881 F. Supp. 2d 1262
W.D. Wash.2012Background
- Backpage.com operates a large online classified service with user-posted ads; minors’ exploitation is a concern raised by authorities.
- Internet Archive (IA) intervened, arguing SB 6251 would impede hosting third-party content online.
- SB 6251 makes advertising a commercial sexual act involving a minor a felony and provides an affirmative defense related to age verification.
- The law’s operation includes sites with escort/dating ads and broader dissemination; Backpage.com and IA fear broad chilling effect on speech.
- Plaintiffs filed § 1983 and Declaratory Judgment Act actions seeking to enjoin SB 6251 before June 7, 2012 effective date; TRO was issued and extended; IA intervened.
- Court considers whether SB 6251 is preempted by the Communications Decency Act (CDA), violates First Amendment rights, and/or breaches the Commerce Clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CDA preemption of SB 6251 | SB 6251 is inconsistent with § 230 and preempted. | SB 6251 is consistent with the CDA and applies to state criminal law. | SB 6251 likely preempted by § 230 |
| First Amendment viability: strict liability, vagueness, and overbreadth | SB 6251 imposes strict liability for speech and is vague and overbroad. | Statute targets illegal conduct and has standards to define terms. | Plaintiffs likely succeed on First Amendment grounds (strict liability, vagueness, and overbreadth). |
| Commerce Clause | SB 6251 disrupts interstate/international online activity and lacks national coordination. | State may regulate local interest in protecting minors. | SB 6251 likely violates the dormant Commerce Clause |
Key Cases Cited
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (U.S. 2008) (preliminary injunction standards and four-factor test)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (U.S. 1979) (standing for pre-enforcement challenges to statutes)
- Virginia v. American Booksellers Ass’n, 484 U.S. 383 (U.S. 1988) (standing to challenge law on potential chilling effects)
- United States v. Alvarez, 134 S. Ct. 251 (2012) (U.S. 2012) (First Amendment spectrum and truthful but harmful speech)
- Smith v. California, 361 U.S. 147 (U.S. 1960) (knowledge requirement for possession of allegedly obscene material)
- Ashcroft v. ACLU, 542 U.S. 656 (U.S. 2004) (content-based restrictions require strict scrutiny)
- Central Hudson Gas & Electric Corp. v. Public Serv. Comm’n, 447 U.S. 557 (U.S. 1980) (commercial speech protection framework)
- United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) (Salerno facial challenge and preemption considerations)
- Salerno, 481 U.S. 739 (U.S. 1987) (facial challenge standard for preemption analysis)
- Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997) (immunity under § 230 for online service providers)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (Section 230 immunity and online service provider liability)
- Stratton Oakmont v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995) (context for § 230 origins (WL cite; included for completeness))