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
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. …