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South Carolina's Attorney General Threatens Craigslist

Lawyers call it a wholesale approach, trying to circumvent First Amendment

South Carolina's Attorney General Threatens Craigslist

COLUMBIA, S.C. — South Carolina Attorney General Henry McMaster has ordered Craigslist to take down "illegal ads" or face legal action.

"It appears that the management of Craigslist has knowingly allowed the site to be used for illegal and unlawful activity after warnings from law enforcement officials and after an agreement with 40 state attorneys general," McMaster wrote in a letter Tuesday to Craigslist CEO Jim Buckmaster.

McMaster told Buckmaster to eliminate "portions of the Internet site dedicated to South Carolina and its municipal regions which contain categories for and functions allowing for the solicitation of prostitution and the dissemination and posting of graphic pornographic material" within 10 days or “the management of Craigslist may be subject to criminal investigation and prosecution.”

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McMaster believes South Carolina is the first state to consider pressing criminal charges against those who run the San Francisco-based global ad site, reports McClatchy Newspapers.

“They’ve allowed prostitution to go on there and allowed obscenity to go on there,” he said. “It’s a blatant violation of South Carolina law.”

According to The State newspaper, sheriff’s deputies in South Carolina's Richland County have made 121 prostitution-related arrests from Craigslist ads.

McMaster claims Buckmaster and other Craigslist officers have violated a November agreement with more than 40 state attorneys general to crack down on prostitution ads and allegedly pornographic images on the site.

In a statement on a Craiglist's blog, Buckmaster said, "We look forward to speaking directly with Attorney General McMaster about his concerns, and finding ways to address them without compromising the utility of Craigslist for South Carolinians, or anyone’s Constitutional rights. We urge Attorney General McMaster to look closely at the facts before proceeding with his threat."

Buckmaster has claimed that since the November agreement, "misuse" of the site has decreased by 90 percent, but officials have challenged that claim. Those who place ads in the site’s "Erotic Services" section must pay with a valid credit card and also provide a working telephone.

Craigslist met Tuesday in New York City with state attorneys general from Connecticut, Illinois and Missouri, and Buckmaster said in another post that the talk was “cordial and productive," adding the company shares "the AG’s interest in minimizing misuse of Craigslist."

Meanwhile, under McMaster’s decree, Craigslist has until 5 p.m. May 15 to shut down the South Carolina erotic services section and remove obscene pictures from that part of the site.

If the website does not follow-through, he said he will charge Buckmaster and other CL officials under state prostitution or obscenity laws. If twice convicted of aiding

and abetting prostitution,  Buckmaster and others affiliated with the site could be extradited to South Carolina upon a third charge, which carries a minimum one-year prison sentence and a $3,000 fine The State newspaper reports.

“I think that’s what it’s going to take to get anything done,” said McMaster, a Republican who is considering a run in the 2010 South Carolina governor’s race. “The time for talking is over.”

One of McMaster's peers, Illinois Attorney General Lisa Madigan, agrees.

"I think the walls are really closing in on Craigslist," she said.

But lawyers dealing in constitutional law suggest officials are not just treading, but stomping recklessly in First Amendment areas of free speech and expression.

Chicago-based attorney Reed Lee, whose practice concentrates on constitutional law, notes South Carolina's threat appears similar to the recent lawsuit filed in his area by the Cook County Sherriff.

While a state may sue a website, that site, like newspapers and other publications, has free-speech rights, Lee told AVN.com. This even applies to classified ads and assuming those ads do no more than propose a commercial transaction, are protected under Constitutional tests. Now if that ad is an illegal transaction, it's not protected. But that burden of proof falls on law enforcement and government departments, such as a state attorney general's office.

"If a public official is saying I can prove this ad proposes prostitution and this ad and that ad, you should take those ads down; the matter is one of, ‘Can he prove that?’" Lee said, adding that ads in erotic services for private nude dancing, escort services that do not involve prostitution and other ads offering personal contact that's not unlawful are all legal and protected under free speech and expression.

"This is a tall job for any public official to prove that with all the ads they think might be proposing illegal commercial transactions," Lee said. "If Mistress Joanne’s ad comes down because it said, 'I will do x, y and z for money' and clearly states this, it can come down. But if she puts up an ad using different wording, it may not come down. What they want to do is take a wholesale approach; they don't want to prove it ad by ad.”

In the simplest terms, officials are seeking a preemptive strike of sorts by trying to eliminate the erotic services section altogether, but will face free-speech issues in attempting to do so.

"They're saying 'we've seen enough -- no ads under that listing.'  Public officials have tried that for a long time," Lee told AVN.com, citing a 1930’s statute regarding scandal sheet newspapers in Near V. Minnesota. Even if the state contended libelous newspapers were a nuisance, the Supreme Court ruled they could not be shut down.

"Placing a statement in an area or a section of a newspaper or website is expression, so it's important that section remains," Lee said. "They're impatient, without having to treat speech like the Constitution says it should be treated. They want to take shortcuts with a blunt instrument kind of weapon where the First Amendment is concerned and that's precisely what it's designed to prevent and does prohibit."

"You can't restrain future speech," Lee continued, though that's what officials such as South Carolina's McMaster want to do. "There's a line between protected and unprotected speech the Supreme Court has called 'dim and uncertain.' That line's so critical and sometimes, so difficult to discern. Better we let people have their say and punish anybody who transgresses, after their expression."

Detroit-area adult industry attorney Corey D. Silverstein concurs with Lee's assessments.

"The notion or suggestion that prosecutors would seek any type of criminal charge against Craigslist for having a section for erotic services is both ridiculous and prosecutorial propaganda geared at scaring Craigslist into removing the section," Silverstein told AVN.com. "The fact is, thousands of newspapers nationwide have similar classified sections for massages, strip clubs and escorts. When was the last time a newspaper was criminally charged?  Such charges would only result in numerous First Amendment challenges by Craigslist."

Silverstein said prosecutors could theoretically charge the site, but obtaining any type of conviction would be extremely challenging if not impossible.

"Craigslist is nothing more than digital classified ads and past attempts at curbing classified ads have both failed and resulted in the defendant filing civil lawsuits against the complaining jurisdiction," he said.

"Law enforcement all over the country is well aware of Craigslist and already has a substantial undercover law enforcement presence on the site. Countless Craigslist arrests have been made, but despite the large number of arrests, law enforcement has been unable to destroy the erotic services section, which has left them frustrated and thus the latest tactic of threatening charges against Craigslist itself seems to be the newest strategy to destroy the section," Silverstein added. "Any government intervention in classified ads is a constitutional slippery slope leading to the inevitable trampling of our First Amendment rights."

As previously reported in recent months by AVN.com, Craigslist has been targeted before for its erotic services ads. But with recent revelations regarding the so-called "Craigslist Killer" -- a Boston medical student charged in the murder of one woman who'd placed an ad on the site and accused of beating and robbing another -- officials such as state attorneys general have increased pressure on the site to make changes. However, as noted by both Lee and Silverstein, state, county and city politicians will not be able to simply bypass free speech.






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