in Ninth Fair Housing Council v. Roommate.com. The Ninth Circuit decision is written by Judge Kozinski, with a partial dissent by Judge Reinhardt, and a partial concurrence in the judgment (expressing a good deal of disagreement) by Judge Ikuta.
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 later.)
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 Ninth Circuit panel 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” (emphasis in Ninth Circuit opinion), 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 the FHA insofar as it solicited discriminatory preferences that the FHA prohibits the publication of, 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), 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 (though the panel expressed no opinion about whether the questions themselves violated the FHA). All three judges agreed on this.
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 creator and developer of the information. This was the opinion of Judges Kozinski and Reinhardt, with Judge Ikuta seemingly disagreeing.
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