Earlier this year, Washington state legislators unanimously passed the nation's first criminal law requiring age verification for commercial sexual services advertisements depicting minors. The landmark law's goals are laudable, but its broad reach has some on-line service providers and traditional publishers concerned. For example, on-line service providers that allow users to post content and images on their sites, including on social networking sites, dating sites, discussion forums, blogs and chat rooms, could now face criminal exposure, even if they have absolutely no interest in placing, or permitting the placement of, such ads.

The law, which threatens 5 years of imprisonment and significant fines for violations, was slated to take effect on June 7, 2012. However, on June 5, 2012, Judge Ricardo Martinez of the U.S. District Court for the Western District of Washington temporarily enjoined Washington prosecutors from enforcing the statute, granting on-line classified service provider Backpage.com's motion for a temporary restraining order. 

Despite the Washington law's uncertain future, this is not a time to sit back and simply see what happens. Tennessee has already passed a similar law, and lawmakers in New York, New Jersey and elsewhere are drafting their own versions that, like the Washington law, cast a global net. On-line service providers and others who display third-party content must, therefore, understand the law's reach and accurately gauge their particular risk profile.

Washington's law provides that "[a] person commits the offense of advertising commercial sexual abuse of a minor if he or she 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." ESSB 6251 § 2 (emphasis added). The law, moreover, makes it irrelevant whether the defendant, in fact, knew that the person depicted was a minor. It imposes strict liability as to this central element of the offense.

The only defense provided is for a defendant to prove - through a documentary record - that he or she made a reasonable, good faith attempt to verify the depicted person's age by requiring the person whose picture the ad depicts to produce a government or school ID and then comparing that ID with the person depicted, likely in person or perhaps via video link. In the words of the law’s sponsor, Sen. Jeanne Kohl-Welles (D-Seattle), the law “makes the strongest possible statement that there should be no selling of minors on-line - or anywhere.”

Although the statute received strong political support, it raises a number of legal questions, including whether it (1) is preempted by Section 230 of the federal Online Communications Decency Act of 1996, which carves out special protections for on-line service providers that post third-party content; (2) unconstitutionally "chills" speech in contravention of the First Amendment; (3) unduly burdens or discriminates against interstate commerce in contravention of the dormant Commerce Clause; and (4) creates a strict liability crime that unnecessarily criminalizes a broad range of otherwise innocent conduct, in contravention of the Fifth Amendment.

The temporary restraining order granted by Judge Martinez is currently set to expire on June 19, 2012, although it could be continued by the court or consent of the parties. Judge Martinez has also scheduled a hearing to consider Backpage.com's motion for a preliminary injunction for Friday, June 15, 2012.

Click here for a flow chart deconstructing Washington State's S.B. 6251.

Click here for a recent article examining the law.

For further information, contact:

T. Markus Funk / 303.291.2371

Sarah Crooks / 503.727.2252

J. Cabou / 602.351.8003

© 2012 Perkins Coie LLP