Backpage.Com, LLC v. Cooper
939 F. Supp. 2d 805
M.D. Tenn.2013Background
- Backpage.com challenges Tenn. § 39-13-315, which criminalizes selling or offering to sell ads that would appear to promote a minor sexual act.
- The Tennessee law mirrors Washington’s approach but does not require depiction of a minor.
- Backpage.com operates an online classified platform with adult/dating ads and has substantial safeguards and monitoring.
- There is a national context of sex trafficking laws and enforcement efforts targeting online ads; Washington was preliminarily enjoined earlier.
- The Court granted Backpage.com’s motion and enjoined enforcement of the Tennessee statute pending resolution of the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CDA preemption express or conflict-based | CDA § 230 immunity bars liability for third-party content | Statute regulates conduct not speech and aligns with CDA | Likely preempted and invalid on facial/apply bases |
| First Amendment: scienter | Lack of knowledge of minor’s age violates obscenity safeguards | Statute requires knowledge as to appearance of minor | Likely unconstitutional for lack of proper scienter |
| First Amendment: vagueness | 'Commercial sex act' and related terms are undefined and vague | Definitions parallel federal statute and are acceptable | Likely unconstitutionally vague and invalid on face |
| First Amendment: overbreadth and content-based restriction | Law chills broad speech, includes non-minor and non-prostitution ads | Regulates only commercial speech related to illegal activity | Likely overbroad and invalid on face; content-based restriction fails strict scrutiny |
| Commerce Clause | Statute imposes extraterritorial reach burdening interstate commerce | Territorial scope should be limited by state interests | Likely violates Dormant Commerce Clause; extraterritorial reach is improper |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury-in-fact traceable to defendant's conduct)
- United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (requires knowledge of minor's age under obscenity-related crimes)
- Zeran v. AOL, Inc., 129 F.3d 327 (4th Cir. 1997) (broad CDA immunity for third-party content publishers)
- Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) ( First Amendment constraints on restrictions related to speech)
- Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011) (strict scrutiny for content-based restrictions on speech)