Emulating its federal counterpart, the Washington state legislature recently passed legislation that, while well-intentioned, endangers constitutionally protected online activity. The intended target: sex-related website postings. The unintended target: owners of websites that would be forced to comply with state regulations so burdensome that they would effectively be put out of business.
Websites like Craigslist.com and Backpage.com allow users to place ads — much like a newspaper’s classified section — for jobs, housing rentals and vehicles for sale. However, such websites also provide the vehicle for occasional postings for sex-related activities.
Earlier this year, such postings caught the attention of legislators in Washington state, who passed SB 6251, legislation targeting websites that allow “adult services” postings — essentially solicitations for sex.
Supporters of the legislation believe that these sites aid the sexual exploitation of minors. The law itself notes that “at least twenty-two children have been advertised online in the Seattle area for commercial sex.” Supporters of the law also worry that these sites facilitate sex trafficking.
Such concerns certainly have merit and need to be addressed, but legislation like SB 6251 strikes far too broadly. It places an impermissible burden on websites that allow for such classifieds by forcing them to review each posting on their sites and identify the posters. Owners of websites that fail to comply with the new regulations would risk heavy fines and criminal charges.
Village Voice Media, the owner of Backpage.com, has filed suit in federal court seeking to block the law from taking effect. According to Wired magazine, the company’s lawyers argue that the law “violates the First Amendment and the Communications Decency Act of 1996,” which protects third-party content hosts. They note that the law “would bring the practice of hosting third-party content to a grinding halt” and correctly explain that the law is overly broad — potentially threatening “any website that allows third parties to post content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more.”
Liz McDougall, who represents Village Voice Media, notes that the company has taken great strides to protect minors and victims of sex trafficking, and argues that the new state law is unnecessary. In an editorial last month in The Seattle Times, McDougall wrote, “Backpage.com already employs a triple-tiered policing system that includes automated filtering and two levels of manual review of the adult and personal categories.” She noted that the website has been cooperative with police during investigations and is “ready to do more.”
Village Voice Media managed to win a short-term stay of the law this week when U.S. District Court Judge Ricardo Martinez ruled that the company had shown a “likelihood of success” in its legal challenge to SB 6251. The battle to protect free and open websites, however, is far from over.
The law poses a clear threat to websites that allow user-generated content and postings. Moreover, the privacy of posters would be placed at risk if the state government were to decide to start keeping tabs on user-generated content allowed on sites like Backpage.com.
On a broader level, and perhaps just as troubling, the law is yet another example of over-criminalization.
Everyone agrees that protecting minors from sexual exploitation and ending sex trafficking are worthy objectives. However, there is a right way and a wrong way to address such problems. The Washington state legislature has simply gone too far. Hopefully the federal courts will strike down the law and give state legislators another opportunity to get it right.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.