Sex Trafficking not the same as prostitution - Cato Institute files Amici Curiae Brief in support of Backpage v. Dart (Sheriff of Cook County)
The present case concerns amici because Sheriff Dart’s threat poses a grave threat to individual rights and can cause irreparable harm to at- risk youth, along with inhibiting the ability of law enforcement to combat human trafficking. Sherriff Dart’s crusade against websites like Backpage.com and Craigslist.org has distorted police practices and, in many cases, led to an informal prior restraint that violates the First Amendment.
ARGUMENT
I. THERE IS NO “EPIDEMIC” OF SEX TRAFFICKING IN THE UNITED
STATES AND EFFORTS TO FIGHT THIS “EPIDEMIC” HAVE
MIRRORED THE FOLLIES OF THE WAR ON DRUGS
Sex Trafficking Has Not Increased, and May Have Declined, in the Last 15 Years. Sherriff Dart claims that there have been “years of growth in the . . . sex trade,” “driving demand even higher and increasing the enslavement of prostituted individuals, including children.” There is no empirical basis for this assertion; State Department data suggest that the opposite may be true. Allegedly scary and shocking statistics about human trafficking have either been debunked or revealed to be mere anecdotes."
(Long discussion of studies showing data that show Dart's claims are unsupported or disingenuous based on misstated and discredited data.)
The anti-trafficking movement picked up political steam in the first decade of the new millennium with an unlikely coalition of the religious right and ultra-feminists— those who wish to abolish prostitution and pornography—represented by such organizations as Focus on the Family and the Coalition Against Trafficking in Women. Weitzer, Social Construction, supra, at 449. One of the core beliefs underlying this crusade is that “prostitution more than anything else . . . is the root cause of trafficking. Id. at 454. In fact, the “conflation of trafficking and prostitution” is central to the “crusade’s ultimate goal of eliminating the entire sex trade.” Id. at 455. But voluntary prostitution—whatever one thinks of it—is not human trafficking under popular conceptions or as a definition for effective policymaking. Trafficking, as is commonly understood, is a very different crime than street prostitution, full-service escorts, or even transporting a willing prostitute across state boundaries.
(Skipping long very good discussion)
B. As a Matter of Law, the District Court Could Not Assume That All Adult Advertisements on Backpage.com Are Illegal.
The law simply does not permit a court to infer that Backpage.com’s ads are illegal. A court cannot assume that all or most “adult ads” are illegal solicitations.
The Northern District of Illinois had already addressed this point—when Sherriff Dart raised it against Craigslist in 2009: “The phrase ‘adult,’ even in conjunction with ‘services,’ is not unlawful in itself nor does it necessarily call for unlawful content.” Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 968 (N.D. Ill. 2009). The court continued: “The same is true of the subcategories. [Dart] is simply wrong when he insists that these terms are all synonyms for illegal sexual services. . . .
Other courts that have addressed this question have found similarly. See, e.g., Doe ex rel. Roe v. Backpage.com, LLC, No. CIV.A. 14-13870-RGS, 2015 WL 2340771, at *6 (D. Mass. May 15, 2015) (“The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal.”); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 830-32 (M.D. Tenn. 2013) (noting that “purposefully coy and playful” language can appear to be an illegal ad, yet still be protected “legal, consensual, non-commercial sexual activity”); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1279 (W.D. Wash. 2012) (“[W]here an online service provider publishes advertisements that employ coded language, a reasonable person could believe that facts exist that do not in fact exist: an advertisement for escort services may be just that . . . if the offer is implicit, how can a third party ascertain that which is being offered before the transaction is consummated?”); Backpage.com, LLC v. Hoffman, No. 13-CV-03952 DMC JAD, 2013 WL 4502097, at *8-10 (D.N.J. Aug. 20, 2013), appeal dismissed (May 1, 2014) (“The Court disagrees with Defendant’s reading of the language and agrees with both the McKenna and Cooper Courts’ thorough analysis. . . . Describing criminal conduct as anything that is “implicit” is inherently vague”).
III. SHERRIFF DART’S CRUSADE WILL DESTROY INVALUABLE AND
IRREPLACEABLE TOOLS FOR THE INVESTIGATION AND
PREVENTION OF SEX TRAFFICKING
There is no evidence that sex trafficking will decrease without Backpage.com’s adult-services sections. Without the credit card records that Backpage.com provides to law enforcement as a matter of course, however, investigators will be hamstrung in preventing sex trafficking.
IV. SHERRIFF DART’S ACTIONS INFRINGE BASIC DUE PROCESS Sherriff Dart’s censorship of Backpage “erodes principles that strike near the heart of the constitutional order,” United States v. Raddatz, 447 U.S. 667, 714 (1980) (Marshall & Brennan, JJ., dissenting), especially regarding the limited power of government agents to operate outside of official processes and the prohibition on prior restraints. It is part of an unfortunate governmental trend of using informal methods of soft power to “nudge” financers and transactional companies into not doing business with legal enterprises.
CONCLUSION For the foregoing reasons, and those presented by the appellant, amici urge the court to reverse the district court and grant a preliminary injunction.
Dave notes: I have omitted much of the supportive legal points and authorities for each section in the 24 page brief.
This summary and the entire brief is attached on my site at
http://phxlist.com/forum/showthread.php?tid=18808