Commercial Speech, the CDA, Escort Advertising and the First Amendment

  Along with some practical observations.

 

by Reed Lee and J. D Obenberger

Copyright 2011-2012

 

Background

The 2002 prosecution of the Big Doggie escort advertising site in the Tampa area sputtered to its conclusion some years ago, but opened the door to law enforcement interest in the potential prosecution of online escort advertising sites under various laws dealing with prostitution. In recent years, both state attorneys general, county sheriffs, and local prosecutors have taken aim at both Craigslist and Backpage by filing suit in an attempt to shut down their erotic services classified ads, calling the ads obvious solicitations aimed at prostitution, and invoking a variety of legal theories in the process. Most notably, Tom Dart, the Cook County Sheriff, brought suit in Chicago to enjoin these ads on Craigslist as a public nuisance and failed because of Section 230 of the Communications Decency Act, which extends a wide immunity to websites from the application of state laws. We discuss this case elsewhere on this site.  On October 27 and 28, 2010, a task force of federal and state agents raided the corporate offices of the company which operated escort.com, the first full-blown federal raid involving criminal allegations against an escort advertising site. By the end of the case, an information was filed by the US Attorney in Philadelphia and the case was resolved by an agreement on November 1, 2011 that included a plea of guilty by a corporate defendant, hefty financial forfeitures and forfeiture of the domain, escort.com.

Constitutional Issues

It’s certainly true that at least some escorts engage in at least some perfectly lawful activities in exchange for the money that they receive from their customers, and some American jurisdictions specifically license this kind of escort.  It’s probably true that some escorts engage in at least some activities which are illegal because they are exchanged for money.  To the extent that an individual escort ad relates exclusive­ly to lawful activity, it will enjoy substantial protec­tion under the First Amendment as it is now understood.  So-called commercial speech is protected as such, subject to a sort of judicial “intermediate First Amendment scrutiny” which has grown much more speech-protective in recent years and which shows no signs of re­treating soon.  Indeed, some of the commercial speech cases even suggest that no “vice” analysis will lessen the constitutional protections afforded to truthful commercial speech about lawful transactions.[1]  The focus here will be on advertising for activi­ties which are illegal when done for compensation and that the particular ad proposes an unlawful commercial transaction - a proposition that a prosecutor will have to prove on a case-by-case factual basis. 

 At the very least, so-called “commercial speech” is expression which does no more than pro­pose a commercial transaction.[2]  Com­mercial speech is protected by the First Amend­ment.[3]  The government may suppress or regulate it only if:

 1)         the expression is misleading, or

 2)         the expression proposes an unlawful commercial transaction, or

 3)         the restriction is supported by a substantial governmental interest, which is

 4)         directly advanced by the challenged regulation itself, and

         5)         cannot be served as well by a less restrictive regulation.[4]

Advertising proposing an illegal transaction cannot satisfy this test at the threshold, however truthful it is: The commercial speech is not protected to the extent that it proposes an unlawful transaction. Truthful advertisements proposing a lawful transaction invite scrutiny of the statute which attempts to prohibit or regulate them under the factors listed in 3), 4), and 5), above.

 In real life, however, not often do the facts presents so stark a dichotomy. Enough ambiguity exists in much escort advertising to leave doubt as to whether frankly illegal or merely legal conduct, dressed with the purple prose hyperbole of erotic appeal, is proposed. (We are not writing of the less-than-clever employment of argot that fools no one and makes the transaction look more certainly illegal, such terms as “roses” or “kisses” for money or the use of terms describing nationalities in place of certain sexual practices. These terms are widely understood throughout the customers of the Skin Trade and most law enforcement agents can easily handle the testimony necessary to explain their meaning before a court.) It is wise however, to reflect, that people in general usually expect the worst from others, and that it will not take much erotic imagery to convince judges and jurors that directly sexual conduct is the subject matter of the advertising, and so a healthy degree of caution and precision is prudent for those who only aim to dress up the language describing a completely lawful but erotic massage, dance, or encounter. The language may be so enticing that it may convince law enforcement, prosecutors, judges, and juries that real sex is offered when the operator only means to tantalize.

Laws That Criminalize Advertising for Prostitution

 The fact that expression is constitutionally unprotected – because it proposes an illegal transaction - does not end the legal analysis.  Before someone may be held criminally responsible for such expression, some statute or other law must make the unprotected expression illegal as well.  Where prostitution is concerned, there is no shortage of such statutes, at least if advertising counts as “promotion” and the like. 

 On the federal level, the so-called federal “Travel Act,” for instance, prohibits interstate travel and also the use of “any facility in interstate or foreign commerce,”[5] in order to “promote, manage, establish, or carry on” (or facilitate any of the foregoing)”[6], among others, prostitution[7], so long as at least one act in furtherance is attempted or accomplished after the inter­state travel or communication[8]. 

 Whether or not the actual advertising involves travel or communication in interstate commerce, persuading, inducing, or enticing another to en­gage in interstate, foreign or territorial travel to engage in prostitution is also a separate federal felony[9], cognate to that proscribed by the Mann Act[10].  This statute – and indeed the current version of the Mann Act itself – is quite plainly worded to apply when it is the patron who travels even if the prostitute does not. 

 Beyond federal law, we have also looked into the state laws of California, Illinois, New York, and Nevada in order to assess the degree to which they prohibit the kind of advertising which is discussed here; anyone who is considering escort advertising should obtain guidance from an attorney before commencing operations.

Issues of Danger and Liability for Escort Advertising Sites

Because of its very nature, escort advertising, especially classfied advertising, presents special dangers - not only the criminal law dangers mentioned above, but the possibility that such advertsing may be used for harrassment or abuse of innocent victims. It therefore becomes espcially important to verify the authenticity of the submitting advertiser, the legal authorization/permission/release of the person depicted in any images (in many states, because this is a commercial use, the release must be in writing), and the ownership or license of the image. Section 2257's strictures should be employed as a best-practice even if the amount of skin or the conduct depicted in the images do not require its procedures.  These are sites where special care should be used in preparing both protocols and Terms of Service agreements applying to advertisers, subscribers, and surfers because they may reduce liability. The cautions concerning DMCA Policy and the designation and conspicuous publication of a DMCA Agent's required information are especially critical because of the great potential for copyright infringement in the submitted images.  Again, it would be foolhardy to operate such a site without good legal planning and a steady and regular connection to a trusted legal advisor. Other articles on this web site deal with the relationship of the Communications Decency Act (the CDA) to escort advertising.

 
 

Footnotes


[1] Liquor, beer, and legal prostitution advertising cases. For example, see 44 Liquormart, Inc. v. State of Rhode Island, 517 U.S. 484, 513-14 (1996)(plu­rality opinion); Id. at 530-31 (O’Connor, J., joined by Rehnquist, C.J. and by Souter and Breyer, JJ.)(government cannot interfere with price advertising in order to keep prices high and thereby drive down consumption); Rubin v. Coors Brewing Co., 514 U.S. 476, 482 n. 2 (1995)(Central Hudson test applies to regulation of commercial “speech that promotes socially harmful activi­ties”); Coyote Publishing, Inc. v. Miller, 598 F.3d 592 (9th Cir, 2010)(applying Central Hudson, apparently quite reluctantly and probably erroneously, to Nevada’s restrictions on advertising of lawful prostitution). 

[2] Virginia State Board of Pharmacy v. Virginia Citizens Con­sumer Council, Inc., 425 U.S. 748, 762 (1976).  cf. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980)(referring to “commercial speech” as “expression related solely to the economic interests of the speaker and its audience”); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496 (1982)(apparently considering “literature en­couraging illegal use of . . . drugs” to be commercial speech because of display proximity to drug paraphernalia on sale), since advertising does precisely that.

[3] Virginia Pharmacy at 762, over­ruling Val­en­tine v. Chrestensen, 316 U.S. 52 (1942).

[4] Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980).  (This test is often parsed somewhat differently and phrased in the contrapositive).

[5] 18 U.S.C. § 1952(a)

[6] Id. § 1952(a)(3)

[7] Id. § 1952 (b)(i)(1)

[8] Id. § 1952(a)(A).

[9] 18 U.S.C. § 2422(a),

[10] 18 U.S.C. § 2421


             
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This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net