Backpage.com v. McKenna, et al. [1]

On March 29, 2012, Washington State Governor Christine Gregoire signed Washington Senate Bill No. 6251 [2] ("SB 6251") into law. SB 6251 defines the felony offense of "advertising commercial sexual abuse of a minor," which a person commits if he or she "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." SB 6251 was scheduled to take effect on June 7, 2012. 

On June 4, 2012, Backpage.com (a classified advertising website) brought suit in the U.S. District Court for the Western District of Washington against Washington State Attorney General Rob McKenna and prosecutors from each of the state's 39 counties to prevent enforcement of the law. In its initial complaint [3], Backpage.com stated causes of action under 42 U.S.C. § 1983 and the Declaratory Judgment Act. Backpage.com argued that SB 6251 violates section 230 of the Communications Decency Act, violates the First and Fifth Amendments, and violates the Commerce Clause.

Backpage.com also filed a motion for a temporary restraining order [4] preventing the law from taking effect as scheduled, followed by a preliminary injunction after any hearings or briefings as requested by the court. The motion stated that SB 6251 violated section 230 of the Communications Decency Act because it would treat online service providers as the publisher or speaker of material provided by a third party, and because section 230 forbids the imposition of liability on online service providers under any inconsistent state law. 

On June 5, 2012, the court granted [5] Backpage.com's motion for a temporary restraining order. United States District Judge Ricardo Martinez stated that Backpage.com had shown a likelihood of success on its claims under § 1983 and the Declaratory Judgment Act, as well as irreparable harm, and that this justified injunctive relief. The court ordered that defendants were restrained from taking action to enforce SB 6251 or pursuing any prosecutions under the law for fourteen days; this period was later extended by stipulation of the parties until the court ruled on Backpage's request for a preliminary injunction.

On June 14, 2012, the Internet Archive filed a motion to intervene [6] as a plaintiff in the suit. Defendants filed a response [6] to the Internet Archive's motion to intervene, but the court ultimately granted the motion. Internet Archive filed a motion to join Backpage.com's motion for a preliminary injunction, as well as a separate complaint [7]. 

On July 10, 2012, McKenna and the state's county prosecutors filed a response [8] to Backpage.com and the Internet Archive's motion for a preliminary injunction. The response stated that the plaintiffs lacked standing to bring a challenge to the law. The defendants also argued that section 230 could only be used as a "shield, not a sword," i.e., only as a defense in a prosecution under the law and not as the basis for a challenge to the validity of the law. Moreover, the response stated, there were constructions of SB 6251 consistent with section 230.  

On July 27, 2012, the court granted [9] plaintiffs' motion for a preliminary injunction preventing enforcement of the law. The court held that Backpage.com and Internet Archive were likely to succeed on their claim that SB 6251 is preempted by federal law because it is likely expressly preempted by subsection (e)(3) of section 230, and because the law likely conflicts with federal law. Among other things, the court noted that even if the law were interpreted to require Backpage.com to have knowledge of particular illegal advertisements, it would deter Backpage.com from monitoring content (and thus gaining such knowledge) in conflict with the purpose of section 230 to encourage voluntary removal of offensive material. The court also held that the plaintiffs had shown a likelihood of success on their claim that SB 6251 violates the First Amendment: "The most problematic aspect of SB 6251 is not the protected speech that it regulates by its terms, but the likelihood that it will chill a substantial amount of protected speech in addition to the unprotected speech that Defendants argue the statute was meant to address." Finally, the court held that SB 6251 likely violates the commerce clause.

UPDATE:

12/6/12: The parties file two stipulations and proposed orders with the court (one between the plaintiffs and the Attorney General [10] of the State of Washington, one with the Prosecuting Attorney of Kitsap County [11], Washington) which, if accepted by the court, would end the case on the following terms:

• the court to enter final judgment, permanently enjoining any enforcement or prosecution of any person under the statute, and declaring that the statute is unconstitutional and violates federal law;

• plaintiffs to receive an award of costs and attorneys' in the amount of $200,000, to be paid by the Office of the Attorney General on behalf of the State of Washington; and

• after entry of final judgment, the Washington Attorney General's Office to work with the Washington State Legislature to repeal the current unconstitutional version of the statute.

12/10/12:  The court executes the proposed orders presented by the parties, and issues a final judgment [12] in the case in accordance with those orders.