Backpage.com Can’t Use Section 230 to Invalidate Anti-Trafficking Law, Washington Says
Washington Attorney General Rob McKenna’s office threw the kitchen sink at Village Voice Media’s Backpage.com in a smattering of legal briefs and declarations filed with the U.S. District Court in Seattle last week. The online classifieds site is trying to invalidate SB-6251, a state law that would punish it for “knowingly” accepting escort ads featuring minors, and it has received support from the Electronic Frontier Foundation among others (WID June 20 p6).
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Section 230 of the Communications Decency Act, on which Backpage relies for immunity, is “a shield, not a sword, and it cannot be used offensively in a case that is not an application of” the law, McKenna’s office and county prosecutors said (http://xrl.us/bngrxb) in opposition to a motion for preliminary injunction by Backpage and the Internet Archive, an “intervenor” in the case (WID June 18 p8). They gave several alternative defenses of the law, including that when “properly construed, it is consistent with the CDA.” McKenna is running for the Republican nomination for governor this fall. Village Voice Media also owns Seattle Weekly.
About 300 to 500 children each year are “exploited for sex” in the Seattle area, according to a 2008 Seattle human services department report, and the city police department has found at least 22 children advertised online in the area since 2010, the state opposition said. “Even in the absence of discovery, there is evidence that Backpage.com is aware” that escort services online are “thinly veiled offers of prostitution,” the state said. It pointed to a recent investigation (http://xrl.us/bngrzm) involving a 15-year-old girl in which the site, after police intervened and Backpage removed the ad, allegedly “allowed the posting of nearly identical advertisements no less than ten times in a two week period of time."
Neither Backpage nor the Internet Archive has alleged a “genuine threat of imminent prosecution” should the law take effect, meaning they lack standing to challenge it, the state said. The latter can’t suffer “actual injury” because, under its business model of indexing Web pages, it wouldn’t have the “required state of mind to ‘knowingly’ participate” in sex ads featuring minors, and neither party has alleged “that their speech has been chilled nor provided evidence of any self-censorship” as required, the state said.
Section 230 only protects interactive computer service providers who aren’t also information content providers, the state said. It can be asserted only in defense, and can’t preempt SB-6251 “on its face.” The state law also has applications that are irrelevant to Section 230, such as applying to “print media” and to “persons who post ads in electronic media,” it said.
SB-6251 can also be read to be consistent with Section 230 because it “is substantially similar to federal criminal laws regarding sexual exploitation of children that Congress specified are” not implicated by Section 230. It only applies to illegal speech, which is “knowingly” advertising prostitution -- an activity illegal for both adults and minors and therefore not subject to potential infringements on adults’ rights, such as age verification online to view porn, the state said. Congress also included an explicit exemption for criminal law in Section 230, ensuring it wouldn’t impact enforcement of obscenity or child sex exploitation, the brief said. “Congress expressly provided that states may enforce any state law that is consistent with all of section 230, and not just to the subsection under which plaintiffs seek shelter” -- the shield for interactive computer services from being treated as speakers.
The state law doesn’t create a strict liability standard in violation of the First and Fourteenth amendments because “it requires scienter for all elements of the crime, except the age of the minor depicted in the advertisement, and for that element it provides an affirmative defense,” the state said. It only bars conduct that’s expressly illegal, and hence isn’t a content-based restriction, it said.
The law is distinguishable from those requiring ISPs to remove child pornography, which involved “significant overblocking of innocent websites in the effort to block a small portion of child pornography websites,” the state said: By contrast, Backpage and the Internet Archive have alleged “entirely hypothetical” harms on protected speech. The law’s “age verification affirmative defense” -- that a site took reasonable efforts to verify the age of a person in an ad -- “affects only a narrow group of persons involved in advertisements for commercial sex acts, meaning that the burden, if any, falls on unprotected speech, or in the alternative, commercial speech,” which is subject to a lower threshold, the brief said.
U.S. District Judge Ricardo Martinez in Seattle will hear the motion for preliminary injunction against SB-6251 Friday at 1:30 p.m.