Backpage.com v. Hoffman and The Internet Archive v. Hoffman
In July of 2013, IJP joined Rutgers School of Law-Newark and other public interest groups to submit an amicus brief in Backpage.com v. Hoffman and The Internet Archive v. Hoffman, in the District of New Jersey, in support of the defendant New Jersey Attorney General and other law enforcement entities. These cases were related to the “adult services” section of the Backpage.com website, which is notoriously used as a forum for sex trafficking. IJP and Rutgers Law led the drafting process for an amicus brief documenting the crisis of human trafficking in the United States and to explain how Backpage.com’s “adult services” section provides a known medium for trafficking, placing on the record the harm of human trafficking in the United States.
Backpage.com was decided when Backpage brought a Declaratory Judgment Action seeking temporary restraining orders and an injunctive relief from sections of New Jersey’s Human Trafficking Prevention, Protection and Treatment Act. The challenged section of the New Jersey statute criminalized the online publication “directly… or indirectly” of any online offer for sexual contact that included the image of a minor. District Court Judge Cavanagh granted Backpage’s request for relief on preemption, First Amendment, 14th Amendment and Commerce Clause grounds.
Although Judge Cavanagh’s ruling was a disappointment to anti-trafficking activists, it was not a surprise. In fact, in May of 2013, when Governor Chris Christie signed the bill into law, constitutional challenges to comparable statutes in Tennessee and Washington were underway. Although the IJP was asked to participate after Backpage filed its motion, it was apparent that there had been several schools of thought about passing constitutionally vulnerable statutes. Some believed that attempting to pursue the matter all the way to the U.S. Supreme Court might facilitate Congress’s involvement in eliminating the preemption problems posed by the Communications Decency Act of 1996–also known as the “Great Cyberporn Panic of 1995”. Others thought there was pedagogical value in passing a strong statute to raise consciousness around the issue of trafficking. There may have been some legislators who simply saw no political downside to passing a piece of tough seeming legislation no matter what action the Judicial Branch might take.