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Julie Hilden

A Court Dismisses A Claim That Craigslist Facilitates Prostitution


Monday, December 7, 2009

In late October, Judge John Grady of the U.S. District Court for the Northern District of Illinois issued an opinion granting summary judgment in favor of the free classifieds website Craigslist, in a civil suit brought by the Cook County sheriff against the site.

The sheriff had alleged that Craiglist -- by maintaining a section for "erotic" services – both facilitated prostitution, and constituted a public nuisance.

In this column, I'll explain why the sheriff lost, and Craiglist prevailed.

The Facts Regarding the Craigslist "Erotic Services" Section

In the suit, Craiglist pointed to the measures it had taken to prevent ads for prostitution from being posted in its "erotic services" section. To begin, Craigslist's Terms of Use prohibited posting unlawful content. Then, in particular, erotic services users were required to agree, when they entered the section, that they would flag illegal content -- specifically including any solicitations for prostitution.

However, the sheriff noted that solicitation ads appeared frequently on Craigslist, despite these measures – and that such ads often used code words to refer to the price of the services and/or the services offered.

Yet Craigslist noted that it specifically prohibits both such code words, and the intentional inclusion of misspellings within such code words – for those misspellings are typically included in order to thwart automatic screening programs.

After this suit was filed, moreover, Craigslist instituted a process of manual review of the postings in the relevant section (which the site renamed "adult," not "erotic," services).

Is Craigslist Helping Prostitution, Law Enforcement, or Both? The Site's Dual Role and the Sheriff's Heated Rhetoric

The lawsuit presented an interesting irony: On one hand, the sheriff's office argued that Craigslist acted, in essence, as a pimp – facilitating hookups where sex is exchanged for money. Yet, on the other hand, the sheriff's office's own evidence also showed that Craiglist functioned as a vital aid to police.

In particular, the sheriff estimated that, from January to November 1998, his office made 156 arrests based on "sting" operations arising from Craiglist postings. Making these arrests, the sheriff noted, cost his office 3,120 man hours and $105,081.

Yet can these police costs fairly be laid at Craigslist's door? One underlying question here is whether Craigslist is actually increasing prostitution, or is just changing the way the solicitation of prostitution works. Craigslist may have made prostitution more efficient, but it also made sting operations to catch prostitutes more efficient, too.

Despite this ambiguity -- and despite the profound difference between a computerized posting service like Craigslist and a traditional pimp -- the sheriff still claimed Craigslist was in effect pimping, by "arranging" the board users' meetings and "directing" users to places of prostitution. At a minimum, the sheriff suggested, Craigslist is akin to an accessory to the crimes of solicitation and prostitution.

Each of these metaphors, though, seems like a tremendous, implausible stretch: Each attributes intention and purpose to an automated system where the only human element serves to exclude prostitution, with users flagging objectionable content and Craigslist itself now manually searching for such content.

Let's hope that the sheriff's gambit – which, in this civil case, was mostly a matter of heated rhetoric – won't someday be taken literally, in the criminal context, in an attempt to support prosecutions of message board owners.

Why the Court Found that Craigslist Was Immune, By Federal Statute, From Liability Based on the Sheriff's Claims

Putting the sheriff's criminal-law rhetoric aside for a moment, the key legal question this civil action raised was whether Craigslist's erotic services postings enjoyed the protection of the immunity created by Section 230 of the Communications Decency Act (CDA).

Section 230 forbids treating message board owners or message board websites as, in effect, the publishers or speakers of the content the boards' users post. (The site also need not technically be a message board like Craigslist; I've chosen to use the term "message board" in this column for simplicity's sake.)

Section 230 was passed into law by Congress in order to allow message board owners to patrol their boards and remove offensive content -- without fear that such editorial actions would cause them to be deemed to be the publisher of all the content on the boards, and thus to risk costly liability.

The idea was to empower message board owners to protect "family values" by giving them a free hand to remove offensive content without fear of legal repercussions. (The specific wording of the immunity can be found on pages 9-10 of the court's opinion, which can be found here.) Thus, there's a significant irony here: A pro-family-values statute is being used, in this case, to protect ads for erotic services.

But in other cases, the statute's spirit is honored: The owner of, say, a children's website can feel free, thanks to Section 230, to scrub the site of content that is not age-appropriate without fear of any legal consequences arising from its taking on an editor/publisher's role. So the statute does serve its purpose -- but, as occurs so often in the law, it also serves other, unintended purposes, too.

How does Section 230 work in specific contexts? An example may be useful. One fear Congress had was that a site user would post something defamatory, unbeknownst to the site owner, and then the site owner would become liable for the user's defamation.

Prior to Section 230, the argument for such liability would have been that the site owner had "published" everything on the site because it scanned every message, and removed only some of them – in something of the same way a newspaper publisher has its editorial staff selectively choose what to publish. And traditionally, publishers – not just writers – can be held liable for defamation. Indeed, it is publishers, not individual writers, that have very often been the "deep pockets" and thus the prime targets for defamation suits.

Judge Grady rightly invoked Section 230 to rule in favor of Craigslist, and against the sheriff. He reasoned correctly that the sheriff was trying to hold Craigslist liable as a publisher – the very move Section 230 forbids plaintiffs from making.

In support of this conclusion, the judge cited a similar, interesting precedent – also from the U.S. District Court for the Northern District of Illinois -- holding that, due to Section 230, Craigslist could not be held responsible for discriminatory housing ads that were posted on the site, for such liability would target Craigslist as a publisher, and thus violate Section 230.

Can a Message Board Get In Trouble Simply for the Names It Gives Its Categories?

In addition to making the arguments summarized above, which the judge easily shot down based on Section 230, the sheriff also made another argument that was more creative: He tried to go after Craigslist based on its section heading – "erotic services" – and not just based on the messages that users had posted in that section.

This was a clever gambit because Section 230 is meant to prevent websites from being liable for what their users write. But Craigslist itself had written the words "erotic services."

The gambit failed in this case because the judge pointed out that the phrase "erotic services" encompasses legal erotic services – like exotic dancing – as well as illegal erotic services, such as prostitution.

But, more generally, message board owners (and the owners of similar sites) are still well-advised to be wary in captioning their sections. The judge's opinion still leaves open the possibility that a site that captioned its sections to describe only illegal activity might fall outside Section 230, and might be subject to liability as a result.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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