By Andy Owens
Published July 22, 2009
Lawyers for Attorney General Henry McMaster predict “destruction” and “chaos” if the Federal Court in Charleston doesn’t dismiss a lawsuit the online classified ad site Craigslist filed against McMaster and 16 S.C. solicitors.
A motion filed Tuesday in federal court asked for the dismissal after months of accusations, motions and complaints, and even a public timeout agreed upon by both sides.
Citing an ongoing criminal investigation of Craigslist, Tuesday’s motion asserts that if the lawsuit is allowed to go forward, it would trample the state’s ability to enforce the law within its borders. This would make Craigslist the online equivalent of the “Wild West,” where only federal marshals are allowed to uphold the law, the motion stated.
With Craigslist CEO Jim Buckmaster leading the charge, the company filed the lawsuit in May asking for a restraining order against McMaster and a declaratory ruling to define the scope of authority for the attorney general’s office.
McMaster originally made comments indicating that he thought Craigslist’s erotic services listings violated S.C. law; and on May 5 he sent a letter giving the company 10 days to remove the portions of its S.C. pages that deal with the solicitation of prostitution and the posting of pornographic material.
“If those South Carolina portions of the site are not removed,” McMaster said at the time, “the management of Craigslist may be subject to criminal investigation and prosecution.”
When Craigslist filed the lawsuit, McMaster said it was a positive sign that the company was taking South Carolina’s concerns seriously.
S.C. attorney general’s motion to dismiss Craigslist lawsuit
Consent order filed in U.S. District Court
Lawsuit filed in Charleston against McMaster by Craigslist
Request for temporary restraining order
Judge approves ‘timeout’ for Craigslist and S.C. Attorney General McMaster
McMaster welcomes lawsuit from Craigslist, takes it as good news
Craigslist CEO wants apology from attorney general McMaster
McMaster tells Craigslist to remove illegal content
He also noted that the company had removed the “erotic services” section of its Web site and had agreed to monitor its listings for postings for illegal activities. This prompted criticism that McMaster was taking credit for changes Craigslist said were already in the works.
The two sides took a voluntary timeout from the rhetoric and legal filings, saying they’d wait for the court to rule on the merits of the lawsuit before doing anything else. McMaster agreed that he wouldn’t prosecute Craigslist, its executives or its employees until the court has had a chance to review the merits of the lawsuit.
Tuesday’s motion attempted to paint a dramatic, perhaps extreme, picture of what McMaster’s attorneys said could happen if the court allowed the lawsuit to continue.
Craigslist “will be free to develop categories such as ‘Murder for Hire,’ ‘Preferred Prostitutes,’ or ‘Drug Supermarket’ with absolute impunity, and states will be helpless to stop the resulting destruction and chaos within their borders,” the motion said.
The decision before the court boils down to whether the federal Communications Decency Act, the First Amendment or the Commerce Clause prevent South Carolina from prosecuting Craigslist under state law. The Commerce Clause is part of the U.S. Constitution that gives the federal government the power to regulate commerce between states.
According to the motion: “This court should abstain from considering the issues raised in the complaint because they are primarily state law issues that should be resolved by a South Carolina state court.”
It continued to say that the decency act does not immunize Craigslist from criminal prosecution for knowingly aiding and abetting prostitution in South Carolina, nor have the attorney general’s actions violated the plaintiff’s First Amendment rights or the Commerce Clause.
The Business Journal contacted McMaster’s office and Craigslist to comment on the recent filing; neither responded by press time.