Professor Eric Goldman -- my personal guru on such matters -- believes the suit "is almost certainly preempted by 47 USC 230," and I trust that he accurately describes the current state of the law. (For the uninitiated, Section 230 of the Communications Decency Act provides virtually airtight immunity for web sites against non-IP claims that are based on material posted by users.) I have emailed Sheriff Dart's attorney asking why he believes Section 230 does not bar this suit, but have not yet received a response.
But put aside the statute and the cases for a minute and ask whether Craigslist is acting responsibly here. Yes, when it wins this suit, as I expect, it will get to crow about its brave stance protecting Internet freedom. But at what cost? Craigslist surely knows that the vast majority of the ads in its "Erotic Services" sections are for clearly illegal services. (Take 2 minutes and look for yourself.) And yet it continues to maintain these sections. My fear is that by doing so, when everyone knows full well the illegal nature of what's advertised there, courts are virtually invited to carve out exceptions to, or narrow the scope of, all the solidly pro-immunity Section 230 cases cited in Professor Goldman's post. I'd argue that's exactly what happened in the Ninth Circuit's Roommates.com en banc opinion, which narrowed Section 230 immunity, quite likely because the judges in the majority were outraged and offended at what they believed was the site's knowing facilitation of users choosing roommates based on race. (Analysis by Professor Goldman here.)
And if Craigslist wins in court, how long will it be before Congress starts getting pressured to amend Section 230 to carve out from immunity cases involving prostitution services, or racist roommate-seekers, or rape wishes? And then does so, after hearing emotional testimony from battered prostitutes, anti-discrimination advocates, and women subject to vicious verbal abuse on law school message boards? And then the next group of victims demands its own exceptions, and then the next, until Section 230 is left in shreds.
Craiglist may think it's standing up for Internet freedom by fighting for its "right" to maintain a section that clearly advertises illegal activity. But by doing so, it risks jeopardizing that freedom for all the responsible actors out there.