The House Judiciary Committee could be voting on a bill soon which could put you directly in the crosshairs for even criminal prosecution based on the advertisements you accept (both online and in print). Now is a good time to let your voice be heard – contact your Congressman to let him or her know that HR 4225 (also known as the “Save Act of 2014”)
raises serious legal and constitutional concerns; if you’ve never been one for advocacy, it’s a perfect time to start.
HR 4225 creates criminal penalties for anyone who knowingly benefits financially from
receives anything of value from,
or distributes advertising
that offers a commercial sex act in a manner prohibited by Section 1591 (which, in short, is the federal law prohibiting sex trafficking, specifically sex acts which occur through force or coercion or which involved a minor.
Our concern is that AAN members (or anyone else) who take ads from companies or individuals that engage in sex trafficking or child sex trade could be prosecuted under HR 4225 if passed – even if you don’t know that the person placing the ad was engaged in those illegal activities. The penalties contemplated by this new statue include criminal fines and jail time of up to 5 years.
This creates a situation where you are effectively liable for the bad acts of any of your advertisers, the most obvious and likely situation being the one where you accept advertising from adult services that appear to be purely legal, but then that service is found to be engaged in illegal sex trafficking. In other words, a legitimate seeming escort service places an advertisement, someone coerced into prostitution meets a client through that advertisement, something bad happens and the prosecutors feel they can also bring charges against the paper that carried the advertisement.
AAN Legal Counsel Kevin Goldberg has reviewed the bill and believes it is clearly unconstitutional for several reasons. He's working with other associations and companies to defeat this bill as soon as possible. But you are more likely to be able to get your Representative’s ear. Here are a few of the things you can point out to better explain to your Representative should vote against HR 4225 in Committee (if he or she is a Member of the House Judiciary Committee) or, if it passes that Committee, when it comes to the House floor (which we’re also hearing could occur in the first week of May):
- The law creates an almost impossible responsibility on a newspaper or website who accepts advertising (which is almost everyone). It seems to only require that a publication know that it is receiving benefit or value from an advertisement is knowingly distributing advertisements in order to get in trouble. Liability will be imposed, however, even if the publication has absolutely no knowledge that the advertisements in question offer illegal services in the area of sex trafficking. In fact, it’s not really clear what the publication must know at all – the plain language of HR 4225 seems to require a publication to “get into the head” of all of its advertisers to determine whether those advertisers had an intention to engage in sex trafficking. Or, to put it more simply, HR 4225 simply criminalizes the act of distributing another’s speech, which has always been protected by the First Amendment.
- This will have a significant chilling effect on your right to free speech. While unpopular, advertisements for adult services are entirely legal. But publications will likely stop taking any of these advertisements; adults over the age of 21 who have a legal right to learn about these services will be deprived of that right.
- This will also create a significant impact on those other than newspapers and, in fact, could seriously threaten the entire Internet. Anyone who hosts user-generated content could be held under the current language of
HR 4225. That not only includes those who accept adult advertisements but also widely used sites like Facebook, Google, etc. where adult services might be made available.
- These are not just our views. Similar legislation passed in Washington State in 2012 was struck down in the case of Backpage v. McKenna. If Congress passes HR 4225 in its present form, it likely will be engaging in an exercise in futility. It should refrain from rushing HR 4225 to a vote and instead consider more lawful ways to attack the problem of illegal sex trafficking.
- Finally, the bill might actually do more harm than good. Those carrying advertisements for adult services might be afraid to reach out to law enforcement if it suspects an advertiser might be engaged in sex trafficking, for fear of incurring criminal penalties itself.
Again, your voice could be crucial. You should consider writing about this in your publication or, better yet, calling your Representative to tell him or her directly to vote “NO” on HR 4225. And again, because the House Judiciary Committee could vote on this bill as early as next week, you should consider reaching out to your Representative immediately if he or she is on that committee. A list of Committee members can be found here.
Please do not hesitate to contact Kevin Goldberg at 703-812-0462 or goldberg[at]fhhlaw.com if you have any questions or need more information about HR 4225, the SAVE Act.