Yesterday, a federal court tossed a lawsuit against craigslist over erotic advertisements. In March, Cook County Sheriff Thomas Dart alleged that craigslist was liable for the illegal ads posted by its users in its "erotic services" (now "adult services") category. As craigslist argued in their motion for judgment on the pleadings, and as EFF and others pointed out at the time, Dart's complaint had virtually no chance of success because Section 230 of the Communications Decency Act plainly immunized Internet intermediaries like craigslist from civil liability for material posted by third parties.
On Tuesday, the District Court for the Northern District of Illinois agreed with craigslist, throwing out Dart's complaint in its entirety, confirming that Section 230 immunized craigslist from the allegation that it constituted a "public nuisance." The court made a number of important observations regarding the attempt to saddle craigslist with responsibility for the behavior of its users:
The phrase "adult," even in conjunction with "services," is not unlawful in and of itself nor does it necessarily call for unlawful content. ... The same is true of subcategories. Plaintiff is simply wrong when he insists that these terms are all synonyms for illegal sexual services.
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.
The fact that Craigslist also provides a word-search function does not change the analysis. The word-search function is a "neutral tool" that permits others to search for terms that they select in ads created by others. ... It does not cause or induce anyone to create, post, or search for illegal content.
Most succinctly, and highlighting the policy concerns behind the passage of CDA 230, the court noted:
Intermediaries are not culpable for "aiding and abetting" their customers who misuse their service to commit unlawful acts.
Meritless cases brought by law enforcement officers, amounting to little more than publicity stunts with little to no chance of success, do little to address the officers' underlying concerns. The problem of sex trafficking is indeed a serious one, as pointed out by both Dart and amicus Coalition Against Trafficking in Women, but as the court pointed out in a footnote, that fact "does not shed any light on the legal questions before us."
Service providers are not liable because Congress correctly understood that the soap box should not be held responsible for the speech of others. Just as phone companies are not liable for harassing phone calls, or email software providers for deceptive messages, online message boards like craigslist are in most instances not liable for their users' posts. It is not enough, as both Dart and South Carolina Attorney General Henry McMaster continue to demonstrate, to identify a problem and then stumble into court without a valid argument, pointing at the most prominent (although not legally culpable) target in sight. Hopefully, the District Court's decision will cause Dart, McMaster, and the dozens of other attorneys general who saw the craigslist pile-on as a cheap and easy way to score political points to think carefully before trying again in the future.
