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Dana Dana Blankenhorn has been a business journalist for over 25 years and has covered the online world professionally since 1985. He founded the "Interactive Age Daily" for CMP Media, and has written for the Chicago Tribune, Advertising Age, and dozens of other publications over the years.
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February 23, 2006

What Must Craigslist Do?

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Posted by Dana Blankenhorn

News of the Civil Rights lawsuit aimed at making Craigslist mediate its listings has hit The New York Times.

The Chicago Lawyers' Committee for Civil Rights Under Law says that the company’s current ads often violate laws against non-discrimination. People advertise to hire folks, or to rent apartments, and don’t think that “whites only” applies to them.

The newspaper industry is downright gleeful over this. Julie Bosman’s lead is dripping with sarcasm.

FOR several years, has been aggressively taking classified advertising from newspapers.

Now Craigslist is the one under attack.

The story, and the suit, are deliberately misleading. They both ignore the fact that the ads in question are free.

In that way they’re not really ads at all. They are speech.

Which changes the legal principle. To force on site managers a responsibility to police all speech for all potential legal violations would render free speech impossible.

Now, Craigslist does charge for some ads. In some categories, including New York housing ads, it’s trying to draw in some money. Some think it should be more aggressive in this. And when it does that, then it does have an obligation, under the law, to keep its customers from practicing discrimination. It will also, then, have the money to do it.

But in this case, we’re not talking about real commercial speech. We’re talking about free speech, speech for which no fee is charged. It may have a commercial purpose, but in that case the violator is the person placing the ad, not Craigslist itself. The responsibility, if there is one, flows to the speaker, not the publisher.

But there is a solution that will please the plaintiffs in this case.

Craigslist and the Lawyers’ Committee simply come up with a clear, simple statement about what ads must not say. This could be sent to every user of Craigslist, and should be part of the TOS people agree to before posting anything.

At that point, any “illegal” “ad” becomes the responsibility of the poster, and the Lawyers’ Committee can be as clear as it wants that it plans to go after people who offend the guidelines.

This sounds like a fair solution. Unless, of course, the lawyers’ just care for money, or for playing the game of the newspaper industry against Craigslist. But playing an industry’s game won’t help the people they claim to represent at all.

Comments (1) + TrackBacks (0) | Category: Business Models | Copyright | Internet | Journalism | e-commerce | marketing | online advertising


1. Jeb on February 23, 2006 04:47 PM writes...

This is all fine and well except you forgot the CDA prevents liability from being placed on Craigslist.

So unless you re-write the CDA, as it currently stands Craigslist /could/ charge for ads AND still not have liability for their content.

But let's not confuse Craiglist's CDA-granted liability shield with the notion that commercial speech on the Internet cannot be controlled.

The CDA allows for this, it just places the legal liability on the one who breaks the law, the original author of the ad.

Websites are not publishers, says the CDA, and if Congress meant to also say "except when Internet housing ads violate FHA" they should have put that in 47 USC Section 230. But they didn't, so here we are.

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