## Facts

- New Jersey enacted N.J. Stat. Ann. § 2C:13-10, criminalizing “advertising commercial sexual abuse of a minor,” including knowingly publishing or causing publication of an advertisement for a commercial sex act in New Jersey that includes a depiction of a minor.
- The statute imposed felony penalties, including imprisonment and a minimum $25,000 fine.
- Backpage.com operated an online classified advertising website that hosted third-party postings, including adult-oriented ads; it did not create users’ ad content but structured categories and charged for certain postings.
- Backpage alleged it barred child sexual exploitation in its terms and attempted to screen for prohibited content, but its platform had hosted many prostitution-related ads, including some involving minors.
- Plaintiffs asserted the statute would effectively force online intermediaries to investigate and verify ages in third-party ads under threat of criminal liability.
- Backpage sued state law-enforcement officials under 42 U.S.C. § 1983 for declaratory and injunctive relief; Internet Archive intervened as a plaintiff.
- Plaintiffs sought a preliminary injunction before the statute’s effective date; a temporary restraining order issued and the court held a preliminary-injunction hearing.

## Issues

1. Whether N.J. Stat. Ann. § 2C:13-10 is likely preempted by 47 U.S.C. § 230 because it treats interactive computer service providers as publishers of third-party content.
2. Whether the statute likely violates the First Amendment as a content-based and overbroad restriction that chills protected speech and is not narrowly tailored.
3. Whether the statute is likely unconstitutionally vague under the Fourteenth Amendment due to imprecise terms and uncertain application to intermediaries.
4. Whether the statute plausibly violates the Commerce Clause by burdening interstate online services and regulating beyond New Jersey’s borders.
5. Whether plaintiffs satisfied the preliminary-injunction factors (likelihood of success, irreparable harm, balance of equities, and public interest).

## Decision

- The court granted the motion for a preliminary injunction and enjoined enforcement of N.J. Stat. Ann. § 2C:13-10.
- The court found plaintiffs likely to succeed on the merits, primarily on CDA § 230 preemption, and identified serious First Amendment and due process vagueness problems.
- The court found irreparable harm because threatened enforcement would chill protected speech and expose plaintiffs to imminent criminal liability.
- The court held the balance of equities and public interest favored preventing enforcement of a law likely inconsistent with federal law and constitutional limits.

## Legal Principles

- Under 47 U.S.C. § 230(c)(1), an interactive computer service provider may not be treated as the publisher or speaker of information provided by another information content provider.
- Section 230(e)(3) expressly preempts inconsistent state or local laws; the absence of a state-criminal-law carveout supported likely preemption where a state statute imposes liability based on third-party content.
- A law that regulates speech based on its subject matter is content-based and generally subject to strict scrutiny; even when the government interest is compelling, the regulation must be narrowly tailored and avoid chilling protected expression.
- A criminal statute may be void for vagueness if it fails to give fair notice of prohibited conduct or invites arbitrary enforcement, particularly where broad terms expand intermediary exposure.
- In preliminary-injunction analysis, likely loss of First Amendment freedoms constitutes irreparable injury, and courts consider federal supremacy and constitutional compliance in weighing equities and the public interest.

## Conclusion

The court enjoined enforcement of New Jersey’s criminal advertising statute because plaintiffs showed a strong likelihood that imposing felony liability on online intermediaries for third-party ads conflicts with CDA § 230 and because the statute raised substantial First Amendment and vagueness concerns, with additional interstate-commerce implications.


Backpage.com, LLC v. Hoffman, No. 13-3952, 2013 WL 4502097 (D.N.J. Aug. 20, 2013)