A couple of weeks ago, we mentioned that the Attorney General of South Carolina was threatening to file criminal charges against the chief executive officer of Craigslist unless the site removed all sex related postings from its South Carolina sites. Apparently, the threats continued, even after Craigslist announced that it would be eliminating its ads for "erotic services."
Following the old adage that the best defense is a good offense, Craigslist has now filed suit against the South Carolina Attorney General, seeking declaratory relief and a restraining order prohibiting the filing of criminal charges against Craigslist or its executives. In the Craigslist blog post announcing the move, the company said that the threatened charges were "unwarranted by the facts . . . and represent an unconstitutional prior restraint of free speech." The company also indicated that such charges would be barred by Section 230 of the Communications Decency Act.
Though we haven't fully evaluated Craigslist's claims, it seems likely that Section 230 would bar a state prosecution against Craigslist based solely upon content created by a third-party. However, such a prosecution would probably not be barred if Craiglist actively participated in creating the criminal content or if it designed its system "around the dissemination of [such] content."
Late last year, we had the opportunity to carefully review all of the civil cases interpreting the limitations of Section 230 immunity. The simple rule emerging from those cases is clear: If the "essential published content" is willingly provided by a third-party, the interactive computer service provider publishing that content enjoys the full immunity afforded by Section 230.
Section 230 clearly states: "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Based on this language, at least one state appeals court has indicated that Section 230 immunity applies to certain state criminal prosecutions. (Though, there is also an argument that the specific exception contained in Section 230(e)(1) for federal criminal statutes might apply to analogous state statutes as well.) Therefore, it seems likely that the rule we have gleaned from civil cases is equally applicable to state criminal prosecutions.
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