Claire Cecchi
Claire Cecchi (Photo by Carmen Natale)

New Jersey has given up trying to defend a state statute that punishes Internet publishers for posting personal ads advertising sexual liaisons with minors—a law found irreparably unconstitutional here and elsewhere.

Attorneys for the state and for two publishers agreed Wednesday to a proposed order, now before U.S. District Judge Claire Cecchi in Newark, to permanently enjoin enforcement of a provision of the Trafficking Prevention, Protection and Treatment Act.

The state also agreed to pay the plaintiffs’ attorney fees, though the amounts are confidential.

Backpage.com and Internet Archive—concerned about posting ads they didn’t compose and can’t absolutely verify as legal—won a temporary restraining order last June, and the law has been on hold since then.

The statute addresses human trafficking in various ways, but 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.

Instead, they 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.

Creation of the law was part of a years-long nationwide movement to curb child exploitation, particularly online personal ads offering sex with a minor.

In 2008, attorneys general in 43 states began reaching out to online service providers about their adult ads, specifically Craigslist, which 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 classifieds publisher Backpage.com to follow Craigslist’s lead, though it declined.

Backpage.com voiced its concerns to the Attorney General’s office last June to no avail and filed suit five days before the law was to take effect. A separate suit was filed by the Internet Archive, a website that catalogs materials, including web pages like Backpage.com that include classified ads.

Both called the provision overbroad and violative of free speech and due process rights by imposing criminal liability without proof of intent and by creating content-based restrictions not narrowly tailored. They further claimed violation of the Communications Decency Act (CDA), which prohibits treating online service providers as the true “speakers” of materials composed by third parties.

They further alleged 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.

Liz McDougall, Backpage.com’s general counsel, previously said the site’s ads are automatically filtered, manually reviewed and, if suspicious, reported to the National Center for Missing and Exploited Children. Illegal ads are often subtly worded or use code.

U.S. District Judge Dennis Cavanaugh issued a temporary restraining order within days and last August granted a preliminary injunction.

The state Attorney General’s office argued the publishers’ concerns were overblown and the law was not meant to reach passive Internet publishers.

About 50 organizations advocating for exploited children joined the case as amici and fought to preserve the law.

Cavanaugh agreed with the plaintiffs’ constitutional arguments and followed the reasoning 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), which invalidated two nearly identical state statutory provisions in Washington and Tennessee.

Cavanaugh found a likelihood of success on the merits, irreparable First Amendment injury to the publishers if the law took effect and a public policy interest in avoiding self-censorship.

The state appealed in September, but the parties began negotiating and the matter never was briefed, said Internet Archive’s local counsel, Frank Corrado of Barry, Corrado & Grassi in Wildwood.

Corrado called Cavanaugh’s written opinion, which followed his August ruling from the bench, “bulletproof” and said, “I don’t think their probability of success on appeal was very high.”

Cavanaugh retired in January, and the case was reassigned to Cecchi. The proposed order filed Wednesday would declare the provision in violation of the CDA and the First and Fourteenth amendments and enjoin its enforcement.

Other provisions of the Trafficking Prevention, Protection and Treatment Act remain intact.

Assemblywoman Valerie Vainieri Huttle, who sponsored the law, said, “Apparently this is beyond legislative repair, so to speak.” The next step might have to be adding a carve-out to the CDA, an effort she’ll urge U.S. Sens. Robert Menendez and Cory Booker to undertake, said Vainieri Huttle, D-Bergen.

She said the first conviction under the act, of a man who forced a 15-year-old girl into prostitution, came recently.

“It’s not enough to just catch the pimps,” Vainieri Huttle said. “We really have to cut off the means of advertising.”

The state was represented by Assistant Attorney General Stuart Feinblatt. He and office spokesman Lee Moore declined comment.

Backpage.com’s local counsel, Bruce Rosen of McCusker, Anselmi, Rosen & Carvelli in Florham Park, also declined comment.

Internet Archive’s lead counsel, David Greene of Electronic Frontier Foundation in San Francisco, said “the State of New Jersey unwisely chose to adopt legislation that it knew was unconstitutional” and is “now liable for the attorney fees incurred in striking down this eminently unconstitutional law.”

Backpage.com’s lead counsel, James Grant of Davis Wright Tremaine in Seattle, did not return a call. ■

Contact the reporter at dgialanella@alm.com.