Tuesday, September 07, 2010

Center for Internet and Society Questions the Attack on Craigslist by Attorneys General

Attorney General Richard Blumenthal announced at a press conference today, Sept 7, that he was seeking to make sure the owner of Craigslist was not pulling his leg.

A Saturday screen shot showing the opening page of Craigslist's website for Hartford features a "censored" logo over what used to be the adult services section.

“Craigslist,” the San Francisco Chronicle reported, “apparently closed the section two weeks after 17 state attorneys general demanded it be shut down. Connecticut Attorney General Richard Blumenthal, one of the AGs who pressed for the change, said in a written statement that he welcomed the change and was trying to verify Craigslist's official policy going forward.”

Ryan Calo, associated with the Center for Internet and Society and the Stanford Law School, has questioned Mr. Blumenthal’s participation in the Craigslist affair:

“As an initial matter, it is not clear what legal hook an AG would have. Section 230 of the Communications Decency Act would appear to immunize Craigslist for the content posted on the site by its users. See 47 U.S.C. § 230(c)(1) (‘No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’). See also id. at §230(e)(3) (‘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.’). Our best guess is that Craigslist ultimately gave in to state AG demands not out of fear of losing a criminal trial, but due to the sheer prospect of facing investigations and lawsuits in multiple states, generating bad press and costing potentially thousands of dollars in defense fees regardless of outcome.

“Recall that attempts to restrict access to online pornography by adults on the basis of its alleged availability to children have repeatedly been struck down as unconstitutional under the First Amendment. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997) (‘It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials . . . [b]ut that interest does not justify an unnecessarily broad suppression of speech addressed to adults.’).

Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, agrees:

"Craigslist isn't legally culpable for these posts, but the public pressure has increased and Craigslist is a small company. My guess is that they may have just decided that the public pressure was too big."
Brian Carver, an attorney and assistant professor at the School of Information at UC Berkeley, cautions that the Blumenthal assault on First Amendment rights and well founded statutory law could have a chilling effect, according to a SFGate story:

“The broader concern is that making publishers responsible for the behavior of their users, whether through new laws or legal threats, will force them to adopt more conservative standards over what's allowed on their sites. That could have a chilling effect on online expression, said Brian Carver, an attorney and assistant professor at the School of Information at UC Berkeley.”

Others, including Mr. Blumenthal, worry that dissolving the adult services site will have the unfortunate effect of spreading the ads to other parts of Craigslist that will make monitoring less possible.

Mr. Blumenthal is famous for having said that his selective prosecution of companies “levels the playing field” for honest companies.

Some commentators have questioned why Mr. Blumenthal has not applied to Connecticut media outlets the same strictures he has urged Craigslist to adopt.

Hartford Courant reporter Daniela Altimari put this question to Mr. Blumenthal, drawing from the attorney general the following extenuating circumstances: 1) Although the Hartford Advocate chain of newspapers, which carries similar ads, is Connecticut based, craigslist is larger and “reaches more people.” Mr. Blumenthal has not said that the craigslist ads affect more customers living within Connecticut, the attorney general’s jurisdiction; 2) Some of the craigslist ads are more explicit than those in the Advocate chain of newspapers, the attorney general avers. In a previous blog, the following – very unsubtle – link to the Advocate ads was provided.

Mr. Blumenthal is perhaps not a connoisseur of erotic ads, but even he can appreciate the following story printed in the Hartford Courant that established a direct connection between ads appearing in Connecticut’s media and prostitution.

A story that appeared in the Yale Daily News pointed to a connection between ads printed in one of the Advocate papers and a Korean sexual slavery sauna parlor that had been close down twice. Apparently, Mr. Blumenthal's alert investigators, alive to ads in a California ad-house missed "The best Little Whorehouse in New Haven," hard by Yale University.

If we add together the customers from the Korean sauna pallor with the customers associated with the prostitute covered by the Courant – who had $600,000 tucked away in a bank deposit box – the resulting figure may well exceed the number of attorneys working in Mr. Blumenthal’s office, very few of whom, including Mr. Blumenthal, appear to be alarmed by ads facilitating prostitution in Connecticut.

Ms. Altimari, who has produced a stunning story exploring the cozy relationship Mr. Blumenthal has enjoyed for the last 20 years with Connecticut’s sycophantic media did not spend too much time searching out erotic advertisements in Connecticut publications, links to which have been included in an addenda to her story:

An addendum to today's story on Blumenthal and the media: Why has Blumenthal gone after this and not this?”
Mr Blumenthal may have his reasons; reasonable men usually do. But the reasons he has offered to Ms. Altimari don't hold water.

In addition to holding down the post of attorney general, Mr. Blumenthal is also running for U.S. Sen. Chris Dodd’s soon to be vacant seat in congress. As a U.S. congressman, it has been supposed that Mr. Blumenthal likely would uphold the First Amendment rights that he, as attorney general, is vigorously attacking.

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