I generally agree with David's criticisms of the lawsuit against CraigsList for allowing allegedly discriminatory housing ads. But, as a my friend and fellow lawprof (and former student) Jennifer Rothman has also pointed out, CraigsList is almost certainly immune from liability under 47 U.S.C. § 230. Section 230 is a federal law that largely immunizes service and content providers from liability for material posted by others on their sites; there are some exceptions, and some gray areas, but none seem to apply here. Section 230 was prompted by a decision that had held a service provider liable for defamation based on what was posted on its service, but the law has been applied to many other causes of actions as well.

Here's what a federal trial court dealing with a lawsuit against roommates.com -- a lawsuit that's nearly identical to the one against CraigsList -- held (Fair Housing Council of San Fernando Valley v. Roommate.Com, LLC., 33 Media L. Rep. 1636 (C.D. Cal. Sept. 30, 2005)):

Roommate argues that the CDA shields it from liability for Plaintiffs' claims. The immunity provision of the CDA at issue here provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

The CDA clarifies its effect on other laws and specifically exempts federal criminal laws, laws pertaining to intellectual property, and the Electronic Communications Privacy Act of 1986. 47 U.S.C. § 230(e). State laws which are consistent with the CDA are not barred, but "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).

This is apparently the first case to address the relationship between the CDA's grant of immunity and the FHA's imposition of liability for the making or publishing of discriminatory real estate listings. The FHA is not among the types of laws which are specifically exempted from the CDA. As such, and without evidence of contrary legislative intent, a court may not create an exemption for the fair housing laws without violating the maxim expressio unius est exclusio alterius. "'Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.'" In the absence of contrary legislative intent, therefore, the Court finds that the CDA applies to shield Roommate from liability for the FHA violations alleged by Plaintiffs to the extent that Plaintiffs seek to make Roommate liable for the content provided by its users.

As the Ninth Circuit has indicated, "reviewing courts have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of 'interactive computer service' and a relatively restrictive definition of 'information content provider.' Under the statutory scheme, an 'interactive computer service' qualifies for immunity so long as it does not also function as an 'information content provider' for the portion of the statement or publication at issue." In [Carafano v. Metrosplash.Com. Inc., 339 F. 3d 1119, 1123 (9th Cir. 2003)], the Ninth Circuit applied the CDA's immunity provision to invasion of privacy, defamation, and negligence claims brought against Matchmaker.com arising out of a false listing on Matchmaker's website. As in this case, the questionnaire at issue there contained both multiple choice and essay questions. In the multiple choice section, members could select from answers to more than fifty questions from menus providing between four and nineteen options. "The actual profile 'information' consisted of the particular options chosen and the additional essay answers provided."

In Carafano, the Ninth Circuit concluded that Matchmaker "was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph." In those circumstances, Matchmaker could not be "considered an 'information content provider' under the statute because no profile has any content until a user actively creates it." The Ninth Circuit went on to find that "the fact that Matchmaker classifies user characteristics into discrete categories and collects responses to specific essay questions does not transform Matchmaker into a 'developer' of the 'underlying misinformation.'"

Plaintiffs express a concern that application of the CDA might eviscerate the FHA. Though mindful of that concern, the most that can be said is that operators of Internet sites such as Roommate have an advantage over traditional print media because websites, unlike newspapers, are exempt from 42 U.S.C. section 3604(c) and the related state fair housing laws for publishers. This is a concern created by Congress' adoption of the CDA, and is not unique to the FHA. Instead, it is identical to the numerous other federal and state statutes and common law remedies for which the CDA's immunity provision applies. See Batzel v. Smith, 333 F.3d 1018, 1026-27 (9th Cir. 2003) ("The specific provision at issue here, § 230(c)(1), overrides the traditional treatment of publishers, distributors, and speakers under statutory and common law. As a matter of policy, 'Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.' Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory test, and, indeed, at least with regard to publishers, even if unaware of the statement. Congress, however, has chosen to treat cyberspace differently.").

The Ninth Circuit's decision in Carafano compels the conclusion that Roommate cannot be liable for violating the FHA arising out of the nicknames chosen by its users, the free-form comments provided by the users, or the users' responses to the multiple choice questionnaire. Plaintiffs' federal claims against Roommate are therefore barred by the CDA.

This decision is not binding precedent, and one Seventh Circuit opinion -- the CraigsList case is being filed in the Seventh Circuit -- has suggested that the CDA should be interpreted somewhat more narrowly than most other courts (including the Ninth Circuit) have interpreted. Nonetheless, the great weight of authority on § 230, from a wide range of courts, cuts against liability for CraigsList.