A federal court in Washington last month preliminarily enjoined enforcement of a new state law targeted at adult-oriented advertisements (but encompassing much more) because, the court found, the law likely is preempted by Section 230 of the Communications Decency Act and violates the First and Fourteenth Amendments and the Commerce Clause of the United States Constitution. Backpage.com, LLC v. McKenna, 2012 WL 3064543 (W.D. Wash. July 27, 2012).

The statute—Senate Bill 6251—makes it a felony to knowingly publish, disseminate, or display or to "directly or indirectly" cause content to be published, disseminated or displayed, if it contains a "depiction of a minor" and any "explicit or implicit offer" of sex for "something of value." It is not a defense that the defendant did not know the age of the person depicted, nor may the defendant rely upon any representation by or apparent age of the person depicted. Instead, the only defense requires the defendant to have obtained and maintained a record of government or school identification for the person depicted.

Although the law was targeted at Backpage.com, the nation's second largest online classified ad website (after craigslist), both Backpage.com and the Internet Archive (publisher of the Wayback Machine, which archives pages on the Internet) filed suit, contending that SB 6251 was preempted by Section 230 of the Communications Decency Act, 47 U.S.C. § 230 and violated the First and Fourth Amendments and Commerce Clause of the federal constitution. The court agreed.

Section 230

Section 230 prohibits the government from treating websites and other online service providers "as the publisher or speaker of any information provided by another information content provider." It also prohibits holding any such provider liable for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider… considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." Finally, it contains an express preemption clause that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this Section."

The court found that Section 230 likely preempted SB 6251 for two reasons. First, it found, SB 6251 treats websites "as the publisher or speaker of information created by another information content provider." Second, the law is inconsistent with Section 230 because it "criminalizes the 'knowing' publication, dissemination, or display of specified content … creat[ing] an incentive for online service providers not to monitor the content that passes through its channels."

The court rejected the state's argument that because Section 230 has an exception for federal criminal laws, one must exist for state criminal laws consistent with federal laws. It found that SB 6251 is not consistent with federal criminal laws. It also rejected defendants' claim that Section 230 does not apply to liability under state criminal laws: "If Congress did not want the CDA to apply in state criminal actions, it would have said so."

First Amendment

The court also found that SB 6251 likely "runs afoul of the First Amendment" on three grounds. 

First, by dispensing with any scienter requirement as to the age of the person depicted in an advertisement, SB 6251 impermissibly creates strict liability. "A pre-screening mechanism as set forth in SB 6251 would limit the amount of content available on some publishers' websites to the amount of content that such publishers had the time and money to screen. Some individuals would be reticent to provide government identification in connection with borderline content….The Constitution does not permit such collateral burdens on protected speech."  The law would also incentivize publishers, faced with any notification that content might be illegal, to remove the content altogether, "whether or not it constitutes protected speech." Finally, the court found, the affirmative defense could not save the statute because "the possibility of mistaken factfinding… will create the danger that the legitimate utterance will be penalized." 

Second, the court found, SB 6251 is impermissibly vague because it fails to provide adequate notice as to what is prohibited. For example, the court reasoned, defendants could not be expected to know "what… it mean[s] for the website operator to 'know' that an advertisement 'implicitly' offers sex." The court rejected the government's attempt to define the terms because "nothing binds Defendants, or their successors to their current interpretations." 

Third, the court found the law to be overbroad. The law "criminalizes more than offers to engage in illegal transactions because the statute encompasses transactions that are not illegal." "Assuming that the undefined term 'something of value' means anything that can be traded on a free market—including a bottle of wine, a nice dinner, or a promise to do the dishes—SB 6251's definition of 'commercial sex act' encompasses vast swaths of legal, consensual, non-commercial sexual activity." The court also took issue with the absence of any requirement that the minor depicted have anything to do with the offer itself, and its prohibition on the "indirect publication, dissemination, and display" of offers.

Finally, the court found the law was a content-based restriction that failed strict scrutiny. Although the state "certainly" had a compelling interest in curbing the exploitation of minors, defendants, by failing to acknowledge the statute reaches protected speech, "fail[ed] to show that SB 6251 is the least restrictive means" to achieve the interest.

Commerce Clause

The court also held that SB 6251 likely violated the dormant Commerce Clause because it "regulates conduct that occurs wholly outside the state of Washington"; the out-of-state burden "will be significant"; and "the Internet is likely a unique aspect of commerce that demands national treatment."

The decision threatens the efforts of legislators to hold the publishers of third-party content liable for that content. Similar laws have been proposed in New Jersey and New York, and Backpage.com has another challenge pending to an analogous law in Tennessee. That court held a hearing on Backpage.com's motion for preliminary injunction on August 29, 2012. Davis Wright Tremaine LLP represents Backpage.com in both the Washington and Tennessee lawsuits.