average age children are pulled into commercial sex,232 and at least 267 children have been found
to have been trafficked on Backpage alone,233 with new cases reported almost daily. Further, the
objective of the proposed legislation is to prevent children from being trafficked through age
verification. When those persons who are not 18 are blocked from using, posting or being posted
on the site, the objective to protect children is met. Thus, IPACT clearly satisfies the second and
third prong of the Central Hudson test since the governmental interest in protecting children is
substantial and the regulation directly advances the governmental interest asserted.
c. Narrow tailoring
With respect to the fourth prong of Central Hudson, IPACT is “not more extensive than
is necessary”234 to serve the governmental interest in protecting children. A content-neutral law
regulating the time, place, or manner of speech need only have a “reasonable fit” with its
objective to be sufficiently narrowly tailored.235 The Supreme Court has further clarified that a
“fit” between the legislature’s ends and means need not be perfect, but merely reasonable in
accomplishing those ends.236 The IPACT regulatory objective–protecting children from being
trafficked on the Internet–not only fits the purpose of IPACT–but is an objective that the Supreme
Court has determined to be a compelling state/governmental interest. Further, the regulatory
requirements that will protect children are narrowly tailored to serve this state interest because the
gateway database prevents children from being posted on or using the site, yet does not prevent
posting entirely. Therefore, the speech is not needlessly limited, and the regulation serves its
IPACT is also the least restrictive way to adequately verify the age and identity of an
ad’s poster, persons depicted in the ad, and anyone viewing the ad. The voluntary efforts
currently employed by Backpage are simply not sufficient to ensure that underage persons are not
illegally exploited on these Internet sites. Moreover, these voluntary efforts do nothing to curb
illegal activity such as prostitution. The gateway database provides a more effective means to
ensure that children are not trafficked, and that underage persons are not using or posting on adult
services sites. Currently, for example, Backpage has a checkbox that asks users to click a box
saying they are over eighteen years of age.237 While this, combined with the voluntary efforts of
Backpage to regulate ads, is less restrictive than IPACT, it does not adequately serve the
compelling state interest of protecting children from being trafficked on the Internet.
What is more, ISPs like Backpage would be hard pressed to argue that IPACT’s
regulations are burdensome. Backpage already exercises extensive voluntary measures to
ascertain when the subjects of ads posted are children, including the provisions (in the case of
are enrolled in E-Verify, a much quicker and simpler process to ensure the age and identity of
employees.239 In fact, the ISPs may determine that the IPACT regulations are less burdensome
than their current voluntary efforts.
ii. IPACT is content neutral: strict scrutiny does not apply.
232 Walker-Rodriguez & Hill, supra note 1; POLARIS PROJECT, supra note 1.
233 Chart Tracking Minors, supra note 61.
234 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N. Y., 447 U.S. 557, 566 (1980).
235 Bd. of Trs. of the State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989) (internal citation omitted).
237 See Disclaimer, supra note 188.
239 History and Milestones, supra note 191.