The Chicago branch of Lawyers' Committee for Civil Rights Under Law is suing Craigslist for running housing ads that allegedly violated the federal Fair Housing Act.

An important issue in this lawsuit is whether the Fair Housing Act's restrictions on discriminatory advertising apply to an electronic "bulletin board" such as Craigslist. I don't have an informed opinion on that issue, but I do have an informed opinion on other issues related to this lawsuit.

(1) A loss by Craigslist would likely either end real estate advertising on Craigslist, or force Craigslist to charge for advertising to recoup the signifcant expense of screening ads for discrimination. Not only would Craigslist have to comply with the federal Fair Housing Act, but it could also be subject to liability under local fair housing laws, which are often much broader, sometimes absurdly so, than federal law. D.C., for example, bans discrimination based on political affiliation, so you can't advertise that you only want a Republican or Democrat tenant, or even roommate. Local fair housing officials also are often extremely overzealous in their enforcement interpretation of antidiscrimination laws, to the extent that realtors and newspapers sometimes avoid phrases such as master bedroom (evocative of slavery or demeaning to women), walkup (discourages the disable) and even great view (expresses an alleged preference for the sighted). The bureaucracy needed to comply with such nonsense is simply not compatible with Craigslist's business model.

(2) The Complaint itself takes a rather overbroad view of what constitutes a discriminatory ad; many of the examples of alleged discrimination based on religion simply provide useful factual information that might make the property attractive to particular potential tenants, but suggest only to the hypersensitive that members of other groups would not be welcome: across the street from church, next to temple, walk to synagogue, church is a block away, church and beautiful Buddhist Temple within a block.

(3) Some of the ads noted in the complaint seem to be for roommates or houseshares. The federal Fair Housing Act does not apply to roommates or houseshares, but HUD claims that discriminatory advertising for roommates nevertheless violates the FHA ("This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act."). See also 24 C.F.R. §§ 109.20(b)(5) (withdrawn), that codified this rule, but was withdrawn under criticism that its restriction on wording in advertising swept too broadly. I think HUD's interpretation of the law is dubious. Moreover, it seems reasonably clear that the constitutional right to intimate association protects one's right to discriminate in one's choice of roommates (however, the Wisconsin courts have upheld a fine against a woman who declined to share a house with a lesbian, Sprague v. City of Madison, 207 Wis.2d 284 (1997)). That being the case, it seems to me that one should also have the constitutional right to engage in discriminatory advertising for roommates in order to effectuate that right.

(4) At least in the roommate/houseshare context, it is ironally members of minority groups who suffer most if they can't advertise discriminatory preferences. Consider some of the "illegal" ads noted in a complaint a few years back against D.C.'s City Paper: "seeking a gay male to share two bedroom, one bath condo"; "gay female seeking another gay female to share a house"; "housemate needed for a spacious 30ish group house"; "housemate needed, no pets, no Republicans"; "women of color group house seeking a new member"; "Jewish cooperative home starting."

Some of these ads represent attempts by members of minority groups to find housemates who share the same subculture; others express a desire to live with people of like-minded political views or who are at the same stage in life. In most of these cases, an advertisement that didn’t specify the relevant discriminatory preferences would be nearly useless, because the advertisers would be inundated by calls from disfavored heterosexuals, gentiles, twenty-somethings, etc. Banning such ads puts a great burden on individuals with idiosyncratic roommate preferences: District of Columbia residents seeking to establish a group house for gay Jewish Libertarian women of color must either find new housemates by word of mouth, or be willing to sift through the random mix of would-be renters that respond to a more generalized ad. Because of the advertisement restrictions, some individuals may never be able to find roommates who match their preferences. Such governmental intrusion on the ability to form a relationship as intimate and private as the relationship between people who share living space is unjustifiable.

(5) The Fair Housing Act is the law that got me interesting in the first instance in the conflict between antidiscrimination laws and the First Amendment. The FHA contains many provisions, either explicitly or through HUD regulations, that conflict with freedom of speech. Indeed, during the Clinton years, HUD infamously tried to use the FHA to punish homeowners who dared speak and write in opposition to the placement of halfway houses in their neighborhoods. While this action was clearly contrary to the First Amendment, I thought HUD had a pretty good case that it acted properly under the statute.

Much more on this and related topics in You Can't Say That!.

With thanks to reader (and George Mason Law School student) Lowell Jacobson for the pointer, and the title of this post.