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Judge temporarily stops Washington State anti-prostitution law, citing free speech concerns

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A Washington state district judge has granted a temporary injunction on SB 6251, an anti-prostitution bill that could have wide-reaching implications for user-generated content.


A district judge has temporarily stopped a sweeping state law meant to curb online ads for prostitution from going into effect. On July 27th, Ricardo Martinez of the District Court for the Western District of Washington State issued a temporary injunction against SB 6251, which would make it illegal if any site "knowingly publishes, disseminates, or displays ... 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." The injunction will prevent SB 6251 from being implemented until the court has decided whether to strike down the law (or parts of it) because of fears that it goes too far in regulating online speech. The law had previously been delayed under a limited restraining order.

SB 6251 was created in response to Backpage, an adult classifieds site that was unsuccessfully sued in 2010 for publishing ads for an underage prostitute that included photos of the girl. Washington legislators proposed that sites be held responsible for hosting such ads unless they had obtained identification that verified the subject's age. Judge Martinez, however, notes that such a law would be difficult for sites to implement and that the statute's language — which applies when "something of value" is solicited in relation to sex and a picture of a minor is included — could describe situations that are clearly unrelated to child prostitution."A twenty-five-year old’s profile on a dating website might fall under the statute."

"A twenty-five-year old’s profile on a dating website might fall under the statute," Martinez writes, "if (a) one of the photographs associated with her profile was a picture of herself in high school and (b) she mentioned that she is 'good in bed' and looking for a man to 'cook her dinner every night.'" It could also, for instance, make Facebook responsible if a teenager's profile included "scandalous, provocative photographs and musings that are typical for some in this age group." Likewise, implementing the law in only one state could require sites to collect identification for everyone, in case one of the posts that's prosecuted "relates to conduct occurring in Washington." And since it's not restricted to commercial speech, it could extend beyond sites like Backpage or Craigslist into ordinary social networks.

Because of the law's potential for stifling protected speech and the difficulty of implementing it, "the Court finds that Defendants are unlikely to succeed" in showing that SB 6251 is the least restrictive way to help stop child prostitution. In response to the injunction, King County Prosecutor Dan Satterberg says he and others will "review our legal options with our colleagues in the Attorney General’s Office," although no decision has been made on whether to appeal or proceed directly to a trial.