by guest blog writer Alex F. Levy
18 U.S.C. § 2421A(a) violates the First Modification. While” [o] ffers to engage in unlawful deals are categorically left out from First Amendment security,” this arrangement restricts even more than that. U.S. v. Williams, 553 U.S. 285, 286. It criminalizes, inter alia, “operat [ing] an interactive computer system service with the intent to promote or facilitate the prostitution of another person” even in jurisdictions where prostitution is legal. 18 U.S.C. § 2421A(a). (That there is an affirmative defense offered does not alter the truth that, strictly speaking, the provision criminalizes safeguarded speech.)
Unlike the SAVE Act, which forbids the knowing ad of trafficked sexual services, this statute implicates constitutionally secured speech. See 18 U.S.C. § 1591(a). In Backpage v. Lynch, complainants were unable to assert standing to tell enforcement of the SAVE Act where they did not allege “an intent to engage in a course of conduct perhaps affected with a constitutional interest, but proscribed the [the SAVE Act]” Backpage v. Lynch, 2016 WL 6208368 (D.D.C. Oct. 24, 2016) at * 12. The court held that exactly what Backpage did and meant to keep doing– namely, host “third party advertisements, consisting of advertisements of legal adult sexual services”– did not fall under what the SAVE Act restricts. Id at * 11. These advertisements for legal adult sexual services constituted, in the court’s words, “perform that is ‘probably affected with a constitutional interest.'” § 2421A(a) clearly reaches this constitutional interest.18 U.S.C. § 2421A(a) also differs from the Travel Act, which criminalizes, among other things, the usage of interstate facilities with intent to “… promote … any illegal activity.” 18 U.S.C. § 1952(a)( 3 ). (The Act defines “unlawful activity” to consist of prostitution offenses that are”in violation of the laws of the State in which they are dedicated or of the United States.” 18 U.S.C. § 1952(b)(i)( 1 ).) Unlike 18 U.S.C. § 2421A(a), the Travel Act needs that the offender “afterwards perform  or attempt  to carry out” the criminal offense at concern. 18 U.S.C. § 1952(a). The Travel Act is hence not a constraint on speech alone.A law that regulates speech based on its material must get rid of strict analysis. See, e.g., Perry Educ. Ass ‘n v. Perry Educ. Assn, 460 U.S. 37, 46 (1983) (“a content-based prohibition should be narrowly drawn to effectuate an engaging state interest”). 18 U.S.C. § 2421A(a) triggers stringent analysis because it is a non-commercial, content-based speech policy. Because it is not narrowly drawn to serve an engaging state interest, it is unconstitutional.18 U.S.C. § 2421A does not simply restrict industrial speech. The words “promote or help with” do not, on their own, recommend a deal. In U.S. v. Williams, the Supreme Court noted that” [w] hen taken in isolation, …’promotes’ and ‘presents’ are vulnerable of multiple and comprehensive significances.” U.S. v. Williams, 553 U.S. 285, 294. The Court depend on the statute’s “string of personnel verbs– ‘markets, promotes, presents, disperses, or gets'” to contextualize the prohibition on “promot [ing] certain product. Id. Here, naturally, there is no such context: “promotes” and “helps with” are isolated, triggering the restriction to reach beyond simply transactional (much less commercial) speech.Regulations are considered to
be content-based by virtue of that they” single  out specific subject for differential treatment,”even if they do not favor a specific perspective. Reed v. Town of Gilbert, 135 S.Ct. 2218, 2221. “[ l] imiting speech based upon its ‘subject’ or ‘subject’ favors those who do not want to disrupt the status quo.” Id. at 2233. The topic of business sex is questionable and extensively discussed. A blanket prohibition on running a website with the intent to promote prostitution will foreclose a range of discussions, including on the benefits of decriminalization, damage reduction approaches, safety measures, and others.While eliminating
sex trafficking is certainly an engaging federal government interest, this provision is not directly tailored to serve it. The law counts on the dubious concept that reducing prostitution will decrease trafficking. Indeed, the legislative report defends the guideline by declaring, without citation, that” [p] rostitution and sex trafficking are inextricably connected, and where prostitution is legalized or endured, there is a higher need for human trafficking victims and almost constantly a boost in the variety of females and kids trafficked into industrial sex slavery.” H. Rept. 115-572. The claim that legalizing (or legalizing) prostitution leads to sex trafficking is widely controverted by scholars. (See sources gone over in A. F. Levy, The Virtues of Unvirtuous Spaces, 50 Wake Forest L.Rev. 403, 409-410 (2017 )). Congress does not even explore the standard dependability of the premise that supports this sweeping content-based speech restriction.The legal record also keeps in mind that the law was produced in part since” sex trafficking cases are typically hard to prosecute because the victims … may often appear unsympathetic to juries.”H. Rept. 115-572. To puts it simply, because sex trafficking victims make sex trafficking prosecutions challenging, Congress has leveraged a suspicious connection(in between prostitution and sex trafficking)to develop a law that will permit prosecutors to prevent the tough cases, and prosecute less sex traffickers. This is not a directly customized regulation.18 U.S.C. § 2421A would likewise not pass constitutional muster under the intermediate standard for commercial speech. See normally Central Hudson Gas v. Public Svc. Comm’ n. Central Hudson Gas v. Public Svc. Comm’n, 447 U.S. 557 (1980). Importantly , intermediate analysis applies to marketing of so-called”vice activities”. See Coyote Publishing Inc. v. Miller, 598 F. 3d 592(2010). In Greater New Orleans Broadcasting Association v. U.S., the Supreme Court struck down a portion of a law prohibiting ad of gambling establishments in states where casinos
werelegal. Greater New Orleans Broadcasting Association v. United States, 527 U.S. 173 (1999 ). The government’s failing argument followed a logic not unlike that revealed by the authors of 18 U.S.C. § 2421A. It unsuccessfully reasoned that the speech ban on casino advertising would straight advance its interest in” alleviating the social costs of gambling establishment gaming by limiting demand “since” ‘marketing ‘broadcast marketing concerning casino gambling increases demand for such gambling, which in turn increases the amount of casino gaming that produces … social costs. “Id. at 189. Like the part of the policy struck down in Greater New Orleans, § 2421A( a)forbids”information, not industrial enticements of all kinds, and then just when conveyed over specific forms of media.
“Id. at 191. This speech ban does not come close to being “narrow [ly] tailor [ed] … to the asserted interest.”Id. at 188 (internal citation left out ). As a result, it does not satisfy requirements under the lower basic used to commercial speech.In Coyote Publishing v. Miller, the Ninth Circuit differentiated advertisements for sexual services from advertisements for other so-called” vice activities”– gaming, cigarette smoking, drinking, etc.– on premises that prostitution advertisements by their nature contributed to the issue of commoditized sex , and were not simply nearby to it. Coyote Publishing Inc. v. Miller, 598 F. 3d 592(2010). The vice that Nevada sought to cut was not, obviously, sex per se, but business sex– and ads, in the court’s view, did not just provide information about(or promote)thisvice, but were, in some sense, the vice itself. “An advertisement that proposes the sale of a sexual act does not merely produce a risk that aconsumer of that message will travel in pursuit of such a transaction. Instead, an ad for sex itself produces the commodification damage that Nevada looks for to restrict.”598 F. 3d 592, 607(emphasis in initial ). By stating advertisements to be part of the vice, the court inadvertently made the case for subjecting them to strict analysis. If these advertisements have a convincing impact independent of any underlying prostitution or other transaction, then they are not simply ads: theyare fully protected speech. As such, they go through strict examination, and the state might only regulate them offered an engaging interest and narrow tailoring.Instead, the Ninth Circuit applied the lower kind of scrutiny managed to bans on vice activities– and included additional demerits for its own dim view of sexual commerce.”Thesocial condemnation of prostitution … might pertain to the degree of scrutiny relevant to these advertising restrictions.” 598 F. 3d 592, 601. However the state’s”interest in avoiding the commodification of sex “was, according to the court, simply “substantial”(not compelling), and a”substantial”interest does not be adequate for a content-based speech guideline. Notwithstanding its anomalous holding, the Ninth Circuit’s reasoning in Coyote would need that § 2421A(a) satisfy stringent scrutiny.”Sexual expression which is indecent however not obscene is protected by the First Modification. “Sable Comm. v. FCC, 492 U.S. 115, 126(1989). Forbidding the promotion of prostitution on the Web, in the words of Justice Frankfurter, would be” to burn the house to roast the pig.” Butler v. State of Mich. 352 U.S. 380, 383 (1957). § 2421A( a)limits Constitutionally secured speech, yet stops working under both rigorous and intermediate scrutiny standards.
It is unconstitutional and need to not be entered law.