By J. D. Obenberger and Reed Lee
© MMII  All Rights Reserved

In another article here, we have discussed the legal issues faced by escorts and escort services who advertise, and the constitutional indefensibility of their advertising when an illegal transaction is proposed. The legality of the ad depends fundamentally about whether the transaction proposed is lawful or not, because the constitution gives no protection to ads that propose an illegal transaction.

 The situation for Internet hosting companies on whose servers the advertisements reside and that of “escort advertising” sites that publish ads for escorts leads to a different kind of legal analysis that can be applied to the advertiser, at least for prosecutions founded on state law. The more protected position of the hosts and advertising site operators under state law is approximately the same or can be, and it is very different from the position of the advertiser herself/himself/itself. This is because of an important federal statute, Section 230 of the Communication Decency Act.

 Under the guise of protecting inter­net “Good Samaritan[s]” who attempt to screen or block “offensive material” on the Internet, in Section 230 of the Communication Decency Act[1] Congress promulgated what is often improperly called an “immunity” but what is, in fact, a substantive rule of supreme federal law which elimi­nates any possibility that a host, as a host, can be “treated as the publisher or speaker of any in­for­mation provided by another information content provider.”[2]  The supremacy of this substantive rule of law is established not only by the Supremacy Clause, U.S. Const. Art. 6, cl. 2, but also by several limited but expansive preemption provisions contained in the statute it­self.[3]  The advertiser is plainly “another information content provider” within the meaning of this provision of the Communications Decency Act.[4]  However, a host may himself or herself be an escort or a manager or an advertiser and will enjoy no protection from the Act if that is the case[5].  But as a host, he or she or it will be responsible only for his or her or its own on­line expression, not for permitting the posting of or allowing access to the ex­pression of others.

 This is why the Cook County Sheriff,  Plaintiff Tom Dart was unsuccessful in attempting to show that craigslist.com was responsible for the prostitution allegedly promoted by the ads posted to the “erotic” (now “adult”) services section of its website and included as exhibits in the picturesque and voluminous Complaint he filed, a Complaint claiming that the erotic services ads amounted to a public nuisance promoting prostitution and asking the court to abate the nuisance, in other words, to shut it down.[6]  Try as he did, the Sheriff just could not get past this CDA provision because, as Judge Grady quite properly determined, all of his theories relied upon at least a subtle attribution of the ads to craigslist as a publisher.  The case indicates how far the courts are willing to go in recognizing that, while an Internet host may indeed be a but-for condition for expression it hosts reaching millions rather than only a few, it is no more responsible for the bad speech which it may un­knowingly facilitate than a telephone company for a threat or an insider trade or a even an order to kill transmitted over the company’s telephone equipment. 

 Interestingly, Judge Grady recog­nized that the legal situation was, and perhaps still is, quite different for print newspapers.[7]  Newspapers traditionally exercised complete control over what they published in at least one basic sense:  they typeset the copy.  Once telephone equipment is in place and opera­ting, however, no further human intervention on the company’s part is necessary to facilitate good speech or bad.  Although extended analysis is inappropriate here, is may also be that we are in the midst of a surprisingly traditional (in the sense of the common law) evaluation of the merits of services – newly available on account of widespread computer networks – against the drawback that users can put them to bad and even destructive uses[8].  In any event, Judge Grady is surely correct in concluding that Congress intended that pure hosting providers and advertisers who do nothing to involve themselves in promoting prostitution beyond permitting ads to run to be on the telephone com­pany, not the newspaper, side of that old line.  For this reason, too, it is clear that Section 230 would prevent the application of the federal statutes discussed supra to a host, qua host; and that any of the state statues cited, as applied to a host, would be preempted as “inconsistent with this section.”  47 U.S.C. § 230(e)(3).

 The CDA provision plainly does leave the host open to responsibility for his or her own online speech, and it is easy to imagine extreme cases where a host would be plainly responsible for promoting prostitution.  If a host offers editorial comments on some of the individual ads, for instance, and writes with respect to a particular ad for a particular escort, “I’ve tried her.  Sex with her was worth every penny I paid for it.  You all should pay her for sex too because you will enjoy it. I guarantee!” then the host can be held responsible under state and the federal statutes enumerated supra just as an advertiser – or indeed, an end user – originating and posting an iden­tical comment.  Somewhat more realistically, a host might classify the individual ads.  In the un­likely event that those classifications took a form such as “Oral Sex for less that $50 US/Oral Sex for $50 to $150 US/Oral Sex for more than $150 US/ Anal sex for less than . . . [you get the idea],” the classification scheme (which is the host’s own expression) would pretty clearly evi­dence sufficient knowledge and intent to warrant conviction under one or more state statutes criminalizing the promotion of prostitution or the allied conspiracy and attempt statutes which can be used with it, and perhaps pandering statutes in some jurisdictions as well as others.[9]  A Seventh Circuit docket search (PACER) indicates no filed case involving both Craigslist and Thomas Dart as parties, so it appears that no appeal was taken from the District Court’s judgment on the pleadings against Dart and in favor of Craigslist..

 The mere provision of a neutral search facility and even an open area inviting unstructured and undirected user comments does not inject problematic host speech into a website.[10] Similarly, terms of use limi­ta­tions on and express online warnings against unlawful use – though alto­gether unneces­sary to keep telephone com­panies out of trouble – are easy and cheap to imple­ment and will certainly help in court.[11] Indeed, the extreme examples indicate just how crazy a host would have to be before losing the very powerful protections afforded to hosts and other interactive computer service providers and users from state law criminal claims by the CDA.

It should be well-understood that each decision in this area has implications in another area of law. The decision to remove content because it is indecent is protected by the CDA, but it also has implications for Section 2257 when a webmaster manages the sexually-explicit content of a website, implications that probably mean the duty to act as primary producer, retaining records, indexing them, and making them available for inspection. You can read more about that here. It also has implications for the webmaster's liability for copyright infringement for material submitted by others, in proposed advertising content or otherwise, and raises serious issues about whether the DMCA protects the webmaster who implements his or her own protocols and standards and reviews ads before their publication. The decision on how best to proceed ought to be made in close consultation with an attorney seasoned and experienced in these decisions and their implications.

 

Footnotes

 

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net.