Lawsuit Against CraigsList:

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.

New and Interesting 47 U.S.C. § 230 Content Provider Immunity Opinion,

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’s involvement is insufficient to make it a content provider of these comments. Roommate’s open-ended question suggests no particular information that is to be provided by members; Roommate certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor does Roommate use the information in the “Additional Comments” section to limit or channel access to listings. Roommate is therefore not “responsible, in whole or in part, for the creation or development of” its users’ answers to the open-ended “Additional Comments” form, and is immune from liability for publishing these responses.

This was the opinion of Judges Kozinski and Ikuta, with Judge Reinhardt dissenting at some length.

So the bottom line: If other sites (for instance, Craigslist, which is the subject of a similar lawsuit) simply ask people to post their ads, and let 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 Ninth Circuit opinion suggests they 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" (Judge Kozinski's example). Then the site will be treated as a content provider of that information, won't get § 230 immunity, and thus may be liable (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.

Thanks to Eric Goldman for the pointer; he also has a post on the subject.

A Right To Choose Whom You Live With -- and To Speak About This in Ads:

My post about the Ninth Circuit's Fair Housing Act / 47 U.S.C. § 230 decision focused on the § 230 immunity for online services, since that's what the panel opinion focused on. But it leads me to bring up again some thoughts I had about the housing discrimination law question.

In my view, the right to intimate association, which the Court has recognized, ought to give people a right to choose whom they live with, including based on religion, race, sex, sexual orientation, family status, handicap, and the like. And both that right and the right to free speech ought to give people a right to express this preference in ads.

My initial thinking on this was prompted by a 2002 decision in which the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting "emotional distress" on a would-be roommate by allegedly telling him that "I don't really like black guys. I try to be fair and all, but they scare me." The decision also required her to pay the would-be roommate $240 in expenses — and take "four hours of training on housing discrimination." (See Department of Fair Employment & Housing v. DeSantis, 2002 WL 1313078, Case Nos. H 9900 Q-0328-00-h, C 00-01-180, 02-12 (Cal. FEHC May 7, 2002).)

People have gotten used to the notion that businesses can't discriminate based on race, sex, religion, and the like in choosing whom to hire, whom to let in their restaurant, or whom to rent to. This does burden the employer's or owner's freedom of choice, but the dominant view (whether right or wrong) is that this burden is fairly slight, and is outweighed by the felt need to save certain groups from being systematically excluded from important opportunities.

But antidiscrimination law has to stop somewhere. The government can't tell me not to discriminate based on race or religion (or sex!) in choosing a spouse, even though marital choices obviously have important economic effects. Likewise, the government shouldn't be able to interfere with my choice of dinner guests or house guests — or, I think, roommates who would share a two-bedroom apartment.

Such interference, it seems to me, violates the right to intimate association, which the Supreme Court has recognized as a protected unenumerated right. There's no Supreme Court caselaw on the right to intimate association in choice of roommates, but the Court has suggested that the right might apply to sufficiently selective private clubs, and at least one lower court has found that members of a selective club with several hundred members have a constitutional right to choose their fellow members. Surely the same should apply to someone choosing whom to live with in a two-bedroom apartment.

The Wisconsin Court of Appeals rejected this view, in the case cited in the next paragraph, but I think its reasoning — that the right of intimate association is forfeited when one rents out a room in one's house, because of the financial nature of the transaction — was mistaken. Those who reject unenumerated rights generally may reject the right to intimate association, as well as the right to marry, parental rights, and other unenumerated rights. But existing law does accept that the Constitution secures some unenumerated rights, including the right to intimate association, and the right to choose whom to live with seems to me a very strong candidate for such protection.

California law in fact partly reflects the judgment that people should be free to choose whom they live with, concluding (in Cal. Gov. Code § 12927(c)(2)(A)) that owners of "single-family house[s]" are allowed to discriminate in selecting roomers or boarders, if they have only one such boarder; "owner" has been read to include a tenant who's renting to a roommate, and presumably "house" would be seen as including an apartment. Likewise, the Fair Housing Act lets owners of property discriminate in selecting roommates. (Not all housing laws are this protective of roommate's intimate association rights; see Sprague v. City of Madison, which held Ann Hacklander-Ready liable for refusing to accept a lesbian as a housemate, and made Hacklander-Ready pay $300 in damages and $23,000 in attorneys' fees; David Bernstein has more on the subject.) But both under California law and under federal law, it's illegal to tell prospective roomates about one's roommate preference, even when it's legal to actually discriminate based on that preference. It's illegal to put out an ad saying "Single white female seeks same to share apartment" (that's expressing a preference based on race and marital status), or "lesbian pagan seeks same" (preference based on sexual orientation and religion) — and it's illegal to say that to people in person.

This advertising restriction, it seems to me, is unconstitutional in two ways. First, it interferes with people's freedom of speech; while the government may prohibit commercial advertising that expresses an intent to illegally discriminate, the law here bars people from expressing an intent to do something that's quite legal — choose one's roommate based on one's own preferences. (In the DeSantis case, incidentally, the Commission specifically declined to find that DeSantis actually discriminated against the would-be roommate based on race — it only found that she inflicted "emotional distress" on him by making the statement.)

Second, the advertising ban substantially burdens the freedom of intimate association. Though the law doesn't ban the exercise of the right to choose one's roomate as such, it does ban a very important tool through which one can exercise this right, which is advertising. If the lesbian pagan wants to find another lesbian pagan, she'll have a hard time doing that if she has to waste time sorting through dozens of applicants who don't qualify. What's more, she presumably can't even ask them about their sexual orientation or religion, since that itself might be seem as expressing a "discriminatory statement." In constitutional lingo, the law places a "substantial burden" on the exercise of the right to intimate association, even though it doesn't ban it outright.

It's also not clear that the law is doing the discriminated-against roommates any great favor. If people won't rent to me because they're looking for a black or Hispanic or Asian cotenant, I'd rather know that up front, in the ad itself, rather than spending my time doing something that, unbeknownst to me, is entirely futile (and in fact quite lawfully futile, so long as the tenant says nothing to me about her real criteria and her reasons for rejecting me). That's a less important factor than the constitutional arguments, but I think it's also worth bearing in mind.

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.

Ninth Circuit En Banc Opinion in Fair Housing Council v. Roommates.com

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.