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Child Trafficking Law May Violate Free Speech

(CN) - A new Tennessee law meant to prevent child sex trafficking could run the trade underground while stifling legal adult advertisements, a federal judge ruled.

In July 2012, Backpage.com, the second largest online classified ad service in the U.S., challenged a new Tennessee law that makes it a felony to sell an ad that appears to offer sex with a minor, even if the ad is never published or does not actually involve a minor.

"Public Chapter 1075 seeks to force, by threat of felony prosecution, websites and other providers to become the government's censors of user-submitted content," the complaint stated. "Although its ostensible purpose - to prevent the sex trafficking of children - is laudable, the law is not."

Backpage claimed that the law "practically eliminates online service providers' ability to provide paid forums for legitimate public speech. The law chills speech and deters e-commerce and the growth and development of the Internet."

U.S. District Judge John Nixon agreed, and granted Backpage.com a temporary restraining order earlier this month.

"The Constitution tells us that - when freedom of speech hangs in the balance - the state may not use a butcher knife on a problem that requires a scalpel to fix," he wrote. "Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue."

The law's hefty penalties - up to 15 years imprisonment and a minimum $10,000 fine - would likely force online publishers to "eliminate user postings alluding to sexual topics, rather than face possible liability, which 'would eliminate vast amounts of permissible adult-oriented speech,'" according to the ruling.

A more narrow law would also likely be effective in protecting Tennessee children from sex trafficking, the court found.

"For instance, a description on a Backpage.com posting for escort services with someone who is 'barely legal' would fall under the sweep of the statute, even though posted by a twenty-five year-old," Nixon wrote. "The statute might also apply to a personal ad by the same twenty-five year-old on a paid dating website that is purposefully coy and playful, but has no connection to prostitution, much less child sex trafficking."

Tennessee meanwhile failed to show that the alternative measures Backpage proposed would be less effective.

"These include enacting criminal penalties against the pimps who knowingly post online ads for child sex trafficking, which Connecticut enacted after rejecting a bill similar to Tennessee's," according to the ruling.

Nixon also identified a dangerous loophole in the law's exemption for websites that host free advertisements. This "will likely encourage some websites to stop charging for 'adult' advertisements," the 57-page opinion states. "As a result, they will stop collecting credit card data useful to tracking sex traffickers, and relax their review process."

Continuing this theme, Nixon warned that "the migration to non-paying advertisements could effectively run the illegal activity more underground, as it removes a means of tracking information about the culprits and victims of sex trafficking, and thus might actually undermine the state's interests."

Backpage also supported its claim under the commerce clause, the judge found.

"Any paid advertisement potentially involving a sex act with a minor sold in any state or online that was 'directed to' Tennessee residents could create liability - unless the seller personally verified the government-issued identity documents of any potential minor in the advertisement," Nixon wrote.

"This likely poses a serious burden on interstate commerce, a conclusion given even more weight here, considering Tennessee is one of only two states in the nation that border eight other states," he added.

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