LOS ANGELES—For individuals interested in Free Speech Coalition v. Holder, the 2257 lawsuit currently awaiting a ruling following a two-week trial in Philadelphia, there is another federal case happening just a hop, skip and jump northeast of Judge Michael M. Baylson’s courtroom in Philly that contains issues eerily similar to those under scrutiny in the FSC case. Those issues go to the heart of why Judge Dennis M. Cavanaugh on Friday issued a temporary restraining order in Backpage.com v Hoffman blocking the July 1 implementation of Section 12 of the Human Trafficking Prevention, Protection and Treatment Act that targets sexually oriented ads.
According to NorthJersey.com, “The state law was enacted in May in advance of next year’s Super Bowl, an event that has been described as one of the country’s biggest human trafficking magnets" and a perfect reason, argued the bill's main sponsor, to "give New Jersey as many tools as possible to combat human trafficking."
The Super Bowl connection is disputed by Backpage.com, which alleges that New Jersey, in passing Section 12, is actually copying other states' failed attempts to target online services like Backpage.com by essentially creating a new offense entitled “advertising commercial sexual abuse of a minor.” The failure was even acknowledged by the bill’s sponsor, who nonetheless added the Section 12 language to the larger bill targeting sex trafficking in the state.
Two lawsuits challenging the section were subsequently filed last week by Backpage.com and The Internet Archive, each of which argued that they are being unconstitutionally burdened by being forced under threat of very serious criminal penalties (far harsher, in fact, than those imposed by 2257) to ensure the legal age of every individual whose likeness appears in sexually oriented ads that appears on their websites.
In its complaint, filed June 26, Backpage.com argued that if the law were allowed to go into effect, it “would impose an intolerable burden on speech, in violation of the Communications Decency Act of 1996, 47 U.S.C. § 230, and the First and Fourteenth Amendments and Commerce Clause of the United States Constitution” by forcing “websites and others to become the government’s censors of third-party users’ content.”
The complaint continued, “Although a goal of preventing sex trafficking of children is laudable, the law is not. It threatens 20 years’ imprisonment, a minimum $25,000 fine, and mandatory sex offender registration against anyone who knowingly publishes, disseminates or displays or anyone who ‘causes … indirectly’ the publication, dissemination, or display of content that contains an explicit or even ‘implicit’ offer of any sexual contact for ‘something of value’ in New Jersey if the content includes an image that turns out to be of a minor.”
Regarding the scope of the new law, the complaint added, “Because of its expansive language (e.g., ‘indirectly’ ‘causes’), the law applies not only to online classified ad services like Backpage.com, but also to any website that allows third parties to post content (including user comments, reviews, chats, and discussion forums) and to social networking sites, search engines, internet service providers, and more.”
A “New Law Advisory” sent to New Jersey judges in May contains the following definition of the section:
Section12: Advertising Commercial Sexual Abuse of a Minor. Section 12 creates a new crime of the first degree for advertising commercial sexual abuse of a minor. The law provides that the fine imposed for a conviction of this offense shall be at least $25,000, which, upon collection, shall be deposited in the ‘Human Trafficking Survivor’s Assistance Fund.’ The law establishes what may and may not be asserted as a defense to this crime.”
Regarding what may not be asserted as a defense, the law states:
f. It shall not be a defense to a violation of this section that the defendant
(1) did not know the age of the minor depicted in the advertisement; or
(2) claims to know the age of the person depicted, unless there is appropriate proof of age obtained and produced in accordance with subsections g. and h. of this section.
Subsections g. and h. state:
g. It shall be a defense to a violation of this section that the defendant made a reasonable, bona fide attempt to ascertain the true age of the minor depicted in the advertisement by requiring, prior to publication, dissemination, or display of the advertisement, production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement and did not rely solely on oral or written representations of the minor's age, or the apparent age of the minor as depicted. The defendant shall prove the defense established in this subsection by a preponderance of the evidence.
h. The defendant shall maintain and, upon request, produce a record of the identification used to verify the age of the person depicted in the advertisement.
While the similarities between what this law imposes and what 2257 mandates should be obvious to anyone knowledgable about the federal labeling and record-keeping law, Backpage.com in its complaint, perhaps unknowingly, nonetheless drives the point home, arguing, “Backpage.com and numerous other online service providers will suffer immediate and irreparable harm if the Act is allowed to go into effect, because the threat of criminal prosecution under the law will require them to undertake the impossible task to review and censor third-party content, obtain and retain the required forms of identification from all third-party users seeking to post such content, or block content altogether.”
Friday, three days before the law was to go into effect, Judge Cavanaugh blocked implementation of Section 12, and ordered “the following briefing and argument schedule regarding entry of a proposed Preliminary Injunction has been entered with consent of the Parties:
i. Defendants shall file an opposition brief no later than July 19. 2013.
ii. Plaintiffs shall file their reply briefs no later than August 2, 2013.
iii. Oral argument shall be held at a time to be set by the Court on August 9, 2013.”
The Electronic Frontier Foundation, which is representing The Internet Archive in its challenge to the New Jersey law, has set up a page complete with relevant court documents.
[Full disclosure: the author is also a plaintiff in FSC v Holder.]