When the Tennessee General Assembly unanimously passed Senate Bill 2371 in May, it was another step in the state’s attempt to combat child sex trafficking. The law clarified several points regarding sex trafficking crimes, and also tacked on a new offense: a class C felony for advertising “commercial sexual abuse of a minor.”
The new crime definition was a direct shot at Backpage.com — which, unlike Craigslist, hasn’t folded their “adult” services classified ads. And it didn’t take long for Backpage.com to fire back. The online listings site filed a lawsuit against all of the Tennessee district attorneys and Tennessee State Attorney General Robert Cooper Jr. in June, asking a federal judge to strike down the new law.
Backpage.com claims the new law is unconstitutional in nature and wrongfully limits their right to free speech. In the other corner, the state argues they are simply trying to keep corporations from profiting off the horrendous act of pimping out children.
During a preliminary injunction hearing before federal Judge John Nixon last week, Jim Grant, a Seattle attorney representing Backpage.com, used the words “nonsensical,” “overbroad,” and “unconstitutional” in his assessment of the newly enacted law targeting online advertisments.
“A serious problem does not justify a seriously misguided law and that’s what section 314 is,” Grant said.
In addition to multiple legal issues, Grant argues that Tennessee Senate Bill 2371 gives companies like Backpage.com few alternatives:
• Require an “unreasonable” measure to enforce the age identification of women listed on a site’s postings.
• Ban third-party postings.
• Seek to avoid prosecution by neither reviewing nor charging money for posting.
“How does that accomplish anything?” Grant asked, rhetorically.
Grant claimed that other popular websites that allow third party content such as Facebook and Twitter could also be subject to the Tennessee law.
Assistant attorney general Lyndsay Sanders said Backpage.com was trying to make the law appear “more than it is.” The state argued that the law only seeks to punish the conduct of aiding sex traffickers, not to restrict speech.
But Ken Paulson, an expert at the First Amendment Center in Nashville, said the Tennessee law will “almost certainly be declared unconstitutional.”
Congress passed the Communications Decency Act in 1997, which addressed the issue of free speech on the Internet. One of its key components is that a website is not “treated as the publisher or speaker of any information provided by another information content provider.”
“Section 230 [of the CDA] was an extraordinarily important step in protecting the freedom of expression on the Internet ... So, government largely cannot punish user-generated content on websites and cannot impose limitations on Internet content that is overly broad and undermines the First Amendment,” Paulson said.
Sanders argued that the law is simply criminalizing the sale of advertisements — not the language or content of the ads. She said the law falls into the same category as prohibitions on advertising murder-for-hire or illegal drugs. The main purpose is to help combat a federal crime, not impede on free speech.
But Grant countered that Backpage.com’s sale of the ads can aid investigators seeking the actual traffickers. The site, which charges a nominal fee for adult postings, collects credit card information — and thus can provide useful information to authorities.
Many of the issues at play regarding the new Tennessee law are currently being hashed out in a U.S. District Court of Western Washington case [Backpage.com v. McKenna et al], which challenges a similar ban on advertising. In that case, a federal judge in Seattle has granted a preliminary injunction to Backpage.com, which prevents Washington district attorneys from enforcing the new law as proceedings continue.
“We already have a federal court in Washington issuing a temporary restraining order ... that’s highly significant,” Paulson said.
“The government is probably over-reaching here and the [Washington] district court saw it that way. ... All the indicators are that this is a well-intended and important law that places such a heavy burden on checking the ads out, that it is likely to lead to other perfectly legal, adult-oriented speech from being posted.”
At the hearing in Nashville, Nixon asked Backpage.com’s attorney what he would recommend as a law to combat sex trafficking on Backpage.com. Grant pointed to a law passed by the state legislature in Connecticut which targets the publisher of sex ads online — not the medium through that they are published.
But Paulson said Backpage.com could still receive legal pressure from civil lawsuits.
“I believe the civil suits against Backpage.com are really the key to addressing concerns about child trafficking. It wouldn’t take many lawsuits from victims to quickly empty the coffers,” Paulson said.
“If the revenues from the adult content outweigh the cost of defending them, [backpage.com] may persevere.”
In the end, posting ads promoting child sex trafficking may be considered an unfortunate by-product of our First Amendment rights.
“It is very difficult to craft a law that ensures that no one is using the media to commit crime, yet also protect free speech for all,” Paulson said.
Disclosure: Backpage.com has signed marketing agreements with a number of alternative weeklies around the U.S., including the Nashville Scene. The Scene and The City Paper are owned by SouthComm.