Backpage.com Wins Injunction Against Washington Sex-Ad Law

The ruling shows Congress needs to rethink the federal Communication Decency Act’s application to escort ads and similar adult content, the sponsor of the state bill said. But Martinez’s ruling, if followed by fellow judges, could present much broader constitutional hurdles to legislation crafted like Washington’s, including bills pending in New York and New Jersey, and a Tennessee law that took effect this month. A spokesman for Washington Attorney General Rob McKenna told us Monday the office hasn’t decided whether to appeal or seek a trial.

Backpage expressly prohibits any post “exploiting a minor in any way,” and such posts “will be subject to criminal prosecution and will be reported to the Cybertipline for law enforcement,” Martinez said. Its users can report ads suggesting “child exploitation” to a unique email address, and the site claims it manually reviews “nearly all content” in the adult and dating categories, he said: Out of 3.3 million ads posted in April, the site “blocked, banned or removed” more than 1 million and referred about 400 to the National Center for Missing & Exploited Children.

Martinez said Backpage and the Internet Archive have standing to challenge the law: State legislators said explicitly they were targeting Backpage, and because the bill’s language on “knowingly” publishing illegal content is disputed, the Internet Archive’s efforts to comply by monitoring all crawled pages would be “costly indeed.” The latter party has “third-party standing” in any case, to defend the law’s alleged encouragement of “self-censorship,” the judge said. Both are “likely to succeed” on all claims, he added -- First, Fifth and Fourteenth Amendments, the Commerce Clause and the Communications Decency Act (CDA).

SB-6251 is likely inconsistent with CDA Section 230, because it imposes liability on the plaintiffs for knowingly publishing some ads submitted by users and criminalizes such “knowing” publication, creating an incentive not to monitor user uploads, Martinez said -- “precisely the situation that the CDA was enacted to remedy.” Contrary to the state’s argument, SB-6251 isn’t similar to a federal law punishing financial benefit from child sex trafficking because the former punishes speech rather than “conduct,” whereas the latter has only an “incidental” effect on the Internet, he said.

Martinez cited the Supreme Court’s recent striking down of much of Arizona’s immigration-enforcement law, regarding whether a law that can be applied constitutionally in some way is valid. SB-6251 “drastically shifts the unique balance that Congress created” for online service providers and thus conflicts with “congressional intent,” he said. The state is also wrong that the CDA doesn’t affect state criminal laws because that statute makes clear which parts aren’t intended to preempt state or federal law, Martinez said.

Though the plaintiffs’ reading of the “publishing” and “causing” clauses in the law is “most grammatical” -- that the first requires so-called scienter or knowledge for a criminal violation, and the second doesn’t -- the state’s “awkward” reading is also reasonable, Martinez said: The legislative history suggests the state didn’t want to punish those who didn’t “know” they were causing sex ads featuring minors to be published. But it’s “likely true” that the lack of a scienter requirement in the law pertaining to the age of the person featured in an ad causes “serious constitutional doubts,” he said.

"At first blush, requiring publishers to check identification before publishing an escort ad seems as commonsensical as requiring bar owners to check identification before allowing patrons to enter the door,” but as Martinez previously wrote, that implies conduct and not speech: “The Constitution cannot permit similar collateral consequences in the First Amendment context.” The “pre-screening mechanism” in SB-6251 would limit content on websites to as much as “such publishers had the time and money to screen,” and some people wouldn’t provide identification “in connection with borderline content, such as racy personal ads,” he said. A publisher “who receives notice that content might be illegal would have no incentive to ensure that such content is in fact illegal” before pulling it down, he said.

The statute is “likely” too vague to withstand constitutional scrutiny, failing to identify many key terms, the jurist wrote. A pimp knows his “offer” is for sex, but “what does it mean for the website operator to ‘know’ that an advertisement ‘implicitly’ offers sex?” Martinez said. Or if Backpage shows an ad with a “common code to thinly veil the offer of the sex act,” and the Internet Archive crawls the ads, “knowing that Backpage.com has an ‘adult services’ ad section and does not verify identification, is IA liable if it itself cannot produce photo identification?” Washington law criminalizes paying a “fee” for sex with a minor, but the law’s use of “something of value” as the payment could include “a bottle of wine, a nice dinner, or a promise to do the dishes,” Martinez said.

The “most problematic” portion of the law is it implies all escort ads are offers for prostitution, thus infringing on protected speech, Martinez said: It’s “unlikely” the state could prove they are synonymous in all instances. Though the state’s representative at oral argument said it wouldn’t prosecute sites without escort sections like Facebook and Twitter, nothing in the law stops that, and the plaintiffs have shown that since Craigslist shut down its adult services section those ads “have begun to appear on Facebook” and other platforms, he said: One Columbia University professor’s study said four in five prostitutes have Facebook pages and that the site would be their “number one medium of recruitment” by the end of 2011. Facebook would have to either “ex-ante” monitor posted content or require “blanket age verification” for photo uploads to comply with SB-6251, he said.

Washington state hasn’t shown the law is the least restrictive method for curbing sex trafficking of children, or even defended the law against “underinclusiveness” claims, Martinez said. The law requires a “depiction” of a minor to trigger liability, meaning underage prostitutes could be advertised so long as they weren’t shown in the ad, and prostitutes could submit forged IDs since the law doesn’t require photo ID, he said. It would also “be no more difficult for potential defendants to post advertisements on foreign websites than it would be for them to post advertisements” in the U.S., he said.

The ad doesn’t even have to be placed from Washington to trigger liability under SB-6251, Martinez said, or to come to fruition in the state, violating the “dormant” Commerce Clause that restricts state interference with issues demanding “national treatment.” Online service providers would have to collect government-issued IDs “lest one of these offers relates to conduct occurring in Washington,” he said.

The ruling is “very disappointing” but shows “it is time for Congress to re-examine” the CDA’s application to sites with adult content sections, considering how much the Internet has changed since 1996 when it was enacted, said state Sen. Jeanne Kohl-Welles (D), sponsor of SB-6251. There are “many other details” to be examined in the ruling “before further action,” she said. Washington Attorney General McKenna, who has previously urged a re-examination of the CDA, was silent on that point in a written statement. There have been more than 150 reported cases of kids advertised for sex on Backpage in the past three years, while Village Voice Media “reaps millions in annual profits from prostitution advertisements,” he said. His office will “consult with lawmakers and county prosecutors about our options moving forward.” King County Prosecutor Dan Satterberg, who handles prosecutions in the Seattle area, said he would “look to our congressional delegation for help in protecting children” from sexual exploitation online and ask Backpage among others to “put in place real protections” against exploitation.

The Tennessee law similar to Washington’s is also being contested and an injunction hearing is scheduled for Aug. 13, Matt Zimmermann of the Electronic Frontier Foundation, which represented the Internet Archive in the Washington case, told us. But neither EFF nor IA are involved in that challenge, he said, partly because the Tennessee law imposes liability for “selling” ads versus “disseminating” them. “There are still serious legal problems with the [Tennessee] statute” on Section 230 grounds among others, he added.