Grandstanding Against Craigslist and Threatening Free Speech to Boot

Over the last few weeks, numerous state Attorneys General (and the Cook County Sheriff) have been tossing around threats against Craigslist, the online classified ad forum. The AGs were claiming that Craigslist is responsible for “erotic services” ads placed by Craigslist users. The AGs were demanding that Craigslist shut down parts of its service and/or censor postings made by its users. At least one AG – in South Carolina – said that he will bring criminal charges against Craigslist if it fails to eliminate any content to which that AG objects. These threatened charges both violate the U.S. Constitution and directly conflict with federal law. Federal law is crystal clear that Craigslist has no liability under state law for content posted by users. If a prostitute advertises illegal services on Craigslist and then commits a crime, the prostitute may be guilty, but Craigslist is not.

In 1996, Congress passed a law – known as “Section 230″ – for the very reason that it wanted to leave sites like Craigslist free to adopt remedial measures against unsavory content – as Craigslist has done – without fear of becoming liable as the publisher of the content posted by users. Even though the site is clearly protected from liability by Section 230, a couple of days ago Craigslist decided to voluntarily restructure its “adult” ad categories. For the specific category of “adult” services, Craigslist will screen the ad copy and remove ads that plainly suggest an illegal transaction like prostitution. This new screening will certainly reduce the most blatant “erotic” ads on the site, and Craigslist should be applauded for deciding to take these steps. But, realistically, there is no way that the site will be able to catch all ads placed by possible prostitutes. That is because – whether the AGs like it or not – some “adult services” (like birthday party “strippers”) are completely legal, and it is lawful to advertise those services on Craigslist. And prostitutes will certainly write their “ad copy” to blur the exact “services” they are offering.

But if Craigslist implements the announced changes, it will be making a good faith effort to respond to the AGs‘ concerns, especially given that it has no legal obligation to make any effort in this regard. Section 230 protects all of us, and is absolutely vital to enabling free speech on the Internet. Section 230 is more important than the U.S. Constitution for protecting free speech online. The First Amendment is vital to protect against government interference with online speech. But Section 230 is what makes private companies comfortable enough to allow us to post our speech online in the first place. Simply put, if a website like Youtube could be prosecuted or sued (for defamation or whatever) based on the contents of the millions and millions of videos that are posted every week, that site could not stay in business. Likewise for Craigslist, its users post about 40 million classified ads every month. It would be a physical impossibility for the Craigslist staff of fewer than 30 people to carefully review all of those postings to be sure that none of those postings violate the law of any of the fifty states. If Section 230 did not protect Craigslist from liability for those 40 million ads each month, the site simply could not exist. The Craigslist announcement appears to have mollified most AGs, who have generally said that they will “wait and see” what Craigslist does. But one AG – Henry McMaster in South Carolina – has said that this is not enough. McMaster has demanded that all sexual postings aimed at South Carolina be removed from Craigslist. According to The State newspaper:

McMaster said Wednesday that [Craiglist's actions] didn’t go far enough. He earlier told The State that if Craigslist CEO Jim Buckmaster and other company officials didn’t comply with today’s deadline, he would seek to charge them under state prostitution or obscenity laws.

McMaster is flatly wrong. As much as McMaster finds sexual content distasteful, much of it is lawful, and it is lawful and protected for Craigslist to carry such postings. I am hopeful that South Carolina authorities, and any other law enforcement officials, take a close look at the law before making a chilling, and unconstitutional, mistake.

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