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May 21, 2009 1:47 PM

Craigslist Fights Back

Posted by Zach Lowe

Craigslist has apparently found the point at which it will no longer kowtow to the state attorneys general who have called for the classified ad giant to take down its erotic services section in the wake of prostitution scandals and the case of Boston's so-called Craigslist Killer. As we've written about in this space, Craigslist--with advice from its go-to counsel at Perkins Coie--agreed in November 2008 to use a credit card verification process for posts to its erotic services section; then last week the site decided to take the section down entirely. Under pressure from 40 state attorneys general, Craigslist created a new adults-only section to which users can post ads only after Craigslist employees have approved them.

That was enough for all the attorneys general, save one: Henry McMaster of South Carolina. McMaster told Craigslist last Friday that he could still find ads for illegal services and generally "obscene" ads on Craigslist's South Carolina pages, and he threatened to prosecute Craigslist and its chief executive.

Craigslist finally had enough. On Wednesday, the company sued McMaster, seeking to enjoin any prosecution, according to our colleagues at The Am Law Litigation Daily. They've hired Perkins Coie and Wilmer Cutler Pickering Hale and Dorr for the litigaton; Perkins is Craigslist's general outside counsel, and Wilmer Cutler has helped on litigation, including defending the ad site against similar allegations in an Illinois case, court records show.

McMaster has almost no chance to prevail in this matter, says Eric Goldman, a law professor at the Santa Clara University School of Law and author of the popular Technology and Marketing Law blog; the federal Communications Decency Act protects Web sites from liability linked to material users post on those sites, Goldman says. 

"We have a grandstanding attorney general who is trying to establish his own brand by beating up on a target," Goldman says of McMaster, who has already said he is not backing down in the face of the Craigslist suit. "We see this over and over again from attorneys general who are full of hot air. The [Web site] providers have to decide whether to fight and prove the attorneys general are full of hot air or to settle up and make them go away."

Craiglist has gone with the settlement route so far, but no longer. One interesting note from Goldman: the Communications Decency Act doesn't apply if the alleged crime involved is a violation of federal law. But as long as state AGs try to prosecute Web sites using state laws, they will lose--if the provider decides to fight the case in court, Goldman says. 

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