compelling governmental interest, and is narrowly tailored to serve that interest. Further, it is not
unconstitutionally vague under constitutional criminal law analysis.
i. The commercial speech at issue is not protected by the First Amendment under the
Central Hudson four-part test
IPACT avoids the free speech challenges that plagued the previous state law attempts to
protect children from being sold on the Internet. First, it is commercial speech. The Supreme
Court has found that commercial speech is held to lower scrutiny standard.223 When an ISP
allows an ad to be posted for the sale of an escort, the speech involved is commercial insofar as
the ad seeks to induce a customer to pay for a service that is promised in return for a fee. In
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the Supreme
Court identified a four-part test to analyze when commercial speech is protected by the First
Amendment.224 First, the speech must concern lawful activity and not be misleading.225 Second,
the asserted governmental interest must be substantial.226 Third, the regulation must directly
advance the governmental interest asserted.227 Lastly, the regulation is not more extensive than is
necessary to serve that interest.228 Each part will be discussed in turn.
a. Lawful activity and not misleading
As noted above, the speech in adult escort ads is likely to fail the first prong of the
Central Hudson test because the activity that the government seeks to regulate is usually illegal
prostitution and sometimes human trafficking. Because nearly eighty percent of the ads have
been found to be for prostitution,229 to label these ads as selling “escorts” is misleading. The U.S.
Supreme Court stated in Pittsburgh that “[d]iscrimination in employment is not only commercial
activity; it is illegal commercial activity under the Ordinance. We have no doubt that a
newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics
or soliciting prostitutes.”230 Indeed, similar to the discriminatory ads in Pittsburgh, the vast
majority of adult services ads involve illegal activity, such as human trafficking and prostitution,
and it is specifically this illegal activity that IPACT seeks to regulate. Therefore, IPACT will
reduce the number of ads for illegal activity being posted on the Internet.
b. Directly advance a compelling government objective
With respect to the second and third prongs of Central Hudson, the asserted
governmental interest in IPACT is not only substantial, but also the legislation directly advances
the governmental interest asserted. IPACT bears a clear compelling government interest in its
objective: protecting children from being trafficked for sex on the Internet. In Reno v. American
Civil Liberties Union, the Supreme Court acknowledged that it has “repeatedly recognized the
governmental interest in protecting children. . .”231 As noted above, twelve to fourteen is the
223 See Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 391 (1973) (upholding an ordinance that
prohibited newspapers from carrying sexually discriminatory ads); Capital Broad. Co. v. Mitchell, 333 F. Supp. 582, 584 (D.D.C.
1971), aff'd sub nom. Capital Broad. Co. v. Kleindienst, 405 U.S. 1000 (1972) (affirming a district court decision that prohibited
electronic media from carrying cigarette advertising); Head v. New Mexico Bd. of Examiners in Optometry, 374 U.S. 424, 425 (1963)
(upholding an injunction prohibiting a newspaper and a radio station from carrying optometrists’ ads which violated New Mexico
224 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N. Y., 447 U.S. 557, 566 (1980).
229 Hensley, supra note 167.
230 Pittsburgh Press, 413 U.S. at 388.
231 Reno v. Am. Civil Liberties Union, 521 U.S. 844, 875 (1997).