First Amendment Theory and Practice, Prostitution and Backpage – MTSU Professor Larry Burriss has More

Aug 07, 2023 at 02:29 pm by WGNS News


First Amendment theory and practice, prostitution and Backpage, with more, here is MTSU Professor Larry Burriss...

Commentary – Verbatim: Last week James Larkin, a name you probably don’t recognize, committed suicide, only a week before his trial for running prostitution ads on his web site Backpage.


Interestingly different stories about the suicide said the now-seized advertising site used terms “prostitution,” “sex trafficking,” and “sex workers” which are, in fact, all different, and in some cases, perfectly legal.

Some stories described Larkin as a free speech advocate, some said his publication promoted a victimless crime, and some noted the FBI had recognized him for his efforts in stopping child sex trafficking.

So once again we come up with a conflict between First Amendment theory and practice; what the First Amendment says and what the First Amendment means.

The First Amendment, of course, provides almost absolute protection for all kinds of speech.

“Almost absolute.” You cannot lie on the witness stand and then claim First Amendment protection. You cannot use someone else’s copyrighted work and then claim First Amendment protection. You cannot engage in fraud to get money and then claim First Amendment protection.

In the Backpage case, the issue is advertising, which actually has significantly fewer First Amendment protections than other kinds of communication.

You cannot, for example, make false medical claims in advertising, you cannot run an ad offering to pay someone to “whack” your obnoxious neighbor and then claim First Amendment protection, you cannot run ads the Federal Trade Commission considers false, deceptive or unfair. In addition, the Centers for Disease Control, the Securities and Exchange Commission and the Food and Drug Administration, plus many other agencies, regulate what you can or cannot say in ads, no matter what media form you are using.

This was precisely the trial issue Larkin was facing in his upcoming trial.

So if, in a particular jurisdiction some kinds of sex work is illegal, then you probably can’t run an ad for those particular services, since running ads for illegal activities is not protected.

In Nevada, where prostitution is legal in a few counties, advertising is also, in limited forms, allowed.

Too many times too many people see mass communication as an isolated part of society, easily fixable if any problems arise. But as the Backpage case shows, changes in one part often have unintended consequences involving law, psychology and in some cases, life itself. - I’m Larry Burriss.


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