A new sortie in the battle over craigslist's "erotic services" section came today when South Carolina Attorney General Henry McMaster sent a letter to craigslist CEO Jim Buckmaster threatening company management with "criminal investigation and prosecution" over the website's alleged facilitation of prostitution and -- more unexpectedly -- its hosting of "graphic pornographic pictures" posted by craigslist users. The letter gave the website until May 15, 2009 to permanently remove 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," and threatened legal action if it did not comply.
Buckmaster posted a response on the craigslist blog, stating that, while the company looks forward to speaking with Mr. McMaster about his concerns, it "see[s] no legal basis whatsoever for filing a lawsuit against craigslist or its principals and hope[s] that the Attorney General will realize this upon further reflection."
I have to agree with Buckmaster's assessment of the legal merits. Any state criminal charges against craigslist or its management under the circumstances would almost certainly be barred by section 230 of the Communications Decency Act ("Section 230"), the federal statute that protects operators of websites and other interactive computer services from liability for publishing the statements of third parties. Section 230's protection is not limited to civil liability. And while it does not apply to federal criminal law, see 47 U.S.C. § 230(e)(1), the most plausible reading of the statute's language is that it preempts state criminal actions inconsistent with it. Our very own David Ardia told ABC News much the same thing earlier today:
"This sounds like posturing on the part of a state official, an effort to use what limited leverage he has over Craigslist," said David Ardia, the director of the Citizen Media Law Project at Harvard University's Berkman Center for Internet and Society. "I think it's very unlikely that criminal or civil liability would exist."
The odder wrinkle is the bit about hosting "graphic pornographic material" posted by users. Any prosecution for hosting this content would not only be preempted by Section 230, but would run afoul of the First Amendment. Sexually explicit speech (including images) is fully protected by the First Amendment unless it qualifies as "obscene," which has a specific meaning defined by the Supreme Court in Miller v. California, 413 U.S. 15 (1973):
- It must appeal to the average person's prurient (shameful, morbid) interest in sex;
- It must depict sexual conduct in a “patently offensive way” as defined by community standards; and
- Taken as a whole, it must lack serious literary, artistic, political, or scientific value.
While the Miller test is difficult to apply in practice -- Supreme Court Justice Potter Stewart famously solved the difficulty by declaring "I know it when I see it" -- it sets a high enough bar that most of the pornography available online is not legally "obscene" (hence its availability). Believe me, pathetic pictures posted in the "casual encounters" section aren't even in the ballpark.
The letter's focus on access by minors doesn't really change the analysis: McMaster doesn't even try to show that the material is "obscene as to minors" (from another Supreme Court case), and the Supreme Court has repeatedly struck down congressional efforts to regulate children's access to sexually explicit content online (state laws would fare no better). Plus, as DemocraticLuntz at Daily Kos quips, the letter "does not specify exactly why minors would go to Craigslist to find pornography when there are plenty of other sites easily accessible to them with, frankly, superior content."
Ah well, we'll just have to wait and see what happens. You can monitor developments through our database entry, South Carolina v. Craigslist.