A federal judge in the western district of Washington has issued a ruling that may spell trouble for operators of websites that advertise, promote, or review escort services.
Ruling in the matter of First Global Communications Inc. vs. Jackson Bond, et al, U.S. District Judge Marsha J. Pechman indicated websites that provide information about prostitution services probably violate the law in most U.S. states.
First Global Communications, which operates a website under the trademarked name “World Sex Guide,” sued Jackson Bond and others saying the defendants infringed upon the trademark, misappropriated the website’s content, and diverted traffic. First Global sought injunctive relief.
Pechman denied the injunction, stating that “Plaintiff’s ‘World Sex Guide’ website provides ‘user reviews’ and other information about prostitution services, including information about such services for locations where prostitution is illegal. Under these circumstances, Plaintiff does not come before the Court with clean hands and the Court declines to exercise its equitable authority to provide the relief requested by Plaintiff.”
In other words, according to an attorney for the defense in the case, because the underlying basis for the use of the trademark was activity that could be considered criminal, First Global had no legal standing to sue its opponent.
Although the case itself might have interested only those directly involved, the judge’s ruling raises a red flag for adult webmasters, says John W. Dozier Jr. of Dozier Internet Law PC in Glen Allen, Va. Dozier represented the defendants.
“The significant thing for the adult industry is that websites that are referrals for escort services have got a problem,” Dozier says.
He likens the case to a buyer of black-market drugs suing a drug dealer for breach of contract because the dealer didn’t deliver the merchandise for which the buyer paid. He also says it’s likely the ruling will lead to “an elevated significant risk for criminal prosecution of pandering.
“Now that a federal district court has rendered a decision [that specifically accuses escort websites of operating outside the law], a proactive judge could bring up the matter to the assistant U.S. attorney in her district and ask ‘Have you looked at this?’” Dozier notes. From there things are liable to mushroom as federal prosecutors discuss the matter among themselves.
Significantly, he says, since both sides in the lawsuit were running the same sort of websites, neither side brought up the issue of the website subject matter’s legality at trial. Instead, the judge seized upon the issue of potential criminality on her own.
At the heart of the matter, Dozier says, is the question “Where do you draw the line between aiding and abetting criminal activity and commercial free speech? Where do advertisers cross the line between being protected by our constitution and engaging in criminal activities?”
Apparently, according the Pechman, the line is well short of escort websites. Other cases in other courts have considered similar issues for businesses like online pharmacies and virtual casinos, Dozier says, and those cases have ended similarly.
“There are test cases occurring all over the place with strong analogies,” Dozier says.
Prostitution is illegal in 49 U.S. states; the sole exception is Nevada, in which prostitution is legal on a limited basis in jurisdictions where local voters have approved the operation of brothels.
Dozier says the plaintiffs in First Global Communications Inc. vs. Jackson Bond, et al, have appealed Pechman’s ruling to the 9th Circuit Court of Appeals on an expedited basis, but “I suspect the 9th Circuit is going to affirm the lower court’s decision.” Because of the way Pechman worded her ruling, an affirmation by the 9th Circuit effectively would place the operation of escort sites outside the bounds of law nationwide.
“This could arguably be the law in 49 of the 50 states,” Dozier says.
