Who Defending Craig’s List, Who’s Not, and the Future of the First Amendment

Craig’s List has (once again) come under fire for its Adult Services ads section. These ads are no different from the ads you can see in any Arts & Entertainment “street” paper in any medium sized city.

They used to be free, until a man used the Craig’s List ads as a way to make contact with prostitutes and then kill them. And although the data-trail left by Craig’s List helped find the killer, it’s not surprising there was some uproar about ads offering illegal services being on Craig’s List to begin with, and in the end Craig’s List relented to pressure to remove the adds entirely by beginning to charge for the listings, hiring lawyers to screen the ads, donating some of the ads proceeds to charity.

But apparently that was not satisfactory to a group of 17 States Attorneys General, who sent what amounted to an open letter to Craig’s List, accusing them of facilitating forced sexual servitude of adults and the sexual exploitation of children, and demanding that Craig’s List remove it’s Adult Service listing entirely.

And that’s what happened.

Whether or not people have the right to prostitute themselves is question sure to spark heated debate among those who care to debate it. Whether or not Craig’s List makes the business prostitution more or less chaotic, I don’t know. Whether or not the removal of Adult Services listing from Craig’s List will reduce sexual crimes against adults or children, I don’t know, but I doubt it.

What I do know is that over at Wired.com,  Ryan Single makes a pretty convincing case that the same laws that protect Google from being held responsible for videos that users upload or from being held responsible for comments users leave also protect Craig’s List:

CDA 230 protects Craigslist — and also WordPress, Yelp, Google Groups, Blogger, Twitter, Facebook, Topix, Yahoo, The New York Times and Wired.com to name a few. Google’s Blogger isn’t responsible for any libel in any posts, Twitter isn’t responsible for Tweets from drug dealers, Facebook isn’t responsible for uploaded incriminating photos, Yelp can’t be sued if someone posts a libelous review, and no news site is legally responsible for what any commenter says.

Later in the same column, Single accuse the internet’s big players being afraid of taking a controversial position:

Craigslist’s complete retreat was from a compromise position it agreed to, two years ago with same said attorneys general — a few with political ambitions. Despite — or perhaps because of — Craigslist’s unconditional surrender, this group is amping up its assault on the 12-year old law that has allowed the net to flourish. And now Congress is getting into the righteousness with a hearing during which two representatives from Craigslist will face public flogging from politicians in the midst of an election season.

While we can expect this kind of showboating and moral grandstanding from politicians, the reason they’ve gotten this far has everything to do with companies like Google, Yahoo, Yelp and Facebook standing on the sidelines, silently allowing Craigslist to be pilloried out of fear they’ll be tainted as supporting prostitution and child-sex–trafficking if they stood up for an open internet.

But I would like to suggest that that the reason that WordPress, Yelp, Google Groups, Blogger, Twitter, Facebook, Topix, Yahoo, The New York Times, etc haven’t spoken up isn’t because their afraid. In fact, quite the opposite. The reason for silence from this who’s who of internet heavies is because they are not afraid. And the reason I say this is because when they are afraid, they pipe right up. Here’s a July 3rd, 2010 editorial in the New York Times entitled The Right to be Wrong:

The Supreme Court has long held that newspapers and other publications have the right to be wrong, as long as they did not err deliberately or with negligence. As Justice Lewis F. Powell Jr. wrote in 1974, “the First Amendment requires that we protect some falsehood in order to protect speech that matters.” Unfortunately, the court missed an opportunity to uphold that principle when it refused to take an important First Amendment case last week.

In the case, the publisher of a financial newsletter promised a hot stock tip, based on inside information, to people willing to pay $1,000. About 1,200 people agreed to pay, but the tip did not pan out, and the stock failed to soar. The Securities and Exchange Commission sued the publisher for securities fraud, and the lower courts agreed that the publisher, Frank Porter Stansberry and his company, Agora Inc., should be penalized.

It was the first time the S.E.C. had gone after a publisher who did not have a stake in the stock in question. Normally, the laws against securities fraud are designed to prevent insider trading or manipulation by people who stand to profit through ownership of a stock.

Mr. Stansberry’s actions might seem unorthodox or even unethical by the standards of most reputable publishers, but that does not make them illegal. The implications of the S.E.C.’s action are potentially profound: newspapers or Web sites promising their paying readers stock information that later turns out to be untrue suddenly leave themselves open to fraud charges. Any financial commentator who passes on bad information in good faith could be sued.

A large group of newspaper publishers, including The New York Times, urged the Supreme Court to reverse the decision by the Fourth Circuit Court of Appeals that Mr. Stansberry was liable for his actions. In a friend-of-the-court brief, the Reporters Committee for the Freedom of the Press called that decision “a significant threat to the free dissemination of news about the financial markets and specific investment opportunities.”

Without comment, the Supreme Court refused on Monday to review the decision. Congress now needs to fix the problem by adding an exemption for the news media to the securities fraud law, as it has done in other financial legislation. In the meantime, if the S.E.C. does not begin to stick to actual securities fraud and stop whittling at the First Amendment, financial journalism could become more cautious and less robust.

The sorts of listing that used to be found in the Craig’s List Adult Services section have already started showing up in other, less regulated areas of Craig’s List, and elsewhere on the internet. The State’s Attorneys Generals’ actions amounting to little more than a sweep of the internet’s best known, best lit and best tolerated red light district, temporarily dispersing vice until it congregates in another neighborhood that the State can afford to ignore. Ryan Single’s argument maybe be logical, but it’s not practical, so it will be largely ignored.

The Stansberry case is more interesting, or at least it’s more interesting to me. Here’s why.

In recent years, much has been made of the idea of the Citizen Journalist, and I lay much of the appeal of the phrase to the high status of the Citizen Soldier in our national mythology; the Everyman with his cellphone cam replacing the Kentucky Rifleman as our great hero in the struggle between citizens and State and (now) corporate control.

But when I look at the evolution tools of war and the evolution of the Second Amendment, what I notice is a widening gap between what we see as reasonable limits on what the Second Amendment protects and the weapons of professional soldiering. Today, Second Amendment cases revolve around carry laws, or possession laws, but no one makes the argument that the right to “keep and bear arms” includes the right of the average citizen to own grenades, or claymore mines, or a rocket launcher.

So now it would seem that in the face of the growing power of the information and communications tools available to the average person, the courts are faced with determining reasonable limits on what uses of these tools are protected by the First Amendment, with (as now) those who can successfully argue journalist status afforded a greater degree of protection than mere citizens. And as with Craig’s list, where these boundaries lie will be determined both by what we can afford ignore, and what we can afford police.