Arrested for Free Speech? King County's Plan to Criminally Charge Those Writing Online Reviews of Prostitutes.

Posted by Keith Hall | Jun 16, 2016 | 0 Comments

In May of 2016, the King County Prosecuting Attorney's Office charged six men with the crime of "Promoting Prostitution in the Second Degree".  This charge is usually thought of as "pimping" and normally is brought under that context.  

The allegations against these men were very different than one would expect, as it was only alleged that they wrote reviews of prostitutes they frequented, on internet forums. The allegation is that by posting favorable reviews of prostitutes, they were advancing the enterprise of prostitution, and they intended to do this.

The statutory language for promoting prostitution in the second degree is:


Promoting prostitution in the Second Degree - RCW 9A.88.080

(1) A person is guilty of promoting prostitution in the second degree if he or she knowingly:
(a) Profits from prostitution; or
(b) Advances prostitution.
(2) Promoting prostitution in the second degree is a class C felony.

Promoting prostitution is a class C felony, that can require sex offender registration depending on prior offenses or the motivation for the offense.  This means that it is punishable by a maximum of 5 years in prison, and a maximum $10,000 fine.  For a first offense, someone convicted of this crime faces a sentencing range of 1-3 months in jail, and thousands of dollars in fines, costs, and assessments.  

This appears to be creative charging on behalf of the prosecutor's office, and I would contend that this charging will be used later on to go after others who peripherally participate in prostitution related activities.  I think the end game of the prosecutor's office is to go after websites like Backpage and Craigslist, and criminally prosecute those entities for advancing prostitution.  Those entities have been able to successfully escape prosecution and civil suits by using the principles of free speech, freedom of the press, and by claiming immunity under the Communications Decency Act of 1996 (“CDA”).

The prosecutor's office has to expect that defense lawyers from this firm and others, will raise constitutional free speech challenges, and will seek to have cases dismissed.  The saying in appellate law is that "bad facts make bad law".  Meaning that when the appeals courts are ruling on cases with unsympathetic defendants, they tend to decide against them.  First bringing this type of case against those who actually use the services of prostitutes, may be a strategy to make case law that can be later used against more sympathetic defendants who only are used by prostitutes to advertise their services, such as media outlets.

This is a very slippery slope however, as what else could be seen as advancing prostitution, or any other crime?  Take for instance High Times magazine, which started publication in 1974 and has always featured marijuana and advocated for its legalization.  Does High Times advance drug crimes?  Could writing articles or publishing pictures or reviews of marijuana promote the ingestion of what, in most of the country, is still an illegal drug?  By treating prostitutes medically, are doctors advancing prostitution 

I think that this is a prosecutorial overreach, perhaps well meaning, but an overreach nonetheless. I hope that the trial courts will also view this as an overreach, and rule that these prosecutions cannot go forward, but this may be a situation that has to be resolved in the appellate courts.  

About the Author

Keith Hall

Keith is our firm's lead criminal defense attorney.

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