Cook County Sheriff Sues Craigslist for Erotic Services Category

By Eric Goldman

Dart v. Craigslist, Inc., 09-CV-1385 (N.D. Ill. complaint filed March 5, 2009)

Dart, the Cook County, Illinois sheriff, has sued Craigslist in federal court for creating a “public nuisance” because its “Erotic Services” category facilitates prostitution. Unfortunately for Dart, this lawsuit is almost certainly preempted by 47 USC 230:

* 47 USC 230 covers the publication of third party ads. See Cisneros v. Yahoo.

* 47 USC 230 preempts a civil claim that is derived from a criminal statute. See, e.g., Voicenet v. Corbett; Doe v. Bates. The federal crimes exception only applies to the enforcement of federal criminal statutes. Therefore, a civil claim based on state or local criminal laws is unambiguously preempted.

* Although hardly a model of clarity, last year the Seventh Circuit clearly held that Craigslist was covered by 47 USC 230 in a claim that Craigslist violated the Fair Housing Act.

* In distinguishing the Seventh Circuit Craigslist case, the Ninth Circuit’s Roommates.com case pointed out that Craiglist’s listings were open narratives and therefore fully covered by 47 USC 230. The complaint’s allegations that Craigslist was involved in creating the bad content because of its category title, search functions and other attributes aren’t likely to get around either the Seventh Circuit or Ninth Circuit precedent.

* Indeed, the Seventh Circuit concluded its opinion by pointing out that the Craigslist ads made it easier to find lawbreakers:

Using the remarkably candid postings on craigslist, the Lawyers’ Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination….It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.”

All of which is true here as well, and all of which is a good reason why the Seventh Circuit isn’t likely to reach a different result here.

At a few points, the complaint implies that Craiglist harmed the sheriff’s office because the office spent $105,000 busting 156 individuals for prostitution through Craigslist. WHAT?! Enforcing laws is what the sheriff’s office is given taxpayer money to do! And, at less than $700/arrest, I wonder if this is CHEAPER than trying to bust prostitution criminals through other techniques. In other words, it’s possible that Craigslist makes it cheaper for the sheriff’s office to do its job, so to claim any harm by spending taxpayer money to do its job is ludicrous.

While this lawsuit is little more than a sad publicity stunt by the sheriff’s office, I remain uncertain whether or not it’s a good thing for Craigslist to have an “erotic services” category. I understand the argument that it centralizes these ads in one place rather than having these ads spammed through other Craiglist categories, but I’m confused what, if any, “erotic services” advertised in this category are ever legal. If everything directed to this category is always illegal, it seems like Craigslist could, and perhaps should, voluntarily choose to eliminate the category altogether. That may require Craigslist to invest some more resources policing its other categories to prevent their spamming/hijacking by the dispersed ads, but that may be the unavoidable cost of a free classified ads service.

UPDATE: A reader points out the Craigslist FAQs:

Q: Why does craigslist have an “erotic services” category?

A: It was established at the request of craigslist users, who were tired of seeing ads for escort services, sensual massage, adult web cams, phone sex, erotic dancing, adult websites, nude housecleaning, etc mixed into the regular personals and services categories.

So it seems that there could be some non-illegal activities mixed into this category. Not having checked out the category myself (and not really wanting to do so from my work computer…), I wonder what percentage of posts actually offer these alternative services? i.e., do users actually regularly post nude housecleaning ads?

UPDATE 2: Craigslist says that its existing deal with the state AGs has reduced erotic services ads 90-95% in 12 months.

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