You’ll find legal services offered on Craigslist (we don’t actually recommend hiring any of the lawyers that advertise there), but nothing found in these online classifieds may be as valuable to Internet content providers as a case the popular marketplace website itself won last week in federal court. Those with a sharp eye honed on Section 230 of the Communications Decency Act, a statute we have previously discussed in this blog and in our Memo to Clients newsletter may want to hold off on celebrating just yet, as New Jersey prosecutors are considering legal action against a controversial site that has become all the rage on college campuses, the effect of which could undercut the entire rationale for Section 230.
Our previous writings on Section 230 of the Communications Decency Act have reviewed how this statute continues to be interpreted very broadly by courts around the nation to offer protection to any "Internet content provider" against liability that would derive from content posted by a third party. Rulings from several federal District and Appellate courts, as well major state Supreme Courts, make it clear that websites have broad power to modify, edit and even delete content without accepting responsibility for this third party content. The law has most often been invoked as a defense in defamation cases, but it applies to any cause of action other than violations of federal criminal law and intellectual property violations (though we have discussed a separate legal protection against copyright infringement actions found in Section 512 of the Digital Millennium Copyright Act in the blog and MTC.
Craigstlist was sued by the Chicago Lawyers’ Committee for Civil Rights in February 2006, which alleged that Craigslist had violated the federal Fair Housing Act by allowing ads to be posted on the site which discriminated on the basis of race, gender or religion. In a unanimous decision authored by Chief Judge Easterbrook, the United States Court of Appeals for the Seventh Circuit held that Craigslist is clearly a publisher under Section 230 of the Communications Decency Act and, therefore, the only recourse that the Lawyers’ Committee for Civil Rights has is to identify and directly act against the individual content posters themselves. In other words: "Don’t Shoot the Messenger".
It is worth noting that the United States Court of Appeals for the Ninth Circuit ruled the opposite way in a case also brought under the Fair Housing Act against Roommates.com finding that this housing website was itself a publisher of discriminatory ads when it provided landlords or sellers with drop down menus that allowed them to reach only potential buyers of a certain race, gender or religion; that case has been accepted for rehearing by the full Court of Appeals, with a decision expected later this year.
While awaiting a decision in the Roommates.com case, those operating a website with a discussion or chat area, or even allowing comments in response to articles, blog postings or other content (like us, if anyone actually commented on our articles) should pay attention to New Jersey, where the state’s Attorney General has confirmed it is considering legal action against a website known as "Juicy Campus." The relatively new site’s entire business model, to the extent there may be one, relies on the expansive reading of Section 230 that was just upheld by the Seventh Circuit. It is a repository of entirely anonymous, largely spiteful discussion among students on more than 50 college campuses where classmates rarely focus on those aspects of campus life that occur in the classroom. Instead, students mainly post scurrilous rumors about either other, often of a homophobic, racist, or sexually offensive nature. Many are clearly false and defamatory, but just as clearly protected by Section 230 of the Communications Decency Act.
New Jersey Attorney General Anne Milgram, proudly noting that her office appears to be a trailblazer in this regard, is investigating whether it can bring action against JuicyCampus for violating the state’s Consumer Fraud Act – not for what the site does, but for what it doesn’t do. The N.J. AG’s office claims that Juicy Campus is hiding behind Section 230 a little too much, with the site promising to remove offensive material of the type that is found there at any given moment but, in reality, failing to live up to that promise. The site has been served with a subpoena that seeks information how it responds to complaints about offensive postings; the site’s advertising agency has also been subpoenaed to provide information about representations the site made to the agency about its practices and about the keywords employed to bring new users to the site.
The New Jersey proceedings are a serious threat to a despicable yet clearly legal website. By providing an end run around Section 230, they also threaten the First Amendment rights of more mainstream websites and the vibrant and often positive speech that is found on these sites. Because it is unclear just how far a website must go in policing offensive postings in order to avoid violating a consumer protection statute, the site is left with two choices, neither of which is in the interest of free speech or the underlying purposes of Section 230 of the Communications Decency Act: it can either undertake the herculean and self-censoring task of deleting every post which is claimed to be offensive or otherwise in violation of the site’s rules, or it can simply refuse to have any standards with regard to offensive content, taking a completely hands off approach. Of course, this puts us right back to the state of the law in 1995, the year before the Communications Decency Act was past and a time when, frankly, the Internet just wasn’t that interesting.
