, even those before the law was passed, to new registration requirements and to be in the newly created national registry. The Supreme Court had ruled 3 years prior to the act that it was constitutional because it was nonpunitive, but merely a regulation, despite that having personal information posted in a public database seems a type of punishment.

The same argument was used 6 years prior in Kansas v. Hendricks, where two pedophiles were ruled sexually violent predators (meaning they had a “mental abnormality” that made them likely to be sexually violent) when they were scheduled to be released. Those who would sexually assault children are disgusting and despicable people, but they deserve the same due process as any other citizen.

Backpage’s case may not be a cut and dry ex post facto case, one could argue that they were still committing said violations after the passage of the law, so it didn’t incriminate their past actions, but it demonstrates again that politicians will twist the constitution and ethical legal practice for a personal distaste. It’s clear that the Congress of the United States does not actually care about voluntary sexual transactions and conflates most sex work with immorality and exploitation, or else there would have been, at minimum, exceptions in FOSTA-SESTA for legal sex work. The case is demonstrably clear that having online sources facilitates consensual sex work safely and makes nonconsensual work more easily brought to justice, but the government would rather place a blanket ban for their own personal desires.

The Libertarian Case

There’s an ongoing debate over the effects of decriminalized and legalized prostitution on sex trafficking. University of Tampa economics professor Abigail R. Hall-Blanco believes that prohibition increases the profitability of sex trafficking because increased violence of a black market disincentivizes some producers. While the Coalition Against Trafficking in Women Australia claims that decriminalizing and legalizing it increases trafficking. Both groups are correct to a degree.

One study published in World Development noted that legalizing prostitution does increase the inflow of human trafficking, but notes a “substitution effect [which] reduces demand for trafficked prostitutes by favoring prostitutes who have legal residence in a country”, making the effects of legalization indeterminate. From this analytical angle, there’s no clear decision on rather ending prostitution’s prohibition is preferable.

Criminalized prostitution could also make sex workers more likely to become trafficked, as noted in the American Medical Association’s Journal of Ethics, due to prostitution convictions eliminating employment, and housing opportunities. It being illegal also reinforces the stigma that sex work is something shameful and dirty, and thus makes workers’ opinions on legislation affecting them often ignored.

From a libertarian perspective, the option that gives the most freedom would be the obvious preference. Consenting adults should be able to exchange money and services for sex because their actions do not harm anyone but potentially themselves. With this being illegal, there’s little incentive to make the service safer and better at weeding out the criminals who kidnap or coerce helpless people.

Backpage had its flaws, but it demonstrated potential for even better competitors to create tools for facilitating the world’s oldest profession like any other job; an entrepreneurial spirit to maintain safe workers and satisfied customers. The unintended consequences of government action are like a high-sugar diet: one never concerns oneself with it until its disastrous effects are in their face. FOSTA-SESTA and the US’ invasion of Backpage need to be issues at the forefront of libertarian dialogue.

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