For several days in September, Craigslist, the Internet’s premier destination for classified ads, replaced the link to its adult services section with a bar reading “censored.” The eight-letter word was a symbol of the way in which the government managed to regulate the site’s content despite the existence of a federal law – Section 230 of the Communications Decency Act of 1996 – which immunizes service providers from liability for user-created content.
After it successfully pressured Craigslist to remove its adult services section, the brigade of attorneys general who believe that censoring the Internet is an effective way to combat sex trafficking continued to march on. Its next target of censorship: backpage.com, an online classified service with an adult services section similar the one Craigslist had. Backpage.com is not backing down yet, but only time will tell if it will be forced to give into the pressure as well.
The adult services sections under attack contained mainly ads for legal services: massages, escorts and the like. But the AGs insist that since illegal activities like prostitution and child sex trafficking sometimes slip through the cracks, the entire adult services sections should be banned. One major problem with this reasoning is that adult services ads will invariably move to other areas such as personal sections (as they did in Craigslist’s case) — so what section will be censored next? Connecticut AG Richard Blumenthal, who in the midst of a tough re-election campaign has spearheaded this censorship crusade, is arguing that Section 230 is outdated and should be amended to impose liability on websites that knowingly host illegal activity on their sites. If a court adopted this argument, it would undoubtedly have a chilling effect on online speech, threatening the openness of social media as we know it.
In addition to posing a free speech threat to online service providers, these latest incidents of online censorship raise interesting questions about the meaning of the First Amendment.
Research scholar Danah Boyd argued on the Huffington Post that censoring Craigslist impedes the efforts of law enforcement to combat online prostitution; it essentially makes prosecutors’ jobs more difficult by steering sex crimes to under-the-radar sites, while Craigslist had been cooperating with prosecutorial efforts all along. Boyd says this is not a free speech concern, but rather one of transparency.
Even if it is more of a transparency concern, that distinction does not take the issue out of the realm of the First Amendment and freedom of speech. In the famous essay “The System of Freedom of Expression” by legal theorist and civil liberties champion Thomas I. Emerson, full First Amendment protection
means that regulations necessary to make the system work, or to improve the system, must be based upon principles which promote, rather than retard, the system in terms of its basic nature and functions.
And one of the basic functions of freedom of expression, as Emerson explained it, is
achieving a more adaptable and hence a more stable community…because suppression conceals the real problems confronting a society, diverting public attention from the critical issues.
If what Danah Boyd argues is true, then diverting attention from critical issues will be exactly the result of the government’s suppression of Craigslist and other sites like it. And society cannot afford to abandon First Amendment protections in this way.