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Backpage.Com, LLC v. Cooper

United States District Court, M.D. Tennessee, Nashville Division

January 3, 2013

BACKPAGE.COM, LLC, Plaintiff,
v.
ROBERT E. COOPER, JR., Attorney General, et al., Defendants

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For Backpage.com, LLC, Plaintiff: Ambika K. Doran, Eric M. Stahl, James C. Grant, Davis Wright Tremaine LLP, Seattle, WA; Craig L. Meredith, Adams and Reese LLP (Nashville), Nashville, TN; Lucian T. Pera, Adams and Reese, LLC, Memphis, TN.

For Robert E. Cooper, Jr., Tony Clark, Barry Staubus, C. Berkeley Bell, James Dunn, Mike Flynn, Randall Nichols, Dave Clark, William Paul Phillips, Russell Johnson, Steven Bebb, William H. Cox, J. Michael Taylor, Randy York, Mickey Layne, Tom P. Thompson, William Whitesell, Chuck Crawford, L. Ray Whitley, John W. Carney, Victor S. Johnson, III, Kim Helper, Mike Bottoms, Dan Alsobrooks, Hansel McCadams, Mike Dunavant, James G. Woodall, Thomas A. Thomas, Garry Brown, Phillip Bivens, Amy P. Weirich, Lisa Zavagiannis, Lori Phillips-Jones, Robert Carter, Defendants: Lyndsay Sanders, Michael Alan Meyer, Tennessee Attorney General's Office, Nashville, TN.

JOHN T. NIXON, SENIOR UNITED STATES DISTRICT JUDGE., Magistrate Judge Griffin.

OPINION

JOHN T. NIXON, SENIOR UNITED STATES DISTRICT JUDGE.

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ORDER

Pending before the Court is Plaintiff Backpage.com, LLC's Motion for Temporary

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Restraining 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. § 39-13-314 (" section 39-13-314" 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. Background

A. 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

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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

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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" category. (Doc. Nos. 4-2 at Ex. A; 21 ¶ 11.) Defendant Robert E. Cooper, Jr., signed the agreement as the Attorney General of Tennessee. (Doc. No. 4-2 at Ex. A.) In 2009, craigslist eliminated its " erotic services" category of advertisements, and created an " adult services" category. ( Id. at Ex. B, F.) Finally on Sept. 3, 2010, under pressure from the group of attorneys general, craigslist shut down its adult services section. ( Id. at Ex. C, D.)

Immediately after this decision in 2010, Backpage.com reportedly received a spike in traffic. ( Id. at Ex. D.) However, a study published in May 2012 found advertisements for paid sex acts had returned to other sections of craigslist, and had migrated to other websites, such as Facebook, Twitter, Tumblr, YP.com, and About.com. ( Id. at Ex. T.) Nonetheless, Backpage.com still hosted the largest volume of these advertisements. ( Id. at Ex. T, F.) Another study published in early 2011 found that approximately 83 percent of prostitutes in New York City maintained a Facebook page to promote their services and that, as early as 2008, used that website to connect with 25 percent of their regular clients. ( Id. at Ex. U.) The study's author predicted Facebook would become " the leading online recruitment space" for prostitution. ( Id. )

Beginning in 2009, the state attorneys general investigated and corresponded with Backpage.com regarding concerns over its " adult" section advertisements. ( Id. at Ex. E.) When Backpage.com began charging for advertisements in its adult category some time between 2009 and late 2010, ads for prostitution migrated to the

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website's free personal ads section. As a result, Backpage.com began charging for personal ads, as well. ( Id. ) In September 2010, the same month that craigslist eliminated its adult services section, twenty-one state attorneys general--including Defendant Cooper--sent Backpage.com a letter urging it to shut down its adult section. ( Id. ) On August 31, 2011, forty-six state attorneys general sent another letter to Backpage.com, decrying the continued appearance of prostitution ads on the website and asking the website to share information about its screening policies and data on the number of adult section ads it received and blocked. ( Id. at Ex. F.) The 2011 letter reminded Backpage.com of the officials' earlier request that the website shutter its adult section. ( Id. )

D. Legislation in Washington

In January 2012, the Washington state legislature introduced a bill, SB 6251, that would have created criminal liability for a person who " knowingly sells or offers to sell an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be commercial sexual abuse of a minor, if occurring in this state." ( Id. at Ex. H.) The bill required either that the offending advertisement contain a depiction of an actual minor, or that sexual abuse of a minor occur as a result of the advertisement. ( Id. ) It also contained a provision creating an affirmative defense, if the person prosecuted could establish, by a preponderance of evidence, that he or she made a bona fide attempt to ascertain the minor's age by verifying a government identification. ( Id. ) However, ignorance of the minor's age was not a defense. ( Id. )

The Washington legislature amended the bill twice before passing it in late February. ( Id. at Ex. J.) Having removed the " sells or offers to sell" language, the enacted law imposes felony criminal penalties when a person " knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in the state of Washington and that includes the depiction of a minor." Wash. Rev. Code § 9.68A.104 (West 2012). The law preserves the affirmative defense language from the earlier draft. Id. In April 2012, after the bill was signed into law, its main sponsor told a reporter that she " would love to have the escort services section [of Backpage.com] shut down completely," but she doubted the " new law would accomplish that." (Doc. No. 4-2 at Ex. S.)

In June 2012, Backpage.com sued Washington officials to enjoin the law, claiming the law was preempted by the federal Communications Decency Act and violated the First Amendment and Commerce Clause of the U.S. Constitution. (Doc. No. 4-2 at Ex. P.) The United States District Court for the District of Washington granted a preliminary injunction on July 27, 2012. Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1262, 2012 WL 304543 (W.D. Wash. 2012).

E. Legislation in Tennessee

In January 2012, the Tennessee legislature introduced SB 2371/HB 2493 (" SB 2371" ), which, in its original form, would have amended the state criminal code to include an offense for human sex trafficking. (Doc. No. 4-2 at Ex. K, L.) The Senate committee amended the bill in April 2012 to add an offense for the sale or the offer to sell " an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be a commercial sex act . . . with a minor." ( Id. at Ex. M.) The amended bill unanimously passed both houses of the legislature in late April and early May, and was signed by the governor into law as Public

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Chapter 1075 on May 21, 2012. ( Id. at Ex. K)

The legislature held no public hearings on SB 2371 ( id. ; Doc. No. 31 at 12), which passed with no substantive debate and no discussion by legislators, apart from a suggestion by one senator that the state Attorney General verify the bill's constitutionality. (Doc. Nos. 4 at 13; 4-2 at Ex. N; 39 at 4.)

The provision of the bill dealing with the sale of advertisements created a new offense codified at Tenn. Code Ann. § 39-13-314, which states:

(a) A person commits the offense of advertising commercial sexual abuse of a minor if the person knowingly sells or offers to sell an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be a commercial sex act, as defined in § 39-13-301, with a minor.
(b) (1) Advertising commercial sexual abuse of a minor is a Class C felony.(2) In addition to any authorized period of incarceration, advertising commercial sexual abuse of a minor is punishable by a minimum fine of ten thousand dollars ($10,000).
(c) In a prosecution under this statute, it is not a defense that the defendant did not know the age of the minor depicted in the advertisement. It is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor appearing in the advertisement by requiring, prior to publication of the advertisement, production of a driver license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement and did not rely solely on oral or written allegations of the minor's age or the apparent age of the minor.

Tenn. Code Ann. § 39-13-314 (West 2012). Thus, the law makes the offense a Class C felony punishable by imprisonment and significant fines, and does not allow for a defense of ignorance of a minor's age. Id. The only affirmative defense available under the statute requires the seller, or potential seller, to examine governmental or student identification of the minor. Id.

The bill also added the following definitions to Tenn. Code Ann. § 39-13-301:

(14) " Advertisement" means a notice or an announcement in a public medium promoting a product, service, or event, or publicizing a job vacancy; (15) " Commercial sex act" means any sexual act for which something of value is given or received;

Tenn. Code Ann. § 39-13-301 (West 2012).

The final Tennessee law mirrors the language of the original Washington bill from January 2012, except that it does not include a requirement that the sex act advertised " occur[] in this state" and does not require a depiction of a minor. (Doc. No. 4-2 at Ex. H.) Its affirmative defense section is the same. ( Id. )

F. Legislation and Action in Other States

Connecticut also passed a law in 2012 regarding the online advertising of commercial sexual exploitation of children. (Doc. No. 4-2 at Ex. W.) Rejecting a bill similar to the Washington and Tennessee laws (Doc. No. 4 at 23), the Connecticut legislature chose not to impose liability on the publishers of advertisements, but to impose criminal liability on a person who " knowingly purchases advertising space for an advertisement for a commercial sex act that includes a depiction of a minor" (Doc. No. 4-2 at Ex. W).

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Adopting a different tactic, the Attorney General of California announced in May 2012 an agreement with technology companies regarding their online privacy policies. ( Id. at Ex. X.) The agreement came after she had invited the companies to join the state's human-trafficking task force. ( Id. )

G. Procedural History

On June 27, 2012, Backpage.com filed a Complaint against the Tennessee Attorney General and the state's thirty-one district attorneys (Doc. No. 1)--claiming section 39-13-314 is preempted by the federal Communications Decency Act and violates the First Amendment and Commerce Clause of the U.S. Constitution--and a Motion for Temporary Restraining Order and Preliminary Injunction (Doc. No. 2), seeking to enjoin the law from going into effect on July 1, 2012. On June 29, 2012, the Court held a hearing, after which Defendants stipulated to refrain from enforcing the law against Backpage.com or its corporate parents " during the pendency of this action." (Doc. Nos. 12; 13.) The parties filed multiple briefs: on June 27, 2012, Backpage.com filed a Memorandum in Support of its motion for injunctive relief (Doc. No. 4) with three attachments that included exhibits of news reports, copies of various state laws, copies of Backpage.com policies, and a declaration by one of its corporate officers (Doc. Nos. 4-1 to 4- 3); on July 26, 2012, Defendants filed a Response to the Motion (Doc. No. 20), along with an affidavit by TBI Agent Quin and multiple attachments (Doc. Nos. 21; 21-1 to 21-5); and Backpage.com then filed a Reply (Doc. No. 31) on August 21, 2012.

On August 29, 2012, the Court heard argument on the Motion. (Doc. No. 37.) On September 10, 2012, Defendants then filed a Supplemental Brief to address the preliminary injunction granted in McKenna and a recent Sixth Circuit opinion on standing in a First Amendment case. (Doc. No. 39.) Backpage.com then filed a Response to the Supplemental Brief on September 26, 2012. (Doc. No. 42.) On December 11, 2012, Backpage.com provided the Court with a copy of the stipulation and final order enjoining the Washington law. (Doc. No. 44.)

II. Standing

As a preliminary matter, the Court first addresses Defendants' challenge to Backpage.com's standing to bring a pre-enforcement challenge to section 39-13-314. Defendants argue that Backpage.com " lacks standing because it does not offer proof of any concrete harm" and has only alleged " concerns of subjective chill" based on " a blanket, unsupported statement" that will face prosecution based on the statute's history and language. (Doc. No. 20 at 9.) Further, Defendants argue Backpage.com " has not alleged that it intends to violate the law" (Doc. No. 39 at 5) and has taken measures to screen illicit ads that show it " would be unlikely to face prosecution" (Doc. No. 20 at 10--11). Thus, they argue, " [t]here is nothing to show that any prosecution has been threatened, is imminent, or is even likely." ( Id. at 10.) For its part, Backpage.com claims the law specifically targets the website and this " itself establishes standing." (Doc. No. 31 at 12.) Backpage.com cites evidence that Tennessee introduced a version of the Washington law targeting the website and followed a campaign by state attorneys general--including Defendant Cooper--demanding Backpage.com shut down its adult category. ( Id. at 12.) In addition, Backpage.com notes that the state has not disavowed its intent to prosecute and actively asserts that Backpage.com violates the law in its briefing before the Court. ( Id. )

To litigate a case in federal court, a plaintiff must establish constitutional

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standing, which requires a showing that the plaintiff has suffered an injury-in-fact that is " fairly traceable to the defendant's allegedly unlawful conduct" and that is " likely to be redressed by the requested relief." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted); Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 349 (6th Cir. 2007). A plaintiff satisfies the injury-in-fact requirement by showing " an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute" and " a credible threat of prosecution thereunder." Babbitt v. United Farm ...


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