The Craigslist ruling: more food for thought
Let me preface this by saying that I’m not a lawyer. The commentary below is based on years of observing trends in the new media world and interviewing lawyers and legal groups that support the free speech rights of bloggers and of those who respond to bloggers via commenting technology.
One of the biggest reasons television stations are reluctant to experiment in the 2.0 world is that we view interacting with our audience as a maze of sticky legal issues. Everywhere I go, I encounter the same question about liability in the land of the blogosphere. This is a big problem as we attempt to wage competitive war against the real intruders into our space — outside internet pure play companies — because they don’t share our worries.
The problem is that we’re thinking like media companies who “publish” content for which we are responsible. I’ve long argued — and other observers have agreed — that we must begin looking at common carrier law in finding shelter in the evolving media landscape. You can’t sue the phone company, for example, if someone uses the telephone to harass you. Publishers and broadcasters are certainly responsible for what they publish and broadcast, but is a stand-alone web forum that essentially belongs to users a publication?
This idea of common carrier similarities is a part of the Communications Decency Act, and it was that precedent that a Federal Court in Chicago used last week to deny a suit against Craig Newmark and Craigslist, the online classifieds portal that’s causing fits for the newspaper industry. Civil rights groups in the Windy City sued Newmark over what were obvious racially-motivated rental housing listings, violations of federal fair-housing rules.
The court held that Craigslist wasn’t liable for the postings, citing section 230 of the CDA. That law shields providers and users of “interactive computer services” from liability so long as they make “good faith efforts” to restrict access to material that is considered “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
This ruling is going to be appealed, but I firmly believe the CDA will prevail and that perhaps even stronger legislation will one day be written. All of the rules of cultural modernism are being turned upside-down by technology, and we’re going to have to find ways to deal with both copyright and liability in the new world. Craig Newmark has done a wonderful thing in providing a free classifieds platform that allows people to connect and do commerce. It is so enormous that it’s impossible for them to police every entry made, and I think it’s ridiculous to expect such a thing in today’s world. Much of the interactive web is indeed like the phone company, and it makes little sense to hold applications like this accountable when all they do is provide the means. If Craigslist — or any of a host of other such companies — are responsible for people posting illegal ads, then Ma Bell is certainly responsible when any form of crime — including terrorism — is conducted via its pipes.
Kurt Opsahl of the Electronic Frontier Foundation wrote of the decision and offers insight for the future:
Section 230 plays a key role in fostering free speech on the Internet. Without the broad protections stemming from Section 230, few would risk creating a Website that permitted unfettered input from the public. This does not mean that people can’t pursue legal action if they think a Craigslist post is discriminatory — they can. But instead of suing the forum where the statement was made, they should sue the misguided landlord who made the discriminatory statement in the first place.The court held that Section 230 protected Craigslist, but nevertheless questioned the reasoning followed by numerous courts which have broadly interpreted the statute. Instead, this court envisioned a narrower protection, sufficient to protect against the claims at issue, but opening the door for later courts to limit Section 230’s important and necessary protections. In doing so, the court misreads the key cases, and creates a needless limitation that is contrary to the plain reading of Section 230, the intent of Congress and the needs to have open forums on the Internet.
The vast majority of other cases have reached the right conclusion, including all the appeals court, to decide the issue, so the impact of this court’s analysis is limited. Moreover, it would not be surprising if the Lawyer’s Committee appealed, giving the appeals court the opportunity to affirm the judgment and correct the reasoning. We’ll be sure to be there as a friend of the court.
These are very important legal times we’re in, and it’s important to pay attention. However, fear of POTENTIAL liability should not — and cannot — keep us from entering a space now dominated by outside enterprises who don’t share our fear. This is the battleground of Media 2.0, and we simply must not give it away by default.
If we’re going to create a web business or application that allows people to post without supervision, then we need to make it hard for them to do so without an identity. And having done that, the best approach is to keep our hands off it, because if we screen comments, for example, it’s a publication. It’s either a carrier of speech or it’s a publication, and how we approach it is what defines it in the end.
We must be careful as we proceed, but proceed we must.
