Home » Perspective » Larry Burriss: Is Backpage a platform or a publisher?

By Larry Burriss, published on April 9, 2018

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The FBI's shutdown of Backpage.com and charges against its founder may raise First Amendment issues. To what extent are online publishers responsible for ads on their site?

The advertising site Backpage, known more for its sex ads than garage sale ads, was shut down by the FBI last week, and it founder reportedly charged in a sealed indictment with 93 counts of various criminal activities.

 

Where this is going to get interesting is in separating the ads for cars and cameras from the ads that may be linked to sex trafficking.

 

Because the entire Backpage site was seized, I can see a First Amendment challenge coming up because, obviously, many sections of the site did not deal with illegal activity at all. But, on the other side, the legal sections were part of a web site engaged in illegal activities.

 

One important unanswered question is whether the site was a “publisher” or a “platform.”

 

If the site was a publisher, then the owners can claim they had no real control over the content, and can not be expected to check the accuracy or legality of every ad posted on the site.

 

On the other hand, if the site was a “platform,” then the owners were responsible for all of the content.

 

Obviously, those who are concerned about sex trafficking want the site to be declared a platform. But if that is the case, then every other site and blog that has advertising including Facebook, YouTube, Twitter and LinkedIn could be shut down if the owners haven’t checked the content of each of the millions of ads they display every day.

 

And you can’t simply tell from the content of the ad. Many years ago, some newspapers ran classified ads telling people if they won a “contest” to call a certain phone number or go to a certain address. But the word “contest” was really a code for the Kahn Test, “Kahn” being the name of a test for syphilis. If you “won,” then you were free of the disease, and you could visit the location for, well, whatever you wanted.

 

The old phrase, “Say what you mean and mean what you say” used to, well, mean what it said. Now any word or phrase can mean what anyone wants it to mean, or what someone says it means.

 

Larry Burriss is a professor of journalism and Middle Tennessee State University and teaches introductory and media law courses. 

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