First Amendment Kiss-Off** to Craigslist
August 31, 2010 by Peter Scheer
Filed under Commentary, FAC's Kiss or Kiss Off, News & Opinion
A First Amendment kiss-off** to Craigslist, which is resisting the demands of seventeen state attorneys general (but not including California’s Jerry Brown) that it shut down the website’s “adult services” section because, claim the AGs, it continues to promote prostitution and child-trafficking despite the site owners’ introduction of vetting (by lawyers, no less!) of sexually-oriented listings.
Let’s be clear: Craigslist has every right to publish sexually-explicit personals and ads–even ads by prostitutes trolling for customers. The ads are no different than the sleazy come-ons that for years have filled the back pages of alternative newspapers. Craigslist gets no lesser degree of First Amendment protection merely because its adult services ads, on one of the internet’s busiest sites, are more effective than the ads of print competitors.
But just because Craigslist has the right to post these ads–-providing a market for adult consensual transactions, yes, but also, inevitably, for exploitation of the worst kind–-doesn’t mean that it has to exercise that right. By choosing to stay in the sex ad business, Craigslist not only appears irresponsible, but it also creates the risk of a spasmodic backlash in state legislatures and Congress that could seriously threaten free speech on the internet.
Finally, please spare us the argument about how hard it is to distinguish between legitimate ads and ads hawking the services of prostitutes–like these listings that were easy to find in the August 31 adult services section:
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– SEXXY MIXXED CARAMEAL BARBIE! OUTCALL SPECIALS ALL DAY & NIGHT! – w4m – (sf bay area) pic
– ….. Hot …… *( INDEPENDENT )*……..*Blonde*……..*Babe*…… – w4m – (Rohnert Park, Santa Rosa, in*out) pic
– NEW______! * ! G E N T E L M E N’ S___#1___C H O I C E ! * !_______NEW – w4m – (dublin / pleasanton / livermore) pic
–~*/**/~*~*~*~*~*~*~ Gina ~*~*~*~* gReAt sErViCes ~~*~~*~~*~~*~~ – w4m – (sunnyvale)
✦NeW✦ hOtT✦ bArBiE✦ w4m – w4m – (SaNtA cLaRa✦SUnNyVaLe✦SaN jOsE) pic
————-
It’s time for Craigslist to get out of bed with businesses that sell sexual services. Founder Craig Newmark and CEO Jim Buckmaster will sleep better.-ps
* *A kiss is just a kiss, but a First Amendment Kiss is FAC’s honorific for those who, by their acts, words, or example, strengthen the claim for freedom of speech, for transparency in government, and for political accountability. Our First Amendment Kiss-Off is reserved for those persons and institutions who, whether out of distrust of citizens or undue deference to special interests, threaten to curb robust debate and exclude the public from the councils of government. Please help us find deserving recipients of the First Amendment Kiss, and Kiss-off, awards. You can submit nominations here.
“Sure they *can* do it, but the question is *should they*?”
These are the words we’re hearing and seeing a lot of now,
regarding the plans of a moderate, non-violent Islamic congregation
that wants to build a community center a few blocks from Ground Zero,
NYC. And the people asking this question are not the tolerant, lets-all-get-along liberals who care about good taste and appropriate
behavior. No, these are the verbal disguises used by xenophobic,
hate-mongering religious extremists.
I know FAC doesn’t want to appear in similar alignment to those types
of people. So, I ask you, is Craigslist *really* a free speach issue
that FAC needs to comment on? If people didn’t want to engage in
prostitution, Craigslist wouldn’t have lots of listings and lots and
lots of viewers of those listings. Craigslist doesn’t cause
prostitution, and although they may be enabling it, rest assured that
it would be enabled by other means without Craig.
As Jon Stewart’s Daily Show recently observed,
“Sure, Catholic churches *can* build facilities near childrens’
playgrounds, but the question is *should they*?”
Sure FAC *can* publicly criticize Craigslist, but the question is
*should they*?
Cheers,
Bruce
Hmm…ya, this seems to be the website of the First Amendment Coalition, so I’m at the right address. When I received this post via my email subscription, I had to visit the story online to confirm that it actually came from the First Amendment Coalition. Why? Well, I think Bruce,the first commenter,nailed it. The Coalition might find it more productive to explain why Craig’s List has the right to publish it’s ads, since it appears that so many folks have lost sight of what that exactly means.
Frank
A Google search on me will reveal my past work in this very area. I have long been an anti-prostitution and anti-trafficking activist, going back to the early- to mid-1990s in terms of my outright activism, and going back to my earliest times of socio-political awareness as a young person in terms of my beliefs. In my activism, and by embarrassing them on TV and in newspapers, I have singlehandedly forced recalcitrant government officials in several US cities and states to shut-down various forms of “indoor” prostitution which masqueraded as legitimate business enterprises…
…such as, for example, adult book stores which engaged in genuinely protected speech in even the most digusting of pruient the books, magazines and films that they sold out front, but also had back rooms where illegal prostitution routinely occurred; or strip joints which engaged in genuinely protected speech in what the dancers did on stage, but had back rooms where said dancers engaged in illegal prostitution; or Asian-themed “massage” establishments which where provably just fronts for illegal prostitution and, in MANY cases, human trafficking. In the late 1990s, I personally saw to it that one Minneapolis parlor owner, who also owned a parlor in Michigan City, Indiana (and who trafficked women as young as 14 across three state lines for purposes of prostitution back and forth between them), was arrested, tried and sentenced to three years in an Indiana prison for her bad acts. And I could go on and on.
When I co-authored local ordinances in Minneapolis to regulate sexually-orieneted businesses, and drafted language which effectively strengthened Minnesota’s public nuisance statute, I had to become expert in the rights afforded to us all by SEVERAL amendments to the US Constitution, the First Amendment being just one among them. Learning to draft regulatory language which can withstand constitutional scrutiny is difficult, indeed; and it took me MONTHS of nearly full-time research and writing to finally master it. So, believe me when I say that I know exactly what are Craigslist’s legal both rights and responsibilities.
Believe me, also, when I confess/concede that it is sometimes difficult, indeed, to sit and watch others engage in certain kinds of constitutionally-protected activity which I find morally reprehensible. However, more than one person in history has famously remarked in one way or another that though they may not agree with the constitutionally-protected acts of another, they would fight to the death for the other’s constitutional right to so do. Though I’ve never famously remarked any such thing (nor anything else, that I can recall), I’m nevertheless in league with those who have.
Craigslist’s censorship of ads/postings which are for acts of prostitution are both defensible and inherently right. Prostitution is illegal in all but few counties in one US state, and it’s restricted/regulated even there. No First Amendment rights attach to disallowing postings or ads for things which are illegal… be it prostitution, or selling stolen property, or any other illegal thing. That one is a no brainer. And so I take strong issue with at least some of Peter Sheer’s second paragraph, here, wherein he writes that “Craigslist has every right to publish sexually-explicit personals and ads–even ads by prostitutes trolling for customers.” It does not. Government can — and should — restrict such publication. And Craigslist should voluntarily stop doing it.
However, ads posted by adults seeking-out other adults for all manner of sexual or fetishist activity — no matter how depraved in the minds of some (or even many or most) — which activity is inherently legal, and for which there is no exchange of consideration which would make it an act of prostitution under the law, is PROTECTED speech under the First Amendment…. like it or not.
What I have always urged Craigslist to do is stop allowing advertising/postings which promote prostitution (or any other illegal activity), but to not yield to calls for it to stop other sexually-oriented (or any other kind of morally objectionable) postings if it wishes to publish them. And that’s the key phrase: “…if it wishes to publish them.” Craigslist should be free to publish or not publish as it wishes, any legal content… no matter how objectionable. It should be neither forced to publish it, nor coerced not to.
Censorship is censorship, no matter who calls for it, or initiates it; and no matter how driven by whatever objectively good intentions. And censorship, in ALL forms, regardless of intent, is bad (bearing in mind, remember, that restricting speech which promotes illegality like prostitution does not qualify as censorship).
Scheer makes the point, here, that if Craigslist doesn’t police itself, then its failure to so do somehow opens the door for governmental regulation which would have a chilling effect on the First Amendment right of free speech throughout the Internet. And I concede that there may be some validity to that general fear. However, the answer is never censorship, regardless who imposes it. Self-censorship is no better than government-imposed censorship in terms of its ultimately silencing of protected speech. Why is it better for Craigslist to do to itself what Scheer fears the government will do to it if it does not? Same difference. Same harm.
The “police ourselves or the government will police us for us” argument has long been the cry of those who engage in activity which pushes the envelope of general (but not necessarily constitutional) legality for time immemorial; and when not heeding said cry results in regulation of said activity which is not in any way constitutionally protected, then said argument and cry has both validity and soundness. Self-policing is a valid, and can be an effective, pre-emptive measure against governmental regulation when the activity in question is not constitutionally protected, and is legally-ambiguous on other levels.
However, when something is prima facie constitutionally-protected, then those who engage in said something have little to fear — at least ultimately — from legislative either intent or action which attempts to restrict or even stop it.
And the means of challenging said attempts at restriction or prohibition, with the ultimate goal of having them declared by the courts to be unconstitutional, is and has always been for those who believe their activity to be facially constitutionally protected to go ahead and do it even in the face of threat of legislation (or the use or misuse of existing law), which would attempt to restrict or even stop it.
The courts have long held that an absolute defense to the commission of any act which is constitutionally-protected on its face (prima facie), but which has somehow become unconstitutionally prohibited or restricted by a law or laws (or the act by government or those acting on its behalf in the erroneous enforcement of an otherwise constitutional law) is, in fact, the inherent prima facie constitutionality of the protected act. In other words, as long as the act really is constitutionally protected on its face (and the “on its face” part is the critical requirement), then one may engage in said act even if laws exist to restrict or prohibit it; and the actor’s absolute defense which, admittedly, might not keep him from being at least initially prosecuted, but which will ultimately exonerate him on appeal, is the ultimate finding by the courts that his act was constitutional on its face, and that that which tried to stop him from engaging in it (be it law, or act under the color of law) was not.
Said even more simply: It’s actually not illegal to do a thing which is prohibited by law (or the misapplication of it) as long as one can ultimately show (usually on appeal, after what the appeals court will utimately rule was a wrongful conviction) that said thing was prima facie constitutional (or that that which restricted or prohibited it was prima facie unconstitutional).
That’s how our system works… how our founding fathers intended for it to work. When we self-censor, we short-circuit that intended system, and bring about unintended consequences which both chill constitutionally-protected activities, and for generations to come mislead the citizenry to not only do nothing about it, but to not even realize, after a fashion, that they should.
Self-censorship is never the answer. Craigslist has the right — even the responsibility, given its context — to publish whatever it wants as long as it’s legal (and it actually wants to). Prostitution is illegal, and posts/ads for it are, therefore, not constitutionally-protected speech. Craigslist, then, has no either responsibility or right to publish such ads/postings; and so shouldn’t. Moreover, government’s actions to stop it, therefore, are also both allowed and, in my opinion, recommended. There are no First Amendment violations involved in any of that.
However, virtually anything else which is lawful that Craigslist would like to publish is constitutionally protected and must not be restricted. If legislation subsequently comes after it, then the fact that Craigslist’s acts of publication are facially constitutional (and restricting them is facially unconstitutional) will ultimately protect it… though, admittedly, the process could take some time (and money)… but that’s on account of an entirely different problem which the founding fathers never anticipated: The whoring and profiteering of the legal system, which is a rant for another day.
Please, Mr. Scheer, stop calling for Craigslist to self-censor constitutionally-protected speech. If Craigslist wishes to stop running such postings, then that, too, is its right. But it should not be compelled to do so against its wishes by those who fear that if it does not, then government will silence both it and others like it on the Internet and elsewhere. If that happens, then we must trust our constitution to protect us. And if the day comes when we cannot, then we will have far more to worry about than whether or not the likes of Craigslist is allowed to publish sexually-explicit postings.
____________________________________________
Gregg L. DesElms
895 Jackson St., #319
Napa CA 94559-1321
1-877-383-5148 (toll-free voice)
(206) 984-1288 (fax; normal toll call)
gregg@greggdeselms.com (email)
I guess Im confused as to why anyone would be allowed to post ads for ANY kind of illegal activity, in the first place? No one would expect it to be “ok” to advertise murder-for-hire, to publicly post offers to rob or beat people for money, or to place ads to sell illegal drugs, so why should prostitution ads be regarded any differently? I couldnt care less if this kind of thing gets censored, thats a no-brainer, to me. And Im pretty sure the only people who have a problem with it, are those who are in the habit of engaging in such activities. What I have a BIGGER problem with, at this point, is Craigslist’s COMPLETELY DISCRIMINATORY “flagging” policies, which are resulting in massive amounts of discrimination, as far as who and what is allowed to post on their site, and the complete curbing of free speech in OTHER areas of their forum, in regards to posts and ads which do not promote any kind of criminal activity. Also, it becomes rather clear, after awhile, their site is mainly being used for “entrapment” purposes (assumedly in collaboration with local law enforcement officials), and the personal forums are being used to promote specific political/social propoganda, with all dissenting opinions being censored, as well as users being blocked from use of their site, for wholly discriminatory reasons. So theres a lot of phoney ads being run, to try and bait people into certain types of responses, for the purposes of entrapment, and the forum is also being used to promote political/social propaganda. I really dont think this terribly ethical. And why does Craigslist have a dot org status anyway?? That signifies they are a “non-profit” organization, right? How do they rate that classification? Doesnt that make them a PUBLIC organization, which should therefore make it ILLEGAL for them to discriminate against their users, the way they currently do? Not to mention, they should not be using their forum to promote specific political agendas… At least thats the way I see it.