A federal judge in Newark on Friday held unconstitutional a New Jersey statute that criminalizes online ads for sex with minors and blocked its enforcement pending trial.
“I certainly recognize the interests … but I think the statute is just problematic” because of free speech, due process and other concerns, U.S. District Judge Dennis Cavanaugh said in granting a preliminary injunction.
The ruling came in response to suits by Internet publishers concerned about exposure to liability under the Trafficking Prevention, Protection and Treatment Act for posting ads they didn’t compose and can’t verify as legal.
The provision at issue, N.J.S.A. 2C:13-10, targets ads that falsely identify escorts as over 18.
It 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 ad that shows 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.
Backpage.com — which runs free classified ads and refused to follow Craigslist’s lead in removing escort ads altogether amidst pressure by the National Association of Attorneys General — sued on June 26, five days before the law was to take effect.
Filing concurrently was Internet Archive, a website that catalogs digital materials, including classified pages like Backpage.com.
Cavanaugh issued a temporary restraining order on June 28.
He heard oral arguments Friday at a hearing attended by representatives from 50 amici organizations advocating for exploited children, who favor the law.
The plaintiffs maintained that the provision flouts free speech and due process rights by imposing criminal liability without proof of intent and creating content-based restrictions on protected speech that aren’t narrowly tailored.
The clause also allegedly violates the Commerce Clause by seeking to regulate conduct outside New Jersey and the Communications Decency Act, which prohibits treating Internet service providers as the true “speakers” of materials composed by third parties.
The provision’s language is broad enough to implicate any publisher. “That means Craigslist, that means Facebook, that means Google. That means thousands of Internet sites,” said Backpage.com’s counsel, James Grant of Davis Wright Tremaine in Seattle.
Assistant Attorney General Stuart Feinblatt retorted that the law is not meant to reach passive publishers, and claims to the contrary are a scare tactic.
“It’s our position that these are ludicrous … and irresponsible readings of the statute,” Feinblatt said, adding that “prosecutors will use common sense” and courts and juries “will understand” what the statutory terms mean.
Cavanaugh signaled how he would rule by interjecting, “I don’t think anybody’s quarreling with the issue that these advertisements are terrible. But that’s not really why we’re here.”
Cavanaugh interrupted as Penny Venetis, a Rutgers Law School-Newark professor and director of the Rutgers International Human Rights Clinic, inveighed against human trafficking.
“It’s not my job to write the laws, but as a trial judge, I’ve got to look at them and interpret them,” Cavanaugh said. “I’m as appalled by all of that … as any normal person would be.”
Ultimately he found the plaintiffs likely to succeed on the merits.
Cavanaugh followed the reasoning of the judges in Backpage.com LLC v. McKenna, 881 F.Supp. 2d 1262 (W.D. Wash. 2012), and Backpage.com v. Cooper, 2013 WL 1558785 (M.D. Tenn. Jan. 3, 2013), who invalidated two nearly identical state statutory provisions in Washington and Tennessee, respectively.
The New Jersey provision is pre-empted by the CDA, Cavanaugh said, adding that Congress intended to encourage e-commerce and Internet self-policing by conferring broad immunity on web publishers.
Even aspects of the statute that would criminalize knowing dissemination of illegal ads are defective because they create a disincentive for publishers to monitor their content, Cavanaugh said.
He also found the provision is contrary to the First Amendment’s scienter requirement; overbroad by including people who would not think they are within its ambit; and vague for failing to define terms such as “commercial sex act” and “explicit or implicit” offers.
The preliminary injunction is in the public interest, he added, because the law would otherwise chill free speech because many web publishers would rather self-censor than face prosecution.
After the hearing, Liz McDougall, Backpage.com’s general counsel, said the ads are automatically filtered, manually reviewed and, if suspicious, reported to the National Center for Missing and Exploited Children.
“I think it’s a tremendous waste of state resources” to argue for upholding a law that has been voided elsewhere, said McDougall, who as a partner with Perkins Coie in Seattle represented Craigslist in its dealings with the state attorneys general.
Matthew Zimmerman of Electronic Frontier Foundation in San Francisco, who argued for Internet Archive, noted that Cavanaugh stressed the constitutional concerns. “You can’t fix this statutorily,” he said.
“It’s unfortunate that we have to keep making the same arguments. … We’re going to end up here [in court] every time” a state passes a similar law, he added.
Assemblywoman Valerie Vainieri Huttle, D-Bergen, the law’s sponsor, attended the hearing and said she’s hoping for an appeal. As for changing the statutory language, “we can revisit that at the appropriate time,” she said.
Feinblatt declined comment. Office spokesman Paul Loriquet did not comment by press time. •