Federal judge says TN law targeting online sex ads curbs free speech

12:21 PM, Jan 5, 2013   |    comments
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By: Bobby Allyn

A state law passed last year targeting online sex advertisements is under threat after a federal judge agreed with a popular classifieds website that the law infringes on free speech rights.

Backpage.com, which publishes millions of advertisements every month, filed a lawsuit in June against State Attorney General Bob Cooper and Tennessee's 31 district attorneys alleging that the new law violates the First Amendment, and other federal protections.

Although the law's purpose, protecting children from sex trafficking, seems "laudable," it actually hurts the business of online service providers, the lawsuit contends.

Violators of the law can face up to 15 years in prison and fines starting at $10,000. Since Backpage says it is engaging in "speech," they should not be held liable, they argue.

Backpage includes a section on its classified site that sells escort services, strippers and other adult services. Many of the ads overtly advertise prostitution.

Antoinette Welch, assistant district attorney in Nashville, said local law enforcement officials use websites like Backpage in nearly every sex trafficking case the district attorney general's office prosecutes.

"The websites are helping to promote something illegal, and children and women are being sold on their sites," Welch said. "They should be held responsible, fined at the very least."

But Backpage says that screening every ad posted to their site would be "a practical impossibility."

In its June lawsuit, attorneys for Backpage argue that online service providers cannot be held responsible as the speaker of third-party material. Plus, federal law bans treating speech as criminal activity, the suit points out.

The Tennessee law, the suit argues, prevents online service providers from providing forums for "legitimate public speech," adding that "the law chills speech and deters e-commerce and the growth and development of the Internet."
A lucrative business

In 2008, Craigslist, an online classifieds website and among the most popular sites in the U.S., agreed to screen and tag objectionable ads, requiring a telephone number and credit card verification for its escort ads.

Under mounting pressure of attorneys general across the country who alleged that Craigslist was using its ads for illegal ends, the website shut down its "adult services" section in September 2010. At the time, analysts estimated that Craigslist made around $36 million a year on its sex ads.

Backpage witnessed a spike in traffic after Craigslist closed its adult section, according to the federal decision. Meanwhile, Backpage began charging up to $17 for posting an "adult" advertisement.

"It's a very lucrative business to Backpage," said Welch of the sex ads. "They're making millions of dollars a year on this."

Tennessee's law is nearly identical to one passed in Washington state aimed at preventing the sex trafficking of children on websites like Backpage, whose content is entirely user-submitted. A federal judge in July blocked the law after Backpage sued.

In Connecticut, by contrast, the state legislature passed a bill last year making it a crime for someone to buy sex from a minor, but did not impose liability on websites like Backpage.

Backpage, which has about 100 employees monitoring ad submissions, counters that the website has removed more than 1 million ads as of April 2012.

According to youth advocates, 300,000 minors are at risk of being sex trafficked in the U.S. every year. A 2011 Tennessee Bureau of Investigation study found that sex trafficking is a significant problem in the state.

"Human trafficking and sex slavery in Tennessee is more common than previously believed possible," according to the study, which found the average age of a sex trafficking victim to be 13. Most pimps, the study noted, use online ads to facilitate the criminal activity.

Federal Judge John T. Nixon for the Middle District of Tennessee echoed the concern of law enforcement officials that child sex exploitation is something "states have an undisputed interest in dispelling."

Yet the way in which Tennessee's law was written is a violation of free speech and interstate commerce laws, Nixon wrote.

"The Constitution tells us that-when freedom of speech hangs in the balance-the state may not use a butcher knife on a problem that requires a scalpel to fix," Nixon wrote. "Nor may a state enforce a law that flatly conflicts with federal law."

Nixon granted Backpage's request seeking a temporary restraining order against the law.

A spokesman for the attorney general's office could not say on Friday if state officials plan to appeal the ruling.

Reach Bobby Allyn at 615-726-5990 or ballyn@tennessean.com

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