The commercial sexual exploitation of minors, the First Amendment, and freedom: why backpage.com should be prevented from selling America's children for sex.

• Author: Makatche, Anna

Introduction I. The First Amendment and Commercial Sex A. Central Hudson 1. The Central Hudson Test 2. Commercial v. Noncommercial Speech B. Constitutional Authority to Act 1. The Commerce Clause 2. The Communications Decency Act 3. The Tenth Amendment C. Commercial Sex 1. Sex Trafficking a. What Is Sex Trafficking? b. Why Does Sex Trafficking Persist? c. Commercial Sexual Exploitation of Minors 2. Anti-Trafficking Legislation a. History of Anti-Trafficking Legislation in the United States b. Critical Gap in the Current Legal Structure c. Statutes Aimed at Addressing the Critical Gap D. Problems with State Efforts to Restrain Backpage II. Arguments for Why Websites Would and Would Not Be Subject to First Amendment Rights A. Why Websites Would Be Subject to First Amendment Rights 1. State Legislation Is Preempted by [section] 230 of the CDA 2. Online Service Providers Are Not the Speakers; They Are Passive Third Parties 3. Central Hudson Prevents Regulation a. Prong Three of Central Hudson: The State's Interest Is Not Directly Advanced by the Legislation b. Prong Four of Central Hudson: Legislation Is Not Narrowly Tailored B. Why Websites Would Not Be Subject to First Amendment Rights 1. The Government Has a Strong Interest in Protecting Minors from Sexual Exploitation, and has a History of Overcoming Even First Amendment Protections 2. A Carve-Out Can Be Made to [section] 230 Protections Solely for Regulating Websites That Are Facilitators of the Commercial Sexual Abuse of Children 3. Central Hudson Allows Regulation of Commercial Speech a. The First Prong of Central Hudson: The Speech Can Be Regulated Because it Promotes Illegal Activity and Is Misleading i. Promotes Illegal Activity ii. Misleading Speech b. Prongs Two, Three, and Four of Central Hudson Are Met i. Central Hudson Prong Two: Substantial Interest in Protecting Minors From Sexual Abuse ii. Central Hudson Prong Three: The State Interest Is Directly Advanced by the Proposed Legislation iii. Central Hudson Prong Four: The Solution Is Narrowly Tailored Because the Problem Is The Facilitator III. The Federal Government Should Pass Legislation to Prevent Online Service Providers from Facilitating--and Profiting from--the Commercial Sexual Exploitation of Minors A. Why Regulate Online Service Providers? B. Why Federal Legislation Is Necessary C. There Is No Conflict with CDA [section] 230 Conclusion INTRODUCTION

An estimated 100,000 to 300,000 American children are prostituted each year. (1) The voice of one such child:

I'll tell you what we've done. We've spent many nights alone and helpless. Probably never made it past eighth grade. We've been hit, arrested by the system. Abused by our boyfriends. We've imagined flying away from all the pain. We're gaining self-worth back. We've written it all down to share what hurts. Some of us are out, some of us remain in. Some of us are in danger, all of us are scared. None of us know what makes us so different, but we all know what did. Listen to our stories because now we're breaking the silence. (2) The freedom of speech, a cornerstone of American democracy, is being twisted beyond its intent to prevent oppression and is providing a shield to those who oppress.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (3) A booming industry in the United States is the oppressor, shielded by the freedom of speech:

Corporations such as Backpage thrive by helping to advertise children for sex. "Five websites that carry prostitution advertisements in the United States set a record (4) with a combined revenue of nearly $3.3 million during January.... About [seventy] percent of the revenue was attributed to Backpage.com." (5) Pimps use the freedom of speech to sell American children for sex through Backpage.com (Backpage). (6)

Currently, hundreds of thousands of America's youth are being sold for sex. (7) Yet children are now prostituted less on the street and more online. (8) Websites such as Backpage make this possible. Pimps, as third parties, post advertisements on such websites with thinly veiled offers of prostituted children. (9) Johns take full advantage of these opportunities, funding the billion-dollar sex industry (10) as they purchase the minors advertised online. (11)

Some states, (12) in an attempt to create a comprehensive crackdown on the commercial sexual exploitation of minors, have drafted laws aimed at holding websites such as Backpage accountable for content posted by third-party users such as pimps. (13) Backpage is fighting back, arguing--among other things--that such legislation infringes on its freedom of speech. (14)

This Note argues that holding websites such as Backpage accountable for the advertisement of the commercial sexual exploitation of minors posted by third parties is constitutional because it is an advertisement for illegal activity, and advertisements for illegal activity are categorically excluded from First Amendment protection. (15) Moreover, to the extent that any escort advertisements on online service providers are offering legitimate, legal services, the activity could still be regulated because it is: 1) commercial speech; 2) where the government has a substantial interest in the well-being of minors; 3) that is directly advanced by the proposed, 4) narrowly drawn legislation. (16)

Part I provides general background on the commercial speech doctrine of the First Amendment, the commercial sexual exploitation of minors in the United States of America, and the current state of legislation in this area. Part II evaluates arguments addressing the issue of whether online service providers that host advertisements for commercial sex with minors are subject to First Amendment protection. Part III proposes that the federal government enact a statute prohibiting the advertisement of the commercial sexual exploitation of minors, and argues that such legislation is constitutional because 1) it is regulating illegal activity; or, in the alternative, 2) it is regulating commercial speech, and can be narrowly tailored to directly affect the substantial interest in protecting minors that it is intended to achieve.

1. THE FIRST AMENDMENT AND COMMERCIAL SEX

   The First Amendment freedom of speech component is of paramount importance to our democracy. (17) Our nation chose to protect speech because it is a cornerstone of democratic self-government, ensures all citizens the opportunity to contribute to and benefit from a rich marketplace of ideas, and doing so allows for individual self-fulfillment and autonomy. (18) These rationales have been argued to be less strong when it comes to commercial speech. (19) As such, the Court has allowed greater government regulation of commercial speech than of noncommercial speech. (20)

   1. Central Hudson

      1. The Central Hudson Test

         The Court, in Central Hudson Gas & Electric Corp, v. Public Service Commission of New York (Central Hudson), held that commercial speech is a lesser-protected category of speech, and articulated a four-part test for when government can regulate commercial speech (21):

         1) Determine whether the expression is protected by the First Amendment (protected speech "must concern lawful activity and not be misleading"):

         2) Determine whether the asserted governmental interest is substantial;

         3) Determine whether the regulation directly advances the governmental interest:

         4) Determine whether it is "not more extensive than necessary to serve that interest." (22)

         The first prong--determining whether the speech concerns lawful activity and is not misleading--leaves the government with the ability to regulate any speech relating to unlawful activity. For example, the Court held that an ordinance prohibiting a newspaper from advertising jobs in categories organized by gender was not an infringement of the newspaper's constitutional right to freedom of speech, as gender discrimination in employment is illegal. (23) Similarly, the government is free to regulate misleading speech. (24)

         Where the speech concerns lawful activity and is not misleading, the Court evaluates the speech regulation with the second, third, and fourth prongs of the Central Hudson test. The second prong of the Central Hudson test requires that the governmental interest be substantial. The Court has held, inter alia, the conservation of energy, (25) ensuring the accuracy of commercial information in the marketplace, (26) and the protection of potential clients privacy (27) to be substantial governmental interests.

         If the asserted governmental interest is substantial, the third prong requires that the regulation must directly advance that interest. (28) The Court held that the goal of energy conservation was directly advanced by a regulation banning an electric utility from advertising the use of electricity. (29) By contrast, the Court held that an outright ban on solicitation of business clients by certified public accountants did not directly advance the substantial interests of ensuring the accuracy of commercial information in the marketplace or protecting clients' privacy. (30)

         Finally, the fourth prong of the Central Hudson test requires that the regulation must not be more extensive than necessary to reach the government's interest. (31) For example, a complete regulatory ban on advertising alcohol content on beer labels was held more extensive than necessary to reach the State's interest in suppressing strength wars in the beer market. (32) By contrast, the Court held that a ban on lottery advertisements in a non-lottery state was no more extensive than necessary to reach the government's interest in supporting the State's anti-lottery laws. (33)

         Thus, as held in Central Hudson, current Supreme Court jurisprudence maintains that where a...