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

On May 21, 2012, Tennessee State Governor Bill Haslam signed Public Chapter 1075 ("SB 2371 [2]") into law. Tennessee's SB 2371 defined the felony offense of advertising "commercial sexual abuse of a minor" which a person commits if he or she "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 of a minor." The law prohibited a defense of ignorance of the minor's age. A violation of SB 2371 could result in up to 15 years in prison and a minimum fine of $10,000.  SB 2371 was scheduled to take effect on July 1, 2012. [3]

Backpage.com [3] is a classified advertisements website with one section of its website dedicated to adult services. In 2010, Tennessee State Attorneys General sent a letter to Backpage.com demanding that the website remove its "adult services" section. Backpage.com did not comply with this initial demand. In 2011, the National Association of Attorneys General ("NAAG") publically released a second demand letter [4] to Backpage.com. This second letter again demanded removal of Backpage.com's adult section; it also requested detailed information from Backpage.com in "lieu of a subpoena." 

On June 27, 2012, Backpage.com brought suit in the U.S. District Court for the Eastern District of Tennessee against Tennessee State Attorney General Robert E. Cooper, Jr., and each of the state's 31 district attorneys to prevent enforcement of SB 2371. In its initial complaint [5], Backpage.com argued that the law violates the Communications Decency Act of 1996, 47 U.S.C. § 230, the First and Fourteenth Amendments, and the Commerce Clause of the United States Constitution. Backpage.com contended that SB 2371 violated § 230 as it would treat Backpage.com as the publisher of information which was provided by another content provider. In its First and Fourteenth Amendment argument, Backpage.com argued that SB 2371 was unconstitutional under the as it is overly broad in its restriction of free speech. In its Commerce Clause argument, Backpage.com argued that SB 2371 places an undue burden on interstate commerce.

The same day, on June 27, 2012, Backpage.com filed a Motion for Temporary Restraining Order and Preliminary Injunction [6] to prevent enforcement of SB 2371. The Motion contended that SB 2371 would affect millions of online providers and would violate the immunity 47 U.S.C. § 230 granted to online publishers against third-party content.

On July 26, 2012, Cooper and the other defendants filed a response in opposition to Backpage.com's Motion for Preliminary Injunction [7]. Defendants argued that SB 2371 was not preempted under 47 U.S.C. § 230 because it does not apply exclusively to internet usage, while § 230 applies only to internet communications. Further, defendants argued that SB 2371 did not prohibit the posting of advertisements "that would appear to a reasonable person to be for the purpose of engaging in a commercial sex act with a minor" but, instead, criminalized only the selling or offering for sale of such advertisements. The key difference, they argued, is that SB 2371 permits the posting of such advertisements so long as Backpage.com does not charge money or offer to charge money in exchange for posting them. In addressing the First and Fourteenth Amendment argument, the response argued that the advertisements were unlawful and therefore not considered protected speech; they also argued that the law was not overly broad or unconstitutionally vague. In its Commerce Clause argument, defendants argued that illegitimate commerce -- such as the money made from the illegal advertisements -- is not protected. 

On August 29, 2012, the court held a hearing on Backpage.com's motion, and on January 3, 2013, the court granted Backpage.com's Motion and issued a Temporary Restraining Order [8] enjoining enforcement of SB 2371. United States District Court Judge John T. Nixon stated that Backpage.com was likely to succeed on all of its claims as SB 2371 was likely preempted by 47 U.S.C. § 230 and that it likely violated the First and Fourteenth Amendment, and the Commerce Clause of the Constitution.

On March 27, 2013, the court granted [9] a motion by Backpage.com to convert the temporary injunction into a permanent injunction; Cooper and the other defendants did not oppose the motion. The court further found that no disputed factual issues remained and that summary judgment for Backpage.com was proper. United States District Court Judge John T. Nixon reiterated that Backpage.com was likely to succeed on the merits of its claims because: (1) SB 2371 was likely preempted by 47 U.S.C. § 230; (2) SB 2371 likely violated the First and Fourteenth Amendment because it was vague, overly broad, and not narrowly tailored; and (3) SB 2371 likely violated the Commerce Clause.