Seemingly acquiescing to the demands of state attorneys general, Craigslist has removed the “Adult Services” section of its website. Some supporters maintained hope while the link remained covered by a black bar reading “censored.” However, any fleeting chance of a sustained protest disappeared when the site removed the section entirely, a change it confirmed in recent Congressional testimony.
The move came two weeks after 17 attorneys general sent the site’s founder, CEO, and attorney a letter noting strong concerns that the page provided easy access to prostitution and child sex trafficking. Although the letter was phrased as a request and contained no legal threats, it carried force through its widespread dissemination. The letter was the latest in a two-year effort by state AGs to curtail the website’s alleged facilitation of illicit activities.
Craigslist had already restructured the portion of its page, previously entitled “Erotic Services,” in an effort to reign in the lascivious free-for-all. The site began screening each adult post and requiring an accompanying $10 payment, credit card information, and a verifiable phone number.
Many saw these steps as a boost to public safety, as the increased transparency and high volume on the page allowed law enforcement to intervene when necessary. But AGs, aided by vocal advocacy groups and perhaps feeling the pressure of an election year, found the steps inadequate. Even after the Adult Services section has been removed entirely in the United States, they continue to press for its elimination worldwide.
With their steadfast commitment to pursuing the matter, the AGs have created the impression of unassailable legal strength, yet a close look at the law surrounding this issue reveals that Craigslist fares well in a potential lawsuit.
Under Section 230 of the Communications Decency Act, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). In other words, barring a certain set of exceptions, Craigslist is not liable for the speech of others simply by providing a forum for communication.
Judicial interpretation of Section 230 has made the provision only stronger with time, and factors that might appear troublesome for Craigslist in reality pose no hurdle. Issues that do not undermine its defense include Craigslist making money from the Adult Services ads, see, e.g., Doe v. GTE, 347 F.3d 655 (7th Cir. 2003), screening posts to allow some and delete others, see, e.g., Green v. AOL, 318 F.3d 465 (3rd Cir. 2003), and knowing that there was illegal activity taking place. See, e.g., Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. Jul. 30, 2009).
Opponents also could not get around the 230 defense by couching their claims in a different form, such as by claiming that Craigslist aided and abetted prostitution, see GTE, 347 F.3d 655, or was negligent in enforcement. See Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008). The company appears to be on safe ground as long as it avoids actively inducing the creation of illicit content. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)
Craigslist has already successfully relied on Section 230 to defend its Adult Services area. In a lawsuit brought by an Illinois sheriff against the company for creating a public nuisance by facilitating prostitution, the court determined that none of the site’s actions brought it outside of 230’s protective sphere. See Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. Oct. 20, 2009). Craigslist has also successfully invoked immunity when sued for discriminatory postings in its housing section, see Chicago Lawyers' Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), and for injuries caused by the sale of firearms on the site. See Gibson v. Craigslist, 2009 WL 1704355 (S.D.N.Y. June 15, 2009).
In reality, the AGs probably know their legal stance is a weak one; therefore, they have moved their case to the court of public opinion, where outrage can carry more weight than precedent. The market they are attempting to shut down, meanwhile, now moves underground, to other, anonymous sections of Craigslist and to competing websites.