Tired of being bullied by South Carolina Attorney General Henry McMaster, craigslist is going on the offensive. CEO Jim Buckmaster announced on the craigslist blog today that that craigslist is suing McMaster in South Carolina federal court, seeking "declaratory relief and a restraining order with respect to criminal charges he has repeatedly threatened against craigslist and its executives."
In early May, McMaster threatened the website and its executives with "criminal investigation and prosecution" unless it removed those portions of the site "containing categories for and functions allowing for the solicitation of prostitution and the dissemination and posting of graphic pornographic material" by May 15, 2009. It seems McMaster wasn't placated by craigslist's decision last week to drop its "erotic services" section after talks with other state AGs. On Friday (the May 15 deadline), he announced that he had "no alternative but to move forward with criminal investigation and potential prosecution" because the website "continues to display advertisements for prostitution and graphic pornographic material." According to Buckmaster, McMaster made additional remarks on Sunday upping the ante:
“We opened an investigation at 5:01 on Friday, as promised. . . . We are preparing for a prosecution. We are investigating. We are moving forward. . . . . The #1 defendant is Mr. Jim Buckmaster, who is the man in charge of craigslist.. . . . craigslist is a big promoter and facilitator of prostitution.”
We haven't located the complaint online yet, but it likely argues that the First Amendment protects craigslist from prosecution for publishing "graphic pornographic material" that is not obscene, and section 230 of the Communications Decency Act protects it from criminal punishment for publishing the alleged solicitations of its users. (See my previous post on the legal merits.) Buckmaster's post confirms this assessment, saying that the "charges threatened represent an unconstitutional prior restraint on free speech, and are clearly barred by federal law (sec 230 CDA)."
I'll post an update when we get our hands on the complaint.
Here's a copy of craigslist's complaint and its motion for a temporary restraining order and preliminary injunction prohibiting McMaster from issuing further threats of prosecution in relation to content posted by craigslist users and from pursuing any such prosecution. Craigslist alleges that McMaster's threats of prosecution entitle it to relief under 42 U.S.C. § 1983, which prohibits any person acting under color of state law from denying "any rights, privileges, or immunities secured by the Constitution and laws."
The complaint alleges that McMaster's actions violate craigslist's statutory right under section 230 "to be free from liability for allegedly unlawful third-party content, as well as from the burdens of having to defend itself against such liability." Cmpt.¶ 82. At first, I was skeptical about treating section 230 as if it created a "right," but the statute says "any rights, privileges, or immunities" (Wesley Hohfeld would probably call this a "privilege"), and at least one court has held that section 230 "confers a § 1983-enforceable right upon internet service providers and users to not be 'treated' under state criminal laws as the publisher or speaker of information provided by someone else." Voicenet Commc'ns, Inc. v. Corbett, 2006 WL 2506318, at *4 (E.D. Pa. Aug. 30, 2006). (Incidentally, this case directly addressed the question of whether section 230 preempts state criminal law and concluded that it does. See also Michigan v. Gourlay, No. 278214 (Mich. Ct. App. Mar. 3, 2009)).
The complaint also alleges that McMaster's actions violate the rights of craigslist, its management, and its users under the First and Fourteenth Amendments of the U.S. Constitution because (1) his threats of prosecution constitute an unlawful prior restraint on speech that would essentially force craigslist to shut down all portions of its website directed at South Carolina; (2) any threatened prosecution would be a content-based restriction on speech that is not narrowly tailored to any compelling government interest; and (3) the threatened prosecution would impose criminal liability on craigslist in its role as an information clearinghouse absent proof that craigslist in fact knew about the presence and unlawful nature of a particular item of third-party content on its website. See Cmpt. ¶¶ 71, 85-87.
These seem like strong arguments, especially with regard to publishing user content that McMaster views as pornographic, but which is not legally "obscene." A state can regulate speech soliciting a criminal act like prostitution, but the complaint does a good job of explaining how compliance with McMaster's demands, above-and-beyond what craigslist already does to stop ads for prostitution, would require the site to shut down all South Carolina-directed content, creating a serious overbreadth issue. Craigslist also cites precedent suggesting that informal acts of government officials, like "thinly veiled threats to institute criminal proceedings," can be a prior restraint, at least under some circumstances. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963).
Finally, in what's probably more of a stretch, the complaint alleges that McMaster's threatened prosecution violates the Commerce Clause because it seeks to apply South Carolina law to regulate commercial transactions that take place wholly outside the state.
If craigslist prevails, the court may award it attorneys' fees under 42 U.S.C. § 1988.
Meanwhile, McMaster appears to be tempering his position. According to Wired/Threat Level:
Henry McMaster, the state attorney general, called the lawsuit against him “good news,” because it shows Craiglist its taking the matter seriously. At the same time, McMaster backpedaled away from his earlier threats. “This office and the law enforcement agencies of South Carolina will continue to monitor the site to make certain that our laws are respected,” he said in a statement.
For links to other court docuents and updates on the case, see our database entry, South Carolina v. Craigslist.