May 13, 2009 | By Matt Zimmerman

AGs' Bogus Threats Hit Their Mark: Craigslist Gives In [Update I] [Update II] [Update III]

Disappointing news today out of San Francisco that craigslist has given in to pressure from law enforcement officials and agreed to remove the "erotic services" section from its site, establishing a rather dangerous incentive for law enforcement officials to bully website operators with baseless threats. As we noted last week, craigslist was at no legal risk -- none -- because federal law immunizes them from state criminal liability based on material posted by their users. However, the ongoing pressure, especially in light of craigslist's previous willingness to try to accommodate the concerns of law enforcement, finally proved too much.

craigslist is certainly free to run its site however it wants. The First Amendment permits website operators to decide for themselves what kind of speech they want to permit on their sites, and we support craigslist's ongoing right (if it so chooses) to exercise editorial control over the material that it hosts. But the lesson to take from the turn of events is a sad and all-too-familiar one: bullies often get their way when no one stands up to them. The behavior of many state attorneys general in this matter has been nothing short of embarrassing. Tasked with serving as the chief law enforcement officers of their respective states, many AGs apparently believe that their job is to falsely convince the public that the law is what they prefer it to be.

New Hampshire attorney general Kelly Ayotte, for example, mused that craigslist "seems [to be] thumbing their noses at the law" because "they aren't policing their site." Website operators do not have an obligation to police their site for such material; moreover, ensuring that they don't have to do so was part of the rationale behind creating federal protections in the first place.

Missouri attorney general Chris Koster recently asserted that "allowing advertisements for illegal activities like prostitution on its site ... is illegal." That is a lie. Whether a website operator is aware that material posted by third parties may violate state criminal law is irrelevant.

South Carolina attorney general Henry McMaster dramatically intoned that "if those South Carolina portions of the site are not removed, the management of craigslist may be subject to criminal investigation and prosecution." Sorry, not quite. Lucky for McMaster, craigslist didn't call his bluff. (And file a malicious prosecution lawsuit if he went through with his bogus threat.)

This type of rhetoric from (elected) attorneys general is strikingly different from at least some front-line police officers tasked with the duty to enforce vice laws. From Sunday's LA Times:

Lt. Dennis Ballas of the Los Angeles Police Department's vice squad said it would be more constructive to work with Craigslist to address crimes than to target the company itself. In fact, Craigslist argued in meetings with attorneys general that its systems provided the kind of digital paper trail that can aid investigators.

Craigslist is "just one means of advertising a service," Ballas said. "Before it may have been people going to the back end of a newspaper or just driving down the street. . . . It makes sense that crime would take advantage of whatever technology is current."

Unfortunately, craigslist's decision will likely encourage law enforcement officials to engage in these and other kinds of deceptive tactics in the future. Hardly surprising, noting the opportunity for further cheap political points, several AGs threatened craigslist this time around not only because of the existence of prostitution ads per se (whose authors (though not craigslist) could certainly be prosecuted) but because the ads sometimes contained (legal) pornographic material and implicitly because other posters may have been engaging in perfectly legal behavior of which they did not approve. It should go without saying, but that's one of the many problems with fabricating legal threats and substituting your personal policy preferences in place of clearly-defined law: who knows who is going to be targeted next?

Congress passed blanket immunity for website operators in part so that they wouldn't have to worry about bearing the regulatory cost of actively supervising the content of material posted on their sites, a potential cost that is clearly illustrated by a site like craigslist that reportedly receives over 40 million new posts every month. As today's developments show, that unfortunately doesn't mean that site operators can't be coerced through the repeated threat of frivolous lawsuits. Hopefully the next time this happens, website operators will call the bullies' bluff.

Update I: It appears that, remarkably, South Carolina Attorney General Henry McMaster still hasn't had enough, telling a South Carolina newspaper that "the only agreement we could have is they block everything (sexually explicit) in South Carolina." McMaster has given craigslist until 5:00 ET on Friday to respond to his threats. First, McMaster might benefit from a few links to relevant law on the various matters implicated in his threat. Second, McMaster's stubbornness seems to confirm (albeit faster than I expected in this case) that giving in to bullies only encourages them to continue their behavior. craigslist, it seems that the ball is back in your court.

Update II: On Friday, on the eve of the deadline that he had re-affirmed the day before, McMaster blinked.

Update III: The Associated Press has a nice article today highlighting the transparent political motivation behind the AGs' baseless posturing:

"They could use this in TV advertising when they run for re-election," said Larry Sabato, director of the University of Virginia Center for Politics. "It's a political winner; there is literally no downside. Most voters would applaud and those who don't won't say a peep."


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