The Right to Advertise Adult Services

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I don’t have a deep understanding of the law, but I think the recent closing of the “Adult Services” section on Craigslist is a fascinating moment to reflect how complicated and confusing regulating sin is.

Here’s the situation, as described by Matt Zimmerman of the Electronic Frontier Foundation, in case you don’t read geek news:

On Saturday, after years of pressure from law enforcement officials, Internet classified ad web site Craigslist bowed to demands to remove its “Adult Services” section which critics charged encouraged prostitution and other sex-related crimes.

At first glance, it seems like this might be pretty cut and dry:

  • X is illegal
  • Y has an advertising section for X
  • Y is therefore an accomplice to acts of X
  • So Y should be punished

But Craigslist isn’t advertising sex – its users are – and this turns out to be an important difference. Important because this situation represents a sort of edge-case between two separate goals we have as a society:

  • We want to make it illegal to do, or be an accomplice to, certain acts
  • We also want to protect telecom carriers from being liable for the messages they carry

The 1996 Communications Decency Act puts this second goal into law. It protects people who serve as a carrier of information from having liability for the third-party information they carry. An analogy in the physical world would be that the Department of Transportation isn’t responsible for how people choose to use their roads. If you drink and drive, it’s your responsibility, and the DOT isn’t an accomplice just because it “carried” your car. In the same way, providers of “online roads” (like Comcast, Google, and Craigslist) are not liable for the particular 0s and 1s that individuals choose to put into their systems. This is a critical protection for the internet to be a viable business platform. If it weren’t there, your ISP would be an accomplice if you planned a bank robbery over instant messenger.

But when Craigslist hosts a classified forum titled “Adult Services,” it is pretty clear what the intent of that forum is. They’re not just asking for any third-party messages, they’re asking for a particular type of third party messages, in this case one that tends to be illegal in most places.

Does the debate actually come down to semantics? Is it a crime to host a site titled “Post illegal prostitution ads here”, while a site with the innuendo-laden, yet ultimately nonspecific title “Adult Services” would be protected under the Communications Decency Act? What about forums where drug users hang out? Or a forum where people discuss ways to speed without getting a ticket? It gets grayer and grayer pretty quick, which is why this is an important issue to stop for a moment and think about.

My gut reaction on this issue is, “Well, yeah. If the act is illegal then of course they shouldn’t be allowed to host advertisements for it.”

But then I am reminded that the junctures at which it is most important to stand our ground on freedom of speech tend to be exactly those situations where it might not be comfortable to do so. Because if we start putting footnotes on which types of communication carriers are allowed to carry, then we’ve removed their protections entirely. If Google has to filter one message, then they have to filter them all. And that removes the very foundation of freedom of speech online.