Backpage.com, LLC v. Cooper

• Decision Date: 03 January 2013
• Docket Number: No. 3:12–cv–00654.,3:12–cv–00654.
• Citation: 939 F.Supp.2d 805
• Parties: BACKPAGE.COM, LLC, Plaintiff, v. Robert E. COOPER, Jr., Attorney General, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

939 F.Supp.2d 805

BACKPAGE.COM, LLC, Plaintiff,

v.Robert E. COOPER, Jr., Attorney General, et al., Defendants.

No. 3:12–cv–00654.

United States District Court,

M.D. Tennessee,

Nashville Division.

Jan. 3, 2013.

Validity Called into Doubt

West's T.C.A. § 39–13–315Ambika K. Doran, Eric M. Stahl, James C. Grant, Davis Wright Tremaine LLP, Seattle, WA, Craig L. Meredith, Adams and Reese, LLP, Nashville, TN, Lucian T. Pera, Adams and Reese, LLP, Memphis, TN, for Plaintiff.

Lyndsay Sanders, Michael Alan Meyer, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

ORDER

JOHN T. NIXON, Senior District Judge.

Pending before the Court is Plaintiff Backpage.com, LLC's Motion for TemporaryRestraining Order and Preliminary Injunction (“Motion”) (Doc. No. 4). In this action, Backpage.com, LLC (“Backpage.com”) challenges a recently enacted Tennessee law, Tenn.Code Ann. § 39–13–315 (“section 39–13–315” or “the statute”), that criminalizes the sale of certain sex-oriented advertisements. Backpage.com launches a multi-prong challenge to the law, claiming it is preempted by federal internet law and violates the First Amendment and Commerce Clause of the U.S. Constitution.

Child sexual exploitation is an evil that states have an undisputed interest in dispelling. However despicable this evil, though, the Constitution stands as a shield against broad assaults by states on the rights of their citizens. The Constitution tells us that—when freedom of speech hangs in the balance—the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue. For the reasons detailed below, the Court finds Plaintiff is likely to succeed in its challenge, and GRANTS its Motion. The state law is hereby ENJOINED.

I. BackgroundA. Plaintiff Backpage.com

Backpage.com operates an online classified advertising service that is estimated to be the second-largest such service in the United States. (Doc. No. 4–3 ¶ 2.) The website works by allowing users to post their own advertisements in a range of categories: local places, community, buy/sell/trade, automotive, musician, rentals, real estate, jobs, forums, dating, adult, and services. ( Id. ¶ 5.) Users posted more than 3.3 million ads on the website in the month of April 2012. ( Id. ¶ 4.) These advertisements are organized on the website geographically by state and metropolitan area; there are local home pages for seven areas within Tennessee: Chattanooga, Clarksville, Cookeville, Knoxville, Memphis, Nashville, and Tri-cities. (Doc. No. 21–3 ¶ 13, Ex. 3.) Apart from this online presence, Backpage.com does not have a physical location in the state. (Doc. No. 4–3 ¶ 20.)

Users may post ads on Backpage.com for free within the majority of its categories. ( Id. ¶ 6.) However, the site charges between $1 and $17 per advertisement in the adult category, and $1 for an ad in the dating category. ( Id.) Users must pay by credit card. ( Id.) The charges discourage abusive posting and provide data for Backpage.com to identify and track users engaged in illegal activities. ( Id.)

Backpage.com's Terms of Use state that users may not post ads for illegal services, post “any solicitation directly or in ‘coded fashion’ for any illegal service exchanging sexual favors for money or other valuable consideration,” or post “any material ... that exploits minors in any way.” ( Id. ¶ 8, Ex. B.) In addition, before posting an ad in the adult or dating categories, users must agree to Posting Rules that mirror the Terms of Use and prohibit “posting material that exploits minors in any way.” ( Id. ¶ 9, Ex. C.)

Before users can post or view ads in these categories, they view a disclaimer that states they must be at least eighteen years old to access the advertisements, and they must click to confirm they meet the age requirements in order to proceed. ( Id. ¶ 10, Ex. D.) The disclaimer also states that the user agrees “to report suspected exploitation of minors and/or human trafficking to the appropriate authorities” and links to a webpage with the web addresses for the National Center for Missing and Exploited Children (“NCEMC”) and the National Human Trafficking Resource Center. ( Id.)

Every advertisement on Backpage.com contains a link that allows users to report the ad to the website; users are also encouraged to e-mail Backpage.com separately, if they believe an ad includes a threat of child exploitation. ( Id. ¶ 11, Ex. F.)

In addition to user reports, Backpage.com monitors potentially inappropriate ads through automated and manual reviews. ( Id. ¶ 13.) Its automated filtering system scans the majority of postings for any of more than 26,000 red-flag terms, phrases, codes, e-mail addresses, URLs, and IP addresses. ( Id.) The site also employs more than 100 employees to monitor nearly every user submission in the adult and dating categories. ( Id.) The employees review these posts before they appear on the website and again once they are published. ( Id.) Through its monitoring, Backpage.com blocked or removed more than one million user submissions and reported approximately 400 submissions to the NCMEC in April 2012. ( Id. ¶ 14.) Backpage.com also regularly works with local, state, and federal law enforcement officials by responding to subpoena requests, providing officials with Internet search tools, and removing posts and blocking users at the request of officials. ( Id. ¶ 15.)

B. Sex Trafficking and Tennessee

The trafficking of people—particularly children—across borders for commercial sexual purposes is a nationwide problem, with an estimated 200,000 to 300,000 minors at risk of commercial sexual exploitation every year in the United States. (Doc. No. 21 at Ex. 5 p. 8.) Many forms of prostitution fall under sex trafficking, in particular when pimps use force or coercion to keep women working for them. ( Id.) Sex traffickers and their victims are often nomadic, traveling from state to state. (Doc. No. 21 ¶ 9.)

In 2010, the state legislature directed the Tennessee Bureau of Investigation (“TBI”) to conduct a study of human sex trafficking in Tennessee, with a specific mandate to collect data on the extent of human sex trafficking in the state and to recommend improvements to the state's laws. (Doc. No. 21 ¶¶ 14–15, Ex. 4.) Published in 2011, the study's findings were based on meetings with three focus groups, two case studies, and data from an online survey of law enforcement officials, court representatives, group home representatives, state child-services officials, and guardians ad litem. ( Id. at Ex. 5 p. 12.)

The study did not explicitly quantify the number of individual cases of child sex trafficking that are reported or investigated in Tennessee on an annual basis, but asked respondents about their perceptions of the frequency of sex trafficking and to indicate how many times their agencies had reported a case of child sex trafficking or taken part in an investigation of such a case. ( Id. at Ex. 5.) While the study found that sex trafficking was a significant problem in Tennessee ( Id. ¶ 16), participants' perceptions of the frequency of human sex trafficking varied: 5 percent of respondents stated sex trafficking occurred “all the time,” 20 percent stated it happened “often,” 33 percent stated it occurred “sometimes,” 19 percent stated it was “rare,” and 23 percent stated it was “extremely rare” ( Id. at Ex. 5 p. 19). The distribution of incidents also varied significantly: 66 percent of the more than 800 entities in the study had not reported or investigated a case of child sex trafficking in the past twenty-four months; while almost 3 percent reported or investigated more than 100 such cases. ( Id. at Ex. 5 p. 20.) Similarly, sixty-eight counties (72 percent of counties) in the state have reported at least one case of sex trafficking of a minor, with four counties reporting more than 100 such cases. ( Id.)

The study also contained recommendations from the group discussions on specific legal measures to combat sex trafficking. ( Id. at Ex. 5 pp. 3, 30–31, 34, 37–38, 48–50.) These focused on compassionate custody, safe haven laws, enhanced asset forfeiture for pimps and Johns, enhanced penalties for sex trafficking within restricted areas, graduated offender sentencing, a sex offender registry for persons convicted of sex trafficking, and victim restitution. ( Id. at Ex. 5 p. 49.) Of the study's numerous recommendations, none includes a restriction on the sale or publication of online advertisements. ( Id. at Ex. 5 pp. 3, 30–31, 34, 37–38, 48–50.) The online advertising of escort services is mentioned only once in the study, in one of two case studies that focused on the story of a sex trafficking victim. ( Id. at Ex. 5 p. 45.)

C. Sex Trafficking and the Internet

The Internet has become a favored means of advertising the availability of children for sex because advertisements can be purchased more rapidly than in other media, allowing pimps to move victims to different locations quickly. ( Id. ¶ 10.) TBI Assistant Special Agent Margie Quin has supervised or consulted in more than twenty-five investigations of commercial child sexual exploitation since 2009. ( Id. ¶ 6.) In most of the child prostitution investigations in which she has been involved, pimps have used online advertising services—including Backpage.com—to reach potential Johns. ( Id. ¶ 12.) Agent Quin has routinely reviewed the websites of Backpage.com and other online advertising services for TBI investigations. ( Id. ¶ 13.)

In 2008, craigslist—then the leading operator of online adult-oriented advertising—entered into an agreement with the attorneys general of forty-three states in which the website agreed to screen and tag objectionable advertisements, and require telephone number and credit card verification for advertisements in its “erotic services” ...