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The New Censorship Wars Begin: Porn, Sex Trafficking & Backpage

On January 10, 2016, the U.S. Senate’s Permanent Subcommittee on Investigations released a 50-page report (along with an 800-page appendix) on Backpage.com.  The report accused the website of concealing evidence of criminal activity by systematically editing its “adult” ads to remove terms that facilitated sex trafficking of underage youths and children.

Sex trafficking involves the exploitation of females and (less often) males for commercial sexual purposes.  Sadly, many victims of such trafficking are underage young people, including children.  Such trafficking is a form of pedophilia, both illegal and immoral, a violation of consent, often involving rape and child porn.

In October 2015, Backpage management refused a Senate subpoena and held in contempt of Congress, the first time it had done so since 1995.  The report culminated an 18-month investigation claiming Backpage hid sex trafficking operations of underage girls behind terms like “lolita,” “teenage,” “rape,” “young,” “amber alert,” “little girl,” “teen,” “fresh,” “innocent” and “school girl.”  It insisted that the website engaged in criminal activity to conceal sex trafficking operations by removing these key words from 70 to 80 percent of the ads.

Backpage is one of the leading worldwide online companies promoting commercial sex, operating in 97 countries and 943 locations; it is reported worth more than a half-billion dollars.  Drawing upon data from a variety of federal agencies, including the Justice Department-funded National Center for Missing and Exploited Children (NCMEC), the study asserts that the website is involved in three-fourths (73%) of all child trafficking reports.

Based on the Senate report, it appears that Backpage’s management knowingly facilitated the sex trafficking of underage (mostly female) young people.  As such, the company’s management may face federal and state prosecution.  The new Attorney General, Jeff Sessions, might well pick-up on the Senate’s investigation to initiate one of the first anti-sex campaigns of the Trump administration’s renewed culture wars.

The Senate document, as could be expected, is a remarkably flawed analysis.  Most revealing, the report does not include an estimate of the total number of underage people in the U.S. subject to sex trafficking.  It fails to acknowledge the latest 2015 analysis from the U.S. Congressional Research Service that notes: “The exact number of child victims of sex trafficking in the United States is unknown because comprehensive research and scientific data are lacking.”

Equally troubling, the report lacks an analysis of America’s 21st century sexual culture, let alone an acknowledgment that, over the last half-century, sex in the U.S. has become a $50 billion industry.   These weaknesses are likely to ensure that the report ends up lost on a shelf somewhere or floats unread on a website filing cabinet.  Without contextualizing child sex trafficking within terms of the larger changes remaking American sexual culture it will be impossible to end it.

The report was released by a Republican-controlled Senate subcommittee only days before Donald Trump was to inaugurated president.  Its release begs the question as to whether there is a relationship – real or symbolic – between Backpage’s sex trafficking of underage females and the ascendency of the nation’s first hedonistic commander-and-chief?  Will a possible prosecution of Backpage signify the limits of porn and prostitution during the reign of America’s 45th president?

Trump’s sexual practice are, like his tax returns, a mystery.  Analogous to his “vast” business operations, Trump’s sexual proclivities seem equally vast.

Summer Zervos, a former contestant on “The Apprentice,” is the latest of some two-dozen women who have publicly declared that they had been groped or otherwise sexually assaulted by the nation’s 45th president.

The Russian secret service likely hacked the DNC website and – equally likely – is the clandestine report that “the Don” engaged in a water-sports gala with a couple of Moscow’s finest sexual performance artists.  And why not?  Who knows how far a once oh-so hip, adventurous Club-54 type macho guy pushed the boundaries of sexual pleasure?  Hey, with a hit of coke, why not hookers galore, s&m play, homo-eroticism (but always as the top) or sex with an reputed “underage” female?  Other a-moral hedonist with total power – like John Kennedy and Bill Clinton – have preceded Trump to the Oval Office so why should anyone expect less from him.

***

Siting NCMEC data, the Senate report claims that 4.5 million people are trapped in “sexual exploitation” worldwide and in the U.S. “over eight in ten suspected incidents of human trafficking involve sex trafficking.”  Going further, “NCMEC reported an 846% increase from 2010 to 2015 in reports of suspected child sex trafficking—an increase the organization has found to be ‘directly correlated to the increased use of the Internet to sell children for sex.’”  In most media reports siting this study, the intentionally-misleading term “suspected” does not appear.

As the truism goes, prostitution is the oldest profession … and hookers of all ages in the New World date from the earliest Dutch settlement.  New Amsterdam’s first madam is reputed to be Griet or Grietje (“Little Pearl”) Reyniers, a lively bawd or doxie.  In 1668, when taunted by seamen on a departing sloop with the cry, “Whore! Whore! Two pound butter’s whore!”  She allegedly lifted her petticoat, pointed to her naked backside and replied: “Blaes my daer achterin.”  Repeatedly assailed by respectable citizens, she thumbed her nose at them, insisting, “I have long been the whore of the nobility, now I want to be the rabble’s.”

A quarter-century later, Lord Cornbury (Edward Hyde), Britain’s captain-general and governor-in-chief of New York and New Jersey between 1701 and 1708, was arrested by New York police for prostitution, soliciting soldiers along the waterfront.  In is reputed that he opened the New York General Assembly of 1702 in an exquisite formal gown in the Queen Anne style—a hooped gown with an elaborate headdress and carrying a fan.

America has been a battleground over commercial sex, along with other forms of unacceptable forms of sexual expression and experience, since before the nation’s founding.  Today, however, premarital sex is engaged in by two-thirds of American women and teen girls; between 1964 and 1993, the high-point of the culture wars, the teen birth rate fell 61 percent, to 24.2 births for every 1,000 adolescent females from 61.8 births.

The 21st century sex culture seeks to fulfill the separate goals of both procreation and pleasure.  Most consequential, what was once considered “immoral” or a “perversion” has been normalized.  The Supreme Court legalized homosexual marriage and while commercial sex is legal in only a handful of rural Nevada localities, it is estimated to be an $18 billion business.  Pornography, driven by easy Internet access and DIY amateur content is estimated to be a $10-$14 billion business.

One consequence of the “mainstreaming” of sex is that sexual values have shifted from a moral issue, “sin,” to a legal concern, “consent,” be it private or public.  Formerly forbidden sex practices – e.g., oral sex, homosexuality, s&m — have been “normalized,” integrated into acceptable sexual life.  (Sex toys, now rebranded “sexual wellness products,” is estimated to be a $15 billion business.  Today’s only true sex crime is the violation of consent, whether involving rape, pedophilia, child porn, sex trafficking, intimate partner violence, knowingly infecting someone with HIV/STD or lust murder.

***

Backpage’s CEO, Carl Ferrer, appeared before the Senate investigative committee in response to a subpoena.  He refused to address any specific questions, claiming both a First Amendment media free speech right as well as his Fifth Amendment right against self-incriminating.

Backpage uses Section 230 of the Communications Decency Act (CDA) to contest both federal and state (e.g. CA and NJ) “censorship” efforts.  The Act was originally passed in 1996 to regulate the distribution of obscene or indecent material to children via the Internet.  However, the following year the Supreme Court ruled, in Reno v. ACLU, the Act unconstitutional and, in 2003, Congress amended the CDA to remove the indecency provisions struck down by Reno.

Section 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  It protects online publisher from all liability, civil and criminal, except liability under federal criminal and intellectual-property laws.

A day before the Senate released its report, the Supreme Court refused to hear a case brought by three Massachusetts and Rhode Island victims of forced prostitution and who accused Backpage of sex trafficking.  The Court backed a Boston lower court ruling that the CDA protects the website from being held liable for content its users publish on the sites.

Government entities — federal, state and local – have long conducted wars against unacceptable form of sexual expression and experience.  Since the nation’s founding, religious zealots, along with well-intentioned secular moralists, battled ever-increasing forms of illicit expression, censoring unacceptable media sexual representations and arresting legions of sex workers.  Over these centuries, books, magazines and comic books have been burned; drawings, pictures, post cards, photos, films/videos and websites have been suppressed; and birth-control information and devices – as well abortion procedures – have been criminalized.  Over the last century, numerous Supreme Court decisions have halted the suppression of “obscene” materials.

Often forgotten, for a brief period before World War I, many cities and town across the country enacted “Red Light Abatement laws” to regulated commercial sex.  While New Orleans’ Storyville, San Francisco’s Barbary Coast and New York’s Tenderloin were the most notorious of the dozens of “red-light districts” that flourished, others operated in Sioux City (IO), Eau Claire (WS), Waco (TX) and East Grand Forks (MN).  The Christian right was incensed by this effort not simply to regulate prostitution, but to maintain the health of sex workers and stop the spread of venereal disease to their clients.  In reaction, it mobilized a campaign to not simply suppress local districts, but to pass in 1910 the White-Slave Traffic Act (i.e., the Mann Act), a federal law ostensibly intended to halt interstate commercial sex; the first major victim of the Act was Jack Johnson, the first African-American heavyweight boxing champion.

Newly-inaugurated Pres. Donald Trump quickly signed an executive order reinstating the global ban on overseas discussion of abortion by individuals and organizations receiving federal funding.  He has insisted that one of his first actions will be to appoint a conservative to the Supreme Court.  The Backpage controversy may lead the Republican-controlled Congress to either remove or tighten CDA Section 230, thus increasing the possibility of a federal prosecution of Ferrer and an attempt to shut down the website.  Well-intentioned liberals like attorney David Boise and NYC deputy mayor Carol Robles-Román have joined the campaign. A truly conservative Court could go along with such an effort, initiating a new era of censorship.

Not unlike the strategy of throwing out the baby with the bathwater adopted by the Christian right a century ago, the new Trump administration, Republican Congress and a conservative Court may well impose greater restrictions of online speech and voluntary adult commercial sex.  This will likely drive child sex trafficking further underground.  Failure to isolate this illegal and immoral practice will only make it harder to prevent and put more child victims at risk.

One of the few groups to oppose the repressive spirit of the Senate investigation – and Backpage! – is the San Francisco-based, Erotic Service Providers Legal Education Research Project (ESPLERP).  The question remains why more “progressives” have not considered the issue?

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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