August 8, 2013 | By Matt Zimmerman

NJ Court to Hear EFF Challenge in Shadow of AG Threat to CDA 230

A New Jersey federal district court judge on Friday will hear oral arguments in a challenge to an overbroad state law that, if upheld, would threaten to undermine bedrock legal protections for online speech. The legal challenge was brought by EFF on behalf of the Internet Archive, the San Francisco-based online library that regularly makes copies of the entire Internet, and separately by the law firm of Davis Wright Tremaine on behalf of classified ad site Backpage.com.

A temporary restraining order was granted on June 28, barring the new law from going into effect. Friday's hearing will be the first substantive hearing in which the court will hear arguments from both the plaintiffs and the New Jersey Attorney General's office. It also will be the first opportunity for a court to review such a challenge since a coalition of attorneys general petitioned Congress to gut the clear federal statute that prevents states from targeting service providers like the state is trying to do.

New Jersey law ignores CDA 230 protections

The New Jersey statute (section 12(b)(1) of P.L. 2013, c.51), which attempts to impose criminal penalties on not only sex traffickers who post online prostitution advertisements but also on service providers who carry or disseminate such advertisements, squarely conflicts with section 230 of the Communications Decency Act (CDA) of 1996. CDA 230 bars enforcement of state criminal laws that attempt to place criminal blame on providers for illegal user-generated content.

Over the past two decades, section 230 of the CDA has protected speech platforms from potentially crippling legal costs and liability while still allowing law enforcement to prosecute those who misuse those services. Moreover, section 230 ensures that service providers are taken out of the role of mandatory speech gatekeeper, a role that would inevitably lead to the over-censorship of speech as providers conservatively protect themselves from feared liability over controversial—though protected—speech authored by their users.

New Jersey's vague law flatly ignores CDA 230's protections. Instead, the law would broadly expose all manner of online communications providers—from individual website operators to hosting companies to ISPs—to criminal penalties for "directly or indirectly" "causing to be disseminated" commercial sex ads, whether the ads were "explicit or implicit." Running afoul of CDA 230 (and the First and Fourteenth Amendments due to its overbreadth and vagueness), EFF has asked that the law be struck down.

Courts struck down similar laws in two other states

New Jersey's law is, unfortunately, not the first of its kind. Courts in Washington and Tennessee have already struck down similar approaches in those states due to the same fatal flaws. Indeed, New Jersey's was based directly on the text of the Washington act. Despite being aware of the statute's shortcomings, the New Jersey legislature passed it anyway. At least one New Jersey Assemblyman has since expressed remorse, stating that he feared being cast as a lone "pro-human-trafficking" dissenting voice and that he "should have stuck by my principle and voted against it." The New Jersey bill was eventually passed unanimously, as were Washington's and Tennessee's.

The court's ruling on Friday's motions will likely inform a larger "debate" about CDA 230 itself. On July 24, expressing frustration that they could not target service providers directly for illegal trafficking behavior engaged in by their users, 49 state and territory attorneys general asked Congress to simply do away with section 230's protections altogether for not only state anti-trafficking laws but for all state criminal laws. The proposal is spectacularly misguided and would effectively leave Internet regulation in the hands of individual state law enforcement officers and thrust service providers into the role of policing their users' content for fear of state criminal liability. (New Jersey's attorney general signed onto the AG coalition letter that all but conceded that states were unable to target service providers as New Jersey has done.) Whether Congress will preserve CDA 230's protections or will acquiesce to the AGs' wishes remains to be seen.

Friday's public hearing, before District Court Judge Dennis Cavanaugh, is scheduled to take place at the federal courthouse in Newark, New Jersey, at 10:00 am.


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