Judge Temporarily Halts Washington Sex Ad Law

SEATTLE (CN) - Backpage.com and the Internet Archive convinced a federal judge that a law aimed at preventing online child prostitution may violate their First Amendment rights by holding them liable for user content.

U.S. District Judge Ricardo Martinez granted the websites' motion for a preliminary injunction barring enforcement of the law, which was scheduled to take effect June 7.

Backpage.com is a Village Voice website known for hosting ads for adult escort services, among others.

Following reports of a sting operation that found child prostitutes being advertised on Backpage, the Washington Senate passed SB 6251.

The law would make it a felony to advertise commercial sexual abuse of a minor either "directly or indirectly," which Backpage says is unconstitutional.

"Although its ostensible motivation-to prevent the sex trafficking of children-is laudable, the law is not," Backpage claimed in its federal lawsuit.

"Because of its expansive language, 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 only defense the proposed law allows against prosecution is for a defendant (i.e., a website) to obtain official identification proving that a person depicted in an ad is 18 or older.

"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," the complaint states (italics in original). "These obligations would bring the practice of hosting third-party content to a grinding halt."

Judge Martinez entered a two-week restraining order against the state, and the parties continued to dispute the law in their filings.

The Internet Archive later joined the challenge and filed a separate complaint.

On July 20, Martinez heard oral arguments and last week ruled in the websites' favor.

He said Backpage and Internet Archive would likely succeed on their claim that the law violated their First Amendment rights by imposing strict liability on them.

The websites claimed the state law would compel them to review every online post with a "depiction" or "implicit" ad for sex to make sure they were legal, and Martinez said it was likely true.

"A pre-screening mechanism as set forth in SB 6251 would limit the amount of content available on some publishers' websites to the amount of content that such publishers had the time and money to screen," Martinez wrote. "Some individuals would be reticent to provide government identification in connection with borderline content, such as racy personal ads, thus further diminishing the universe of protected speech available online."

Martinez also found that the websites are likely to succeed on their claims that the law is vague and overbroad.

"The pimp that publishes the advertisement certainly 'knows' whether his offer is for sex, whether explicitly or implicitly," Martinez wrote. "However, what does it mean for the website operator to 'know' that an advertisement 'implicitly' offers sex? In Washington, 'a person acts knowingly or with knowledge when ... he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense.' However, where an online service provider publishes advertisements that employ coded language, a reasonable person could believe that facts exist that do not in fact exist: an advertisement for escort services may be just that."

He said the most problematic aspect of the law is that it would likely chill protected speech.

The plaintiffs had presented evidence that escort ads have begun to appear on social networking sites like Facebook since Craigslist removed its "adult" category.

"Whether or not Facebook already 'knows' that it is publishing such ads, if SB 6251 is enforced, Facebook will have a strong incentive to either ex-ante monitor content that is posted to its website or require blanket age verification before photos are uploaded to its site," Martinez wrote. "This kind of restriction could cause dangerous chilling effects across the Internet."

The judge also noted that because the law requires an ad to contain a "depiction" of a minor, and a defendant could "easily escape liability by simply excluding such depictions, depicting adults who appeared to be minors, or depicting cartoon characters or inanimate objects."

"Thus, a post that advertised 'sex with a fifteen year old - $100' would not fall under the statute as long as it did not include a picture of that 15-year-old," he wrote. "Potential defendants could also easily escape liability by submitting forged identification or the identification of third persons, since the statute does not require that the identification include a photograph of the person depicted in the advertisement."

Martinez granted the websites' motions for a preliminary injunction, which will remain in effect until the court reaches a decision on the merits of the complaint.

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