Via Eric Goldman’s Technology & Marketing Law Blog:
As part of states’ ongoing crusade against online prostitution ads, earlier this year Washington enacted SB 6251, captioned “Regulating advertising of commercial sexual abuse of a minor.”
Washington presumably passed the law to go after websites like Packpage.com for allowing its users to post prostitution ads (ignore the reference to “minors” in the law’s caption, we learned early in law school that when a legislator wants to pass a law limiting freedom of speech they generally place “minor” in the title whether or not the law has anything to do with protecting minors).
Backpage decided to fight back and sought a temporary restraining order against the law on the basis that it sought to bypass Section 230 of the Communications Decency Act which grants websites immunity for any statements or communications made by the websites’ users. The court agreed:
Backpage.com has shown a likelihood of success on the merits of its claim, pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, as well irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief.
Whether or not Backpage ultimately prevails on the merits is still up in the air, however this order tells us that Federal courts will very much scrutinize state attempts to bypass 47 U.S.C. 230.
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