Why Craigslist Should Be Allowed To Sue South Carolina's Attorney General
from the chilling-effects dept
We’ve covered how various state attorneys general have used this unfortunate grandstanding process to push companies into settlements, despite a lack of any actual legal basis. Target #1 (and #2 and #3) has, of course, been Craigslist. And one of the most ridiculous of the grandstanders was South Carolina attorney general Henry McMaster, who not only threatened Craigslist over its adult services ads, but threatened to press criminal charges against Craigslist’s execs. As you would hope McMaster knows, such claims are pretty ridiculous. Other courts have already made clear that Craigslist is protected by Section 230.
Craigslist got sick of McMaster’s threats and sued first, with a few rather interesting legal theories. First, the company claimed that since Craigslist was protected by Section 230, the mere threat of criminal prosecution violated Section 230. That’s an interesting — and as far as I know, untested — theory around Section 230. It’s quite clear that the safe harbors do protect you from a lawsuit, but does it also protect you from threats of a lawsuit? If so, that could make for some rather interesting cases. On top of that, Craigslist claimed that the threats were unlawful prior restraint on protected speech and an unreasonable burden on interstate commerce. The prior restraint argument is also quite an interesting one, and, if it worked, suggests that these grandstanding attorneys general could face serious pushback if they keep running these grandstanding schemes.
Unfortunately, however, the court tossed out the lawsuit last month, with the really bizarre reasoning that since Craigslist no longer faced the likelihood of a lawsuit from McMaster, the lawsuit was meaningless. But, of course, that reasoning was shown to be ridiculous when, almost immediately after the ruling was announced, McMaster announced he was continuing his investigation (pdf) into Craigslist.
I personally thought that the court gave short shrift to craigslist’s arguments that McMaster’s high-profile railing against it created a chilling effect on protected speech. If a state attorney general, in South Carolina, is repeatedly threatening in the news media to prosecute me and my company for crimes that carry hefty prison terms, associating my company and my good name with prostitution, and hauling my company officials into negotiations over what can and can’t appear on my website, then yes I am going to feel more than a little bit inhibited in what I do and don’t publish on my website. Color me chilled.
The good news is that Craigslist is trying to push this case forward, and has filed an amended complaint and a motion to reconsider, and hopefully, after another look, the court will realize that there are some serious problems with the way this sort of grandstanding chills free speech with little legal basis. If the court favors Craigslist, it could provide a useful tool for companies targeted in these political media campaigns.