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Backpage v. McKenna: State's Opposition to Preliminary Injunction

Backpage v. McKenna: State's Opposition to Preliminary Injunction

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Published by Eric Goldman

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Published by: Eric Goldman on Jul 19, 2012
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01/04/2013

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ATTORNEY GENERAL ANDPROSECUTING ATTORNEYS'OPPOSITION TO PLAINTIFF'SMOTIONS FOR PRELIMINARYINJUNCTION -- NO. C12-954-RSM1
ATTORNEY GENERAL‟S OFFICE
 Criminal Justice Division800 Fifth Avenue, Suite 2000Seattle, WA 98104-3188(206) 464-6430
1234567891011121314151617181920212223242526The Honorable RICARDO S. MARTINEZ
 UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLE
BACKPAGE.COM, LLCPlaintiff,andTHE INTERNET ARCHIVE,Plaintiff Intervenor,v.ROB MCKENNA, Attorney General of Washington, et al.,Defendants, in their official capacities.NO. C12-954-RSMATTORNEY GENERAL ANDPROSECUTING ATTORNEYS'OPPOSITION TO PLAINTIFF'SMOTIONS FOR PRELIMINARYINJUNCTIONNOTED: July 20, 2012 at 1:30 p.m.
I.
 
INTRODUCTION
This case is about whether a state may adopt a law that criminalizes knowinglyadvertising the commercial sexual abuse of minors. Washington's Senate Bill 6251
(“SB
 
6251”),
1
enacted in 2012, is such a law. These advertisements, whether in print or online,are a method used by human traffickers to make minors available for commercial sexualabuse. SB 6251 addresses this abhorrent practice.
1
ESSB 6251, 62d Leg. (Wa. 2012).
Case 2:12-cv-00954-RSM Document 41 Filed 07/10/12 Page 1 of 39
 
 
ATTORNEY GENERAL ANDPROSECUTING ATTORNEYS'OPPOSITION TO PLAINTIFF'SMOTIONS FOR PRELIMINARYINJUNCTION -- NO. C12-954-RSM2
ATTORNEY GENERAL‟S OFFICE
 Criminal Justice Division800 Fifth Avenue, Suite 2000Seattle, WA 98104-3188(206) 464-6430
1234567891011121314151617181920212223242526Plaintiff Backpage.com provides online advertising
of “
escort service
s,”
a euphemismfor prostitution. Backpage.com seeks to prevent enforcement of SB 6251, thereby allowingtraffickers to continue advertising minors for commercial sexual abuse. Intervenor InternetArchive, which is a significantly different type of entity than Backpage.com, provides freeaccess to historical materials posted from other websites. Internet Archive is outside the scope
of SB 6251 but nonetheless also seeks to prevent this statute‟s enforcement. P
laintiffs' motionschallenge SB 6251 on its face even though it has a broad range of potential applications.Plaintiffs' motions should be denied. They do not have standing to bring thispremature facial challenge, and even if they did, their legal claims fail. First, Section 230 of the Communications Decency Act (CDA) is a shield, not a sword, and it cannot be usedoffensively in a case that is not an application of SB 6251. Even if section 230 could be usedto invalidate a law on its face, it does not preempt SB 6251 because SB 6251 has applicationsthat would not implicate section 230. Alternatively, section 230 does not preempt SB 6251because when SB 6251 is properly construed, it is consistent with the CDA. Second, SB 6251,when properly construed, is not a strict liability crime. Third, SB 6251 readily satisfies therequirements of the First and Fourteenth Amendments. It narrowly affects only speech that isunprotected by the First Amendment, and it is not overly broad. It makes clear what facts mustbe proven for liability to be imposed and, therefore, is not vague under the FourteenthAmendment. Finally, SB 6251 creates none of the risks of burdening interstate commercepresent in the child pornography cases cited by plaintiffs and does not violate the dormantCommerce Clause.SB 6251 is a valid, necessary tool to combat a pernicious problem. The request for a
Case 2:12-cv-00954-RSM Document 41 Filed 07/10/12 Page 2 of 39
 
 
ATTORNEY GENERAL ANDPROSECUTING ATTORNEYS'OPPOSITION TO PLAINTIFF'SMOTIONS FOR PRELIMINARYINJUNCTION -- NO. C12-954-RSM3
ATTORNEY GENERAL‟S OFFICE
 Criminal Justice Division800 Fifth Avenue, Suite 2000Seattle, WA 98104-3188(206) 464-6430
1234567891011121314151617181920212223242526preliminary injunction against the Attorney General and the Prosecuting Attorneys of this stateshould be denied, and the temporary restraining order should be lifted.
2
 
II.
 
STATEMENT OF FACTSA.
 
The trafficking of minors in Washington for commercial sexual abuse.
“Experts estimate at least 100,000 American juveniles are victimized through prostitution in America each year.” Declaration of Lana Weinmann ¶ 3.
Online classifiedadvertisements are frequently used to pimp minors to prospective customers. Declaration of 
Ryan Long (“Long Decl.”
) ¶ 19. The Washington State Legislature, in enacting SB 6251,found the growing problem of child sex trafficking through advertisements must be addressed:
The legislature finds it unacceptable that Washington‟s children are being sold
for sex in advertisements. A 2008 Seattle human services department reportestimated that there are three hundred to five hundred children being exploitedfor sex in the Seattle area alone each year. The legislature finds that the practiceof escort services advertising includes minors who are being sold for sex, a formof sex trafficking and commercial sexual abuse of minors. According to theSeattle police department, since the beginning of 2010, at least twenty-twochildren have been advertised online in the Seattle area for commercial sex andwere recovered by the police department. The legislature is committed toeliminating sex trafficking of minors in a manner consistent with federal lawsprohibiting sexual exploitation of children.SB 6251, section 1.
B.
 
The escort services advertising business.
Online escort advertisements are thinly veiled offers of prostitution. Long Decl. ¶¶ 19-21, 24. Even in the absence of discovery, there is evidence that Backpage.com is aware of thisfact. Declaration of Paula Selis ¶ 3. Advertisements on Backpage.com are often made byprostitutes at the direction of a pimp or by the pimp. Long Decl. ¶ 19. These advertisements
2
The Kitsap County Prosecuting Attorney has noted a separate Motion pursuant to Fed. R. Civ. P.12(b)(6).
Case 2:12-cv-00954-RSM Document 41 Filed 07/10/12 Page 3 of 39

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