Craigslist Not Liable For Discriminatory Posts -- But Court Tries To Limit Immunity

from the some-good,-some-bad dept

Back in February, a civil rights group sued Craigslist over discriminatory housing posts on their Chicago site. As we noted at the time, this seemed like a clear misunderstanding of how the internet works and internet law -- specifically section 230 of the Communications Decency Act, which says that online service providers should not be held liable for content that its users publish. There's a very good reason this law is in place. It keeps frivolous lawsuits from targeting the platform provider, rather than whoever actually created the content in question. In other words, it's like protecting the phone company from being guilty of a crime because someone breaks the law over the phone. It's purpose is simple: to focus lawsuits on those who actually broke the law, rather than the middleman who simply provides the technology platform to transmit the message.

So, it's good to see that the district court judge in this case sided with Craigslist, and found the site not liable for the discriminatory posts. The posts clearly do violate the law, but the complaint should have been with the people who posted them, not Craigslist. The EFF, while happy about the final outcome, is still worried about parts of the actual decision that try to explain why it believes section 230 is more limited that Craigslist implied and why earlier precedent-setting cases are wrong in their interpretation. The EFF worries that this opens the door to future cases further limiting the scope and protections of section 230. Unfortunately, Kurt Opsahl at the EFF doesn't go into much detail about his problems with the court's explanation -- and some of the court's ruling would seem to expand the protections of section 230 (noting that it probably keeps service providers free of liability even if they filter or edit content, assuming the edits aren't the problem). The specific problem may be with the suggestion that state laws may put in place limitations for section 230 protections, but it still suggests that such laws would still need to be consistent with the overall purpose of section 230, protecting providers from liability for actions they didn't perform.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    dorpus, Nov 15th, 2006 @ 2:17am

    Yet again

    The IT industry shows its profiteering colors, avoiding social responsibility. If we apply the same attitude, then craigslist has no responsibility for child sexual prostitution being marketed through its site either.

    It is this sort of attitude that causes the IT industry to fail in the long run -- but techies prefer to hide behind the rhetoric of "global competitiveness" and "free markets".

     

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  2.  
    identicon
    John, Nov 15th, 2006 @ 2:38am

    Re: Yet again

    Yet again, dorpus shows he has no understanding for the topic at hand.

    > The IT industry shows its profiteering colors, avoiding social responsibility. If we apply the same attitude, then craigslist has no responsibility for child sexual prostitution being marketed through its site either.

    It's not that the site has no "responsibility." In fact craigslist is very good at removing objectionable content like that when they're alerted to it. And they make it easy to alert them.

    The question is who is actually legally liable for the content. It has nothing to do with responsibility, global competitiveness or the free market. It has everything to do with blaming the person who actually caused the problem.

    Do you really think that we should blame AT&T when you call in a bomb scare somewhere? That's what this situation describes. It has nothing to do with responsibility, global competitiveness or the free market. It has to do with placing the blame on who's responsible, not the big company that acts as the communications conduit.

     

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  3.  
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    Richard Ahlquist, Nov 15th, 2006 @ 4:58am

    Dorpus

    The "IT industry" is not the worlds police force. If I follow your logic then Georgia Pacific is liable for every racial slur that the KKK ever printed on their paper? I guess the US government is also to blame for the child prostitution too because without their banking system and their printed money then nobody could pay for it right?

    Besides the fact that your post is IMHO wrong for laying the blame at the feet of Craigslist for "social responsibility", (a overused PC phrase if I have ever heard it) some of the laws touched by the Craigslist lawsuit are complex and a lot of people may not understand them. For example if you were a 18 yr old girl living in your first apartment alone, did you know you could be violating fair housing law to put out an ad requesting a woman roommate? If you lived in a community with a dense Jewish population and you yourself were of Jewish faith and wanted a Jewish roomate (so say you had something in common) you cant advertise for such legally?

    These socially responsible laws are there to protect from outright discrimination but unfortunately they also overprotect. A single girl may not want a male roommate that has tons of guys over because they may make her nervous unfortunately she cant advertise as such ans has to do this through careful interviewing and selection because oversensitive types view it as discriminatory in all cases. Be that as it may Craigslist provides a service, a bulletin board for people to post ads of their own construction, they pay the site owners for this privilege but that doesn't mean that they should have to become the thought police. It would be nice if Craigslist posted suggested guidelines but that even shouldn't be required. It up to the poster to decide on the content.

     

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  4.  
    identicon
    Dosquatch, Nov 15th, 2006 @ 4:59am

    Re: Yet again

    then craigslist has no responsibility for child sexual prostitution being marketed through its site either.

    You'd also blame the government for providing the highway system used to cross state lines for these purposes as well, I presume?

     

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  5.  
    identicon
    dorpus, Nov 15th, 2006 @ 5:29am

    Re: Re: Yet again

    Do you really think that we should blame AT&T when you call in a bomb scare somewhere? That's what this situation describes.

    Yes, AT&T is responsible if they fail to cooperate in tracking down the caller, invoking "free market forces" as ISP's like to do. Georgia Pacific will be held responsible if it sells paper directly to the KKK.

    If the NYT put out full page ads for the nazi party, would we say that they are just a "communication conduit" and bear no responsibility for the content?

     

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  6.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 5:36am

    Re: Re: Re: Yet again

    "If the NYT put out full page ads for the nazi party, would we say that they are just a "communication conduit" and bear no responsibility for the content?"

    They have that right, its called the First Admendment, you may want to look it up sometime you dumb ass.

     

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  7.  
    identicon
    dorpus, Nov 15th, 2006 @ 5:39am

    Re: Re: Re: Re: Yet again

    The first amendment does not give us the right to yell "fire" in a crowded movie theater, make death threats, or call for the extermination of Jews. The constitution specifies restrictions to free speech based on libel and slander -- you might try reading it some time.

     

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  8.  
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    JediN8, Nov 15th, 2006 @ 5:54am

    Dorphus

    Can "IT" exercise some "social responsibility" by banning dorphus from this site? he is a frickin idiot.

     

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  9.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 6:03am

    the first amendment states congress shall make no law.

    it never says states can't restrict speech. (however, i beleve all states have that in their state constitution)

    first amendment "rights" have been discussed in depth, and have go so far as the supreme court. the precedent is that, free speech is allowed, as long as it isn't false information with the intent to harm/damage the subject of the speech (i.e. yelling fire, making false claims that a ceo is a crook)

    as for as GP selling paper to the KKK, are there lawas that state no one may do business with the KKK? aren't the KKK a political party (maybe under a pseudo name?) and how would it be legal for the government to block all business with them?

    att doesn't have to help the gov't with investigations on it's own accord. a subpena would get the job done though. however, att will help is "high profile" cases to make it look good

     

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  10.  
    identicon
    iTAdmin, Nov 15th, 2006 @ 6:04am

    Re: Re: Re: Re: Re: Yet again

    Wow. I bet he doesn't make it very well as a lawyer. Throw your friends knowledge at us and make yourself look all big n bad. Sad part is you are making yourself look like a damn moron. Common sense bud...look into it. Courts use it, modern companies use it...oh look, todays society uses it. Go back to the Amish farm. Yoder has been looking for you. Something about sticking your head up the horses ass, or your own. Can't remeber which. Should be somewhat the same right?! It's amazing you could travel to the computer without being sued if the world operated with your mentality. Thank God that you don't live here. I deal enough with idiots like you every day. And I'm happy to turn that sale away from the "know it all's" like you.

     

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  11.  
    identicon
    DJ, Nov 15th, 2006 @ 6:08am

    Re: Re: Re: Re: Re: Yet again

    I didn't realize the comunist party still existed! I'll trade ya some vodka to shut the hell up.

     

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  12.  
    identicon
    discojohnson, Nov 15th, 2006 @ 6:43am

    Re: Re: Re: Yet again

    If the NYT put out full page ads for the nazi party, would we say that they are just a "communication conduit" and bear no responsibility for the content?

    in addition to free speech (which is limited, agreed), there is a negotiational phase before the ad gets printed. the NYT will review the advertisement first. craigslist does not do this review as its function is a platform and does not review posts individually. i see your point--you say craigslist should have people reviewing every message before it's allowed to be posted, just like the classifieds in any print paper does because they will be held liable for anything they print. following craigslist logic i could: make a classified print paper that randomly will place advertisements (from pay advertisers) through the magazine; the site will not monitor what the individual ads are--it's just a platform. the site also collects individual classified adverts from the gen pop and again no monitoring. every week my automated factory coupled with this database automatically prints up the fliers and then it's distributed. now if Mahmoud Ahmadinejad puts an advertisement saying he wants to wipe Israel off the face of the planet, is my company responsible for that message?

    a defense in this case is that it's prohibitively expensive to do so, which is why my ISP doesn't hand-scan every email, IM, and site i visit.

     

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  13.  
    identicon
    discojohnson, Nov 15th, 2006 @ 6:45am

    Re: Re: Re: Yet again

    Yes, AT&T is responsible if they fail to cooperate in tracking down the caller, invoking "free market forces" as ISP's like to do. Georgia Pacific will be held responsible if it sells paper directly to the KKK.

    right, but craigslist does cooperate in tracking down who said what

     

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  14.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 7:21am

    Re: Yet again

    "The IT industry shows its profiteering colors, avoiding social responsibility. If we apply the same attitude, then craigslist has no responsibility for child sexual prostitution being marketed through its site either."

    Wow.

    Proof-Positive that stupidity knows no bounds.

    They cannot *knowingly* allow content to be posted that violates another's rights, or calls for the violation of any groups particular rights. Let me give ya the keyword again, *knowingly*.

    Your example fails with that keyword.

    The above statement also fits your KKK ad in the NYT. So long as the ad does not *specifically* call for the willing violation of a particular groups rights, NYT would not be liable.

     

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  15.  
    identicon
    MockingBird, Nov 15th, 2006 @ 7:57am

    first ammendment

    I think the first ammendment allows for me to say jews should be destroyed.
    I think what it disallows is incitement to breaking the law.
    it's been a while since I've read it but I think it leans towards allowing just about any 'discussion based' speech. (so I can have discourse and hold any idiotic opinion I want) but does not extend to allowing me to incite a crowd to imediately go and break the law.

    btw, I don't think jews should be destroyed.
    but I'm pretty sure I'm protected by the first ammendment if I were to argue for or against it.

    as for providers... the amount of effort for them to police their traffic would close most of them down.

    you can't sue smith and wesson when someone gets shot, you can't sue AT&T when someone rips you off over the phone, you can't tug on super mans cape, you can't spit into the wind, you don't pull the mask of the old lone ranger and.. what the hell was my point?

     

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  16.  
    identicon
    Wyndle, Nov 15th, 2006 @ 7:59am

    While my first inclination was to rip on dorkus I've decided to restrain myself.

    Let's get a few things clear though:

    1. Craigslist allows instant advertising because they do zero post reviews. This process allows them to maintain their business as it was intended to be used.

    2. If a post is reported as bad, someone from the Craigslist staff will review the report and the post in question. If it is just a broken rule the post vanishes, but if it looks like a serious crime they report it to the authorities.

    3. The First Amendment is neither flawless nor unrestricted. Yes, there are specific restrictions in the Amendment itself. There is also much legal precedent on the subject, so just reading the Amendment alone will not make you an expert. You want some really screwy rights and laws to compare? Try looking at the Second Amendment and all of the gun laws. Most of them are on the level but a few leave room for interpretation that could potentially go against the spirit of the Second Amendment.

    4. Is Dorkus really that stupid or is he/she actually a troll? Things that make you go Hmmmm.

     

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  17.  
    identicon
    AC, Nov 15th, 2006 @ 8:08am

    Yes - Dorpus is really that stupid!

     

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  18.  
    identicon
    MikeSC, Nov 15th, 2006 @ 8:36am

    Besides....

    Regardless of the comments Dorpus made, I myself have absolutely no problem with housing descrimination.

    If I own a home and decide to rent it out, I believe I should have a say on who gets to live there.

    Business have the right to refuse service to anyone, well, renting out homes is a business right? Why can't I refuse service to anyone?

    In California, Prop 83 now says a Sex offender cannot live within 2000 feet of any school or park. Is that not housing descrimination?

    Besides all that, Craiglist is simply an outlet and has way more ads than any newspaper. The last thing we need is to make laws that require site owners to moderate all posts/comments to a forum or classified ad site. That's the wrong direction.

    Face it, the biggest get rich quick scheme is to SUE and there are thousands of lawyers just waiting around for you to get offended.

    Peace

     

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  19.  
    identicon
    satan, Nov 15th, 2006 @ 8:44am

    Re: Yet again

    that is correct

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    satan, Nov 15th, 2006 @ 8:46am

    Re: Re: Re: Yet again

    ah, I see, Your a troll. That makes sense now.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    satan, Nov 15th, 2006 @ 8:47am

    Re: Re: Re: Re: Re: Yet again

    yes it does

     

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  22.  
    identicon
    satan, Nov 15th, 2006 @ 8:51am

    If

    If you don't want a certain ethnic person living with you, you should be able to exclude them from answering your ad, I'm quite sure they don't want to live with a bigot. Also if you do not want to date a certain ethnic group you should be able to state that also, i'm quite sure they don't want to date a bigot. There are christian dating sites. A person has more rights that a business in free speech.

     

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  23.  
    identicon
    Matthew, Nov 15th, 2006 @ 9:03am

    Re: Re: Re: Yet again


    Re: Re: Yet again by dorpus on Nov 15th, 2006 @ 5:29am
    Do you really think that we should blame AT&T when you call in a bomb scare somewhere? That's what this situation describes.

    Yes, AT&T is responsible if they fail to cooperate in tracking down the caller, invoking "free market forces" as ISP's like to do. Georgia Pacific will be held responsible if it sells paper directly to the KKK.

    If the NYT put out full page ads for the nazi party, would we say that they are just a "communication conduit" and bear no responsibility for the content?

    Who do I get to sue for your comments, dorpus? You, or your ISP, or Techdirt for that matter??

    And nowhere in this case does it show that Craigslist defended or obscured access to appropriate authorities for these listings. The case is that Craigslist is not to be the target of blame.

     

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  24.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 9:09am

    CL isn't activly seeking "harmful" posts. if CL would only post hateful listings, or seek ppl posting thse things, there would more part on CL.

    since CL is just a huge posting ground, they let users moderate everything.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Jim, Nov 15th, 2006 @ 9:30am

    Re: Re: Re: Re: Re: Yet again

    "The first amendment does not give us the right to...call for the extermination of Jews" Uh.. .WRONG! the first amendment clearly allows this as long as the speech does not rise to specific threats against specific people (that would be called assault).

     

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  26.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 9:36am

    actually, as it's been stated, the 1st amendment says that congress shall make no law abridging freedom of speech.

    what has happened is that judical precident has come down to limit the extent of this protection. so it's the "activist" judges that disallow/allow the dfferent forms of speech.

     

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  27.  
    identicon
    Nathon, Nov 15th, 2006 @ 10:23am

    Simple Question

    Aren't there laws that prohibit newspapers and other print mediums from printing such materials?

     

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  28.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 10:25am

    It is the bill of rights, ammended to the constitution that guarantees freedom of speech. Liability and slander aren't mentioned. These are based on laws passed since the constitution.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 12:24pm

    Re: Re: Re: Yet again

    If the NYT put out full page ads for the nazi party, would we say that they are just a "communication conduit" and bear no responsibility for the content?

    Yes. And there would be no legal consequences, except in europe where freedom of speech does not apply to nazis.

     

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  30.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 12:26pm

    Re: Re: Re: Re: Yet again

    ..oops, forgive me techdirt. i just inadvertantly replied seriously to dorpus

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Wyndle, Nov 15th, 2006 @ 12:32pm

    Re: Besides....

    If I own a home and decide to rent it out, I believe I should have a say on who gets to live there.

    Business have the right to refuse service to anyone, well, renting out homes is a business right? Why can't I refuse service to anyone?

    In California, Prop 83 now says a Sex offender cannot live within 2000 feet of any school or park. Is that not housing descrimination?

    Housing discrimination is defined as refusing a fair chance of obtaining living arrangements based on the protected groups (race, religion, etc.). That doesn't mean you can't have standards when interviewing potential tennents. For example, if you have an apartment for rent and you get two applications. The first application is an African American college student, and the second is a Caucasian Ex-Con who flips burgers at the local fast-food chain. Can you legally refuse to rent to either of these individuals base solely on that info? No.

    You can legally request references and credit checks (paid by the applicant). If they can't produce references then you can legally refuse to rent to them. If there is negative remarks on their credit in the past 12 months you can legally refuse to rent to them. If they refuse to pay for (or worse, bounce a check for) the credit check you can refuse to rent to them.

    It's not hard to find other reasonable standards to ask of applicants that will legally weed out the people you don't want, which are the people you don't want to trust, right? By using reasonable standards you are protecting your rights without stepping on anyone else's rights.

     

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  32.  
    identicon
    Anonymous Coward, Nov 15th, 2006 @ 1:31pm

    Re: Re: Re: Re: Re: Yet again

    Your forgiven!

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    craigslistfan, Nov 19th, 2006 @ 8:26pm

    Re: Yet again

    Profiteering? For your information, if Craig wants to profit- he would have sold craigslist for millions of dollars that he has been offered many times

     

    reply to this | link to this | view in thread ]


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