Backpage.com et al v. McKenna et al
Filing
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ORDER ENJOINING ENFORCEMENT OF WASHINGTON SENATE BILL 6251 by Judge Ricardo S Martinez. (RS)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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BACKPAGE.COM, LLC,
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Plaintiff,
and
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THE INTERNET ARCHIVE,
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Plaintiff-Intervenor,
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v.
ROB MCKENNA, Attorney General of the
State of Washington, et al.
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Defendants, in their
official capacities.
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No. 2:12-cv-000954-RSM
ORDER ENJOINING
ENFORCEMENT OF
WASHINGTON SENATE BILL
6251
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This matter came before the Court on the Motion for Preliminary Injunction filed by
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Plaintiff Backpage.com, LLC (Dkt. #2) and the Motion Joining in the Motion for a
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Preliminary Injunction filed by Plaintiff-Intervenor, the Internet Archive (Dkt. #34).
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Having considered the Motions, materials filed in support of and opposition to the Motions,
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and the argument of counsel, the Court finds, concludes and orders as follows:
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Davis Wright Tremaine LLP
PRELIMINARY INJUNCTION — 1
DWT 20093680v1 3710078-000055
L AW O FFICE S
Suite 22001201 Third AvenueSeattle, WA 98101-3045
206.622.3150 main · 206.757.7700 fax
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1.
FINDINGS OF FACT
Washington Senate Bill 6251 (“SB 6251”) would have taken effect June 7,
2012 unless enjoined by this Court.
2.
On June 5, 2012, the Court entered a Temporary Restraining Order (“TRO”),
enjoining enforcement of SB 6251 for a period of fourteen days (Dkt. #7). The parties
thereafter stipulated to a continuance of the hearing on the Preliminary Injunction Motion
and to an extension of the TRO (Dkt. #17).
3.
The Court heard oral argument from the parties on July 20, 2012, and issued
an Order Granting Plaintiffs’ Motions for Preliminary Injunction on July 27, 2012 (Dkt.
#69). That Order directed the parties to submit a joint proposed order preliminarily
enjoining enforcement of SB 6251 within ten days.
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Counsel for the Plaintiffs and counsel for Defendants (the Attorney General
and the King County Prosecutor, which additionally represents 36 of the other county
prosecutor Defendants), submitted this joint Proposed Order on August 6, 2012.
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II.
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5.
CONCLUSIONS OF LAW
Plaintiffs have standing as they can show that there is a credible threat that
SB 6251 will be enforced against them.
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Third-party standing is also appropriate in this case because, if the statute
were to take effect, it may cause others to refrain from constitutionally protected speech or
expression.
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Plaintiffs have shown a likelihood of success on the merits of their claims,
pursuant to 27 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, as set
forth more fully below.
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Plaintiffs have shown a likelihood of success on their claim that SB 6251 is
preempted by section 230 of the Communications Decency Act, 47 U.S.C. § 230.
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Davis Wright Tremaine LLP
PRELIMINARY INJUNCTION — 2
DWT 20093680v1 3710078-000055
L AW O FFICE S
Suite 22001201 Third AvenueSeattle, WA 98101-3045
206.622.3150 main · 206.757.7700 fax
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9.
Plaintiffs have shown a likelihood of success on the merits of their claim that
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SB 6251 violates the First and Fourteenth Amendments to the United States Constitution
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because it lacks an appropriate element of scienter to avoid chilling protected speech.
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10.
Plaintiffs have shown a likelihood of success on the merits of their claim that
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SB 6251 violates the First and Fourteenth Amendments because the law is
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unconstitutionally vague.
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11.
Plaintiffs have shown a likelihood of success on the merits of their claim that
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SB 6251 violates the First and Fourteenth Amendments because the law is overbroad and
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not narrowly tailored to the State’s asserted governmental interest.
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12.
Plaintiffs have shown a likelihood of success on the merits of their claim that
SB 6251 violates the dormant Commerce Clause, U.S. Const., Art. 1, § 8.
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Because SB 6251 will result in the immediate loss of First Amendment
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rights, this Court may presume that irreparable harm will result. Plaintiffs have also shown
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that they, other online service providers, and the public generally will suffer irreparable
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harm if SB 6251 goes into effect.
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14.
The balance of equities tips in Plaintiffs’ favor.
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15.
An injunction is in the public interest.
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THEREFORE, the Court ORDERS as follows:
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(A)
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Defendants are immediately ENJOINED from taking any actions to enforce
SB 6251 or pursue prosecution under the law in any way;
(B)
This Preliminary Injunction shall take effect immediately and remain in
effect until the conclusion of this lawsuit or other direction of the Court.
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SO ORDERED this 25 day of September 2012.
A
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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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Davis Wright Tremaine LLP
PRELIMINARY INJUNCTION — 3
DWT 20093680v1 3710078-000055
L AW O FFICE S
Suite 22001201 Third AvenueSeattle, WA 98101-3045
206.622.3150 main · 206.757.7700 fax
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Presented by:
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DAVIS WRIGHT TREMAINE LLP
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s/ James C. Grant
James C. Grant, WSBA No. 14358
Ambika K. Doran, WSBA No. 38237
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Of Counsel
s/ Elizabeth L. McDougall
Elizabeth L. McDougall, WSBA No. 27026
Village Voice Media Holdings, LLC
Attorneys for Plaintiff Backpage.com, LLC
ELECTRONIC FRONTIER FOUNDATION
s/ Matthew Zimmerman
Matthew Zimmerman (admitted pro hac vice)
FOCAL PLLC
/s Venkat Balasubramani
Venkat Balasubramani, WSBA No. 28269
Attorneys for Plaintiff-Intervenor the Internet Archive
ROBERT M. MCKENNA
Attorney General
s/ Lana Weinmann
Lana Weinmann, WSBA No. 21393
Senior Assistant Attorney General
Attorney for Attorney General Rob McKenna
DANIEL T. SATTERBERG
King County Prosecuting Attorney
/s David Eldred
David Eldred, WSBA No. 26125
Senior Deputy Prosecuting Attorney
Attorneys for Defendants
s/ Amy Eiden
Amy Eiden, WSBA No. 35105
Senior Deputy Prosecuting Attorney
Attorneys for Defendants
Davis Wright Tremaine LLP
PRELIMINARY INJUNCTION — 4
DWT 20093680v1 3710078-000055
L AW O FFICE S
Suite 22001201 Third AvenueSeattle, WA 98101-3045
206.622.3150 main · 206.757.7700 fax
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