Craigslist vs. South Carolina’s Attorney General

Please note that this post is from 2009. Evaluate with care and in light of later events.

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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• Fighting back: CL Sues South Carolina Attorney General (cnewmark.com)
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