• by Wendy Davis , Staff Writer @wendyndavis, October 20, 2016

California Attorney General Kamala Harris abused her power by arresting Backpage's CEO and two of its shareholders over alleged prostitution ads, they say in new court papers.

CEO Carl Ferrer and shareholders Michael Lacey and James Larkin make that claim in a motion asking a California judge to dismiss all of the charges against them.

"The AG’s Complaint and theory of prosecution are frankly outrageous," they argue in papers filed Wednesday in Sacramento County Superior Court. "The AG seeks to impose criminal liability on a website simply because it published and received fees for third-party ads."

Harris arrested Ferrer, Lacey and Larkin earlier this month on "pimping" charges stemming from Backpage.com's controversial escort ads. Ferrer was held in custody for one week, while Lacey and Larkin were incarcerated for four days, before being released on bail last week.

Ferrer and the others argue that the charges against them violate the First Amendment as well as the federal Communications Decency Act, which immunizes Web sites from liability for crimes committed by users.

They point out that Backpage has prevailed in several other high-profile lawsuits stemming from its ads. "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," they argue. "Government officials at various levels have attempted to censor such advertising forums in many ways, and each has been held to violate the Constitution."

For instance, Backpage succeeded in striking down laws in three states -- Tennessee, Washington and New Jersey -- that would have prohibited Web site operators from selling ads that appeared to offer a "commercial sex act" with a minor.

U.S. District Court Senior Judge John Nixon elaborated in the Tennessee case that the state law was trumped by Section 230 of the federal Communications Decency Act, which provides that interactive services providers are not responsible when users create or post illegal content. Nixon added that the state law was unconstitutional because it applies to ads based on how they "appear," regardless of whether the ads actually feature people who are underage.

Backpage has won other cases as well. Earlier this year, the 1st Circuit Court of Appeals ruled that sex trafficking victims couldn't proceed with a lawsuit accusing Backpage of facilitating crime through the design of its online classifieds site.

The court in that case ruled that Backpage was protected by the federal Communications Decency Act, which immunizes Web companies for crimes committed by users.

Last year, the 7th Circuit Court of Appeals also handed Backpage a victory by prohibiting Cook County, Illinois Sheriff Thomas Dart from continuing to try to persuade credit card companies to stop working with Backpage.

But Backpage also lost a recent battle last year in Washington, where the state Supreme Court refused to dismiss a lawsuit against the company by three minors who said they were raped by adults who responded to ads on the site. That case could still be dismissed at a later date, but the court said the minors should have a chance to move forward with their allegations.

Ferrer, Lacey and Larkin add that other courts have ruled that states violate the First Amendment rights of publishers and bookstores by charging them with crimes based on their distribution of unlawful material.

"Criminal sanctions inhibiting free speech rights are among the most pernicious forms of government violations of the First Amendment," the executives say. "It is a basic proposition of First Amendment law that states cannot criminally punish publishers or distributors of speech without proof ... that a defendant knew that the specific speech that is the basis for criminal charges was unlawful."

What's more, Harris previously admitted that she lacked the power to prosecute Backpage, Ferrer and the others argue. In 2013, Harris was among 47 attorneys general who asked lawmakers to amend the Communications Decency Act in order to stop sex trafficking on Backpage.com.

"This case does not present a close question," the executives write. "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."

Harris is expected to respond to the motion early next month.