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In Rare Move, Federal Judge Blocks Sex-Trafficking Law

There’s a certain theme I’ve hit in many of my blog posts before: when dealing with a major social problem, our initial response is to create a new criminal law to ban whatever behavior we believe leads to that law. We then sleep tight, secure in the knowledge that we’ve “done something” – with the actual effectiveness of these laws being of secondary concern.

And even if a law (such as draconian sexoffender residency restrictions, for example) ends up having the opposite of the intended effect, changing or eliminating the ineffective law often becomes an uphill battle, because it’s almost impossible to argue against laws governing the post-release conduct of sex offenders without coming off like you’re actually “taking sides” with sex offenders.

And before I go any further, I should make clear that I have no sympathy for sex offenders. I think that their crimes are some of the worst things that one human being can do to another, and that they should be a high priority for law enforcement. Precisely because these people are so dangerous, and prevention of their crimes is so important, we should avoid knee-jerk, emotionally driven responses when we consider laws to deal with the problem.

That’s partly why I found this case so interesting. A federal judge in Washington state has granted a temporary restraining order barring the state from enforcing a law that would require the providers of classified ads, such as newspapers and websites, to verify the ages of everybody who works at any sex-related business that takes out an advertisement.

This law came on the heels of concerns that classified ad website BackPage.com (and other, similar sites) was hosting advertisements from companies providing “adult” services, like escorts and massage parlors, and were enabling criminal activity such as child prostitution and human trafficking.

Obviously, anyone who would sexually exploit children for profit (or any other reason) is, to put it mildly, a monster. They deserve to be locked up, and have the key thrown away. And finding and prosecuting these people is one of the major reasons we pay taxes for law enforcement.

However, it does not follow from there that every private entity can be drafted into service of that objective. This law was written so broadly, that it could be interpreted to require virtually every online service, from dating sites to chat rooms, to verify that all of their users are adults. Obviously, this requirement would be pretty hard to comply with, and could force entire classes of legitimate online services to go out of business in the state of Washington, and other states that decided to implement similar laws.

I should note that the court did not issue a final ruling on the merits of the case. It only issued a temporary restraining order, which blocks the law from going into effect for only 14 days. This is issued before a court has had time to consider all the evidence and legal arguments concerning the law’s validity.

These orders are typically granted when a lawsuit is initially brought, and the plaintiff can, right at the outset, prove a few things. Most importantly, they have to show that they are more likely than not to prevail on the merits. They must also show that they would suffer irreparable harm if the order is not granted. Also, in order to get a temporary restraining order, the party seeking it usually has to put up a bond to compensate the party against whom the restraining order is sought, in order to compensate them for any harm caused by it, if they ultimately prevail.

However, I think that, in this case, the court will ultimately come down on the side of the newspapers and websites that run these ads. While I think that they have some moral responsibility to try and ensure that the services they advertise don’t employ underage individuals, or contribute to human trafficking, and many of them do take reasonable measures to this end.

However, any business that engages in the deplorable conduct of human trafficking and child prostitution is, by definition, a criminal organization. They usually aren’t in the business of making their illegal activities widely visible to the public.

So, it seems unreasonable for the operators of classified ad sites to be expected to police the internal operations of organizations that may or may not be engaged in criminal activity, if law enforcement hasn’t already done the same.

“So,” you might ask, “why not simply ban advertisements for ‘adult’ services that often serve as fronts for illegal activities, such as massage parlors and escorts?”

Well, the First Amendment still applies here. As you probably know, the Constitution guarantees all Americans the right to free speech. The Supreme Court has long held that the right to freedom of speech also applies to so-called “commercial speech” – i.e. advertisements. And although the protection afforded to commercial speech is quite a bit thinner than what other types of speech enjoy (the Supreme Court has held that advertisers can be banned from making false and misleading claims without running afoul of the First Amendment, for example), effectively banning advertising by a whole class of lawful (even if they are seedy) businesses because they might engage in illegal activity is almost certainly not consistent with the right to freedom of speech, even the more limited right afforded to advertisements.

I’m obviously concerned about the issue of human trafficking and child prostitution, and I think that the federal and state governments should enact legislation to combat it. However, these measures need to be well thought-out, and narrowly tailored to actually address the problem at hand. I’ve said it before, and I’ll say it again: we cannot legislate based on emotion.

Ken LaMance

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