Judge Blocks Washington’s Child Sex Ad Law

     SEATTLE (CN) – A federal judge granted Village Voice Media’s request for a restraining order to stop Washington state from enforcing a child sex-trafficking law, due to take effect today, requiring publishers to verify the age of people shown in sex ads.
     Backpage.com, a Village Voice publication, claims the law “would bring the practice of hosting third-party content to a grinding halt.”
     Backpage.com, which posts escort ads and is the second-largest online classified ad service in the country, sued Washington Attorney General Rob McKenna and prosecutors in every county in the state.
     U.S. District Judge Ricardo Martinez on Wednesday found that Backpage has “shown a likelihood of success on the merits of its claim” and suspended the law for 2 weeks pending arguments at a preliminary injunction hearing June 15.
     The law makes it a felony to advertise minors for commercial sex acts, and says it is not a defense to claim the publisher “did not know that the image was of a minor,” according to the complaint the complaint says.
     To avoid prosecution, publishers must check identification and verify age before the ad is published.
     Backpage calls the motivation behind the law “laudable” but says the way the law is written “will force, by threat of felony prosecution, websites and others to become the government’s censors of users’ content.”
     “SB 6251, scheduled to take effect June 7, 2012, will force, by threat of felony prosecution, websites and others to become the government’s censors of users’ content,” the complaint states. “Although its ostensible motivation-to prevent the sex trafficking of children-is laudable, the law is not. It threatens five years imprisonment and a $10,000 fine per violation against anyone who knowingly publishes, disseminates or displays or anyone who ‘indirectly’ ’causes’ the publication, dissemination, or display of content that contains an explicit or even ‘implicit’ offer of any sexual contact for ‘something of value’ in Washington if the content includes an image that turns out to be of a minor. Because of its expansive language (i.e., ‘indirectly’ ’causes’), the law applies not only to online classified ad services like Backpage.com, but also to any website that allows third parties to post content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, internet service providers, and more.
     “The law expressly states that it is not a defense that the defendant did not know that the image was of a minor. Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person depicted in the post (notably, even if that ID does not contain a photograph). This means 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 to determine whether it is an ‘implicit’ ad for a commercial sex act in Washington, and whether it includes a depiction of a person, and, if so, must obtain and maintain a record of the person’s ID. These obligations would bring the practice of hosting third-party content to a grinding halt.”
     Backpage claims the law contravenes the Communications Decency Act, which prohibits Internet service providers from being “treated as the publisher or speaker of any information” provided by a third party. It also claims the law violates the First Amendment and the Commerce Clause by regulating activity beyond the state’s border.
     A similar law is set to take effect in Tennessee and legislatures in New York and New Jersey are debating similar bills, according to the complaint.
     “If this court does not declare SB 6251 invalid and enjoin its enforcement, Backpage.com and other service providers throughout the nation who cannot review the millions of third-party posts processed by their services to identify potential ads for commercial sex acts in Washington will have 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. Eliminating or so practically impairing service providers as forums for legitimate free speech will cause irreparable harm to the providers and the public at large, who will lose lawful avenues for free expression on the Internet,” according to the complaint.
     Backpage claims it tried to work with Attorney General McKenna to prevent the use of its site for human trafficking, but “resisted the demand to eliminate its adult category, maintaining that selective online censorship is not a solution to trafficking and child exploitation, but rather that technology and responsible businesses such as Backpage.com can help address these problems.”
     McKenna responded to the lawsuit with a statement: “Backpage executives claim to be allies in the fight against human trafficking. Yet today they filed a lawsuit to kill a law written to reduce the number of children posted for sale online. On behalf of the people of Washington State, and on behalf of human trafficking victims everywhere, we will forcefully defend this groundbreaking law.”
     Backpage wants enforcement of the law enjoined and the law declared unconstitutional, invalid and unenforceable.
     It is represented by James Grant with Davis Wright Tremaine.

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