Backpage.com Secures Temporary Restraining Order Against Washington Sex-Ad Law

Backpage sued the state earlier this week, claiming the law violates the safe harbors in the Communications Decency Act and the Constitution’s commerce clause, and that its definitions are too vague for user-generated content websites to know whether they're violating the law. Village Voice Media also owns Seattle Weekly, which runs its online classifieds through Backpage. “We believe human trafficking is an abomination that must be stopped,” said Liz McDougall, the company’s general counsel, following the order: “But SB 6251 is not the answer."

"Backpage.com has shown a likelihood of success on the merits of its claim ... as well [as] irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief,” said the order by U.S. District Judge Ricardo Martinez in Seattle. He blocked Attorney General Rob McKenna, the Republican gubernatorial nominee this election, and county prosecutors from enforcing the law through June 19. Martinez scheduled a hearing on Backpage’s motion for preliminary injunction for June 15 and told prosecutors and Backpage to file their replies by June 11 and June 13. McKenna’s office and other prosecutors haven’t responded to the suit, the judge said.

Criticism of Backpage, based on documented incidents of ads posted for child prostitutes in the Seattle area, has made strange bedfellows across the state, with liberal Seattle Mayor Mike McGinn and rival alt-weekly The Stranger joining with conservative McKenna to denounce Village Voice Media. McGinn pulled the city’s advertising from Seattle Weekly and convinced other mayors to bring pressure on the company to verify the ages of those posted in sex ads online. McKenna has used his position as head of the National Association of Attorneys General to get all but two of his peers to demand the company provide a detailed description of how it weeds out sex ads for minors, in light of Seattle Weekly’s required in-person age verification before running sex ads in print.

The Washington state law “will force, by threat of felony prosecution, websites and others to become the government’s censors of users’ content,” the Backpage suit said. Anyone who “causes directly or indirectly” the publication of content that includes an explicit or even “implicit” offer of sexual contact for “something of value,” if a minor in fact is depicted, would risk five years in prison and a $10,000 fine per incident, the suit said. The state’s claim the law isn’t unreasonable, because sites like Backpage would have an “affirmative defense” if they can show they checked the identification of a person to be offered in sex ads, would mean that “every service provider -- no matter where headquartered or operated -- must review each and every piece of third-party content posted on or through its service,” the suit said: “These obligations would bring the practice of hosting third-party content to a grinding halt."

"Well-settled federal law” prohibits the Washington law, the suit said, citing Section 230 of the Communications Decency Act (CDA), which blocks interactive computer service providers from being treated as the publisher of third-party content and “expressly preempts” contrary state laws. The First and Fifth amendments prohibit laws that “severely inhibit and impose strict criminal liability on speech” and the commerce clause prevents states from regulatory activity beyond their borders, which “unfortunately” has also happened with a similar law in Tennessee and similar measures under consideration in New Jersey and New York, the suit said. Backpage and its peers could face “a daunting choice: block significant amounts of third-party content, most of which is lawful, or gamble against the risk of felony criminal charges, penalties and imprisonment."

The suit portrays McKenna as duplicitous, citing comments his office made in explaining why he didn’t join other attorneys general who were pressuring Craigslist to ditch its adult services section -- “it could cause users to post the same ads elsewhere” on Craigslist and make it harder to police the site. McKenna admitted “shortly after” becoming head of the attorneys general group that they had “little legal standing to forcibly shut down” Backpage and that such sites have “broad immunity” under the CDA. Backpage has “attempted to cooperate” with the attorneys general short of shutting down its adult category, and it already runs ads through “automated filtering and two rounds of manual review of individual postings” to flag suspicious posts, the suit said. It invoked McKenna’s gubernatorial campaign as a motivating factor, saying that “on a website promoting his gubernatorial campaign” he called for Congress to amend CDA Section 230 to remove legal roadblocks to taking action against sites like Backpage.

McKenna’s office mocked Backpage’s lawsuit against the state, disputing the site’s claim in a May Seattle Times op-ed that it’s an “ally in the fight against human trafficking.” Backpage wants to “kill a law written to reduce the number of children posted for sale online,” McKenna said, calling SB-6251 a “groundbreaking law” (http://xrl.us/bna5yr). McKenna, who has called Backpage “the online marketplace for prostitution,” said in August his office had found more than 50 cases of child prostitution on Backpage in 22 states. His office declined to comment otherwise on the suit.