State AG Threats To Craigslist Implicate Free Speech

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.

Really.

Comments

This smacks of Boss Hog from the Dukes of Hazard. Does This Southern Gentleman feel offended. Perhaps there should be a duel to rectify this injustice to their provincial sense of well being. My word sir.

Sec. 230 specifically exempts criminal acts under both federal and state laws. Prostitution is a criminal act, as is aiding and abetting that crime.

I keep hearing people use the term "Free Speech" when speaking of this dilemma. The First Amendment doesn't protect all speech. There are many, many restrictions on speech. In fact, just like Sec. 230, free speech takes a back seat to codified criminal acts. This is the reason why you cannot walk into a crowed movie theater and yell, "Fire!" and expect the First Amendment to bail you out. I won't. It's illegal and freedom of speech will not lie as a defense.

An overwhelming majority of these ads in Craigslist's erotic services section are clearly solicitations for prostitution, a "criminal" act NOT a "civil" wrong. The SC AG is not threating to file a civil suit against Craigslist and its management, where Sec. 230 would protect them, but rather the AG is threatening to charge them with aiding and abetting the underlying crime of prostitution where Craigslist finds itself firmly behind the wheel of the getaway car.

Section 230 provides:

"(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute."

So, federal criminal law of a certain kind is exempt. State law is exempt only insofar as it does not conflict with Section 230.

Some more food for thought: on your aiding and abetting theory, why wouldn't an email or phone provider be guilty of aiding and abetting illegal conduct carried out through their service?

It has been stated as irrefutable that newpaper classifieds are responsible for nearly 10 times more violent crimes and vice related crimes than Craigslist. Add to that the fact that, as stated earlier, craigslist provides an audit trail to track down those breaking the law. And finally, that craigslist had already complied with the requests of the AG BEFORE the threatening letter was submitted. I have to wonder, What was this AG thinking!!??!?

If he's so concerned about the illegal nature of these ads and the potential for harm to the society, why not go after the larger fish first? The printed newspapers and their classified/personal ads. If this isn't about really helping to stop these crimes, then what is it about? Seriously!!

Help me out here. What am I missing?

We have a hiearchy of laws in this country.

the TOP of the food chain. the SUPREME law of this land is the constitution of the united states of america.

all laws are subordinate to the constitution. PERIOD. If this were not so the constitution really would be just a god damned piece of paper.

The 1st amendment makes it clear you are incorrect. SHALL MAKE NO LAW.

I am not sure what part of that is unclear. ALL SPEECH is protected speech. ANY law or rule or thought to the contrary is incorrect wrong and flawed.

Enforced does not equal right. The patriot act is NOT lawful code in this country. It was null and void BY LAW the moment bush signed it. But its enforced. In fact you could even say signing it was an act of treason but thats another discussion.

Your problem and the problem law makers INTENTIONALLY confuse in order to tear away at the 1st amendment's armor is that of mis application.

You saw child porn for example is unlawful. you are incorrect. taking sexual pictures of a child is unlawful. Having said pictures means THEY WERE TAKEN and a child was endangered.

its not the SPEECH that is illegal its the ACT on the child that is illegal. That is at least how the laws are SUPPOSED to be worded.

Its not illegal to yell fire in a theater. its illegal to cause a panic. HOW you caused that panic is NOT RELEVANT. they are SEPARATE acts.

One is speech (protected)
the other is causing a panic (not protected)

This distinction may seem small but its such a critical distinction it defines our nation.

Law makers keep trying to repeal the 1st amendment because it makes there jobs harder. Because it reduces there power. Because it makes it harder to harass people with silly laws. It reduces there CONTROL.

This is partially why so far every case of yelling fire in a theatre has been thrown out. Its illegal.

What part of shall make no law is unclear here? The constitution is an interesting document because it was written in SIMPLE language. you need almost no education to be able to pick up read and understand what the constitution says.

Whenever I hear people say "interpret" the constitution I just want to slap them up side the head proby style.

There is no "interpretation" the wording is so disgustingly simple that anyone able to read can understand it.

SHALL MAKE NO LAW
SHALL NOT INFRINGE

this kind of wording has no room for interpretation. Its crystal clear.

YOU WILL NOT DO THIS. PERIOD. End of Discussion.

thats what those things mean.

What is so unclear about this?

the 1st amendment is abundantly clear.

100% of all speech is protected. PERIOD.

If the codified criminal act includes SPEECH the code is null and void and illegal. Period.

What part of SHALL MAKE NO LAW and SUPREME LAW OF THIS LAND is unclear here?

People worry that if there is NO limit there is no order but ANY LIMIT automatically means NO RIGHTS.

The MOMENT you permit any exception to SHALL MAKE NO LAW. you permit ALL EXCEPTIONS.

How about we make a LIST of what is acceptable or not?

Do you not already see the problem? WHO gets to decide what is on that list? You have just taken a crystal clear simple law and make it into a USELESS LAW since its at the mercy of the "list maker" and trust me YOU will not be privy to said list making decisions.

Free Speech is ABSOLUTE and 100% protected 100% of the time.

but that also means responsibility comes with it.

If you tell fire in a theater you will be charged for causing a panic (if the law is written properly)

if a perp came to me as judge and cried free speech. I would simply reply I don't care what you spoke in the theater. You are not being charged for that.

You are being charged for causing a panic. HOW you caused that panic is irrelevant.

The whole aiding and abetting claim is bogus. If the web site is aiding and abetting, then so is the ISP, the computer manufacturer and the school that taught the poster to read and write. Why not arrest the mayor of every town with streetwalkers because they are using the city street and he/she is aiding and abetting prostitution by by providing streets.

In my opinion, these aggressive AG's need to see their comeuppance... someone has to fight back and make their life an embarrassment for using the power of the state to promote their unconstitutional agendas.

cheers,

tom

The erotic services section was created because prostitutes were already advertising on the personals section. The whole point was the quarantine this type of advertisement to portions of the website that would not be accidentally accessed by someone looking to avoid this kind of content.

Now hookers will once again spam much less objectionable categories and no longer be required to do much verifying at all.

Thanks for nothing.♠

Section 230 of the CDA was written to protect lazy Internet Service Providers from having to enforce their terms of service even when matters are brought to their attention (such that they are made aware of specific illegal activities).

The Craigslist terms of service (http://www.craigslist.org/about/terms.of.use), for example, forbid illegal promotions (including the advertisement of prostitution services -- http://www.craigslist.org/about/prohibited.items).

It's generally understood that prostitute don't advertise their services as "prostitution" but rather as something else -- and yet both law enforcement and the purchasers of those services understand the metaphorical language well enough for the transactions to occur.

The CDA doesn't actually protect any service providers who knowingly allow illegal activity to occur on their services. Craigslist cannot argue ignorance given the extreme amount of public attention that has been directed at its prostitution advertising.

Hence, this is hardly a free speech moment for Craigslist.

As a service provider I have enjoyed protection under CDA but as someone who has had to deal with illegal actions I have been frustrated more than once by service providers who have refused to enforce their terms of service because they felt the CDA removed that obligation from them.

Terms of service, in some states, constitute a binding contract, and service providers should respect the law and be held to the same standard as other contract issuers.

Section 230 of the CDA was always bogus anyway. Craigslist is not a telephone company and its services don't in any way act like a telephone service. The forum operators (AOL Prodigy in particular) that drove the law into existence did not want to enforce their terms of service against defamatory users and other violators, so they asked Congress to grant them immunity as a cost-saving measure.

Congress, having no understanding of these matters, granted the immunity for no good reason other than that the public was blind-sided and its interests were subverted in favor of the interests of a handful of corporations.

The CDA has certainly caused more harm than good despite the fact that this section has survived numerous challenges.

Nonetheless, no reasonable court should be looking at this as a "free speech" issue. Craigslist is effectively telling the world that they want to continue KNOWINGLY promote and facilitate illegal activities and NOT enforce their terms of service.

"“No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”"

This is a direct quote...of law. I don't see how this leaves any interpretation for discussion. When applying this law, how could Craigslist be accused of anything?

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