Commercial Speech, the CDA, Escort Advertising and the First Amendment
Along with some practical observations.
by Reed Lee and J. D Obenberger
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.
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. 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.
5) cannot be served as well by a less restrictive regulation.
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.
Laws That Criminalize Advertising for Prostitution
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.
Liquor, beer, and legal prostitution advertising cases. For example,
see 44 Liquormart, Inc. v. State of Rhode Island,
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
interfere with price advertising in order to keep prices high and
down consumption); Rubin v. Coors Brewing Co., 514
U.S. 476, 482 n. 2
(1995)(Central Hudson test applies to regulation of
that promotes socially harmful activities”); Coyote
Publishing, Inc. v.
Miller, 598 F.3d 592 (9th Cir, 2010)(applying Central
apparently quite reluctantly and probably erroneously, to Nevada’s
on advertising of lawful prostitution).
 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.
 Virginia Pharmacy at 762, overruling Valentine v. Chrestensen, 316 U.S. 52 (1942).
 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).
 18 U.S.C. § 1952(a)
 Id. § 1952(a)(3)
 Id. § 1952 (b)(i)(1)
 Id. § 1952(a)(A).
 18 U.S.C. § 2422(a),
 18 U.S.C. § 2421
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 firstname.lastname@example.org