Similarly, a Tennessee district court struck down a Tennessee statute, S.B. 2371/H.B.
2493 (“S.B. 2371”), which sought to amend the state criminal code to include an offense for
human sex trafficking.150 The Tennessee court found that “section 39-13-315 is likely expressly
preempted by CDA [S]ection 230(e)( 3) which unequivocally states that ‘no liability may be
imposed under any State or local law that is inconsistent with this section.’”151
More recently, on August 20, 2013, a New Jersey district court issued a preliminary
injunction152 prohibiting a similar New Jersey law, the “Human Trafficking Prevention,
Protection and Treatment Act,”153 from taking effect as scheduled on July 1, 2013, while a
challenge brought by Internet Archive and Backpage remained pending.154 The New Jersey
legislature sought to, “limit the marketing of childhood prostitution,”155 and enacted a law
prohibiting advertising commercial sexual abuse of a minor. A person is guilty under the law if,
“the person knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be
published, disseminated, or displayed, any ad for a commercial sex act, which is to take place in
this State and which includes the depiction of a minor.”156
D. Constitutional Issues Raised in Opposition to State Criminal Law Statutes
In addition to raising state law and CDA preemption provisions in striking down the
Washington law, the Backpage.com v. McKenna court also found likely constitutional objections
to the law. The court ruled that Plaintiffs were likely to succeed on their claim that the
Washington law was unconstitutionally vague and overbroad, in violation of the First
Amendment, and ran afoul of the Commerce Clause.157 The court found the statutory language
was unconstitutionally vague because it failed to provide fair notice of what constitutes illegal
speech.158 In particular, the court found it problematic that the Washington legislature failed to
define the terms: know, indirect, direct, implicit, and offer, and these omissions would likely lead
to unconstitutional vagueness.159
Further, the court found it likely that S.B. 6251 would be overbroad because it restricted
the publication, display, and dissemination of both protected and unprotected speech.160 The
court stated that “the statute criminalizes more than offers to engage in illegal transactions
because the statute covered transactions that are not illegal” under the Washington statute, such as
consensual, non-commercial sexual activity.161
Finally, the court held that Plaintiffs were likely to succeed under their claim that
Washington S.B. 6251 was unconstitutional under the Commerce Clause because it allegedly
regulated and imposed a heavy burden on commercial conduct that occurs wholly outside the
150 Backpage.com, LLC v. Cooper, No. 3:12-CV-00654, 2013 WL 1558785, at 1, 5 (M.D. Tenn. Jan. 3, 2013) (granting temporary
restraining order and preliminary injunction).
151 Id. at 12.
152 Backpage.com v. Hoffman, 13-CV-03952 DMC JAD, 2013 WL 4502097 (D.N.J. Aug. 20, 2013).
153 Human Trafficking Prevention, Protection, and Treatment Act, P.L. 2013, c. 51 § 12.
154 Hoffman, 2013 WL 4502097, at 5.
155 Katie Zezima, Web Groups Sue to Block NJ Law on Underage Sex Ads, SAN JOSE ASSOCIATED PRESS (Jul. 7, 2013),
156 Human Trafficking Prevention, Protection, and Treatment Act § 12.
157 Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1275, 1286 (W.D. Wash. 2012).
158 Id. at 1279.
161 Id. at 1280-81.