A federal judge in Newark on Friday halted enforcement of a New Jersey law that makes it a crime to publish ads inviting sexual assignations with underage escorts, even if the publisher did not know the escort's age.
U.S. District Judge Dennis Cavanaugh granted a temporary restraining order blocking a part of the comprehensive New Jersey Trafficking Prevention, Protection and Treatment Act that was set to take effect on July 1.
Two online service providers claim in separate suits that the law, aimed at Internet ads that falsely identify escorts as over 18, punishes them for unwittingly posting ads they did not compose and whose legality they cannot verify.
Federal courts in Washington and Tennessee have blocked enforcement of the statutes in those states on which New Jersey's was modeled.
The statute expands the definition of human trafficking; makes organization, management or financing of a trafficking scheme a first-degree crime; and enables victims to sue civilly and collect damages, restitution and attorney fees.
The provision at issue, N.J.S.A. 2C:13-10, makes a first-degree criminal offense of "advertising commercial sexual abuse of a minor" by knowingly publishing, disseminating, displaying or buying a print or electronic advertisement that contains a "depiction of a minor" coupled with an "explicit or implicit offer" of sex.
Publishers cannot claim as a defense that they did not know the depicted person's age, or believed they knew the person's age, without appropriate proof.
To establish a valid defense, publishers would have to demonstrate by a preponderance of the evidence that they made a reasonable, bona fide attempt to ascertain the minor's age by requiring identification.
Lawmakers singled out Backpage.com, which posts free classified ads and has declined to remove its adult advertising section despite public pressure.
In 2008, attorneys general in 43 states began reaching out to online service providers about their adult ads, specifically Craigslist, which ultimately removed its adult services category altogether in 2010. Soon after, 21 attorneys general — and the National Association of Attorneys General, in a publicized letter "in lieu of a subpoena" — pressured Backpage.com to follow Craigslist's lead, though it has declined.
Backpage.com voiced its concerns to the Attorney General's Office earlier this month, to no avail, and sued on Wednesday, in Backpage.com v. Hoffman, 13-cv-3952.
A separate suit was filed concurrently by the Internet Archive, a website that catalogs materials, including webpages like Backpage.com that include classified ads, The Internet Archive v. Hoffman, 13-cv-3953.
Both suits charge that the provision is overbroad and violates free speech and due process rights by imposing criminal liability without proof of intent and by creating content-based restrictions that are not narrowly tailored and thwart protected speech.
It also violates the Commerce Clause, they allege, by seeking to regulate conduct outside New Jersey, and the Communications Decency Act, which prohibits treating online service providers as the true "speakers" of materials composed by third parties.
They further allege that demanding identification from everyone who posts an online ad is impractical, and that lawmakers, in crafting the provision, seek to eliminate adult-oriented Internet advertising completely.
In a letter brief in opposition filed hours before Friday's hearing, Assistant Attorney General Stuart Feinblatt said the plaintiffs "cannot establish either irreparable harm or reasonable likelihood of success on the merits," and the public interest "weighs heavily against restraining the enforcement of this important law designed to stop a horrible evil."
Feinblatt criticized the plaintiffs for waiting until five days before the effective date to sue. "A litigant should not be able to sit on its rights and then seek extraordinary relief because of a self-created emergency," he wrote.
Cavanaugh, in his TRO ruling, relied primarily on Backpage.com v. Cooper, 2013 WL 1249063 (M.D. Tenn. Mar. 27, 2013), where U.S. District Judge John Nixon held that a state "may not use a butcher knife on a problem that requires a scalpel to fix," and who ultimately entered a final judgment invalidating the law.
Cavanaugh scheduled a hearing for Aug. 9 on the plaintiffs' request for a preliminary injunction, with briefs due in the preceding weeks.
Acting Attorney General John Hoffman said, through a spokesman, that he will continue to defend the statute's legality. "As part of a comprehensive effort to protect victims of human trafficking, the Legislature sought to limit the marketing of childhood prostitution. Neither the Constitution or federal law prohibits the state's efforts," he said.
Matthew Zimmerman of Electronic Frontier Foundation in San Francisco, Internet Archive's counsel, says Cavanaugh "got it right" and the foundation expects to obtain an injunction.
"There seems to be a recognition … at the national level" that laws similar to New Jersey's are constitutionally unworkable, he adds.
Internet Archive also is represented by Frank Corrado of Barry, Corrado & Grassi in Wildwood and Backpage.com by James Grant of Davis Wright Tremaine in New York and Bruce Rosen of McCusker, Anselmi, Rosen & Carvelli in Florham Park. All declined comment.
The issue of human trafficking was at the forefront last week. On Tuesday, Hoffman hosted an event laying out the state's efforts to ramp up law enforcement in anticipation of Super Bowl XLVIII at East Rutherford's MetLife Stadium in February, when officials expect an uptick in prostitution activity. •