Human trafficking is a serious problem in New Jersey and throughout the country. A few days ago, six people were charged with running several brothels in Lakewood that were part of a human trafficking and sex slave network spanning New Jersey, New York and surrounding states. When New Jersey hosts the Super Bowl next year, we will also have the dubious honor of hosting the largest single-day sex-trafficking event in the country. We therefore commend the Legislature’s goals in enacting the “Human Trafficking Prevention, Protection and Treatment Act,” which was passed without a single dissenting vote and signed by the governor early this year.
But the ink was hardly dry on the bill when its enforcement was temporarily enjoined by U.S. District Judge Dennis Cavanaugh, pending a later hearing for injunctive relief. As salutary as the bill’s goal obviously is, we fear the Legislature may have taken one constitutional shortcut too many for the law to pass muster on both Supremacy Clause and First Amendment grounds.
The section of the act under challenge is directed not to the traffickers themselves but to those who publish advertisements for services, these days most commonly on the Internet. The act makes it a crime of the first degree, punishable by up to 20 years’ imprisonment, if a person “knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor.” The law further states that “It shall not be a defense to a violation of this section that the defendant … did not know the age of the minor depicted in the advertisement,” unless the person procures and maintains a copy of a driver’s license or other government identification. It is thus insufficient to rely solely on oral or written representations of age, or the apparent age of the minor as depicted. “Advertisement for a commercial sex act” is defined in the act as “any advertisement or offer in electronic or print media, including the Internet, which includes either an explicit or implicit offer for a commercial sex act to occur in this State.”
A legal challenge was brought by Backpage.com, the second most popular classified advertisement website (after Craigslist), which carries ads for a wide variety of goods and services, including a section for adult escort services. Backpage noted in its complaint that the effect of the law would be that any Internet site carrying third-party advertising, regardless of location, would be required to review every piece of third-party content posted on its service to determine whether it might be construed as an “implicit” offer for a commercial sex act in New Jersey, and then procure and maintain official documentation that any person depicted was not a minor.
As a practical matter, Backpage contends, this requirement would threaten the entire practice of hosting third-party content online and would “chill” a substantial amount of protected speech. Backpage also argues that the state law is pre-empted by the federal Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and which further provides, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Two other federal courts, in Washington and Tennessee, had already struck down state laws that were virtually identical to the New Jersey act for all the reasons advanced by Backpage, so the Legislature can hardly claim surprise that its handiwork has sailed into rough legal waters. Indeed, it seems to us fairly clear that Congress, through the CDA, has expressly pre-empted state laws that attempt to impose liability upon providers such as Backpage, and under the doctrine of constitutional avoidance it is therefore not strictly necessary to get into a heady First Amendment discussion.
But if even that were not the case, imposing what amounts to strict criminal liability, with a potential 20-year sentence, for publishing someone else’s advertisement that might be construed as implicitly soliciting a commercial sex act, when the publisher does not know of the key fact that makes the advertisement so abhorrent — i.e., that a minor is being depicted — is not only inconsistent with general notions of culpability but also inevitably will have the effect of chilling a substantial amount of speech that (whether or not socially acceptable) is constitutionally protected. We understand that proving subjective knowledge, or scienter, in a criminal case can be a difficult and sometimes impossible standard to meet. But when the consequence is 20 years in prison, perhaps it is rightly so. Focusing on those malefactors who act with such scienter may be more laborious and challenging for law enforcement authorities, but in the end it will lead to a more satisfactory result, both constitutionally and in terms of the goal of eliminating the repulsive industry of child sex trafficking.
Moreover, this is probably the kind of situation in which it is more effective for an individual state to be one among many, rather than a legal trailblazer. Human trafficking is a global problem that requires the combined and coordinated law enforcement efforts of federal and state authorities. Even if constitutionally permitted, it may not be an efficient use of resources for New Jersey to wage a lonely battle against the Internet providers when the federal government and other states do not. This should therefore not be a competition to see if an individual state can outdo the Feds in devising ingenious enforcement techniques. This month, the Uniform Law Commission adopted the Uniform Act on Prevention of and Remedies for Human Trafficking. The ABA House of Delegates will vote to adopt the ULC report as policy at its annual meeting on Aug. 12. While most states have laws criminalizing at least some forms of human trafficking, few states have comprehensive laws which deal not only with criminal sanctions, but also with human trafficking prevention, victim protection, victim civil recovery mechanisms, and public information and education. The Uniform Act provides three useful components: comprehensive criminal provisions with consistent definitions of proscribed activity, provisions for victim services, including a private right of action for victims, and the establishment of a coordinating body to help government and nongovernment organizations coordinate their human trafficking activities.?? A comprehensive and consistent uniform act will enable federal, state and local agencies to coordinate their law enforcement activities. We encourage the Legislature to examine the Uniform Act closely and make New Jersey one of the first of many states to adopt it.
Board member Bruce Rosen recused from this editorial.