[Eugene Volokh, March 14, 2008 at 1:17pm] Trackbacks
CraigsList Immune from Liability for User-Posted Housing Ads

That Mention Illegally Discriminatory Preferences: So the Seventh Circuit just held; thanks to How Appealing for the pointer. The Circuit did not take as broad a view of 47 U.S.C. § 230 service provider immunity as other courts have done, and suggested that service providers could still be liable under laws that allow various forms of contributory liability. But it held that § 230 immunity does defeat a Fair Housing Act claim, because the FHA applies only to publishers or speakers, and § 230 specifically precludes ISPs from being treated as publishers or speakers of material posted by others.

Related Posts (on one page):

  1. Ninth Circuit En Banc Opinion in Fair Housing Council v. Roommates.com
  2. CraigsList Immune from Liability for User-Posted Housing Ads
  3. A Right To Choose Whom You Live With -- and To Speak About This in Ads:
  4. New and Interesting 47 U.S.C. § 230 Content Provider Immunity Opinion,
  5. Lawsuit Against CraigsList:
  6. You Can't Post That!
Orielbean (mail):
That makes sense, they have enough trouble moderating their postings as it is. The people renting the place out should be accountable.
3.14.2008 3:09pm
happylee:
Or maybe no one should be "held accountable" and we should instead let people freely communicate their preferences...
3.14.2008 3:13pm
Oren:
Thank the heavens for Easterbrook. Too bad he's too old for the SCOTUS.
3.14.2008 3:48pm
Oren:
Or maybe no one should be "held accountable" and we should instead let people freely communicate their preferences...
Congress is well within its powers under the 14A to prohibit discrimination in economic matters.
3.14.2008 3:50pm
HLSbertarian (mail):


Or maybe no one should be "held accountable" and we should instead let people freely communicate their preferences...

Congress is well within its powers under the 14A to prohibit discrimination in economic matters.

That doesn't mean it should.
3.14.2008 4:09pm
anon.:
Oren,

Congress has the power to enforce the provisions of secs. 1-4 of the 14th amendment through appropriate legislation. Just curious, which provision of secs. 1-4 would Congress be enforcing through the prohibition of private economic discrimination?
3.14.2008 4:14pm
HLSbertarian (mail):
That too.
3.14.2008 4:24pm
Don Miller (mail) (www):
My choice of roommates is an economic matter that Congress should be free to regulate?

Umm sorry, I have a constitutional freedom of association. If that doesn't extend to the people living in my home with me, it doesn't provide any protection at all
3.14.2008 5:03pm
Steve2:
Don, as I understand it the Fair Housing Act specifically exempts choice-of-roommates from all provisions except the "make or cause to be made an advertisement" provision that was at issue in this case. And the opinion here rightly notes (by the way, when did Easterbrook become 7th CA's Chief Judge? I thought that was Posner), banning an ad about your legal choice of roommate is an iffy 1st Amendment proposition.
3.14.2008 5:27pm
Cornellian (mail):
Umm sorry, I have a constitutional freedom of association.

Where do you find "freedom of association" in the Constitution?
3.14.2008 5:33pm
happylee:
"The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."
3.14.2008 5:47pm
Bama 1L:
Posner's term as chief judge ended in 2000. Easterbrook's began in 2006.

Plenty of the Craigslist ads in question were for residential rentals or sales.
3.14.2008 6:29pm
Don Miller (mail) (www):
Umm sorry, I have a constitutional freedom of association.

Where do you find "freedom of association" in the Constitution?



Found it in the Supreme Court last Boy Scout decision
3.14.2008 6:51pm
Steve2:
Cornellian, that'd be the 1st Amendment. Like the 2nd Amendment, it's got one of those god-awful 17th Century Commas that makes me sometimes wish there'd be an Amendment of [Entire Constitution Re-Written in Contemporary American English]. Anyway, the last two clauses, "or the right of the people peaceably to assemble, and to petition the Government for a redress of grivances" are generally treated as two rights: Freedom of Association, and Freedom of Getting Ignored by State Actors (sorry, the form-written responses from Congressionals that don't even address the points I made in the letters I sent have made me kind of cynical... as did picketing Frist's office when I lived in Nashville). At least, that's my understanding of why Freedom of Association always pops up as a 1st Ammendment right in political party cases.

Or there's always the 9th Amendment: if you can articulate a convincing reason why it's a right, it's a right.
3.14.2008 10:29pm
Oren:
Umm sorry, I have a constitutional freedom of association. If that doesn't extend to the people living in my home with me, it doesn't provide any protection at all
And if you read the law, you would realize that it distinguishes between people renting 3 or fewer single-family residences (virtually no restrictions) and landlords with more than 3 residences for rent. The latter, of course, are exclusively those that are in the renting business for commercial ends, not for forming personal associations.
3.14.2008 11:46pm
David M. Nieporent (www):
Easterbrook's the first judge I've read handling one of these cases who has touched on the Greater New Orleans Broadcasting problem I keep pointing out.

In any case, this is a slam dunk case under the CDA, and if the Chicago Lawyer's Committee were actually interested in helping minorities rather than allowing a few big firms in Chicago to pretend they do pro bono work, this case -- and certainly this frivolous appeal -- would never have been brought.

Congress is well within its powers under the 14A to prohibit discrimination in economic matters.
... as long as state action is at stake, which it isn't when two private individuals enter into a transaction. Instead, the courts rely on the imaginary intrastate corollary to the interstate commerce clause to uphold such laws.
3.16.2008 1:51am
Deoxy (mail):


Congress is well within its powers under the 14A to prohibit discrimination in economic matters.


... as long as state action is at stake, which it isn't when two private individuals enter into a transaction. Instead, the courts rely on the imaginary intrastate corollary to the interstate commerce clause to uphold such laws.


Exactly correct. The 14A is about GOVERNMENT action only. There's nowhere in the Constitution authorizing Congress to regulate who I rent to (unless you think that "interstate commerce" swallows everything else in the known universe).
3.19.2008 1:47pm