Category: Timeline

A lawsuit against Craigslist was filed by Thomas Dart, a sheriff in Cook County, Illinois, in 2009. Dart charged the site with facilitating prostitution. The case was rejected on the grounds of Section 230.

Facing increased pressure to shut down their ERS page, the company initially argued that it had a right to allow the ads under Section 230 and continued to run them with increased oversight. Following letters of complaint issued by attorneys general in 17 states, Craigslist eventually blocked access to the page, replacing its link with a black ‘censored’ icon. The closure of ERS prompted much debate. Many internet law specialists came to the defense of Craigslist, agreeing that the ads were protected by Section 230.

In their congressional testimony, executives from the company warned that with the closure of its Erotic Services page, law enforcement would lose a valuable partner in the fight against trafficking.

From 2002 to 2010, Craigslist provided an Erotic Services section on its front page, effected with several other specialized advertisement sections like housing, cars, childcare, etc. ERS initially provided free advertising to legal sex workers, such as private dancers. It was quickly utilized by those participating in prostitution to match with clients and coordinate appointments. ERS was also used as a mode of communication between sex workers to vet those clients and ensure safety.

A study conducted at Baylor University following the passage of SESTA/FOSTA found that ERS decreased the female homicide rate by an average of 10-17% nationwide. This staggering impact is the result of street prostitution moving indoors, allowing sex workers access to screening mechanisms and safer working conditions.

Professors at the University of Pennsylvania published a widely cited study in which they estimated that some 326,000 children were “at risk of commercial sexual exploitation” in the United States. The role of the internet was not specified, but it was stated that the online victimization of children had reached “epic proportions.” Importantly, the nature of the exploitation was not defined. As the internet reached an ever-growing number of people, it would logically follow that the use of the internet to exploit children would also grow. This phenomenon does not take away from the heinous nature of child victimization, but merely points out a logical fallacy in blaming the internet platforms themselves for this perceived epidemic.

The study had a significant political and social response and pressure mounted for sites like Facebook and MySpace to remove sexual content from their pages. As mainstream websites increased their auditing mechanisms in reaction to such pressure, sexual advertisements moved to specialized sites like Backpage.com and Craigslist’s Erotic Services Page. Lawsuits brought against online platforms for allowing such content repeatedly upheld Section 230.

In response, a coalition of internet regulators formed, led by the National Association of Attorneys General, the National Center for Missing and Exploited Children, the Christian right, and prohibitionist groups. They were ostensibly an anti-trafficking coalition, but they also adopted rhetorical and policy strategies that sought to abolish prostitution and some elements of sexual freedom.

In this landmark case, the Supreme Court ruled unanimously in favor of the ACLU. The anti-indecency provisions of the CDA are an unconstitutional violation of First Amendment rights. The ACLU argued that the censorship provisions criminalized expression protected by the Constitution because the terms “indecent” and “patently offensive” are overbroad and vague.

Importantly, the decision did not strike down Section 230 but upheld it as a constitutional exception to the rest of the CDA. In one of the first major Supreme Court cases related to internet censorship, the Supreme Court ruled explicitly in favor of upholding freedom of expression online.

This was the second of two contradicting Supreme Court cases in the 1990s relating to the liability of online platforms for user-generated content published on their sites. This legal discrepancy was the impetus for Section 230 of the Communications Decency Act of 1996. In Stratton Oakmont v. Prodigy, the courts ruled that if an online platform was actively censoring or editing user-generated content, they could be held liable for that content since they were, in effect, acting as a publisher. The courts had previously ruled in Cubby, Inc. v. CompuServe Inc. (1991) that they would not consider online platforms to be publishers if they did not audit user-generated content. In this case, servers would be regarded as digital libraries and could not be held liable. The inconsistencies in these two cases required clarification of Section 230.