Section 230 Helps Craigslist Defeat Sex Trafficking Case–LH v. Marriott

This is another sex trafficking case against Craigslist. The plaintiff’s

position primarily focuses on craigslist’s creation of a section of its platform devoted to “erotic services,” but also points to features like craigslist’s embedded messaging system (which allows for confidential communications between buyers and sellers, along with the exchange of sexually explicit photographs) and its policy of accepting pre-paid credit cards for fees and burner phones for contact, which both help users maintain their anonymity. According to L.H., these features demonstrate that craigslist materially contributed to the advertisements L.H.’s traffickers posted of her on the platform.

The court says this is not enough to get around Section 230. Citing, the court says (bold added):

None of L.H.’s allegations amounts to a showing that craigslist materially contributed to the illegality of her traffickers’ postings. While some of her allegations demonstrate craigslist’s appalling lack of diligence in preventing trafficking, not a single one establishes that craigslist created or developed the trafficking content. For example, L.H. repeatedly describes craigslist’s platform and policies as having “allowed” or even “encouraged” sex traffickers to market their victims by, among other things, requiring explicit images to be blurred or cropped and allowing the use of the aliases, but she fails to tie any of that conduct to the creation of the illegal posts themselves.

Similarly, her allegations that craigslist “created” classified categories titled, for instance, “erotic services,” “adult services,” “casual encounters,” or “massage services,” fare no better. None of those categories, just by their existence, required or induced craigslist users to post unlawful content. Indeed, as L.H. herself acknowledges, craigslist’s published policies affirmatively prohibit such content. Put differently, L.H. appears to conflate, on the one hand, craigslist’s creation of a platform that her traffickers used to traffic her, with, on the other, craigslist’s having actually materially contributed, itself, to the creation and development of the illegal postings at issue. At bottom, nothing about the platform that craigslist provided, at least on L.H.’s allegations, led users to necessarily engage in the illegal trafficking conduct alleged here. While L.H. was certainly trafficked under craigslist’s watch, that alone is insufficient to remove § 230’s shield of liability

To get around this, the plaintiff argued she was seeking to hold Craigslist liable for not preventing the sex trafficking ads. The court rightly points out the legal error: “craigslist’s failure to prevent or remove the postings is precisely the type of conduct Congress sought to immunize: seeking to hold craigslist liable for that failure is no different than attempting to treat craigslist as the publisher of the information in the postings, provided by the traffickers themselves.”

Similarly, the court does not see any allegations that Craigslist encouraged illegal content:

the factual allegations merely describe a system that allowed the illegal posts: for example, the creation of categories such as “erotic services” and “casual encounters”; requiring a poster to designate a location; allowing the use of aliases; requiring explicit images to be blurred or cropped; allowing the use of prepaid credit cards and burner phones; and providing for the use of an internal messaging system

The plaintiff argued that she’s trying to hold Craigslist liable for its own misconduct. The court says the whole point of an immunity is to protect defendants for putative misconduct (you don’t need an immunity when there’s no legal violation).

In a footnote, the court rejects the plaintiff’s argument that Section 230 isn’t amenable to a motion to dismiss. “Courts in this circuit and elsewhere routinely grant dismissal on § 230 grounds, even where the plaintiff attempts to allege the defendant’s material contribution to third-party content.”

The court summarizes:

Without any viable allegations, then, showing that craigslist was not simply republishing the traffickers’ information, or that craigslist was proactively creating and developing the illegal postings at issue here, L.H. cannot get past craigslist’s immunity under § 230

The court then turns to the FOSTA exceptions to Section 230. On the core 1591/1595 dilemma, the court sees the statutory interpretation as an easy one: “a conspicuous majority of courts to conclude that FOSTA withdrew immunity from only those § 1595 claims in which the defendant’s conduct violated the TVPRA’s criminal provision, 18 U.S.C. § 1591” [cites to Kik, JB v. G6]. In a footnote, the court says that the contrary cases, Doe v. Twitter and Doe v. Mindgeek, “did not fully address the contextual and legislative history arguments exhaustively considered in other cases.” The 1591/1595 issue is on appeal in the Ninth Circuit and perhaps elsewhere. As I’ve previously explained, the whole point of the SESTA Manager’s Amendment was to link a 1595 claim to 1591, so it’s been frustrating watching some courts misassess that essential point.

I’m still incredulous that we’re litigating Craigslist’s activity from 2010 or before. Obviously the statute of limitations simply don’t seem to apply. It’s also troubling to see the FOSTA exceptions used to reach conduct from years before the law’s enactment, when it arguably wasn’t illegal. Still, Craigslist’s results in this case are better than its results in the ML case. Can Craigslist flip those results to match this one? Or will this result be the outlier?

Case citation: L.H. v. Marriott Int’l, Inc., 2022 WL 1619637 (S.D. Fla. May 23, 2022)

More SESTA/FOSTA-Related Posts

* Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce
Constitutional Challenge to FOSTA Fails–Woodhull v. US
Catching Up on a FOSTA Case–ML v. Craigslist
Facebook Loses Jurisdictional Ruling in Texas Sex Trafficking Lawsuit–Facebook v. Doe
Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok
So Many Unanswered Empirical Questions About FOSTA
Another Problematic FOSTA Ruling–Doe v. Pornhub
Catching Up on Recent FOSTA Developments (None of Them Good)
Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
FOSTA Survives Constitutional Challenge–US v. Martono
2H 2020 Quick Links, Part 4 (FOSTA)
Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
Section 230 Preempts Another FOSTA Claim–Doe v. Kik
Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
New Paper Explains How FOSTA Devastated Male Sex Workers
FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
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Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
Latest Linkwrap on FOSTA’s Aftermath
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An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
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More Aftermath from the ‘Worst of Both Worlds FOSTA’
‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
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What’s New With SESTA/FOSTA (January 17, 2018 edition)
New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
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Recent SESTA Developments (A Linkwrap)
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An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
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My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
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