I am constantly impressed with plaintiffs' hapless charges against the nearly impenetrable immunity that is Section 230 of the Communications Decency Act (“Section 230”). Time and time again, angry plaintiffs bring suit against websites because some unknown third party posted questionable, if not illegal, material. And time and time again, those claims are stymied by Section 230, which grants the websites immunity from liability for those third-party postings. Seriously, there are loads of these cases, and they almost always fail — why do plaintiffs keep bringing them?
The latest plaintiff to plow face-first into the Section 230 wall is Thomas Dart, Sheriff of Cook County, Illinois. Dart sued personal ad site craigslist in March 2009, accusing the website of facilitating prostitution through its "erotic services" section. Ars Technica writes that the lawsuit, along with pressure from other law enforcement officials around the country, prompted craigslist in May to change the objectionable section's name to "adult services," increase fees, and institute more extensive moderation. But the Sheriff's Department did not drop its case after the change, claiming that the difference between "erotic" and "adult" was purely cosmetic, and that craigslist was still promoting prostitution.
Labels aside, this is still a claim attempting to hold craigslist liable for publishing the statements of its users: precisely the sort of thing that Section 230 bars. And that's just why Judge John Grady tossed the Sheriff's case (from the opinion):
While we accept as true for purposes of this motion plaintiff's allegation that users routinely flout Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only "in the sense that no one could post [unlawful content] if craigslist did not provide a forum." . . . Section 230(c)(1) would serve little if any purpose if companies like Craigslist were found liable for "causing" or "inducing" users to post unlawful content in this fashion.
Honestly, this lawsuit strikes me as almost completely frivolous. Dart filed suit in the United States District Court for the Northern District of Illinois, any decision would be subject to appeal in the Seventh Circuit. While the Seventh Circuit once flirted in dicta with gutting Section 230, it cleared things up in Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F. 3d 666 (7th Cir. 2008), where it held that Section 230 barred federal anti-discrimination claims against craigslist based on the postings of its users. While Dart brought a state-law nuisance claim here, the premise of his claim is nearly identical to the claim in Chicago Lawyers' Committee: that craigslist is somehow to blame for the illegal posts of its users, despite having no role beyond the passive host of the offending content. But if Section 230 prevented craigslist from being liable for its users' violations of the Fair Housing Act in that case, how could it not protect craigslist in this case as well? There's nothing to substantially distinguish the two.
And it's not just Chicago Lawyers' Committee that puts the kibosh on such claims. Courts have nearly uniformly found Section 230 to be a complete bar against liability for publishing the content of end users. The legal tides were against Dart from the start. Indeed, the Electronic Frontier Foundation slammed the Sheriff's decision to bring suit against craigslist, along with similar decisions by other law enforcement officials, as little more than a "publicity stunt" and "a cheap and easy way to score political points." I find it hard to disagree. I do hope that the Sheriff's department didn't spend much time and money on litigating this case, because it was pretty clearly doomed from the get-go.
(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)