Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230–Backpage v. McKenna
By Eric Goldman
As part of states’ ongoing crusade against online prostitution ads, earlier this year Washington enacted SB 6251, captioned “Regulating advertising of commercial sexual abuse of a minor.” The bill page. The actual bill.
The law has two main provisions. First, it defines a new crime of “advertising commercial sexual abuse of a minor,” which occurs when a person “knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in the state of Washington and that includes the depiction of a minor.” Second, the defendant can’t claim ignorance of the depicted individual’s age as a defense, but it sets up a safe harbor when 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.” Thus, the law both targets the publication of prostitution ads and imposes a de facto age verification and record-keeping requirement for publications running such ads.
Although the statutory language doesn’t say so explicitly, the law was intended to attack Backpage for not doing enough to screen out prostitution ads. Thus, the law seeks to bypass Backpage’s obvious Section 230 immunity for the ads submitted by its users.
In response, Backpage sued the state to prevent enforcement of the law, scheduled to take effect this coming Thursday. It appears the state didn’t contest the TRO request. Yesterday, the court granted Backpage’s TRO in a short and mostly non-substantive ruling. The court wrote:
Backpage.com has shown a likelihood of success on the merits of its claim, pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, as well irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief.
Getting an uncontested TRO may have been Backpage’s easiest step. It will be interesting to see if this criminal statute has enough existing circumscriptions (such as its scienter pseudo-requirement) to survive the constitutional and federal preemption challenges, or if the court imposes some limitations into the statute to exclude intermediaries like Backpage, or if the court will just toss the legislation altogether (as I’ve argued before regarding all state-level attempts to regulate the Internet). The court scheduled the next hearing for June 15. Obviously this litigation will be worth watching.
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