The Volokh Conspiracy

So held a federal district court in Dart v. Craigslist, Inc. Here’s what plaintiff, the Cook County, Illinois, Sheriff claimed:

[Sheriff Dart] … alleges that the “erotic” (now “adult”) services section of Craigslist’s popular Internet classifieds service facilitates prostitution and constitutes a public nuisance…. The webpage located at “chicago.craigslist.org” … displays Chicago-related listings arranged by categories (e.g., “for sale” and “services”) and subcategories (e.g., “antiques” and “computer”). Craigslist created the categories, but its users create the content of the ads and select which categories their ads will appear in. Users posting ads on the website agree to abide by Craigslist’s “Terms of Use,” which prohibit posting unlawful content. Users browsing the “erotic” subcategory — which is (or was) the website’s most popular destination — receive an additional “warning & disclaimer” stating that users entering that section agree to “flag ‘prohibited’” any content that violates Craigslist’s Terms of Use including “offers for or the solicitation of prostitution.” Below the warning is a general “erotic services” link, and links to further subcategories (e.g., “w4m” (women for men)). Craigslist also gives users the option to search through ads using a word-search function.

Sheriff Dart alleges that, notwithstanding Craigslist’s warnings, users routinely post advertisements in the eroticservices category “openly promis[ing] sex for money.” Based on the samples that he cites in his complaint most of the ads are veiled (sometimes very thinly) using code words.

The court’s reasoning, which seems quite right to me: 47 U.S.C. § 230 generally immunizes Internet service providers from (among other things) being held civilly liable on the grounds that they are “publishers” of material that is supplied by their users. The Seventh Circuit has not read this as broadly as some other courts, but even under the Seventh Circuit’s reading, Craigslist immune because its alleged liability would stem precisely from the fact that it published material provided by its users. “A claim against an online service provider for negligently publishing harmful information created by its users treats the defendant as the ‘publisher’ of that information,” and is therefore preempted by § 230.

The court also considered the Ninth Circuit’s holding in Fair Housing Council v. Roommates.com (discussed here), under which a service provider could be held liable for its own actions in actively inducing people to post illegal content (some paragraph breaks added):

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