The law, which passed the Tennessee State Legislature in 2012, was challenged by Backpage.com. Backpage
is an online classifieds website similar to Craigslist. However, unlike Craigslist, Backpage has an advertising section for escort services, strippers and other adult services. Craigslist removed their "Adult Services" classified section in September 2010.
In June 2012, Backpage filed suit against Tennessee Attorney General Robert Cooper, along with 31 district attorneys generals across the state. The lawsuit contends that the Tennessee law violates freedom of speech and interstate commerce laws, saying
"Tennessee Public Charter 1075 would have a chilling effect on free speech online and that it's unconstitutional, violating the Communication Decency Act of 1996, the First and 14th amendments, and the Commerce Clause of the U.S. Constitution."
The lawsuit continues by saying the law would make it illegal to sell advertisements that "would appear to a reasonable person" to include a "commercial sex act with a minor", before stating
"no such content is ever published."
The lawsuit points to the fact that any person or company guilty of violating the law could be sentenced to up to 15 years in prison and a minimum fine of $10,000. The suit also claims
that the law
“would impose an intolerable burden on speech across the country.”
Backspace further contends that it would be impossible for their 100 employees to screen every ad posted to its site, and that the law harms the business.
On Friday, John T. Nixon, Federal Judge for the Middle District of Tennessee, ruled that the law did indeed violate the constitutional right of free speech. In his ruling, Nixon wrote
“The Constitution tells us that—when freedom of speech hangs in the balance—the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law.”
Proponents of the law are disheartened and angered by Nixon's ruling. Nashville assistant district attorney Antoinette Welch told WBIR
"The websites are helping to promote something illegal, and children and women are being sold on their sites. They should be held responsible, fined at the very least."
Welch went on to explain that local law enforcement officials use websites like Backpage in nearly every sex trafficking case the district attorney general's office prosecutes.
She points to the fact that Backspace charges up to $17 for “adult” advertisements. Following Craigslist's lead of no longer allowing such advertising would mean a drop in revenue. However, allowing advertising which promotes a violation of the law should mean they can be held criminally liable.
Nixon has issued a temporary restraining order, barring the state from enforcing the law until an appeal can be heard. There is no word at this time if the state plans on appealing Nixon's decision.