|Craigslist Files Section 230 Declaratory Judgment Action
5/20. Craigslist, Inc. filed a
complaint [34 pages
in PDF] in U.S. District Court (DSCar) against
Henry McMaster (in his capacity
as Attorney General of the state of South Carolina), and other state officials,
seeking declaratory and injunctive relief.
The complaint alleges that McMaster has threatened Craigslist with criminal
prosecution in connection with users' postings of advertisements for sexual
prostitution services on the Craigslist web site.
Craigslist also filed a
Motion for Temporary Restraining Order [37 pages in PDF].
The complaint and TRO motion request that the District Court block the filing
of criminal charges against Craigslist or its management for the postings of
The complaint states that McMaster "has recently
made, and is continuing to make, direct and public threats to criminally
prosecute craigslist and its management based on the alleged presence on the
craigslist website of third-party ads or notices that, according to Defendant
McMaster, solicit prostitution or other unlawful activity or contain
Section 230 Immunity. First, the complaint alleges that criminal
prosecution would violate 47 U.S.C. § 230, which provides immunity to interactive
computer services for the postings of others.
47 U.S.C. § 230 that "No
provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
It defines "interactive computer service" as "any information service,
system, or access software provider that provides or enables
computer access by multiple users to a computer server, including specifically a
service or system that provides access to the Internet and such systems operated or services
offered by libraries or educational institutions".
Craigslist has previously successfully asserted Section 230. In Chicago
Lawyers v. Craigslist, attorneys filed a lawsuit seeking to impose
liability under civil rights laws upon Craigslist for the statements of the web
sites' users regarding roommates, apartments, and housing. The 7th Circuit held
that Section 230 immunizes Craigslist. See, March 14, 2008,
opinion [10 pages in PDF] of the U.S.
Court of Appeals (7thCir), and
titled "7th Circuit Applies Section 230 Immunity in
Craigslist Case" in
TLJ Daily E-Mail Alert No. 1,731, March 17, 2008.
First Amendment. The complaint also alleges that criminal prosecution
would violate the First Amendment.
42 U.S.C. § 1983 provides a private right of action against states that violate
civil rights. It provides, in part, that "Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable."
Federal Courts have held that it gives rise to a right of action for
violation of First Amendment rights. See, for example, El Dia v. Rosello,
165 F.3d 106 (1st Cir, 1999).
Craigslist's TRO motion contains a detailed First Amendment analysis.
Dormant Commerce Clause. The complaint also alleges that criminal
prosecution would violate the dormant commerce clause, "because
it seeks to apply South Carolina law to regulate commercial transactions that
take place wholly outside of the State of South Carolina."
Article I, Section 8, of the Constitution provides that "The Congress shall
have Power ... to regulate Commerce with foreign Nations, and among the several
States ..." The dormant commerce clause is the judicial concept that the
Constitution, by delegating certain authority to the Congress to regulate
commerce, thereby bars the states from legislating on certain matters that
affect interstate commerce, even in the absence of Congressional legislation. It
is applied to block states from regulating in a way that materially burdens or
discriminates against interstate commerce.
Gibbons v. Ogden, 22 U.S. 1
(1824), and Cooley v. Board of Wardens, 53 U.S. 299 (1851). More recent
treatments of the concept include Healy v. The Beer Institute, 491 U.S.
324 (1989), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).
Reaction. John Morris, of the
Center for Democracy and Technology (CDT), wrote a short
piece on May 15, 2009, regarding threats by McMaster and others. Morris wrote
that "Over the last few weeks, numerous state Attorneys General (and the Cook
County Sheriff) have been tossing around threats against Craigslist, the online
classified ad forum. The AGs were claiming that Craigslist is responsible for
``erotic services´´ ads placed by Craigslist users. The AGs were demanding that
Craigslist shut down parts of its service and/or censor postings made by its
users. At least one AG -- in South Carolina -- said that he will bring criminal
charges against Craigslist if it fails to eliminate any content to which that AG
objects." (Parentheses in original.)
Morris continued that "These threatened charges both violate the U.S.
Constitution and directly conflict with federal law. Federal law is crystal
clear that Craigslist has no liability under state law for content posted by
users. If a prostitute advertises illegal services on Craigslist and then
commits a crime, the prostitute may be guilty, but Craigslist is not. In 1996,
Congress passed a law -- known as ``Section 230´´ -- for the very reason that it
wanted to leave sites like Craigslist free to adopt remedial measures against
unsavory content -- as Craigslist has done -- without fear of becoming liable as
the publisher of the content posted by users."
McMaster wrote in the South Carolina Attorney General web site, after the
filing of the complaint, that "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."
He added that "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
This case is Craigslist, Inc. v. Henry McMaster, et al., U.S. District
Court for the District of South Carolina, Charleston Division, D.C. No.
|Obama Nominates Verveer for State Department Communications
5/19. President Obama nominated
Phil Verveer to be
Deputy Assistant Secretary of State for International Communications and
Information Policy, and U.S. Coordinator for International Communications and
Information Policy. See, White House news office
Verveer has expertise in communications and antitrust matters, representing
clients before the Federal Communications Commission (FCC), National
Telecommunications and Information Administration (NTIA), Office of the U.S.
Trade Representative (OUSTR), Antitrust Division of the Department of Justice,
and Committee on Foreign Investments in the U.S.
Verveer is of counsel in the Washington DC office of the law firm of Jenner &
Block. However, until February of 2009 he was a long time partner in the
Washington DC office of the law firm of
Willkie Farr & Gallagher.
David Gross, who is now a partner at the law firm of Wiley Rein, held the
position throughout the Bush administration.
Phil Verveer is married to Melanne Verveer. She is already the State
Department's Ambassador at Large for Global Women's Issues. She was previously
Chief of Staff to First Lady Hillary Clinton, who is now Secretary of State.
|More People and Appointments
5/20. President Obama nominated Alejandro Mayorkas to be Director of
U.S. Citizenship and Immigration Services at the Department of Homeland Security
(DHS). See, White House news office
5/16. President Obama nominated Jon Huntsman to be Ambassador to the
People's Republic of China. He is the Governor of the state of Utah, and a
Republican. He speaks Mandarin Chinese. See, White House news office
5/15. President Obama announced his intent to nominate six persons to be U.S.
Attorneys: Preet Bharara (for the Southern District of New York),
Tristram Coffin (District of Vermont), Jenny Durkan (Western District
of Washington), Paul Fishman (District of New Jersey), John Paul
Kacavas (District of New Hampshire), and Joyce Vance (Northern
District of Alabama). See, White House news office
release. Bharara has worked for Sen.
Charles Schumer (D-NY) and the Senate
Judiciary Committee's (SJC) Subcommittee on Administrative Oversight and the
5/15. The Securities and Exchange Commission
(SEC) announced that William Schulz, Director of Legislative and
Intergovernmental Affairs, will leave the SEC. He came to the SEC with former
Chairman Chris Cox. See, SEC
5/14. President Obama nominated Aneesh Chopra to be an Associate
Director of the Office of Science and Technology
Policy (OSTP). See, White House news office
5/13.The Federal Communications Commission (FCC) named Thomas Pugh to
be member of the Federal-State Joint Board on Jurisdictional Separations. Pugh
is a Commissioner on the Minnesota Public Utilities Commission. He replaces
Mark Johnson, a Commissioner on the Regulatory Commission of Alaska. See,
5/12. President Obama nominated William Wilkins to be Chief Counsel
for the Internal Revenue Service (IRS) and an
Assistant General Counsel in the Department of the Treasury. See, White House
5/12. President Obama nominated Jeffrey Zients be Deputy Director for
Management in the Office of Management
and Budget (OMB). See, White House news office
5/11. President Obama nominated
Stephen Preston to
be General Counsel of the Central Intelligence
Agency (CIA). See, White House news office
release. He is a partner in the Washington DC office of the law firm of
Wilmer Hale. He worked at the
Department of Justice and Department of Defense during the Clinton
administration. He represented Lucent during the Committee on Foreign
Investments in the U.S.'s review of its merger with Alcatel.
This issue contains the following items:
• Craigslist Files Section 230 Declaratory Judgment Action
• Obama Nominates Verveer for State Department Communications
|Washington Tech Calendar
New items are highlighted in red.
|Thursday, May 21
The House will meet at 10:00 AM. The agenda the day includes a vote on
HR 1676 [LOC
the "Prevent All Cigarette Trafficking Act of
2009" or "PACT Act". See, Rep. Hoyer's
for week of May 18, and
schedule for May 21.
The Senate will meet at 9:00 AM. It will resume consideration of HR 2346
the supplemental appropriations bill.
8:00 AM. The Federal Aviation Administration's (FAA) Commercial Space
Transportation Advisory Committee will meet. See,
notice in the
Federal Register, April 13, 2009, Vol. 74, No. 69, at Page 16914. Location:
FAA Headquarters Building, Bessie Coleman Conference Center, 2nd floor, 800
Independence Ave., SW.
9:00 - 10:30 AM. The Information Technology
and Innovation Foundation (ITIF) will host a panel discussion titled "Fiber
to the Library: Next Generation Broadband for Next Generation Libraries".
The speakers will be Rob Atkinson (ITIF), Don Means (Digital Village
Associates), and John Windhausen (Telepoloy). Location: ITIF, Suite 200, 1250
Eye St., NW.
10:00 AM. The
Senate Judiciary Committee (SJC) may hold an executive business meeting.
The agenda again includes consideration of S 417
the "States Secret Protection Act", and HR 985
and S 448 [LOC
both titled the "Free Flow of Information Act of 2009". See, stories
titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th
Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933,
April 29, 2009. The agenda also includes consideration of the nominations of
David Hamilton to be a Judge of the U.S. Court of Appeals (6thCir), Andre
Davis to be a Judge of the U.S. Court of Appeals (4thCir), and Thomas Perez to
be Assistant Attorney General in charge of the Civil Rights Division. The SJC
rarely follows its published agendas. The SJC will webcast this event. See,
Location: Room 226, Dirksen Building.
10:00 AM. The
Senate Finance Committee (SFC) will hold a hearing titled "The U.S. -
Panama Trade Promotion Agreement". See,
Location: Room 215, Dirksen Building.
2:30 PM. The Federal Trade Commission's
(FTC) Bureau of Economics (BOE) will host a seminar by
Chris Knittel (UC
Davis). He is an economist, and co-author of the
pages in PDF] titled "Estimation of Random Coefficient Demand Models:
Challenges, Difficulties and Warnings". Location: FTC Conference Center,
601 New Jersey Ave., NW.
|Friday, May 22
There will be no votes in the House. See, Rep. Hoyer's
for week of May 18.
|Monday, May 25
Memorial Day. See, Office of Personnel Management's (OPM)
of 2009 federal holidays.
The House will not meet the week of May 25-29.
The Senate will not meet the week of May 25-29. See, Senate
|Tuesday, May 26
9:00 AM - 3:45 PM. The
American Enterprise Institute (AEI) will
host an event titled "China Since Tiananmen: Power, Party, and Society".
There will be five panels, including one on competition, and another on the
economy. See, notice. Location:
AEI, 12th floor, 1150 17th St., NW.
2:00 - 3:30 PM. The Department of Justice's (DOJ)
Antitrust Division will host a seminar
conducted by Stefan Buehler (University of St. Gallen) on his
titled "Making Sense of Non-Binding Retail-Price Recommendations". To
request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr
dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.
Deadline to submit initial comments to the Copyright Royalty Judges (CRJ)
in response to its Notice of Inquiry (NOI) regarding "the costs of census
versus sample reporting to assist the Judges in the revision of the interim
regulations for filing notices of use and the delivery of records of use of
sound recordings under two statutory licenses of the Copyright Act". See,
notice in the
Federal Register, April 8, 2009, Vol. 74, No. 66, at Pages 15901-15904. See
also, the CRJ's
notice in the Federal Register regarding its Notice of Proposed Rulemaking
(NPRM), Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages
79727-79734, and the CRJ's
web page with
hyperlinks to the comments submitted in response to the NPRM.
|Wednesday, May 27
No events listed.
|Thursday, May 28
2:30 PM. The Federal Trade Commission's
(FTC) Bureau of Economics (BOE) will host an untitled seminar by
Chris Knittel (UC
Davis) He is an economist who has written about electricity and energy.
Location: FTC Conference Center, 601 New Jersey Ave., NW.
6:00 - 8:15 PM. The Federal Communications
Bar Association (FCBA) will host an event titled "Market Definitions at
the FCC -- Theory and Practice". The first panel is titled "How the FCC
Defines Markets". The speakers may be John Nakahata (Harris Wiltshire &
Grannis), David Lawson (Sidley Austin), and Don Stockdale (Deputy Chief of the
FCC's WCB). The second panel is titled "Market Analysis in Practice". The
speakers may be David Reitman (CRA International) and Gregory Sidak (Criterion
Economics). The price to attend ranges from $25 to $150. Location: Arnold &
Porter, 555 12th St., NW.
|About Tech Law
Tech Law Journal publishes a free access web site and
a subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year for a single
recipient. There are discounts for subscribers with multiple
Free one month trial subscriptions are available. Also,
free subscriptions are available for journalists, federal
elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is free access. However,
copies of the TLJ Daily E-Mail Alert are not published in the
web site until two months after writing.
For information about subscriptions, see
subscription information page.
Tech Law Journal now accepts credit card payments. See, TLJ
card payments page.
TLJ is published by
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.
Copyright 1998-2009 David Carney. All rights reserved.