Craigslist Impacts User Generated Content Sites

[Barefootsies]

Operators of user generated content (UGC) websites, including social networks, 'tube' sites, and online adult classified operations, may be substantially implicated by the outcome of the litigation involving Craigslist.com. This case implicates everything from the scope of Section 230 immunity for user-posted material, to the constitutional prohibition on prior restraint of speech. Whether intentionally or otherwise, Craigslist has taken on a battle that may shape the user generated content business model for decades to come.

Craigslist, of course, has become the best known online classified site of our time. Its (generally) free classified ad posting service attracts over 50 million users per month ? both buyers and sellers.1 Well before the recent dustup involving the state attorneys general ? in November, 2008 ? Craigslist became concerned with its own "erotic services" ads, and began requiring users to submit personally-identifying information, including phone numbers and credit card numbers prior to placing ads.2 This allowed the company to identify the posters of these ads, and provide better cooperation with law enforcement, if necessary. Not satisfied with this adjustment to company policy, a few months later, a Chicago-area sheriff sued Craigslist for facilitating prostitution.3

Unfortunately for Craigslist, things really heated up the following month, when a Boston man utilized the website to meet a masseuse in a local hotel, where he later allegedly murdered her.4 His arrest on April 20, 2009, caused a public outcry against the widespread availability of thinly-veiled ads for prostitution on Craigslist.com

In response to mounting public pressure, Attorney Generals from several states demanded the closure of the "erotic services" section of Craigslist the following month.5 Ultimately, Craigslist agreed to close the controversial section on May 13, 2009, and to replace it with a closely-monitored "adult" section.6 However, that substantial concession was not enough for South Carolina Attorney General Henry McMaster, who demanded that Craigslist block all of the ads relating to prostitution or pornography from South Carolina resident's view.7 In that regard, he publicly stated: "The only agreement we could have is they block everything (sexually explicit) in South Carolina." McMaster then penned a letter, which was prominently displayed on the Attorney General's website, threatening the filing of criminal charges in the event Craigslist did not remove all offending material by 5:00 p.m. Friday, May 15, 2009.8

That no-so-subtle threat turned out to be "a bridge too far" for McMaster in his battle with Craigslist. The ultimatum provided Craigslist with the opportunity to sue South Carolina law enforcement officials, and seek a federal injunction preventing McMaster from carrying out his threat.9 Craigslist's lawsuit resulted in substantial negative publicity for South Carolina's Attorney General, as the press began to pick up on the critical First Amendment concerns generated by law enforcement's demand for censorship of Craigslist.com. The flap also generated some important public discussion of the protections afforded to user generated content websites under federal law; specifically Section 230 of the Communications Decency Act, which provides a safe harbor for websites that allow third party postings. Had McMaster done even the slightest bit of homework on the issue, he would have undoubtedly concluded that his demand ? requiring a complete ban on access to constitutionally-protected, erotic material ? was actionable under the First Amendment. The aggressive litigation response by the site required some fancy backpedaling by McMaster, as he tried to spin this as a victory for South Carolina, and take credit for the elimination of the erotic services category from Craigslist. Unfortunately for McMaster, Craigslist had removed the disputed classified section even before he submitted the ultimatum, and that point was not lost on the local and national media covering the dispute.10

Shortly after filing the lawsuit, McMaster's legal team wisely consented to the issuance of a temporary restraining order, preventing his office from initiating any criminal charges as a result of Craigslist's classified ads.11 In the end, McMaster agreed not to file the threatened criminal charges against Craigslist, thereby resolving that issue in the lawsuit.12 Had McMaster not backed down, the court would have almost certainly enjoined the threatened criminal prosecution on its own.

The legal arguments advanced by Craigslist in this lawsuit are of significant importance to adult webmasters operating any type of user generated content site or community forum. Given the widespread popularity of this business model, and its many permutations, an analysis of the legal issues raised by the Craigslist case is important to the industry as a whole.

First Amendment ? Prior Restraint Issues
The most compelling argument that can be advanced by Craigslist in this case is premised on the First Amendment's protection of free expression. Not only does Craigslist have the right to publish its ads, its users have a right to receive the information found on the website.13 Important in the First Amendment analysis is the fact that Craigslist does not (and from a practical standpoint, cannot) review or approve each advertisement before it is published on the website. Given the sheer number of ads appearing throughout this classified mega-site, any review or approval requirement would likely put the Company out of business. Accordingly, even if McMaster is correct about the legality of the advertisements at issue, Craigslist is not in control of the content of its classified ads, and therefore would not likely possess the requisite scienter or criminal intent to violate either prostitution or obscenity laws.

With respect to obscenity, it must be noted that all sexually-explicit materials appearing on the Internet are presumed to be protected by the First Amendment, unless and until they are found obscene by the trier of fact.14 Accordingly, law enforcement cannot constitutionally issue a blanket demand that Craigslist prevent any obscene material from appearing on the website, since Craigslist cannot know, in advance, which materials might be found obscene by a judge or jury at some place and time in the future.15

McMaster is not the first law enforcement official to use the heavy hand of possible obscenity prosecution as a tool to accomplish censorship of erotic materials. In the 1970's, law enforcement would routinely harass retailers selling erotic publications such as Penthouse magazine, with the intent to force the magazine off the shelves.16 The Fifth Circuit Court of Appeal affirmed the issuance of an injunction prohibiting this sort of bad faith harassment and prosecution of the retailers, finding the activity to be an unconstitutional prior restraint on speech. In a similar case, an anti-pornography campaign was put to an end by the Ninth Circuit Court of Appeal which found the effort to be unconstitutional.17 There, the Mayor of Phoenix, Arizona even went so far as to suggest that the owners and clerks working in newsstands and bookstores selling sexually-explicit material were involved in the Mafia.18 As the court explained: "[This sort of activity] can put the plaintiffs out of business without ever convicting any of them of anything."19 Numerous other bad faith prosecutions, in retaliation for the exercise of First Amendment rights, have been enjoined by the courts, over the years.20

McMaster appears to be particularly concerned about the availability of "pornography" to South Carolina residents.21 However, the only way to ensure that this state's residents will not be exposed to such material would be to block the entire website, including all its categories, from the State of South Carolina. Again, Craigslist cannot control the nature of the content appearing in its classified ads, and therefore complete censorship is the only way to comply with South Carolina's demands. Needless to say, the demand to block pornography from South Carolina is, itself, blatantly unconstitutional, given the First Amendment protections afforded to sexually-explicit speech.22 Accordingly, it appears that Craigslist would be successful in its claim that compliance with McMaster's ultimatum constitutes an illegal prior restraint on protected speech.

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http://www.xbiz.com/articles/legal/109597

[gideongallery]

Originally Posted by Barefootsies

continued...
http://www.xbiz.com/articles/legal/109597

well i guess that put a nail in the tube sites need id and docs arguement

[Drake]

hmm

.....

[TheDoc]

Originally Posted by gideongallery

well i guess that put a nail in the tube sites need id and docs arguement

This doesn't clear people of other criminal activity. The 2257 law is an entirely different law, that if you break, you can legally get taken down for.

Even before this ruling, if a website was truly user generated it wouldn't have needed docs under the 2257 law. For sure in the case of CL's or a forum like GFY. The question about tubes is, do they manipulate the original content thus republish it, making them need at least 2ndary producer records.


With this ruling, if the website is fully user generated, and it's a real... if a user uploads your content, the website will have to honor the DMCA notice and copyright laws and remove the content or be sued for totally different reasons than the cl fight.

[Davy]

I'm European. Fuck 2257.

[gideongallery]

Originally Posted by TheDoc

This doesn't clear people of other criminal activity. The 2257 law is an entirely different law, that if you break, you can legally get taken down for.

Even before this ruling, if a website was truly user generated it wouldn't have needed docs under the 2257 law. For sure in the case of CL's or a forum like GFY. The question about tubes is, do they manipulate the original content thus republish it, making them need at least 2ndary producer records.


With this ruling, if the website is fully user generated, and it's a real... if a user uploads your content, the website will have to honor the DMCA notice and copyright laws and remove the content or be sued for totally different reasons than the cl fight.

i never said that it gave them the right to ignore copyright laws or DMCA

but there was a huge
why do i have to keep docs while tube sites get away without arguement over and over again

many people kept arguing with me that was a way to take them down

that arguement that has a nail in the coffin to it.