The Revenge of the Street-Walker

Senator Portman writes:

COLUMBUS, OH – Today, U.S. Senator Rob Portman (R-OH) convened a screening of I Am Jane Doe, a film available on Netflix that chronicles the stories of several victims of online sex trafficking on Backpage.com.

Except . . . I watched I am Jane Doe, and the stories of these young women are exactly what I did not find in the movie, at least with respect to their experience in sex trafficking. I was hoping to hear their accounts of having been walking to school when they were abducted by strangers and chained in a basement to be forcibly raped for months on end. I expected -- since I suspect this is probably the case -- to hear their accounts of how a string of bad decisions about everything from drugs and boyfriends to deceiving their parents and sneaking behind their backs ultimately led them to their sorry ends. But the documentary contains none of that. The women and their handlers repeatedly assert that they were "raped a thousand times" and that what happened to them was "not their fault". But if you listen closely, you realize the filmmakers know this doesn't mean what you might think. One activist with the National Center for Missing and Exploited Children (there are several organizations whose representatives are interviewed, but NCMEC figures prominently) admits that trafficking victims "believe that prostitution was the best of their bad options," or words to that effect, and a former trafficker, now working as an anti-trafficking consultant, explains that while the fear of violence is certainly part if it, seduction was his primary tool. But the argumentative thrust of the film is that because sex with underage girls is "statutory rape", it is therefore morally fungible with forcible rape.

Here are some other things I saw in the film:

A Whole Lot of Motte and Bailey

Most people who make a distinction between voluntary and involuntary prostitution believe the term "sex trafficking" applies to the latter and not the former. But as I have written before, this is not the case. And the filmmakers and the people they cover are allowed to jump back and forth between their condemnations of "child sex trafficking" and "sex trafficking" without ever having to give an account of exactly what they mean and exactly what their expectations are of companies earnestly trying to stay within the law.

For instance, Backpage does, apparently, have standards for the adds it runs. It specifically bans the use of a number of words and phrases that imply a participant might be underage. It forbids mentioning amounts of money or increments of time. And it forbids any specific descriptions of services.

The result looks something like this ad I cut and pasted from Backpage's "Dating" section this morning. In its entirety:

Hello gentlemen! It's *****. I'm a college student looking for assistance with expensive tuition and books! 😏 Are you looking for Companionsiiip after a stressful work day/week? Look no further my sensual hands will do the trick and make you explode from your worries !! 💥 I offer candlelight relaxing music and curve fitting lingerie . U won't regret calling me
Please be respectful over phone 📲 ***** ***/***/****
Limit texting please
😌 Call now for appointment 💋😘
😊Im offering in by south ****** ) or out to your place all over area for extra .. I travel between ******/*****/**** generous men only please❤️.. ..i proof I'm 100% real.. Only available today. Ask about hot girlfriend joining 👭

Poster's age: 28
[Name, location, and phone number redacted. Spelling and emoticons in the original.]

Any reader of this advertisement with even a modicum of worldliness knows what's being offered here, just as we know that scantily clad young woman loitering in a seedy downtown area is a streetwalker (or a cop), and we know that the people pulling up their cars to talk with her are Johns (or cops, or some flavor of well-meaning idiot). But prosecutors are not allowed to bring charges against such people based on what they know, only on what they can prove, which is why vice squads, as I understand it, actually have to get these people in a room and negotiate a fee for service before they can make an arrest.

The Backpage plaintiffs, and their political and activist supporters, however, want to turn all this censoring against Backpage, asserting that it proves that Backpage is instructing the advertisers how to evade law enforceemnt and that therefore Backpage is itself in the business of sex trafficking. It's hard not to notice the Catch-22 being created.

The kindest interpretation of this is that they believe that since underage prostitution hides amidst adult prostitution (much as underage alcohol consumption hides amidst adult drinking), that therefore it all has to go. But nobody actually comes out and says this. Rather, "child sex trafficking" is used to conceal a much larger agenda.

The SJW Mentality

The film shows a state legislative hearing during which an attorney for Backpage, Liz McDougal, is called to account for the adds placed on her website. As shown, the state representatives make speeches, ask snarky questions and then repeatedly interrupt her attempts to answer. It says something about our political culture that the documentary takes this as evidence of the questioners' moral righteousness rather than for the boorish behavior it actually is.

Less egregiously, the film gives a grand total of two sentences to a defender of Section 230 of the Communications Decency Act before immediately telling us that the Center for Democracy and Technology and the Electronic Frontier Foundation, both of whom submitted amici in favor of Backpage's interpretation in the Doe case, receive the bulk of their funding from Facebook and Google. I couldn't help get the impression that the intent was to generate popular pressure against Facebook and Google how the

Then there are the legal decisions themselves. To date, all legal action, both criminal and civil, has been dismissed, accompanied by opinions that are well-reasoned and emphatic in the context of the law. Yet not a single complete sentence from these decisions is quoted in the documentary. Instead, we are treated to fulmination after fulmination from lawyers and activists, angry at the fact that the "wrong people" enjoy the same protection of the law as the "right people", assuring the watchers that the judges are clueless and stupid for interpreting the law as it is clearly written.

The Runaway State

That plaintiff lawyers try to make the best of their client's weak legal position is unfortunate, but understandable, and in any case, Backpage doesn't seem to have any trouble affording its defense. The fact that several prosecutors have attempted to torture the law in their cases against Backpage is less forgiveable, and especially the late-2016 criminal charges filed in Texas and California. Given the judiciary's clear and consistent interpretation of the law, these strike me as nothing less than abuse of power, and it doesn't matter that the abusers think they're on the side of the angels.

My thoughts:

If it needs saying, I don't have a brief for prostitution, even of the "consenting adults" variety that many libertarians want to pass off as a victimless crime. I don't especially care about it, except insofar as it generates obvious negative externalities, among which street-walking is the paradigmatic example. If anything, it seems that to extent Backpage has moved the flesh trade off the streets and onto the internet, it has actually performed a public service. But neither do I especially care about the laws against it: ban it and its ads too, if that's what you wish to do.

And frankly, I'm losing interest in Section 230. If you had asked me last year, I would have said that continued immunity for forum operators was necessary to maintain a free and open internet, and that however little we like Backpage's inability or unwillingness to police its "adult services" and "dating" sections, we should be wary of throwing out the baby with the bathwater.

However, over the last couple of months we have watched the big technology companies themselves strangle the baby before our eyes. So their current lobbying to continue to offer us all the bathwater we want to drink doesn't seem nearly as compelling as it once did.

That said, legislation based on lies and deception is unlikely to yield the results we want or expect. There are already examples of how the hysteria surrounding sex trafficking is causing punishments wildly disproportionate to the underlying illegality. So even if we take at face value the good intentions behind, say, S. 1693, I am skeptical that the legal regime that follows will look like anything we will be happy with.