The Commercial Sexual Exploitation of Minors, the First Amendment, and Freedom: Why Backpage.com Should Be Prevented from Selling America's Children for Sex

By Makatche, Anna | Fordham Urban Law Journal, November 2013 | Go to article overview

The Commercial Sexual Exploitation of Minors, the First Amendment, and Freedom: Why Backpage.com Should Be Prevented from Selling America's Children for Sex


Makatche, Anna, Fordham Urban Law Journal


Introduction I.   The First Amendment and Commercial Sex      A. Central Hudson         1. The Central Hudson Test         2. Commercial v. Noncommercial Speech      B. Constitutional Authority to Act         1. The Commerce Clause         2. The Communications Decency Act         3. The Tenth Amendment      C. Commercial Sex         1. Sex Trafficking            a. What Is Sex Trafficking?            b. Why Does Sex Trafficking Persist?            c. Commercial Sexual Exploitation of Minors         2. Anti-Trafficking Legislation            a. History of Anti-Trafficking Legislation in the               United States            b. Critical Gap in the Current Legal Structure            c. Statutes Aimed at Addressing the Critical Gap      D. Problems with State Efforts to Restrain Backpage II.  Arguments for Why Websites Would and Would Not Be      Subject to First Amendment Rights      A. Why Websites Would Be Subject to First Amendment         Rights         1. State Legislation Is Preempted by [section] 230 of the            CDA         2. Online Service Providers Are Not the Speakers;            They Are Passive Third Parties         3. Central Hudson Prevents Regulation             a. Prong Three of Central Hudson: The State's                Interest Is Not Directly Advanced by the                Legislation             b. Prong Four of Central Hudson: Legislation Is                Not Narrowly Tailored      B. Why Websites Would Not Be Subject to First         Amendment Rights         1. The Government Has a Strong Interest in            Protecting Minors from Sexual Exploitation, and            has a History of Overcoming Even First            Amendment Protections         2. A Carve-Out Can Be Made to [section] 230 Protections            Solely for Regulating Websites That Are            Facilitators of the Commercial Sexual Abuse of            Children         3. Central Hudson Allows Regulation of Commercial            Speech            a. The First Prong of Central Hudson: The               Speech Can Be Regulated Because it Promotes               Illegal Activity and Is Misleading               i. Promotes Illegal Activity               ii. Misleading Speech            b. Prongs Two, Three, and Four of Central               Hudson Are Met               i. Central Hudson Prong Two: Substantial                  Interest in Protecting Minors From Sexual                  Abuse               ii. Central Hudson Prong Three: The State                  Interest Is Directly Advanced by the                  Proposed Legislation               iii. Central Hudson Prong Four: The Solution                  Is Narrowly Tailored Because the Problem                  Is The Facilitator III. The Federal Government Should Pass Legislation to      Prevent Online Service Providers from Facilitating--and      Profiting from--the Commercial Sexual Exploitation of      Minors      A. Why Regulate Online Service Providers?      B. Why Federal Legislation Is Necessary      C. There Is No Conflict with CDA [section] 230 Conclusion 

INTRODUCTION

An estimated 100,000 to 300,000 American children are prostituted each year. (1) The voice of one such child:

      I'll tell you what we've done. We've spent many nights alone and    helpless. Probably never made it past eighth grade. We've been hit,    arrested by the system. Abused by our boyfriends. We've imagined    flying away from all the pain.        We're gaining self-worth back. We've written it all down to share    what hurts. Some of us are out, some of us remain in. Some of us    are in danger, all of us are scared. None of us know what makes us    so different, but we all know what did. Listen to our stories    because now we're breaking the silence. (2) 

The freedom of speech, a cornerstone of American democracy, is being twisted beyond its intent to prevent oppression and is providing a shield to those who oppress.

   Congress shall make no law respecting an establishment of religion,    or prohibiting the free exercise thereof; or abridging the freedom    of speech, or of the press; or the right of the people peaceably to    assemble, and to petition the Government for a redress of    grievances. … 

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