This post is co-authored by Ryan Calo and CIS summer intern Joshua Auriemma.
On Saturday Night Live’s classic segment “Really?!? With Seth & Amy,” two incredulous news anchors blast a ridiculous current event—for instance, the fact that AIG held a lavish retreat six days after receiving 85 billion dollars in federal bailout money to celebrate the company’s top earners. “Really?” Amy Poehler asks. “What does it take to be a top earner at AIG right now? Did you sell your office furniture on Craigslist?”
Some lawyers following the ultimately successful pressure placed by various state attorneys general on Craigslist to take down its erotic services section have experienced a “Really?!?” moment of their own. A particularly unsubtle letter from South Carolina AG Henry McMaster basically threatened Craigslist with "criminal investigation and prosecution" of its management personnel if the popular classifieds website didn’t remove all offending material by 5:00PM, Friday, May 15, 2009.
Really? A state attorney general can send a letter to Craigslist threatening to initiate criminal charges against its management unless it shuts down a predominantly legal forum on the basis that the AG dislikes the kind of stuff that gets posted there?
As an initial matter, it is not clear what legal hook an AG would have. Section 230 of the Communications Decency Act would appear to immunize Craigslist for the content posted on the site by its users. See 47 U.S.C. § 230(c)(1) (“No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”). See also id. at §230(e)(3) (“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”). Our best guess is that Craigslist ultimately gave in to state AG demands not out of fear of losing a criminal trial, but due to the sheer prospect of facing investigations and lawsuits in multiple states, generating bad press and costing potentially thousands of dollars in defense fees regardless of outcome.
What is clear, however, is that threats of criminal action motivated by disapproval of lawful speech constitute state action for First Amendment purposes. In the 2007 case of Porter v. Bowen, for instance, the Ninth Circuit applied intermediate scrutiny to find that the California’s Secretary of State violated the First Amendment when he threatened to prosecute the owners of a website devoted to vote-swapping. 496 F.3d 1009 (9th Cir. 2007). Interestingly, the plaintiff in Porter was a distinct website, not even affiliated with the vote-swapping website that actually received the legal threat. Id. See also Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1295 (9th Cir. 1987) (deputy attorney’s threat to prosecute a telephone company unless they dropped plaintiff’s adult phone service converted activity to state action).
No state AG is going to voice disapproval of erotic content per se. Thus, McMaster’s open letter refers to the harmful activities that Craiglist’s erotic services section allegedly facilitates. But even in this public document, McMaster cannot resist multiple references to “the unrestricted manner in which graphic pornographic pictures are posted and displayed by users on the craigslist site.”
Recall that attempts to restrict access to online pornography by adults on the basis of its alleged availability to children have repeatedly been struck down as unconstitutional under the First Amendment. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997) (“It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials . . . [b]ut that interest does not justify an unnecessarily broad suppression of speech addressed to adults.”).
The issue is not, in the end, even about safety. Shutting down a section of Craigslist will not stop sex crimes. If anything, having solicitations appear online and in a central location creates an additional tool for law enforcement concerned about prostitution and exploitation by creating a digital trail. Law enforcement apprehended the alleged “Craigslist Killer,” who set off the whole controversy to begin with, in part by tracing the IP address of someone who emailed the victim. No such trail exists on the street corner or in printed classifieds.
Simply put, we need to let go of the puritanical urge to force change on mainstream Internet services because their content offends someone. State governments are accomplishing through threat what they never could through regulation. This represents a blow to our collective liberty.