Wednesday, Sep 5, 2007    Text size: 

Appearing with former federal prosecutor Jay Fahy and regular "Power Lunch" contributor Herb Greenberg, Walters and the panel discussed the question of whether CraigsList can be held legally liable for advertisements posted to the site by escorts and prostitutes seeking out clients.

Host Sue Herara opened the discussion by asking Fahy how the advertisements posted to CraigsList.com by escorts differed from similar ads that such people might take out in newspapers. Fahy responded that the ads on CraigsList are “a lot more specific.”

“[The] ads in the newspapers are not super-explicit, you can kind of subtly read through the lines,” Fahy said. “On CraigsList, it’s very specific. They use acronyms to describe different types of sex acts; they even have costs in there, they say ‘this half hour will cost you 160 roses, an hour will cost you 200 roses.’ I mean, any idiot knows they aren't talking about roses, they’re talking about dollars.”

Fahy also noted that many of the ads on CraigsList include photographs, “so it’s very obvious what they're doing on CraigsList, as opposed to it being a little more subtle with a newspaper.”

Seizing on Fahy’s point about the explicit nature of some CraigsList postings, Herera turned next to Walters and asked “Some people say it's almost like visiting a pornographic site in and of itself, which brings us to the liability question. Do you think that CraigsList should be held liable, or should even be permitted to construct the sites the way they are?”

“There’s nothing illegal about visiting a pornographic site, or operating a pornographic site,” Walters said. “As far as CraigsList and websites like it, they’re in a fairly good legal position. They are protected by certain federal laws, the Communications Decency Act being one, and it’s very difficult … for the government to hold a media outlet responsible for the content or conduct of advertisers or people responding to advertisements.”

Walters added that CraigsList’s legal position was aided by the fact that “you have hundreds of thousands if not millions of advertisements being posted to the website at any given time, and it would be very difficult to show any kind of level of knowledge that would be required to impose criminal liability, for example, on CL under aiding and abetting statutes or conspiracy.”

Asked to respond to Walters’ point, Fahy said that it was “basically accurate,” and added that CraigsList’s international nature meant that the question was “not something that U.S. law is going to end up controlling at the end of the day.”

In a postshow interview, Walters told XBIZ that the legal question at hand — whether CraigsList could be held liable for the content of advertisements posted by users — was very much relevant to the adult industry, and particularly salient for people who operate message boards and blog sites that allow users to reply.

“Anybody who operates a user-submission site should be interested, because the legal issues are identical,” Walters said.

Asked about the overall tenor of the discussion, Walters said he was particularly struck by the way that Herara framed her initial question to him such that it suggested that pornographic websites are somehow inherently illegal.

“That’s the perception — that there’s something inherently illegal or wrong about operating adult sites,” Walters said. “And this is from the host of a major national news show. This shows that we have a ways to go to educate people that the protections of the 1st Amendment do extend to the legitimate adult industry and its products.”