First Amendment jurisprudence celebrates the metaphorical marketplace of ideas. The website craigslist may very well be an actual representation of this metaphor in that it invites users all over the world to share their ideas, sell their used couches, find roommates and advertise other services, including sensual massages and escort services.

I think most readers of this blog  agree that craigslist and its loyal users should be free to keep this successful marketplace of words, images and offers to perform services and deliver goods alive and robust.

Apparently South Carolina attorney general Henry McMaster thought otherwise.   Earlier this month, the AG’s office threatened to launch a criminal investigation against the popular online marketplace over its adult services section.

According to McMaster, craigslist contains, “advertisements for prostitution and graphic pornographic material,” which the AG’s office wanted removed, lest craigslist face criminal charges for exposing residents of South Carolina to such lascivious online content.

craigslist officially wants McMaster to leave the popular website alone.   In its suit, filed in federal court, craigslist has requested that the court restrain the AG’s office from prosecuting the website over constitutionally protected content.

craigslist is no stranger to state attorneys general requesting that the website curtail its third party users from advertising services pertaining to sex.  In fact, craigslist has worked closely with many states to ensure that the website did not serve as a marketplace for blatantly illegal activities and services.  In its complaint against McMaster and the South Carolina AG’s office, craigslist outlined the measures it has taken to keep its third party users on the straight and narrow, including:

  • Requiring users to agree (via a click-through screen) to a terms of service that prohibits making content available online that advertises illegal services;
  • Making it easy for users to flag content they believe violated that terms of service agreement;
  • Requiring those posting ads for services considered erotic (or adult), including sensual massages, exotic dancers, and legal escort services to pay a nominal fee via a valid credit card;
  • Re-branding its “Erotic Services” section with the discrete title of “Adult Services”.

Despite these efforts, McMaster was not satisfied and made public pronouncements of his desire to rid the Internet in South Carolina of such filth.

As an Internet service provider that invites third party content, craigslist does not have an obligation to edit user-generated content.  Section 230 of the Communications Decency Act provides that much.

Moreover, the First Amendment, along with the general principle of free expression, protects craigslist and its users against government generated censorship.

Then again, it is possible that McMaster and craigslist are talking past each other.  According to the New York Times and Wired, McMaster has softened his position (and read craigslist’s complaint, taking the website’s arguments to heart).  Yesterday, the AG’s office declared that,

We trust they [craigslist] will now adhere to the higher standards they have promised. This office and the law enforcement agencies of South Carolina will continue to monitor the site to make certain that our laws are respected.

Whether McMaster and his office will make good on their promise not to bring criminal charges against the website has yet to be seen.  Clearly, there are more effective means of addressing the oldest profession than threatening to criminalize online speech.  It behooves McMaster to keep this in mind.