On Tuesday, October 21, 2014 the Washington State Supreme Court heard arguments on the case of Backpage LLC v Mckenna. In it, two teenage girls allege that Backpage should be held liable for their abuse that happened after they were advertised for sex on Backpage. In particular, they invoke a statute that Washington passed in 2012 which made it a felony to advertise sex acts with minors. This case, along with the other cases analyzed below, is the latest of a series of cases where states try to hold internet providers liable for third party advertisement of sex with a minor.
This memo was originally prepared by Hannah Kim in summer of 2013 when these cases were first appearing and the Renewal Forum was consulting with states as to whether there could be a law holding Backpage and similar corporations that profit off the sexual exploitation of others that held up to constitutional muster. The Renewal Forum ultimately determined that it would be almost impossible to write a state law that was not preempted by the Communications Decency Act’s (CDA) immunity. The memo dissects the reasoning of the court cases so far and explains this conclusion.