Craigslist said Wednesday that it is suing South Carolina Attorney General Henry McMaster for his "direct and public threats to criminally prosecute Craigslist and its management."As noted on the Craigslist blog, the classified ad site is seeking declaratory relief and a restraining order. For background, McMaster has been using Craigslist to earn political points even as the company revamped its adult classified section. After the revamp, McMaster still maintained that it would pursue criminal charges and Craigslist demanded an apology.
Given Defendant McMaster‘s persistent and continuing public threats, craigslist is presently faced with the untenable choice of either completely shutting down all portions of its website that are directed at South Carolina or else putting itself and its management at risk of imminent criminal prosecution by Defendant McMaster.
craigslist is entitled to immediate injunctive and declaratory relief preventing Defendant McMaster from continuing to threaten craigslist and its management with criminal prosecution, because those threats in and of themselves do, and any following through on those threats would, violate craigslist‘s fundamental rights under 47 U.S.C. § 230, the First Amendment to the U.S. Constitution, and the Commerce Clause of the U.S. Constitution.
Craigslist says that it met with McMaster on May 13 before his reiteration that he won't withdraw his prosecution threat. The complaint documents McMaster's various media appearances and then notes that Craigslist may just shut down in South Carolina.
As a practical matter, the only way for craigslist to assure compliance with Defendant McMaster‘s demands would be to shut down completely all portions of its website dedicated to the State of South Carolina. This is so because McMaster has demanded that, in order to avoid criminal investigation and prosecution, craigslist must prevent third parties from posting ads or notices that may contain material McMaster has identified as illegal, and the only way to assure that such material is not posted would be to shut down entirely all portions of the site dedicated to the state of South Carolina.
Given the specter of criminal prosecution of craigslist and its management arising from Defendant McMaster‘s threats, and given the persistence of those threats notwithstanding craigslist‘s recent announcement and implementation of new measures ? including termination of the ?erotic? subcategory and establishment of a new ?adult services- subcategory in which all postings are being subjected to advance manual --craigslist is presently faced with the choice of either shutting down completely all portions of its website upon which the people of South Carolina depend for their everyday needs, or putting itself and its management at risk of criminal prosecution by Defendants.
What transpires from here will be interesting. Craigslist has called McMaster's bluff and it's unlikely that the AG can afford politically to stand down completely. Indeed, McMaster has issued a statement that appears to back down a bit while keeping political points. The full statement:
“The defensive legal action craigslist has taken against the solicitors and my office is good news. It shows that craigslist is taking the matter seriously for the first time
More importantly, overnight they have removed the erotic services section from their website, as we asked them to do. And they are now taking responsibility for the content of their future advertisements. If they keep their word, this is a victory for law enforcement and for the people of South Carolina.
Unfortunately, we had to inform them of possible state criminal violations concerning their past practices to produce a serious response. We trust they will now adhere to the higher standards they have promised. This office and the law enforcement agencies of South Carolina will continue to monitor the site to make certain that our laws are respected.”