N.J. Sex Trafficking Law Trips on Speech Grounds

(CN) - New Jersey cannot enforce a new human-trafficking law that opponents say would criminalize the indirect publication of sex ads depicting minors, a federal judge ruled.

In a federal complaint filed June 26, the Internet Archive claimed that New Jersey's Human Trafficking Prevention, Protection, and Treatment Act "would impose an intolerable burden on free speech."

"Because of its vague and expansive language (e.g., 'indirectly' 'causes' 'to be displayed' an 'implicit offer'), the law could be applied to any web site that provides access to third-party content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more," the nonprofit digital library claimed.

Village Voice Media's Backpage.com LLC moved for a preliminary injunction the same day, and the two suits were later consolidated.

The complaints contend that New Jersey's law, which Gov. Chris Christie signed on May 6 to combat online ads for underage sex workers, effectively coerces censorship by making it a first-degree offense to even "indirectly" cause to be published, disseminated or displayed any ad containing a "depiction of a minor" and any "explicit or even an 'implicit' offer" of sex for "something of value."

Representing Internet Archive, the Electronic Frontier Foundation (EFF) argued that the new law conflicts with federal statues and "could impose stiff penalties - up to 20 years in prison and steep fines on ISPs, Internet cafes, and libraries."

The EFF added: "Especially given the vagueness of the standard, service providers would feel enormous pressure to block access to broad swaths of otherwise protected material in order to minimize the risk of such harsh penalties."

Internet Archive and Backpage claimed violations of the First and 14th Amendments, the commerce clause of the U.S. Constitution, and Section 230 of the Communications Decency Act of 1996.

They moved for temporary restraining orders, and U.S. District Judge Dennis Cavanaugh granted them relief June 28, enjoining the state from enforcing the act.

Cavanaugh granted the motions for a preliminary injunction at a hearing on Friday, finding "a potential for extraordinary harm and a serious chill upon protected speech."

"Section 12(b)(l) of the act runs afoul of Section 230 by attempting to impose liability on Backpage.com and the Internet Archive for information created by third parties," the five-page order states.

The plaintiffs have also shown a likelihood of success on the merits of their claim that the act is a "content-based restriction on speech that is not narrowly tailored and is not the least restrictive alternative available," Cavanaugh added.

It is additionally likely that the act is "overbroad as it criminalizes fully protected speech and is unduly vague as it imposes severe criminal liability without providing reasonable notice of which speech is prohibited," the court found.

EFF Senior Staff Attorney Matt Zimmerman said in a statement that Section 230 "prohibits the state from threatening to throw online providers in jail for what their users do and the statute violated that rule as well. We are grateful that the court recognized the importance of these bedrock principles to online libraries and other platforms that make the Internet the vital and robust tool it is today."

Zimmerman further stated that, "within the past month, we've seen a coalition of state attorneys general ask Congress to gut CDA 230 to make way for harmful laws like New Jersey's. This misguided proposal puts speech platforms at risk, which in turn threatens online speech itself. Law enforcement can and must pursue criminals vigorously but attacking the platforms where people exercise their right to free speech is the wrong strategy."

New Jersey's statute closely resembles a Washington law that the EFF and the Internet Archive successfully blocked last year.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit