The Key to the South Carolina Craigslist Battle

Does the CDA create immunity from criminal prosecution?

By the time this hits the streets, everyone will know more about the developments in the battle between Craigslist.com and Henry D. McMaster, the attorney general of South Carolina. This is about how the ultimate outcome of that case will likely, and profoundly, impact this industry.

General McMaster started this, by announcing a war on the advertising on Craigslist.com under its "Erotic Services" section, claiming it to be advertising prostitution and posting obscene materials. He threatened prosecution for aiding and abetting.

Why would he do that, you might wonder? You guessed it! Word has it that McMaster plans to run for South Carolina governor (and his odds look pretty good, given that the present one is circling the drain because of his girlfriend problems). Political junkies joke that the NAAG — the National Association of Attorneys General — is really the National Association of Aspiring Governors.

So, as you may be aware, Craigslist.com has hauled McMaster and his running buddies into federal court, with guns blazing. The lead attorney is a local one there in Charleston; but in his corner are two of the top law firms in the country, one based in Washington, D.C., and the other in San Francisco.

If it goes to the mat, this case will be very significant; thus the importance of having first-class legal firepower representing the good guys. The reason is that the centerpiece of their argument is Section 230 of the Communications Decency Act, which provides immunity for ISPs and the like, forbids South Carolina from criminally prosecuting craigslist.com, even had they not undertaken any measures to root out advertising for illegal activities.

Recall that Section 230 has repeatedly been held to protect the likes of Google from civil liability for defamation (libel and slander), invasion of privacy and, as all of you know so well, copyright infringement, the burning issue about the "Tube sites." But criminal liability is something else again.

Fundamentally, general rules of criminal law — the particulars of which vary somewhat from one state to the next — hold that someone can be convicted for crimes committed by others if they assist in the commission of those crimes. In a simple example, suppose that two people get together and decide to rob a bank. Executing the plan, one drives the car and the other one has the gun and the face mask. The driver pulls up to the bank; the passenger exits the vehicle, runs into and robs the bank, runs out of the bank, jumps into the getaway car, and it speeds away. In essence, the driver of the car can be convicted of armed bank robbery, even though he never had a gun or went inside of the bank. Depending upon the jurisdiction, it might be called "aiding and abetting" or he would be called a "principal" or an "accomplice." But, generally, the driver of the car is in just about as much hot water as is his buddy who brandished the gun and took the money. These laws produce some seemingly odd results. For example, by aiding and abetting a man, a woman could be convicted of rape (meaning rape in the classic sense; many rape statutes are now gender neutral).

In the context of prostitution, in addition to soliciting prostitution by a prostitute, most states have laws prohibiting what might be called pimping, pandering, promotion of prostitution or some other name. Essentially, it is illegal to line up tricks for "ladies of negotiable charm." So, if the defendant somehow knowingly advertised the availability of the services of a particular prostitute and her contact information, a conviction for some sort of prostitution offense would be available in most states (advertising legal brothels in Nevada being the notable exception).

So, under General McMaster's theory, Craigslist.com can be prosecuted for the advertisements that are posted by prostitutes. However, Craigslist.com has responded with an arsenal, the central weapon being the Section-230 immunity in the CDA.

The resolution of this will be very important. As noted, courts have applied these protections to a variety of civil wrongs, but not criminal ones.

The dispute between Craigslist.com and General McMaster, if litigated to a conclusion, may resolve the issue of whether Section 230 applies to criminal cases in the same way that it has applied to civil ones — and it should. If the resolution is that Section 230 creates criminal immunity, the subsidiary question is whether Congress will undo the result, which it could, leaving the ISPs to the plaintiffs' subsidiary arguments under the First Amendment and the Commerce Clause.

Parenthetically, those two are pretty good country arguments, as well. The First Amendment is a little weaker because the target content is all advertising which, as you may recall, enjoys a lesser protection than pure speech, although not that low. The Commerce Clause is the part of the Constitution that says that one of the powers of Congress is to regulate interstate commerce, to the exclusion of the states. So, winning the Commerce Clause would not get the feds out of the picture, but it would put the General McMasters of the world back in their caves. While a decision under either the First Amendment or the Commerce Clause would be groundbreaking, the Commerce Clause appears a better shot, although the cases are all over the map.

Congress is a particularly big issue here. The motion picture and television industries have been screaming bloody murder about the “tube” sites and other places where their copyrights have been infringed. The pending lawsuit between Viacom and YouTube in New York may resolve the “tube” issue one way or the other. If it resolves it in favor of the “tubes”, then the pressure will really ramp up. (Recall the media giant Viacom has filed a billion dollar lawsuit in federal court in New York City, alleging copyright violations.)

One thing here is clear. No member of any legislative body ever will oppose any law against sex! And as absurd as it may sound, it would not be at all surprising for Congress to come up with a sex exception to Section 230 immunity. The permutations of this are endless, but it is likely that something will surface if General McMaster loses and Craigslist is found to be protected from criminal liability.

The irony of all of this is in the number of legislators who seem to have “zipper” problems — most recently the senior (Republican) senator from Nevada, as well as a spate of governors. It is doubtful that the courts will have the final word on any of these issues.

Clyde DeWitt is a Los Angeles and Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices, or at clydedewitt@earthlink.net. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.

This article originally appeared in the August 2009 issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscribe.