Online Ad Service Challenges Child Sex Law

     NASHVILLE (CN) – An online classified ad service claims in court that a new Tennessee law meant to prevent sex trafficking of children is unconstitutional.



     Backpage.com challenged Tennessee’s Public Chapter 1075, which makes it a felony to sell or offer to sell an ad “that ‘would appear to a reasonable person to be for the purpose of engaging in’ ‘a commercial sex act’ ‘with a minor,’ even if no such content is ever published or the ad does not actually concern a minor.”
     Backpage.com, a Delaware LLC that operates out of Phoenix, sued Tennessee’s Attorney General Robert Cooper and the state’s 31 district attorneys
     Public Chapter 1075 was scheduled to take effect July 1.
     Backpage.com claims it violates the First Amendment.
     The complaint states: “Public Chapter 1075, scheduled to take effect July 1, 2012, is based on a Washington State statute that a federal court has already temporarily enjoined. Like that statute, 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. Although its ostensible purpose – to prevent the sex trafficking of children – is laudable, the law is not. It threatens up to 15 years imprisonment and a minimum $10,000 fine (the same penalties for kidnapping, voluntary manslaughter, robbery, and arson) against anyone who ‘sells or offers to sell an advertisement’ that ‘would appear to a reasonable person to be for the purpose of engaging in’ ‘a commercial sex act’ ‘with a minor,’ even if no such content is ever published or the ad does not actually concern a minor.
     “It is not a defense under Public Chapter 1075 that the defendant did not know the person depicted in the post is a minor. Instead, the defendant must have obtained governmental or educational identification for the person depicted in the advertisement – even if the identification does not contain a photograph (e.g., a birth certificate or marriage license) or the ad does not contain a photograph, rendering the age verification process meaningless.
     “To avoid prosecution, online service providers have few choices. They could attempt to review every user-submitted post to determine whether a Tennessee prosecutor could claim it ‘would appear to a reasonable person to be for the purpose of engaging in what would be a commercial sex act … with a minor,’ and if so, obtain identification. Given that many websites receive millions of user-submitted posts (e.g., more than 3.3 million posts on Backpage.com in April 2012 alone), this would be impractical or impossible. And, because the standards of Public Chapter 1075 are so broad and the penalties so severe, Backpage.com and other providers would have to require identification for any ads or other posts that come even remotely close to the prohibitions of the Act.
     “Alternatively, online service providers like Backpage.com could demand identification from all third-party users for all ads or other content for which they charge fees. Such a requirement would be so onerous that many (perhaps most) websites could not comply. And the age-verification requirement may well deter many users from posting content altogether because of the difficulties of providing identification or because of privacy concerns.
     “In all likelihood, online service providers and other publishers will choose a third option – they will stop allowing third-party content altogether, or at least, all adult-oriented content. And, because Public Chapter 1075 is not limited to conduct within
     Tennessee, online service providers may also be compelled to attempt to block or censor for Tennesseans information and content available elsewhere in the country.
     “Public Chapter 1075 contravenes well-established federal law. Section 230 of the Communications Decency Act prohibits the State from treating interactive computer service providers ‘as the publisher or speaker of any information’ provided by a third party and expressly preempts inconsistent state laws. The First and Fourteenth Amendments prohibit state laws that severely inhibit and impose criminal liability on speech, as Public Chapter 1075 does. Finally, the Commerce Clause prohibits states from passing and enforcing legislation, like Public Chapter 1075, that regulates activity outside the state.
     “Public Chapter 1075 practically eliminates online service providers’ ability to provide paid forums for legitimate public speech. The law chills speech and deters ecommerce and the growth and development of the Internet. If this Court does not enjoin enforcement of Public Chapter 1075 and declare it invalid, Backpage.com, countless other online service providers, and the public will be irreparably harmed.”
     Backpage.com’s lead attorney is Lucian T. Pera, with Adams and Reese, of Memphis.

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