A new censorship law in Washington state was first proposed on February 2, fast-tracked through the state legislature and signed into law by Gov. Christine Gregoire on March 29,
Senate Bill 6251 makes it a crime if a person (or company) 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.
Not much of a problem, right? But the devil here is in the details. Section 2 of the new law reads:
In a prosecution under this statute, it is not a defense that the defendant did not know the age of the
minor depicted in the advertisement. It is a defense, which the defendant must prove by a preponderance of the evidence, that the defendant made a reasonable bona fide attempt to ascertain the true age of the minor depicted in the advertisement by
requiring, prior to publication, dissemination, or display of the advertisement, production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the
advertisement and did not rely solely on oral or written representations of the minor's age, or the apparent age of the minor as depicted. In order to invoke the defense, the defendant must produce for inspection by law enforcement a record of the
identification used to verify the age of the person depicted in the advertisement.
One might be tempted to think of this section as a requirement for a sort of 2257 recordkeeping for people who advertise themselves or others as
escorts, but in reality, it's a real Catch-22. Prostitution is still a crime in Washington state, so any person who'd like to engage in that profession and place ads online or in one of the local tabloids will have to reveal---and provide proof
of---his/her true identity to the company placing the ad online or in print, thus risking having the police subpoena such material from the publication/website owner... or simply seize it in a raid ostensibly looking for evidence of underage sex
A federal judge has sided with Backpage.com against a Washington state law targeting small ads that would require online publishers to verify the age of those shown in the ads.
U.S. District Judge Ricardo Martinez granted a temporary restraining
order to put a halt to the statute, ruling that he'd hear arguments over it at a preliminary injunction hearing June 15.
SB 6251 would force websites to censor user content on the grounds that it would be unviable to actually check the ages of
pictures featuring in adverts. The bill threatens five years imprisonment and a $10,000 fine per violation should publishers be caught out by an underage picture.
Backpage explained in the law suit:
expressly states that it is not a defense that the defendant did not know that the image was of a minor, Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person depicted in the post.
This means that every service provider, no matter where headquartered or operated, must review each and every piece of third-party content posted on or through its service to determine whether it is an 'implicit' ad for a commercial
sex act in Washington, and whether it includes a depiction of a person, and, if so, must obtain and maintain a record of the person's ID.
Backpage said that SB 6251 contravenes Section 230 of the Communications Decency Act, which
prohibits Internet service providers from being treated as the publisher or speaker of any information provided by a third party.
Backpage counsel noted that other states are poised to follow Washington's lead. A similar law will soon take effect
in Tennessee, and the legislatures in New York and New Jersey are considering analogous bills.
A federal judge has issued a preliminary injunction to block enforcement of a new Washington state law that would require classified advertising companies to verify the ages of people in sex-related advertisements.
Gov. Chris Gregoire claimed the
law this year to cut down on child sex trafficking. The law received unanimous approval from the Legislature and had been scheduled to take effect in June, but courts have put its implementation on hold.
The Washington law would allow for the
criminal prosecution of anyone who knowingly publishes or causes the publication of sex-related ads depicting children, unless they can show they made a good-faith effort to confirm that the person advertised was not a juvenile.
The decision U.S.
District Judge Ricardo S. Martinez stops the law from taking effect until the lawsuit challenging it can be heard in court.
The website Backpage.com and the Internet Archive, a popular archive of Internet sites, asked for the preliminary
Backpage and Internet Archive argue the new law violates the Communications Decency Act of 1996, as well as the First, Fifth, and Fourteenth Amendments and the commerce clause of the U.S. Constitution.
Backpage.com argues that
SB6251 would force websites to become the government's censors of users' content and would place an incredible burden on the company to review every bit of third-party content, as well as obtain and maintain records of individuals' ID.
These obligations would bring the practice of hosting third-party content to a grinding halt,
according to Backpage.com's legal suit.
In his ruling, Martinez found merit in some of their arguments that the state law would conflict with existing federal law. He also drew a distinction between the idea of the law and the reality of its
Universal Studios has completed a settlement with the makers of Fifty Shades of Grey: A XXX Adaptation .
According to a court filing, Smash Pictures will make a payment of a confidential sum to payoff the lawsuit and will also consent
to a permanent injunction that will prohibit the distribution of the XXX Adaptation.
Smash Pictures and James Lane (aka Jim Powers) thought the story was a natural adult movie, so they made one. Smash exec Stuart Wall told a newspaper, Since
they are going to make a mainstream [film] of the books too, dabbling in the adult world, we're choosing to go with a XXX adaption which will stay very true to the book and its S&M-themed romance.
Slapping a parody tag onto the
title wasn't enough to keep Universal from protecting its rights. Along with Fifty Shades Ltd., the copyright owner of the original material, a lawsuit was filed in November that called the XXX Adaptation a willful attempt to capitalize on the
reputation of the book.
MasterCard and Visa have supported a move to censor advertisements in the adult section of classified ad website Backpage.com.
The credit card companies will now longer allow their card to be used for payment for such adverts.
The move comes
after a sheriff in Cook County, Illinois named Thomas Dart requested that both credit companies sever ties with the site. He cites for reasons of supposed trafficking but no doubt the basis is a moral judgement against adult services.
Update: Censored by MasterCard even when the service is legal
Thosusands of Australian sex workers say their legitimate business is being brought to a grinding halt by censorship by credit card companies instigated by a US county sherriff.
Mastercard has announced it was implementing a worldwide ban on
customers placing adult ads on Backpage.com, an online classified advertising marketplace used widely by sex workers to promote their services.
The site has long come under fire from moralist in the US, where sex work is illegal in most states,
for promoting prostitution. But the censorship still applies even where legal.
The Scarlet Alliance, which speaks on behalf of Australian sex workers, said Backpage.com was the primary source of clientele for many local sex workers.
Brisbane sex worker Nikki Cox said she was angry and upset about Mastercard's decision. She said:
We have fought long and hard in this country to have the rights that we do.
For a sheriff in the USA to come along and appeal to have credit card companies remove the option of using our card to
pay for advertising services is a badly thought out decision on his behalf.
This is fine for the USA where sex work is illegal in 49 states but it should not have a rollover effect in Australia.
Alliance CEO Janelle Fawkes went one step further, accusing Mastercard of discrimination.
We have anti-discrimination protection for sex workers in some parts of Australia, and much of that legislation is framed around
treating sex workers differently and disadvantaging them.
This is very specifically singling out and discriminating against sex workers, which is absolutely unacceptable.
Sex workers are part of the
community and are earning a legitimate income like everyone else, and they have the same rights and responsibilities as everyone else.
The online classified web site Backpage.com, long used by sex workers as a low-cost means of advertising their services and screening clients, has announced that it is allowing users to post ads for free to the adult services section of its site.
Backpage has been sending e-mails to users of the adult services section of the site informing them that they could use free promo code FREESPEECH until their payment situation was resolved to post ads.
Advertisers can also still use
bitcoin to pay for ads, and the company recently began allowing users to pay for credits that could be used to post ads. The credits can be purchased by money order, check or cash mailed to a P.O. Box in Dallas.
in the legal case Backpage.com v. Dart a unanimous panel of the Seventh Circuit Court of Appeals in a lively opinion ordered Thomas Dart, the sheriff of Cook County, Illinois, to end his campaign of suffocation against the small ads website and
stop violating its First Amendment rights.
The court of appeals rejected Sheriff Dart's contention that he was merely expressing his personal distaste for Backpage and not using his position as a government official to coerce Visa and MasterCard into
discontinuing business with the website. Rather, the court of appeals held that Sheriff Dart's actions amounted to an unconstitutional prior restraint on Backpage's speech.
EFF made a submission to the court arguing that government officials such
as Sheriff Dart may not use their positions of authority to coerce companies with express or implied threats of legal liability into taking actions that censor speech--whether online or offline.
The Seventh Circuit agreed. Overruling the district
court that had denied Backpage's request for a preliminary injunction, the court of appeals issued the following order:
Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or
on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being
provided to Backpage.com.
While Sheriff Dart is rightly concerned about sex trafficking, the court of appeals noted that no one is claiming that there is no constitutionally protected speech in the ads on Backpage's website. (emphasis in original) Yet
Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal activities. (emphasis in
Sheriff Dart had written letters intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution. The
court of appeals noted that It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious. Thus the court held that Sheriff Dart's actions constituted a prior restraint in violation of the
The Seventh Circuit equated Sheriff Dart's campaign of depriving the company of ad revenues by scaring off its payments-service providers rather than going after Backpage directly through litigation with killing a person
by cutting off his oxygen supply rather than by shooting him.
The Seventh Circuit made clear that Sheriff Dart, in his official capacity, does have freedom of government speech. However, the court of appeals stressed that such freedom
has limits. He or any other government official or entity is not permitted to employ threats to squelch the free speech of private citizens.
Backpage.com, one of the world's largest classified ad websites and a frequent target in the political battle against sex work, closed its adult ads section Monday in the United States after becoming the victim of a government witch hunt.
came shortly after the release of a U.S. Senate report that accused Backpage of hiding criminal activity by deleting terms from ads that indicated prostitution.
The abrupt closure came on the eve of the scheduled testimony of Backpage's founders,
Michael Lacey and James Larkin, and the site's CEO, Carl Ferrer, before the Senate Committee on Homeland Security and Governmental Affairs' subcommittee on investigations.
To keep problematic ads online, the company edited them. One moderator said
he removed material that was obviously indicative of prostitution but the post remained published. According to the Senate report, the moderator testified under oath: [M]y responsibility was to make the ads OK to run live on the site, because having
to get rid of the ad altogether was bad for business.
By late Monday, visitors to Backpage saw censored tags in red font under the adult section's menu of escorts, body rubs and strippers. Other sections remained operative, including
for cars, real estate and childcare. Backpage said:
Like the decision by Craigslist to remove its adult category in 2010, this announcement is the culmination of years of effort by government at various levels to exert
pressure on Backpage.com and to make it too costly to continue.