A federal judge recently determined that a particular state’s online sex trafficking law was preempted by federal law and possibly unconstitutional.
The state law in question established penalties for the knowing publication or dissemination of any commercial sex advertisement involving — or even just depicting — a minor. A website that was perhaps impacted by the law, Backpage.com, filed a challenge against the law in federal court. The plaintiff claimed that the law might violate its constitutional right to free speech.
The judge agreed with the plaintiff’s argument, observing that federal legislation passed in the 1990s immunizes, to some extent, websites from material on their site that was contributed by third parties. To the extent the state’s law conflicts or addresses the same issue, federal law preempts it.
On the preemption issue, the judge invalidated the state law. However, the judge also questioned whether the law might also violate First Amendment rights.
This post serves as a good reminder to anyone facing sex crime charges in Florida that a criminal defendant is entitled to procedural and constitutional protections under the American criminal justice system. Aggressive prosecutors might attempt to circumvent those protections, perhaps to satisfy constituent concerns. Yet public opinion cannot be a substitute for established criminal dense protocols and rights.
Procedural issues might also arise in the context of sting operations targeting Internet sex crimes. Alleged sex offenders might have believed they were chatting or texting with someone other than an undercover agent. An attorney that specializes in this area of law might be well versed in defenses like entrapment or procedurally tainted evidence.
Source: usatoday.com, “Judge blocks N.J. state law on online sex ads,” David Porter, Aug. 9, 2013