Following a First Amendment victory against meddling Cook County Sheriff Tom Dart, the web-classifieds company Backpage.com is now taking on the federal government. On December 11, the company filed a civil action against U.S. Attorney General Loretta Lynch, claiming that the Stop Avertising Victims of Exploitation (SAVE) Act—passed in May as part of a massive, federal human-trafficking bill—is unconstitutionally vague, overbroad, and infringes on First Amendment rights.
The SAVE Act added "advertising" a victim of sexual exploitation to the list of thing that can trigger a sex-trafficking charge, meaning that user-generated ad platforms such as Backpage and Craigslist could find themselves facing the same charges as someone who forces someone else into prostitution—regardless of whether the platform knew anything about the ad. It also stipulated a 10-year mandatory minimum sentence (up to life imprisonment) for anyone found in violation of the advertising statute.
A wide swath of free-speech and civil-liberties advocates opposed the SAVE Act, which they said was "overbroad, counterproductive, and would place unconstitutional burdens on the free speech and privacy rights of millions of Americans." The groups warned that the Act's reach wouldn't just extend to Backpage but also social media such as Facebook and Twitter, online dating websites, and apps such as Tinder and Grindr—and for no good reason. "Existing federal law criminalizes not only trafficking, but also intentionally aiding or abetting a trafficking venture," they pointed out. "But holding hosts of third-party content criminally responsible for content they did not create would be as counterproductive as it would be unjust."
Sex workers also opposed the bill, which they saw an attempt to shut down websites that make their work safer and allow them to operate independently. And people working on behalf of sex-trafficking victims also warn against shutting down the site, in part because Backpage reliably cooperates with law enforcement and proactively reports suspicious ads when sex trafficking is suspected.
While thinly-veiled prostitution ads abound on Backpage, it's also home to ads for strippers, dominatrices, and all sorts of legal sex work, as well as a wide range of non-adult advertising (washing machines for sale, call marketing jobs, etc.). "Contrary to statements of some of the SAVE Act's Congressional supporters," states the new Backpage lawsuit, "criminal liability cannot constitutionally be imposed on a website merely for providing a forum for speech that some individuals misuse for sex trafficking."
Previous state efforts to target Backpage and civil lawsuits against the site have all proved unsuccessful in federal courts. Backpage is now seeking a court declaration that the SAVE Act is unconstitutional and should not be enforced.
From the Backpage complaint:
First, the SAVE Act does not define "advertises" or "advertising." By any customary definition, "advertisers" are the third parties who place advertisements, not the operators of websites or newspapers where ads appear. Websites and newspapers are publishers entitled to First Amendment protection, which cannot be held criminally liable absent proof they had knowledge that a specific ad or other communication was illegal. Yet the SAVE Act leaves it unclear whether websites and the publishers and intermediaries themselves are regarded as "advertisers." The ambiguity of the terms of the SAVE Act is compounded by legislator's statements that the Act was intended to impose criminal liability on Backpage.com (or other websites) for "facilitating" or "profiting" from sex trafficking when individuals misuse the site.
Second, interpreting the terms "advertising" and "advertiser" according to common meanings, the SAVE Act potentially imposes nonsensical mens rea requirements that also contravene First Amendment principles. …. the Act prescribes a lower mens rea requirement for a website that may financially benefit from having published an ad than for a person directly involved in sex trafficking who placed the ad.
Originally, legislators included a higher mens rea requirement for websites and publishers, stating that they would only be liable if they knowingly allowed a specific criminal ad to be placed. Individuals who posted the ads, meanwhile, could be convicted under a less rigorous "reckless disregard" standard. But a last-minute amendment to the SAVE Act flipped the script, requiring proof that someone who posts an ad does so knowing it will cause someone to be trafficked, while merely requiring "reckless disregard" for advertisers.
"Given the enormous volume of third-party content [sites like Backpage] receive and disseminate every day," the Backpage suit continues, "websites cannot possibly review every post to guarantee nothing is unlawful." If criminal liability is on the table, it could create "a notice-and-takedown regime that would impermeably chill speech" and essentially permit a "heckler's veto" on all ads online.
"With all its vagaries, the Act could allow ad hoc and subjective interpretations by prosecutors with attendant dangers of arbitrary and discriminatory application," the suit concludes. "And, given the severe penalties under the Act—up to life imprisonment—the risks and likely speech-chilling effect of the law is also severe."
The case, Backpage.com LLC v. Loretta E. Lynch, was filed in the U.S. District Court for the District of Columbia.
Read more about Backpage's recent win in the U.S. Court of Appeals for the 7th Circuit (which included a shout-out to Reason from Judge Richard Posner) here; learn more about a lawsuit to decriminalize prostitution in California in Zach Weissmueller's Reason TV video below: