Backpage.com v. Hoffman, et al.

NOTE: The information and commentary contained in this database entry are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute. Information contained in this entry is current as of the last event mentioned in the "Description" section below; additional proceedings might have taken place in this matter since this event.

Summary

Threat Type: 

Legislation

Date: 

06/26/2013

Status: 

Pending

Location: 

New Jersey

Disposition: 

Injunction Issued

Verdict or Settlement Amount: 

N/A
On May 6, 2013, New Jersey Governor Chris Christie signed P.L. 2013, c.51 § 12 (Bill A3352) into law, which was to be codified as N.J.S.A. § 2C:13-1O and take effect July 1, 2013. The New Jersey law would criminalize... read full description
Parties

Party Receiving Legal Threat: 

Backpage.com, Internet Archive

Type of Party: 

Government

Type of Party: 

Intermediary

Location of Party: 

  • New Jersey

Location of Party: 

  • California
  • Texas
  • Delaware

Legal Counsel: 

For Backpage.com: Bruce S. Rosen (McCusker, Anselmi, Rosen & Carvelli, PC). For Internet Archive: Frank L. Corrado (Barry, Corrado, Grassi, &Gibson, PC)
Description

On May 6, 2013, New Jersey Governor Chris Christie signed P.L. 2013, c.51 § 12 (Bill A3352) into law, which was to be codified as N.J.S.A. § 2C:13-1O and take effect July 1, 2013. The New Jersey law would criminalize "advertising commercial sexual abuse of a minor," which a person commits if he "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 this State and which includes the depiction of a minor" or "knowingly purchases advertising in this State for a commercial sex act which includes the depiction of a minor." The bill requires a minimum fine of $25,000 for a person convicted of this crime.

On June 26, 2013, Backpage.com, a classified advertising website with a section for adult ads, filed suit in the federal district court of the District of New Jersey against New Jersey Attorney General John Hoffman and prosecutors from each of the state's 21 counties. In the complaint, Backpage.com -- pursuant to 42 U.S.C. § 1983 -- sought a temporary restraining order to enjoin the enforcement of the law, asserting that it violated Section 230 of the Communications Decency Act, the First Amendment, the Fourteenth Amendment, and the Commerce Clause.

Specifically, Backpage.com asserted that:

  • Bill A3352 was preempted by and violated Section 230 of the Communications Decency Act, under which Backpage.com was considered an "interactive computer service."
  • The bill was unconstitutional under the First Amendment because it was a content-based restriction that was overbroad and vague.
  • The bill was also invalid under the First and Fourteenth Amendments because "it purport[ed] to impose strict criminal liability on online service providers such as Backpage.com and others for third-party content, in the absence of proof of scienter, particularly concerning knowledge of the age of any individual depicted in such content."
  • The bill violated the Commerce Clause because it attempted to regulate commercial transactions that took place wholly outside of New Jersey. 

In the complaint, Backpage.com sought declaratory judgment, preliminary and permanent injunctions against enforcing the law, and attorney's fees.

On June 28, 2013, Hoffman, on behalf of himself and the other defendants, filed a response to the demand for a temporary restraining or that argued Backpage.com's claims could not satisfy the necessary elements for granting such an order. The defendants claimed that the New Jersey provision did not conflict with Section 230, allowing the two to coexist. They argued that because the challenged statute prohibits the advertisement of an illegal transaction -- commercial sex acts with minors -- it was categorically excluded from First Amendment protection. Further, they claimed that the provision was not overbroad because it did not broadly prohibit references to sex, but rather was directed solely at offers to engage in an illegal transaction. The response stated that the public interest in protecting children was "overwhelmingly" in favor of allowing the statute to become effective.

On June 28, 2013, after a hearing on the motion, the court granted a temporary restraining order against the enforcement of the law, stating that the plaintiff had satisfied the necessary elements. On July 8, the court ordered that a similar action, filed on June 26 by Internet Archive against the same defendants, would be consolidated with this case. 

An oral argument is scheduled for August 9, 2013.

Details

Publication Medium: 

Website

Subject Area: 

  • Children
  • Section 230
  • Advertising
  • User Comments or Submissions
Court Information & Documents

Jurisdiction: 

  • New Jersey

Source of Law: 

  • United States
  • New Jersey

Court Name: 

United States District Court for the District of New Jersey

Court Type: 

Federal

Case Number: 

2:13-CV-03952

Relevant Documents: