Craigslist vs. South Carolina's Attorney General

Craigslist, under threat from the Attorney General of South Carolina, has decided to proac­tively defend itself in court:

craigslist has filed suit against SC AG Henry McMaster in fed­eral court in South Carolina, seek­ing declara­tory relief and a restrain­ing order with respect to crim­i­nal charges he has repeat­edly threat­ened against craigslist and its executives.

This comes after Craigslist acted to remove its “erotic ser­vices” cat­e­gory after com­plaints that it facil­i­tated pros­ti­tu­tion, and is in reac­tion to an “ulti­ma­tum” from the Attorney General of South Carolina, Henry McMaster:

Two weeks ago Mr McMaster pre­sented craigslist with an ulti­ma­tum, “to remove the por­tions of the Internet site ded­i­cated to South Carolina and its munic­i­pal regions which con­tain cat­e­gories for and func­tions allow­ing for the solic­i­ta­tion of pros­ti­tu­tion and the dis­sem­i­na­tion and post­ing of graphic porno­graphic mate­r­ial within ten (10) days.”

“If those South Carolina por­tions of the site are not removed,” McMaster said, “the man­age­ment of craigslist may be sub­ject to crim­i­nal inves­ti­ga­tion and prosecution.”

Rather than wait for McMaster, Craigslist filed suit seek­ing to have its legal sta­tus affirmed by a court (declara­tory relief) and to pre­vent the AG from pro­ceed­ing against the com­pany or man­age­ment (the injunction).

Craigslist main­tains that its site is legal, and that the threats against it “rep­re­sent an uncon­sti­tu­tional prior restraint on free speech.” (Essentially, gov­ern­ment cen­sor­ship, and a vio­la­tion of the First Amendment.)

What’s more, says Craigslist, they are even more clearly pro­tected by statute (always a more pop­u­lar argu­ment with the courts than mak­ing Constitutional claims, and much less con­tro­ver­sial and likely to be over­turned or changed on appeal): Section 230 of the Communications Decency Act. It pro­vides immu­nity from lia­bil­ity for providers of an “inter­ac­tive com­puter ser­vice” who pub­lish infor­ma­tion pro­vided by oth­ers. The Electronic Frontier Foundation agrees with Craigslist, argu­ing that Section 230 “clearly pro­tects them.”

Section 230, cod­i­fied at 47 U.S.C. § 230, does have some excep­tions, and allows for crim­i­nal pros­e­cu­tions for vio­la­tions of Federal law (230(e)(1)), and allows for state law pros­e­cu­tions that are “con­sis­tent with this sec­tion” (230(e)(3)). There are also explicit exemp­tions for obscen­ity and sex­ual exploita­tion of chil­dren (230(e)(1)).

Per usual, the exact mean­ing of this kind of lan­guage is not obvi­ous at first read­ing, and one needs to do more legal research to estab­lish the exact bound­aries and impli­ca­tions of the law.

My feel­ing is that Craigslist has a decent argu­ment, and—especially given its good-faith attempts to man­age “erotic services“—it falls within the broad range of ser­vice Congress envi­sioned pro­tect­ing under the Section 230. As a result, I pre­dict suc­cess for Craiglist on this one, either in court or through an out-of-court solution.

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