is here; Chief Judge Kozinski writes the opinion for an 8-3 en banc panel. About to read it now; hope to have comments soon.
UPDATE: The en banc court reaches the same result that the panel below reached. Let me summarize the issue, and the holding, by borrowing from my earlier post.
The Fair Housing Council sued Roommate.com, which runs roommates.com, under the Fair Housing Act. Roommates.com (I'll use the more familiar plural site name, rather than the less familiar singular company name) contains many expressions of people's preference for roommates' sex, familial status, sexual orientation, and sometimes race, religion, and handicap; the Fair Housing Act generally prohibits housing advertising that expresses such preference as to "race, color, religion, sex, handicap, familial status, or national origin. (Interestingly, the FHA allows such discrimination when conducted by an owner who is looking for roommates; this might extend to a renter who is looking for roommates, though I'm not sure; but the exemption expressly excludes the advertising ban, so that the advertising ban does apply even to roommate searches. More on that here.)
Roommates.com's defense is 47 U.S.C. § 230, which many courts, including the Ninth Circuit, have interpreted to provide broad immunity to content providers who merely let others post material on their sites. That's why I'm generally not legally liable for things you folks post in the comments (though let's not make a test case out of it, OK?).
But the en banc court held that there's an important limit to such immunity — because § 230 defines "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service," roommates.com may be liable based on its own actions as information content provider. And that, the Ninth Circuit held, means roommates.com might violate housing discrimination law insofar as roommates.com solicited discriminatory preferences that the law prohibits publishing, and then let people search based on those preferences.
So how did this play out?
1. Roommates.com did ask people for their preferences by sex, sexual orientation (irrelevant to the FHA but relevant to California antidiscrimination claims that are also raised in the lawsuit), and presence of children, and let searchers search by such preferences. The questions about roommate preferences were roommates.com's own communications, and thus weren't immune under § 230. (Note that the court was only deciding whether Roommates.com was immune under § 230. The substantive question of whether Roommates.com violated housing discrimination law, or for that matter whether it had a First Amendment defense against the application of housing discrimination law, is left for the district court to consider on remand.)
2. Roommates.com's communication of users' answers to those questions, and provision of search services based on those answers, was also not immune under § 230: Roommates.com expressly asked for this information, and was thus in part the developer of the information:
Here, the part of the profile that is alleged to offend the Fair Housing Act and state housing discrimination laws — the information about sex, family status and sexual orientation — is provided by subscribers in response to Roommate’s questions, which they cannot refuse to answer if they want to use defendant’s services. By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.
3. Roommates.com's communication of users' "Additional Comments," given in response to roommates.com's "strongly recommend[ing] taking a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate," is immune under § 230, because "Roommate does not tell subscribers what kind of information they should or must include as 'Additional Comments,' and certainly does not encourage or enhance any discriminatory content created by users. Its simple, generic prompt does not make it a developer of the information posted.
Thus, if a site (for instance, Craigslist, which recently won a § 230 case in a Seventh Circuit) simply asks people to post their ads, and lets others search the ads in full text, but without expressly asking for sex/familial status/etc. preferences and specifically providing searches for such preferences, the en site will be immune. But say a site invites a certain kind of information, for instance asks people to express a preference that one may not express in housing ads, or expressly asks people "to provide private, sensitive and/or defamatory information about others" (an example from Judge Kozinski's separate opinion when he was on the three-judge panel). Then the site will be treated as a content provider of that information, won't get § 230 immunity, and thus may be liable, under antidiscrimination law, privacy law, or libel law, as the case may be (if the request is indeed soliciting information that it would be tortious to publish).
So, the bottom line: This is not a substantial retrenchment of the preexisting law under 47 U.S.C. § 230, which offers a great deal of immunity for those Internet outlets that merely pass along others' speech. But it does suggest that when the outlets try to channel the speech in likely illegal directions, they may be liable for the result of that channeling. My view, incidentally, is that the en banc court likely got this right, for the reasons mentioned in the opinion.
Related Posts (on one page):
- Ninth Circuit En Banc Opinion in Fair Housing Council v. Roommates.com
- CraigsList Immune from Liability for User-Posted Housing Ads
- A Right To Choose Whom You Live With -- and To Speak About This in Ads:
- New and Interesting 47 U.S.C. § 230 Content Provider Immunity Opinion,
- Lawsuit Against CraigsList:
- You Can't Post That!
Some of the reasoning seems strained.
In a footnote, the court left open the First Amendment defense to application of the housing-discrimination statutes.
I think the defense has merit, since if the statutes are applied, they actually operate to increase the harm of discrimination, by forcing would-be roommates to personally experience discrimination, rather than being able to avoid it.
If someone finds it difficult to advertise their discriminatory preference for a roommate, then a would-be renter or roommate may not be able to find that out without personally seeking to be their roommate, only to be rebuffed for obviously discriminatory reasons. (The laws make sex discrimination with regard to roommates illegally only to advertise, not to actually engage in).
Thus, the discrimination statutes in question increase the stigmatic harm of discrimination.
Thus, they do not promote any compelling interest in guarding against discrimination that might overcome First Amendment rights to intimate association.
Instead, they aggravate the effects of discrimination, and cannot survive any level of scrutiny, strict or not, heightened or not, since they do not materially and substantially advance the state's interest.
Restrictions on roommate selection, and advertising of roommate preferences, plainly implicate the First Amendment, see Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (membership in small group like boy scout pack is protected by First Amendment freedom of intimate association).
The First Amendment does not disappear merely because the government declares something to be discriminatory. See Linmark Associates v. Willingboro (Supreme Court strikes down ban on signs designed to discourage housing discrimination); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (First Amendment trumped broad reading of Fair Housing Act); Louisiana Debating and Literary Association v. New Orleans (5th Cir. 1994) (freedom of intimate association overrode city's antidiscrimination ordinance as to truly private clubs).
Turn to page 3472 for a classic Kozinski-ism.
[BTW, we learn again that silly laws make for bad -- but correct -- decisions.]
Self-plagiarism is still improper, right?
When I searched for a roommate in Summer 1993 in Sacramento, I wasted many quarters (I was calling prospective roommates from a room in a hotel that charged by the call) calling rentals advertised in the Sacramento Bee, only to be told by the female voice answering the phone that they didn't want me to be their roommate because of my sex (male). It made me feel like an unwanted intruder. (I was ill with an ear infection at the time to boot, and didn't have much money).
I would never have called those numbers in the first place if they could have advertised that they wanted a female roommate. But legal impediments to advertising a discriminatory preference made that impossible, and subjected me to the personal stigma of discrimination.
So I called, not knowing that the advertisor was a woman, or that they did not want a male housemate.
The antidiscrimination laws themselves subjected me to personal, in-your-face discrimination I would never have experienced absent those laws.
I don't object to ads that say "we want a female roommate." I wouldn't want to force female tenants to rent to me. After all, there are plenty of OTHER landlords or share rentals who would be happy to rent to a man.
But I do object to being told that face-to-face, and losing perfectly good money to be told that.
And that's how the discrimination laws at issue in the Roommmates.com case often work with regard to sex discrimination.
If someone finds it difficult to advertise their discriminatory preference for a roommate, then a would-be renter or roommate may not be able to find that out without personally seeking to be their roommate, only to be rebuffed for obviously discriminatory reasons. (The laws make sex discrimination with regard to roommates illegally only to advertise, not to actually engage in).
Thus, the discrimination statutes in question increase the stigmatic harm of discrimination.
Thus, they do not promote any important or compelling interest in guarding against discrimination that might overcome First Amendment rights to intimate association.
Instead, they aggravate the effects of discrimination, and cannot survive any level of scrutiny, strict or not, heightened or not, since they do not materially and substantially advance the state's interest.
There is no "anti-discrimination" exemption to the First Amendment. See Boy Scouts v. Dale, 530 U.S. 640 (2000) (Boy Scouts' First Amendment right to not associate with gays overrode New Jersey's antidiscrimination law protecting against sexual orientation discrimination); UWM Post, Inc. v. Bd. of Regents, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991) ("Title VII is only a statute, it cannot supersede the requirements of the First Amendment"); cf. Lyle v. Warner Brothers (Cal. 2006) (Chin, J., concurring); Meltebeke v. Bureau of Labor and Industries, 902 P.3d 351, 363 (Or. 1995).
Restrictions on roommate selection, and advertising of roommate preferences, plainly implicate the First Amendment, see Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (membership in small group like boy scout pack is protected by First Amendment freedom of intimate association).
The First Amendment does not disappear merely because the government declares something to be discriminatory. See Linmark Associates v. Willingboro (Supreme Court strikes down ban on signs designed to discourage housing discrimination); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (First Amendment trumped broad reading of Fair Housing Act); Louisiana Debating and Literary Association v. New Orleans (5th Cir. 1994) (freedom of intimate association overrode city's antidiscrimination ordinance as to truly private clubs).
Someone is going to get impeached or a hate speech investigation over that.
Selection of roommates, and advertising of roommates, ought to be protected by the freedom of intimate association rooted in the First and Fourteenth Amendments. See Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (membership in small group like boy scout pack is protected by First Amendment freedom of intimate association); Louisiana Debating and Literary Association v. New Orleans, 42 F.3d 1483 (5th Cir. 1995) (freedom of intimate association overrode city's antidiscrimination ordinance as to truly private clubs); Wilson v. Taylor, 733 F.2d 1539, 1542-44 (11th Cir. 1984) (dating is protected by freedom of intimate association).
Since the disrimination selection of roommates based on sex is legal, advertising of that preference must be protected, too. For example, the Eleventh Circuit held that since a state exempted certain medical uses of vibrators from its ban on vibrators, it could not ban advertising of vibrators, since the underlying activity being advertised was not always illegal. Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (since tobacco use has not been prohibited for adults, advertising about tobacco could not be banned merely because some children might see it).
Moreover, as I noted above, the fact that the antidiscrimination statutes at issue in this case ban the advertising of a sex discriminatory preference without banning the sex discrimination itself actually results in aggravating the harms of discrimination, and thus defeats any claim that the statute advances compelling interests in protecting against discrimination that might overrode First Amendment rights.
Actually, the issue of the first amendment's relationship to discrimination laws is quite unresolved. Hostile environment harassment law certainly applies to some expressive activities, and the constitutionality of it has never been adjudicated. In the free association context, the law is a mess, with some cases like the Jaycees case allowing anti-discrimination laws to trump free association claims, and other cases like Hurley and Dale going the other way.
There's also a question as to whether, even if certain discriminatory speech is fully protected, antidiscrimination laws are necessary to serve a compelling state interest and therefore the laws would survive strict scrutiny, and if so, in what circumstances.
What sense does it make to allow people to discriminate, to allow them to post discriminatory ads, but to prevent the organized searching through such ads?
Only in the good ones.
So if the laws DID make sex discrimination illegal to engage in, are you saying your proposed First Amendment argument would cease to have merit?
See EV's post:
but the exemption expressly excludes the advertising ban, so that the advertising ban does apply even to roommate searches
How, then, is anyone allowed "to post discriminatory ads"?
This has to be the most moronic thing I have heard in a while, and likely a First Amendment violation.
If the underlying conduct is legal, how can it possibly be illegal to outlaw advertising of the proposed legal conduct.
(Note that this is a completely separate argument from the issue of the right of intimate association. Even if an activity COULD be made illegal, the fact that right now it is legal should give one the right to advertise and propose it to others.)
Their basic problem is that they have implicitly embraced the discrimination by recognizing it and helping to cater it. However, what if their search algorithm was completely hands off? For example, if it gave a list of "qualities" you wanted in a roommate (Just a string of text, with each entry, say, comma delimited) and allowed users to search by say, the top ten most common qualities?
If "race" happens to be one of the top qualities, Roommate.com hasn't endorsed it in any way, save their blind approach to optimize the search experience.
I think the First Amendment should trump the government's interest in preventing discrimination, as Hans Bader argues, but my own review of the law over the years has left me closer to Dilan Esper's view that much of the "hostile environment" and "retaliation" case law just ignores the fact that the courts are imposing punishment for expression. That seems to be quintessentially what the First Amendment was meant to prevent. The very few times I've seen it addressed, the courts seemed to be saying that the governmental interest in preventing illegal discrimination was "compelling," and justified the restriction on expression. I think that's a stretch, but I don't have the black robes.
In this Roommates. com case, however, I can't imagine how the restriction could be justified, since there certainly is no compelling interest in preventing lawful discrimination!
For instance consider bans on advertising smoking to minors who, being over 16, can legally smoke in many places. Or consider the restrictions the FDA places on drug advertising even when the underlying (off label?) use of the drug would be legal.
If you want to get more personal suppose I had legally acquired pictures of Hillary Clinton fornicating with a goat. It would certainly be legal for me to publish these pictures if Hillary hadn't dropped out of the race by the convention. However, it would probably be illegal blackmail for me to merely inform Hillary that I intended to publish these pictures if she did not drop out of the race before the convention. Of course similar non-political examples can be generated if the political angle gives you pause.
I personally am inclined toward more first amendment absolutism which would declare both of the above protected speech but it's certainly not so clear cut as to say that you can always advertise/speak about legal actions.
OPTIONAL INFORMATION: Please check any of the boxes below that apply to you roommate search:
[Followed by a laundry list of likes/dislikes, but including certain status indications such as sexual orientation and gender]
My advice: Use the Free Exercise clause to get around it!
For example:
"Please note below any genuinely-held religious beliefs that may restrict an applicant's suitability to be your roommate:
1. My religious commitments preclude me from sharing living quarters with an adult person of the opposite sex who is not my spouse.
2. My religious commitments preclude me from sharing living quarters with a person who engages in homosexual activity.
Hey, I'm just a web business manager! Who am I to inquire as to whether you really have a religious objection to an opposite sex roommate, or if you just don't like roommates who leave the seat up?
I see the point on roommates, but I'm not quite sure where this ends. Suppose a condo development is owned by an association of the residents, who advertise their preference for whites only?
I'm not sure what you mean to suggest he meant, but whatever it is... it's all in your head.
Not at all my area of expertise, but I think there's an argument to be made here ...
... that discrimination against women in housing is not one of the evils addressed by the 14th Amendment, even as later interpreted to include sex discrimination.
Would that work?
(As an aside, it is SO difficult to type "later" instead of "subsequently" when you're a lawyer.)
By contrast, purely private racial discrimination can be prohibited under Section 2 of the Thirteenth Amendment, according to a 1968 Supreme Court decision (Jones v. Alfred H. Mayer Co.).
Race is different on that score than sex.
So it is not clear why gender-specific roommate ads should be subject to prohibition -- especially since the discrimination statutes themselves do not prohibit considering sex in selecting a roommate, but only advertising that "discriminatory" preference.
There is no "anti-discrimination" exemption to the First Amendment. See Boy Scouts v. Dale, 530 U.S. 640 (2000) (Boy Scouts' First Amendment right to not associate with gays overrode New Jersey's antidiscrimination law protecting against sexual orientation discrimination); UWM Post, Inc. v. Bd. of Regents, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991) ("Title VII is only a statute, it cannot supersede the requirements of the First Amendment"); cf. Lyle v. Warner Brothers (Cal. 2006) (Chin, J., concurring); Meltebeke v. Bureau of Labor and Industries, 902 P.3d 351, 363 (Or. 1995).
Selection of roommates, and advertising of roommates, ought to be protected by the freedom of intimate association rooted in the First and Fourteenth Amendments. See Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (membership in small group like boy scout pack is protected by First Amendment freedom of intimate association); Louisiana Debating and Literary Association v. New Orleans, 42 F.3d 1483 (5th Cir. 1995) (freedom of intimate association overrode city's antidiscrimination ordinance as to truly private clubs); Wilson v. Taylor, 733 F.2d 1539, 1542-44 (11th Cir. 1984) (dating is protected by freedom of intimate association).
Since the ultimate selection of roommates based on sex is legal under federal and state law, advertising of that preference cannot be prohibited. For example, the Eleventh Circuit recently held that since a state exempted certain medical uses of vibrators from its ban on vibrators, it could not ban advertising of vibrators, since the underlying activity being advertised was not always illegal. See also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (since tobacco use has not been prohibited for adults, advertising about tobacco could not be banned merely because some children might see it).
Thus, even if there were a sweeping "anti-discrimination" exception to the First Amendment, it would not justify application of the statute to Roommates.com in this case, and would not justify rejecting its First Amendment defense (the appeals court decision in this case specifically reserved the First Amendment issue in a footnote, and left it open to be resolved on remand).
The "anti-discrimination" laws which the Ninth Circuit holds Roommates.com not to be immunized against, actually increase the harm of sex discrimination, by forcing would-be roommates to personally experience sex discrimination, rather than being able to avoid it.
When I searched for a roommate in Summer 1993 in Sacramento, I wasted many quarters (I was calling prospective roommates from a room in a hotel that charged by the call) calling rentals advertised in the Sacramento Bee, only to be told by the female voice answering the phone that they didn't want me to be their roommate because of my sex (male). It made me feel like an unwanted intruder. (I was ill with an ear infection at the time to boot, and didn't have much money).
I would never have called those numbers in the first place if they could have advertised that they wanted a female roommate. But legal impediments to advertising a discriminatory preference made that impossible, and subjected me to the personal stigma of discrimination.
So I called, not knowing that the advertisor was a woman, or that they did not want a male housemate.
The antidiscrimination laws themselves subjected me to personal, in-your-face discrimination I would never have experienced absent those laws.
I don't object to ads that say "we want a female roommate." I wouldn't want to force female tenants to rent to me. After all, there are plenty of OTHER landlords or share rentals who would be happy to rent to a man.
But I do object to being told that face-to-face, and losing perfectly good money to be told that.
And that's how the discrimination laws at issue in the Roommmates.com case often work with regard to sex discrimination.
They defeat, rather than advance, the goal of protecting people from the harms of discrimination.
"We no longer categorize ads, but feel free to use full text search. In writing an ad, feel free to express your positive preferences - e.g "gay friendly" "women friendly" "One legged dwarf friendly" "
With a good search function, the problem is solved.
I never browse by category on e-bay, I always search.
when the statute in question seems to deal only with to whom the information is attributed, and does not mention lawfulness at all? This seemed like the strongest point in the dissent to me.
Incidently, wouldn't the ruling also apply to dating sites (logically, I mean. Who knows what arbitrary legal difference they may imply)? If I can't search for apartments based on race, or gender, why am I able to search for potential romantic partners on eharmony etc by the same?
Can't you go back to counting the angels dancing on the head of a pin? I could more readily ignore that particular form of hairsplitting nonsense.
Sk
On the one hand, this "materially contributing to [the ads'] alleged unlawfulness," especially if they recommend standard codes to search for.
On the other hand, it falls far short of "requiring subscribers to provide the information [the is illegal to put into an ad] as a condition of accessing its service, and by providing a limited set of pre-populated answers" as Roomates.com did here.
So the holding of this case is, as usual, ambiguious enough to leave plenty of work for 9th lawyers in the future.
Yes, absolutely. It was the political angle giving me pause. The goat thing sailed through without a problem...
Well, wait a second here. I don't think anyone claims that the only basis of either a First Amendment exception or a compelling interest to regulate discriminatory expression is the Fourteenth Amendment. Seems to me there's a strong national policy expressed in antidiscrimination laws.
There is no "anti-discrimination" exemption to the First Amendment. See Boy Scouts v. Dale, 530 U.S. 640 (2000) (Boy Scouts' First Amendment right to not associate with gays overrode New Jersey's antidiscrimination law protecting against sexual orientation discrimination); UWM Post, Inc. v. Bd. of Regents, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991) ("Title VII is only a statute, it cannot supersede the requirements of the First Amendment"); cf. Lyle v. Warner Brothers (Cal. 2006) (Chin, J., concurring); Meltebeke v. Bureau of Labor and Industries, 902 P.3d 351, 363 (Or. 1995).
What about the Jaycees case? Didn't that recognize that antidiscrimination can in some cases override a First Amendment free association right? I don't think Dale or Hurley overruled it, did it?
And further, I think you are way overselling your point. Clearly SOME discriminatory expression is outside the scope of First Amendment protection. The government can clearly prohibit quid pro quo harassment (i.e., telling a subordinate to sleep with him or be fired), can't it?
And what is the basis for saying that egregious forms of hostile environment harassment-- e.g., a sexist supervisor who decides to drive a woman to quit by constantly talking about her vagina and breasts-- are constitutionally protected? Or something like the Jacksonville Shipyards case-- was that wrongly decided?
Look, I've actually litigated on the side of an employee who wanted to read Playboy at work, so I know something about the excesses of hostile environment harassment law, but it seems to me that plenty of sexual harassment law regulates expression in plainly constitutional ways. To say that categorically that there is no First Amendment exception for discriminatory expression looks like an overstatement.
CHILLING EFFECT!!!!!!!
I would say, "Obviously not." But it wasn't that many years ago that the idea that females seeking a roommate couldn't specify "female only" would be have been equally ridiculous.
Are there any limits to governmental power over private relationships? Do private relationships still exist?
It doesn't address the constitutionality of the *very* broad Fair Housing Act, which many of the commenters have questioned, and which can validly be complained about. But that question wasn't really raised, and appeals courts don't address questions which aren't raised.
As far as the 'common carrier' rules go, they got it exactly right.
And, dating is even more obviously within the right to intimate association than is the roommate situation.
The distinction between freedom of association and freedom of intimate association is reflected in part in fair housing laws, which allow discrimination in roommate-type situations but not in more commercial arrangements.
Mere policy preference can't -- or shouldn't be allowed to -- override the First Amendment.
Well, not if we believe in freedom of contract, but under a first amendment situation, yes, on the theory that this is a 'verbal act', like a contract, rather than expression.Yes.
Mere policy preference can't -- or shouldn't be allowed to -- override the First Amendment.
You miss the point. It isn't a "mere policy preference"-- the question is what constitutes a sufficiently compelling interest to allow a speech-restrictive law to survive strict scrutiny. And unless your contention is that fighting sex discrimination is not compelling-- which would be a bigoted position that I would assume you wouldn't take-- there's a serious issue here.
And what is the basis for saying that egregious forms of hostile environment harassment-- e.g., a sexist supervisor who decides to drive a woman to quit by constantly talking about her vagina and breasts-- are constitutionally protected? Or something like the Jacksonville Shipyards case-- was that wrongly decided?
Yes.
That's a strange and offensive position. You really think that the First Amendment confers absolute protection to an employer's or worker's right to use offensive language at work? Even when the intention is to drive another worker out of her position?
I think we've reached reductio ad absurdem territory here. Obviously, there's a serious concern that workplace harassment laws can suppress legitimate free speech rights (including the right to say something sexist). But that's quite a bit different from saying that the framers of the First Amendment were intending to protect male supervisors' or co-workers' sacred right to drive women out of the workplace with offensive language.
But even in the context of this world, in which the courts do consider fighting discrimination to be compelling, the Jacksonville Shipyards ruling was ridiculously broad, finding that private conduct of employees not even directed at the person in question -- such as a person posting pinups in his own locker -- could constitute harassment just because an employee felt it was offensive. And it's not just crazy ol' libertarian me; the ACLU also criticized the ruling as infringing on the first amendment. In fact, it filed an amicus brief in the case, IIRC.
Well, I did so to respond to the ACLU's own argument in its amicus brief in Harris v. Forklift Systems (1993) -- a case involving purely private discrimination -- that the Fourteenth Amendment outweighed any First Amendment rights the defendant may have had to engage in sexist speech that allegedly created a hostile work environment (and thus allegedly constituted sexual harassment ).
Whatever other arguments there might be for prohibiting speech under a "discrimination" rationale, the Fourteenth Amendment isn't one of them, since the Supreme Court has emphasized in cases like United States v. Morrison, 529 U.S. 598 (2000) that private discrimination has nothing to do with the Fourteenth Amendment, which addresses only governmental discrimination, not private discrimination, and held in the Morrison case that Section 5 of the Fourteenth Amendment does not authorize Congress to ban private sex discrimination.
The ACLU's position, although illogical, is relevant for discussion, because, as Dilan Esper notes above, he litigated with the ACLU, such as in a Los Angeles case involving Playboy; and he generally agrees with the ACLU about what speech is protected or not protected.
I'm just pointing out that the ACLU's reasoning is wrong.
Of course, I recognize that in the Jaycees case, the Supreme Court found a compelling state interest in eradicating discrimination that justified certain limits on freedom of association, without in any way relying on the Fourteenth Amendment.
So I am not suggesting that there is a blanket First Amendment right to discriminate.
Nor does my above commentary explaining why the anti-discrimination statutes used to bring the lawsuit in Fair Housing Council v. Roommates.com cannot constitutionally be applied to Roommates.com rest on any such premise.
Moreover, even if there were a compelling interest in eradicating sex discrimination that generally overrode free speech rights, it would not justify ruling against Roommates.com, since, as I noted above, the statutes actually undermine, rather than advance, society's interest in protecting victims of discrimination from harm.
It makes no sense for the statutes to prohibit gender-specific roommate ads, when the statutes themselves do not prohibit considering sex in selecting a roommate, but only in advertising that "discriminatory" preference.
There is no blanket "anti-discrimination" exemption to the First Amendment. See Boy Scouts v. Dale, 530 U.S. 640 (2000) (Boy Scouts' First Amendment right to not associate with gays overrode New Jersey's antidiscrimination law protecting against sexual orientation discrimination); UWM Post, Inc. v. Bd. of Regents, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991) ("Title VII is only a statute, it cannot supersede the requirements of the First Amendment"); cf. Lyle v. Warner Brothers (Cal. 2006) (Chin, J., concurring); Meltebeke v. Bureau of Labor and Industries, 902 P.3d 351, 363 (Or. 1995).
Selection of roommates, and advertising of roommates, ought to be protected by the freedom of intimate association rooted in the First and Fourteenth Amendments. See Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (membership in small group like boy scout pack is protected by First Amendment freedom of intimate association); Louisiana Debating and Literary Association v. New Orleans, 42 F.3d 1483 (5th Cir. 1995) (freedom of intimate association overrode city's antidiscrimination ordinance as to truly private clubs); Wilson v. Taylor, 733 F.2d 1539, 1542-44 (11th Cir. 1984) (dating is protected by freedom of intimate association).
Since the ultimate selection of roommates based on sex is legal under federal and state law, advertising of that preference cannot be prohibited. It is well-settled law that speech -- even commercial speech -- about a lawful transaction cannot be banned.
For example, the Eleventh Circuit recently held that since a state exempted certain medical uses of vibrators from its ban on vibrators, it could not ban advertising of vibrators, since the underlying activity being advertised was not always illegal.
The Supreme Court has also made clear that speech about lawful transactions cannot be banned. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (since tobacco use has not been prohibited for adults, advertising about tobacco could not be banned merely because some children might see it).
Thus, even if there were a sweeping "anti-discrimination" exception to the First Amendment, it would not justify application of the statute to Roommates.com in this case, and would not justify rejecting its First Amendment defense (the appeals court decision in this case specifically reserved the First Amendment issue in a footnote, and left it open to be resolved on remand).
The "anti-discrimination" laws which the Ninth Circuit holds Roommates.com not to be immunized against, actually increase the harm of sex discrimination, by forcing would-be roommates to personally experience sex discrimination, rather than being able to avoid it.
When I searched for a roommate in Summer 1993 in Sacramento, I wasted many quarters (I was calling prospective roommates from a room in a hotel that charged by the call) calling rentals advertised in the Sacramento Bee, only to be told by the female voice answering the phone that they didn't want me to be their roommate because of my sex (male). It made me feel like an unwanted intruder. (I was ill with an ear infection at the time to boot, and didn't have much money).
I would never have called those numbers in the first place if they could have advertised that they wanted a female roommate. But legal impediments to advertising a discriminatory preference made that impossible, and subjected me to the personal stigma of discrimination.
So I called, not knowing that the advertisor was a woman, or that they did not want a male housemate.
The antidiscrimination laws themselves subjected me to personal, in-your-face discrimination I would never have experienced absent those laws.
I don't object to ads that say "we want a female roommate." I wouldn't want to force female tenants to rent to me. After all, there are plenty of OTHER landlords or share rentals who would be happy to rent to a man.
But I do object to being told that face-to-face, and losing perfectly good money to be told that.
And that's how the discrimination laws at issue in the Roommmates.com case often work with regard to sex discrimination.
They defeat, rather than advance, the goal of protecting people from the harms of discrimination.
(By the way, I agree with Dilan that the First Amendment is not absolute, and that a "sexist supervisor who decides to drive a woman to quit by constantly talking about her vagina and breasts" would not be immunized from liability by the First Amendment against a properly-crafted civil remedy (whether it is a narrowly-drawn sexual harassment cause of action or a narrowly-tailored intentional-infliction-of-emotional-distress tort). Such a remedy would advance important state and societal interests).
Clayton
Seems to me Lawrence v Texas said there was such a limit. But you didn't like the result.
Laws against private discrimination are stupid in general, but this takes the cake.
I also object to the notion that some private relationships are constitutionally protected (like homosexuality) but others (such as finding a roommate, or hiring someone) are not. A consistent libertarian position would at least limit governmental power. But a consistent libertarian position is beyond the ability of liberals to accept--because it would limit state power.
The notion that every private relationship is outside the power of the States is historically wrong. All sorts of private relationships were within the power of the States to regulate in 1791, and in 1868. Fornication--even in private--was unlawful. Ditto for "the crime against nature" as many state laws defined it. There was also an existing tradition at common law about public accommodations, upon which some of the civil rights laws of the era could point to as example.
As much as I am philosophically opposed to antidiscrimination laws, their constitutionality doesn't seem particularly arguable, except to the extent that they cross the boundary from public accommodations to private relationships. That boundary line is sometimes hard to clearly define. A roommate isn't an innkeeper, however.
Would you also object that some private relationships, like heterosexuality, are protected but others are not? Would it be preferable to have none protected rather than some?
I've had roommates of both sexes and several races, although all were hetero to the best of my knowledge. I have refused to share a hotel room on business with someone who I knew was likely to acquire company -- is that wrong? Workplace discrimination due to his sexual preference (frequent)?
Should there be a sensible place that allows greater preference the closer the proximity -- roommate, housemate, duplexmate versus an apartment owner commercially renting apartments or standalone houses? Current law seems not to favor the distinction.
It seems as if the ads themselves are the same as advertisment placed in newspapers. Will the The Fair Housing Council go after the persons placing the ads the same was they go after those placing ads in newspapers.
Yes, and the clause that says "Commerce among the States", as the phrase suggests, deals only with actual commerce that actually crosses state lines, no?
Dating clearly effects housing decisions. As the previous poster mentioned, one of the big purposes of dating, and the main traditional purpose, is figuring out who you will spend many years (hopefully a lifetime) living with.
The other goals of dating, such as a night of sex, are less intimate and risky than decisions on who to live with on an ongoing basis.
This is a good example of the idiocy of the Footnote Four dichotomy between "merely economic" rights and rights courts will deign to actually protect. This "merely economic" right to freedom of association in housing involves more risks to intimacy and privacy than the "rights of privacy" courts have gone so far out of their way to protect.
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