Backpage.com Sues Washington AG Over Child Prostitution LawSue Reisinger Corporate Counsel
06-06-2012
Update: U.S. District Judge Ricardo Martinez in Seattle on Tuesday issued a temporary restraining order against enforcement of a new Washington State law targeting child prostitution.
Martinez said Backpage.com “has shown a likelihood of success on the merits of its claim . . . as well irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief.”
The restraining order takes effect immediately and continues for at least 14 days. The court set Backpage’s motion for a preliminary injunction for a hearing on June 15.
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The rights of children have collided head-on with the First Amendment rights of others in a suit filed by Backpage.com over a landmark law in Washington State.
The online classified-ads site filed a complaint [PDF] against Washington State attorney general Rob McKenna and the state’s county prosecutors on Monday to try and stop them from enforcing a new law that would require providers like Backpage to verify the ages of people in ads offering “adult services,” which can include prostitution.
When the bipartisan bill passed the legislature in February, child protection advocates hailed it as the first of its kind in the nation. It is to take effect on Thursday, unless the U.S. District Court in Seattle grants Backpage’s motion for a temporary restraining order while the suit is heard.
“While we take no issue with the Washington legislature’s stated intentions, we must and do take issue with the statutory approach the legislature has chosen,” said a statement from Elizabeth McDougall, general counsel of Village Voice Media Holdings, which owns Backpage.com.
McKenna’s office did not immediately respond to requests for comment.
McDougall said the law is invalid because it violates the federal Communications Decency Act of 1996, which protects website operators from liability over the speech of unaffiliated parties. It also violates the First Amendment and other parts of the U.S. Constitution, she said.
The suit seeks a declaratory judgment that the law is invalid, and then a permanent injunction against its enforcement.
The company argues that the law is written so expansively that it would apply to dating sites, blogs, chat rooms, and social networking sites, as well as ad sites like Backpage.com.
“The law defines the content it prohibits so broadly and so vaguely—as including any ‘implicit offer’ of sex for ‘something of value’—that no one can fairly know what does or does not violate the law,” McDougall said.
“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 says. “These obligations would bring the practice of hosting third-party content to a grinding halt.”
McDougall said because the law doesn’t require knowledge of the wrongdoing, it would make online services like Backpage.com and craigslist; social networking sites like Facebook, Twitter, and YouTube; search engines like Google, Bing, and Yahoo; and hundreds of other service providers criminally liable for online content—whether they were aware of the content or not.
The suit claims the law’s vagueness and overreach violates the First Amendment right to free expression, and its criminal aspects violate the Fifth Amendment right to due process.
Finally, the suit alleges that the law also violates the Commerce Clause of the U.S. Constitution, which allows only Congress to regulate interstate commerce.
“The trafficking of children for sex is an abomination,” agreed McDougall. But, she explained, “I believe aggressive improvements in technology and close collaboration between the online service community, law enforcement, and NGOs [non-governmental organizations] is the best approach to fighting human trafficking.”
She said Washington State’s “unlawful governmental intrusion” into the Internet would only force criminal conduct back underground and service providers offshore, outside the reach of law enforcement. “Both [are] unworkable and counter-productive in the fight” against child trafficking, she added.
Matt Zimmerman, senior in-house attorney for the Electronic Frontier Foundation, said on Tuesday that he agrees with McDougall and the suit.
"The statute was a misguided attempt to circumvent very clear federal policy on this issue," Zimmerman said. "The Communications Decency Act is the reason we have a very robust ecosystem of websites that deal with third-party content. You don't want to put them in the position of having to second-guess everything their users do."
Zimmer said the motivation for the law was "a good one, but this is a really bad way to go about it. If every state could pass their own restrictions on websites, you'd end up with this completely unworkable patchwork of laws," he added.
McKenna, the Washington AG, said in a May 31 blog post, “Backpage is many things, but an ally in the fight against trafficking it’s not. It’s a cash machine churning out tens of millions a year for its owners by charging $1 and up for prostitution advertisements.”
Phoenix-based Village Voice Media owns 13 alternative weekly newspapers around the country, as well as Backpage.com.
See also: “Village Voice Media GC Clashes with State AGs Over Prostitution Ads,” CorpCounsel, May 2012.
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