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You Can't Post That!

The Chicago branch of Lawyers' Committee for Civil Rights Under Law is suing Craigslist for running housing ads that allegedly violated the federal Fair Housing Act.

An important issue in this lawsuit is whether the Fair Housing Act's restrictions on discriminatory advertising apply to an electronic "bulletin board" such as Craigslist. I don't have an informed opinion on that issue, but I do have an informed opinion on other issues related to this lawsuit.

(1) A loss by Craigslist would likely either end real estate advertising on Craigslist, or force Craigslist to charge for advertising to recoup the signifcant expense of screening ads for discrimination. Not only would Craigslist have to comply with the federal Fair Housing Act, but it could also be subject to liability under local fair housing laws, which are often much broader, sometimes absurdly so, than federal law. D.C., for example, bans discrimination based on political affiliation, so you can't advertise that you only want a Republican or Democrat tenant, or even roommate. Local fair housing officials also are often extremely overzealous in their enforcement interpretation of antidiscrimination laws, to the extent that realtors and newspapers sometimes avoid phrases such as master bedroom (evocative of slavery or demeaning to women), walkup (discourages the disable) and even great view (expresses an alleged preference for the sighted). The bureaucracy needed to comply with such nonsense is simply not compatible with Craigslist's business model.

(2) The Complaint itself takes a rather overbroad view of what constitutes a discriminatory ad; many of the examples of alleged discrimination based on religion simply provide useful factual information that might make the property attractive to particular potential tenants, but suggest only to the hypersensitive that members of other groups would not be welcome: across the street from church, next to temple, walk to synagogue, church is a block away, church and beautiful Buddhist Temple within a block.

(3) Some of the ads noted in the complaint seem to be for roommates or houseshares. The federal Fair Housing Act does not apply to roommates or houseshares, but HUD claims that discriminatory advertising for roommates nevertheless violates the FHA ("This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act."). See also 24 C.F.R. §§ 109.20(b)(5) (withdrawn), that codified this rule, but was withdrawn under criticism that its restriction on wording in advertising swept too broadly. I think HUD's interpretation of the law is dubious. Moreover, it seems reasonably clear that the constitutional right to intimate association protects one's right to discriminate in one's choice of roommates (however, the Wisconsin courts have upheld a fine against a woman who declined to share a house with a lesbian, Sprague v. City of Madison, 207 Wis.2d 284 (1997)). That being the case, it seems to me that one should also have the constitutional right to engage in discriminatory advertising for roommates in order to effectuate that right.

(4) At least in the roommate/houseshare context, it is ironally members of minority groups who suffer most if they can't advertise discriminatory preferences. Consider some of the "illegal" ads noted in a complaint a few years back against D.C.'s City Paper: "seeking a gay male to share two bedroom, one bath condo"; "gay female seeking another gay female to share a house"; "housemate needed for a spacious 30ish group house"; "housemate needed, no pets, no Republicans"; "women of color group house seeking a new member"; "Jewish cooperative home starting."

Some of these ads represent attempts by members of minority groups to find housemates who share the same subculture; others express a desire to live with people of like-minded political views or who are at the same stage in life. In most of these cases, an advertisement that didn’t specify the relevant discriminatory preferences would be nearly useless, because the advertisers would be inundated by calls from disfavored heterosexuals, gentiles, twenty-somethings, etc. Banning such ads puts a great burden on individuals with idiosyncratic roommate preferences: District of Columbia residents seeking to establish a group house for gay Jewish Libertarian women of color must either find new housemates by word of mouth, or be willing to sift through the random mix of would-be renters that respond to a more generalized ad. Because of the advertisement restrictions, some individuals may never be able to find roommates who match their preferences. Such governmental intrusion on the ability to form a relationship as intimate and private as the relationship between people who share living space is unjustifiable.

(5) The Fair Housing Act is the law that got me interesting in the first instance in the conflict between antidiscrimination laws and the First Amendment. The FHA contains many provisions, either explicitly or through HUD regulations, that conflict with freedom of speech. Indeed, during the Clinton years, HUD infamously tried to use the FHA to punish homeowners who dared speak and write in opposition to the placement of halfway houses in their neighborhoods. While this action was clearly contrary to the First Amendment, I thought HUD had a pretty good case that it acted properly under the statute.

Much more on this and related topics in You Can't Say That!.

With thanks to reader (and George Mason Law School student) Lowell Jacobson for the pointer, and the title of this post.

Not BBR the IVth (mail):
Without knowing enough to offered a learned opinion, is there a non-trivial question regarding whether what Craigslist does is making, printing, or publishing?
2.9.2006 10:51pm
John Jenkins (mail):
Craigslist as such isn't liable in any event because of the Communications Decency Act. See 47 U.S.C. § 230.
2.9.2006 11:12pm
Chico's Bail Bonds (mail):
Has the CDA ever been applied outside the defamation or similar contexts?
2.9.2006 11:20pm
Michelle Dulak Thomson (mail):
Others have speculated about this online, so I just throw out the suggestion. Between them, eBay and craigslist have apparently had a massive impact on print newspapers' classified-ad revenue. And really, if your choice is between paying more to have fewer people see your ad, or less to have more people see it, which way are you gonna go? In the SF Bay Area, where anyone with enough money to buy your stuff certainly has a high-speed Internet connection and almost certainly knows all about craigslist, there's no reason to open the Chronicle's Classified section at all.

About a year ago, the Chron moved the puzzles (the crossword called the "Daily Commuter," the "Jumbles," the bridge and chess problems) from "Datebook" (the arts/music/entertainment section) to the Classifieds, saying in response to the many complaints that it made for more efficient use of space in the paper. I see it now. They wanted those puzzles in the Classifieds because someone seeking a puzzle might accidentally start actually looking at the Classifieds. Otherwise, no one would.
2.9.2006 11:28pm
Ex-Fed (mail) (www):
Regarding point 4, is it really ironic? (Sorry, ironally? ;P)

Ironic implies an unexpected result. But doesn't everyone with a clue already expect exceptions to free speech to fall disproportionately on socially disfavored groups? (That would exclude clueless disfavored groups demanding free speech exceptions that will eventually disfavor them, of course).
2.9.2006 11:47pm
t e (mail):

that realtors and newspapers sometimes avoid phrases such as master bedroom (evocative of slavery or demeaning to women), walkup (discourages the disable) and even great view (expresses an alleged preference for the sighted).

Sounds like anti-p.c. urban legend stuff. I did a search of the classifieds for newspapers in SF, Chicago, and DC and got hundreds and hundreds of hits for "view", "master", etc.
2.10.2006 12:06am
DavidBernstein (mail):
T E: Kirsten Lagatree, Fighting Words: Efforts to Avoid Housing Discrimination Has Changed the Way Realty Ads Are Written, L.A. Times, Feb. 12, 1995, at 1.
2.10.2006 12:14am
Kovarsky (mail):
I don't really think the CDA safe harbor provision applies. (47 U.S.C. § 230). But it's been a little while since I've looked at the litigation on this provision, so I can't be positive.

First off, it is pretty expressly targeted at defamation. It refers to whether or not "interactive service providers" can be classified as "speakers" or not. That would be an odd nomenclature if Congress sought to bring this situation within the statute's ambit. The specific text of the good samaritan provision is:


any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;


Second, Section 420 makes clear that nothing in it is to change anything about liability for criminal statutes (including but not limited to obscenity and child pornography - further indicating the statute is really only talking about exemption for defamation), intellectual property statutes, and state law that is consistent with the statute.

At least at the time, the statute was basically believed to be addressing the concerns that David addresses in his (1) - but for defamation. People were very worried that ISPs and portals were going to start getting nailed for the defamation of the people posting on or funneling information through them. So they (1) exempted them from liability associated with them being a "speaker" (which triggers liability for defamation) and (2) provided a measure of immunity for any interactive service provider's attempts to take down lewd, obscene, defamatory material, etc.

I really don't think a court would find that the CDA would provide statutory immunity here. That being said, I think David is correct and this will get thrown out or decided adversely to the plaintiffs for any number of reasons....
2.10.2006 12:25am
Justin_F (mail):
One of the many reasons this is stupid: Say I'm looking for a roommate - now all I have to do is not disclose my discriminatory preferences in the ad; have the potential roommate come to my house, and tell him later that I've found someone else. This happens all the time. But it wastes people's time - both the lookers and the lookee's to have to put up with laws like this.
2.10.2006 12:25am
Kovarsky (mail):
Also, craigslist has been responsible for some of the funniests posts I've ever seen. I would paste the following post in here, but it's got enough obscenities in it that I don't think it would be appropriate. But read it:

http://www.craigslist.org/about/best/sfo/27499971.html

It's an open letter to the crackhead that stole the author's sparkplugs in order to use them to smoke crack.
2.10.2006 12:44am
A. Zarkov (mail):
Kovarsky,

That is one of the funniest things I’ve read in a long time. It also points out what a zoo the city of San Francisco is. I ask myself, do I really want to move back to the SF Bay Area? Considering I’ll be moving away from the Washington DC (also a zoo), area the answer is “yes,” at least the weather is better.
2.10.2006 2:31am
Aultimer:
Housing discrimination laws quickly became an absurdity. Real estate agents won't tell members of minorities (the folks the law is intended to protect) where they might feel welcome, or have legitimate interests served (walking distance to a Synagog is important).

My favorite example was when relocating to a new city with small kids, I had to find an acceptable "code word" for neighborhoods with lots of kids. Age discrimination precluded asking directly. Turns out it's considered OK to have an "architectural" preference for neighboring lawns with/without plastic play equipment.
2.10.2006 8:32am
Hans Bader (mail) (www):
47 USC 230 logically applies to shield internet providers from "civil rights" liability, as a Virginia federal district judge found in rejecting a Muslim's claim of "discrimination."

But so-called civil-rights groups claim Section 230 doesn't apply because antidiscrimination laws target the "secondary effects" of speech rather than the content of speech. (A false contention, since it is the very content of the speech that the offended plaintiff objects to and perceives as discriminatory).

The courts have belatedly taken aim at so-called civil rights' groups' attempts to restrict political speech, such as opposition to housing developments inhabited by protected classes (such as recovering substance-abusers). For example, Fair-housing officials at the Department of Housing &Urban Development were found individually liable under the First Amendment in White v. Lee, 227 F.3d 1214 (9th Cir. 2000), for investigating citizens under the Fair Housing Act for opposing a housing development for those disabled by their own substance-abuse. Sanctions were imposed on a private affordable-housing plaintiff for First Amendment violations in A.H.D.C. v. Fresno, in which it sued citizens for "discrimination" for opposing a money-wasting development likely to be disproportionately inhabited by minorities. (The Center for Individual Rights successfully defended free speech in both cases).

But some federal courts have been quite hostile to commercial-advertising speech, allowing it to be prohibited based on speculation about its supposed disparate impact on minorities. (See the Second Circuit's Harry Macklowe and Regan v. NYT decisions, which are classic examples of using the Fair Housing Act and circular reasoning to circumvent the Supreme Court's well-established three-part test for according protection to commercial speech).
2.10.2006 9:32am
sir mix a lot:
question:

would Muslim or Orthodox Jewish posters be protected b/c they would have a legitimate interest in having a co-religionist as a roommate, for, e.g., purposes of ensuring only halal/kosher food in the house?
2.10.2006 9:47am
Ben Barros (mail):
David, this is a very interesting post. The issue of ads for roommates comes up a lot in first-year property, and if this case leads to a published opinion I wouldn't be surprised to see it pop up in Property casebooks. Do you have authority for your suggestion in Point 3 that the advertising provisions of the FHA don't apply to roommates or houseshares? I agree that in the abstract they shouldn't apply, but the exemptions in Section 3603(b) of the FHA expressly do not apply to Section 3604(c), which covers discriminatory advertising.
2.10.2006 9:49am
Houston Lawyer:
These antidiscrimination laws were written when discrimination in real estate was pervasive, back in the 60s. Times have changed and the law should as well.
2.10.2006 9:50am
John Jenkins (mail):
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 2005 WL 3299077 (C.D. Cal. 2005). It's an unpublished case out of California (and therefore at best persuasive in the Chicago case), but it illustrates how expansively the CDA has been interpreted and why it applies in this situation, given that the case was about a virtually identical situation.

47 U.S.C. § 230 does apply because that statute contains a list of exemptions and the FHA is not in the list of exemptions and if Congress had wanted FHA exempted, they could have (and still could) effectuate that. In the face of Congress's clear intent, manifested by the words of the statute, courts don't get to make up further exemptions.
2.10.2006 9:55am
Rob Breymaier (mail) (www):
As a fair housing advocate I can tell you the claim that local fair housing officials are oversealous is simply wrong. So unless you can back that claim up with a real pattern of enforcement from a local jurisdiction (not just one single case), your argument is just not credible. For research on how little fair housing is enforced or even paid attention to, see the Leadership Council for Metropolitan Open Communities study Empty Promises, which I co-wrote. It shows how little local jurisdictions do to enforce the law.
2.10.2006 10:03am
DavidBernstein (mail):
Ben, it's been a while since I looked into this, but my understanding is that the FHA was not meant to apply to roommates at all. Thus, roommates don't simply come under the "owner-occupied housing" (Mrs. Murphy) exception, they aren't covered to begin with. But I don't have time to check right now.

Rob, thanks for your comment, I meant overzealous interpretation, not enforcement, and I've changed the text to reflect that.
2.10.2006 10:36am
Rob Breymaier (mail) (www):
There is a confusing aspect to the FHA regarding the exemptions. In the case of all the exempted types of dwellings the exemption only applies to portions of the Act. One portion that is never exempted is the advertising clause. So even if one might be exempt in the action of discriminating that person still cannot advertise that action. The details of why are somewhat more complicated than I'd like to get into here. But, they revolve around agency, affirmative furthering, and harm to the complainant for starters.
2.10.2006 12:22pm
David M. Nieporent (www):
One portion that is never exempted is the advertising clause. So even if one might be exempt in the action of discriminating that person still cannot advertise that action.
I don't see how such a provision can possibly be constitutional, under current Supreme Court doctrine regarding commercial speech.

What possible state interest could there be in compelling fraudulent advertising? (How can it possibly benefit anybody -- prospective tenants or landlords -- to cause both of them to waste their time looking at/showing a place unavailable to them? Is a minority tenant going to be worse off because his feelings are hurt because he sees "Christian roommate wanted" in the paper than he is because he wasted his time and money going to see the place, only to be told he can't have it?) And otherwise, what justification can there be for forbidding someone from truthfully advertising a lawful activity?
2.10.2006 1:15pm
te (mail):
"T E: Kirsten Lagatree, Fighting Words: Efforts to Avoid Housing Discrimination Has Changed the Way Realty Ads Are Written, L.A. Times, Feb. 12, 1995, at 1."

I guess perhaps an 11 year old article in a newspaper might be some sort of proof that "realtors and newspapers sometimes avoid phrases" in their adds. (Or at least they might have at some point 11 or 12 years ago.)

But, unfortunately, newspaper articles are at least as guilty in the spread of nonsensical urban legends as, say, blogs are.
2.10.2006 1:19pm
Hans Bader (mail):
By banning small landlords and roommates from advertising their discriminatory preferences, while permitting them to discriminate in fact based on sex and certain other factors, fair-housing laws perversely inflict insult, indignity, and economic loss on potential renters who call up or visit a would-be lessor only to be told in person that they are not eligible on account of sex, etc.

When I was younger and poorer, I looked for a share-rental in various cities. I would place telephone calls in response to ads in the paper seeking roommates, only to be told by an irritated woman answering the phone that she and her roommates did not want a male roommate -- something they were prevented from advertising in the paper.

I would never have wasted a quarter calling them, and been made to feel vaguely as if I had inadvertently blundered into a ladies' room, if I had known that they wanted only female roommates. But they were not allowed to tell me that in their ads. (Indeed, the ads never contained their gender, much less their gender preference, presumably because antidiscrimination laws, such as the Fair Housing Act, D.C.'s Human Rights Act, or California's Unruh Civil Rights Act, have been interpreted as covering ads for room-mates).

The Lawyers Committee and groups like it are responsible for me being subjected to personal, in-your-face discrimination, which is much worse than being told in an impersonal newspaper ad that an apartment is not available to me because of my sex. (Cf. Gleason v. Mesirow Financial, 118 F.3d 1134 (7th Cir. 1997) (observing that sexist comments directed at you are much more offensive than sexist comments not directed at you in particular, for purposes of a hostile-environment claim)).

Anyone with an ounce of common sense (but not these "fair-housing" groups) would realize it's much better just to see a discriminatory preference noted in the newspaper than to have it personally applied to you in a person-to-person transaction). Indeed, I don't mind at all if someone publicly declares that they only want to live with members of their own sex, as long as they don't tell me that face-to-face.

The government should leave women free to advertise their gender preference in whom they choose as roommates. That would benefit both women (i.e., female advertisers) and the men who call them vainly seeking a place to live.
2.10.2006 1:45pm
Urho from Virginia (mail):
Although comments like those of Hans Bader certainly set forth a legitimate argument, it strikes me that they overlook one potential benefit of banning the advertisement (which can be fairly effectively stopped in most cases) but not the actual discrimination (which is much more difficult to stamp out by rule).

If you do not permit advertisement, you build the foundation for changes the norms that inform actual discrimination. Moreover, you reduce the feedback effect whereby advertised discriminations reinforces and enlarges the initial actual discrimination.

Accordingly, by passing an effective (if possibly overbroad and not entirely cost-free) rule banning discriminatory advertising, there is a real effect on actual discrimination.
2.10.2006 2:13pm
Dilan Esper (mail) (www):
Urho hits the nail on the head.

First, contrary to what Houston Lawyer says, housing discrimination is still pervasive. Indeed, it is one of the reasons why our cities are still largely racially segregated. The federal government sends "testers" into real estate agent's offices, and the black testers get shown homes in black neighborhoods, while the white testers get shown homes in white neighborhoods. This still happens, because in a market where whites generally have higher incomes and will pay to live in segregated neighborhoods, real estate agents increase their commissions by practicing it.

And, of course, there are still plenty of bigots out there who simply don't want to live around people they don't like.

So, the Fair Housing Act creates a norm, saying that it isn't OK to advertise "whites only", just as it isn't OK for an employer to restrict a job announcement to young unmarried females. Does this stop job discrimination? No, because obviously the seller or lessor or employer can still discriminate. It does, however, make it more costly, because you have to discriminate AFTER the inquiry is made, and it also enforces a norm, and lets everyone in the market know that it is contrary to fundamental and important public policies to discriminate.

David Berstein is correct that there is a tension with freedom of speech. Commercial speech does not receive full First Amendment protection, but it receives robust protection, and telling someone they can't say something in an advertisement is an abridgement of that right. Further, freedom of association is also impacted.

But the problem is that the countervailing interests are compelling, and while a FHA alone won't stop discrimination, it is a necessary step to stop it-- without a prohibition on discriminatory advertisements, there's no way you could stop people from ultimately refusing to sell or rent a dwelling to a black person.

I express no opinion whether the Communications Decency Act actually immunizes Craig's List. It very well may. But if it does, that would be unfortunate, because with more listings in the future being published on the Internet, it would mean the sub silentio repeal of one of the most important civil rights milestones of the 1960's, a law we still need because there are way too many people out there who still have economic and social prejudices against living next to or doing business with those who are different than they are.
2.10.2006 4:09pm
GMUSL 2L (mail):
Dilan,

Regardless of the impact of the FHA, I think that there is a fundamental difference between transferring freeholds and leaseholds, and further, differences between commercially-run leaseholds, small-scale owner-operated lease-holds, and residentially-run leaseholds like roommmate requests.

In my mind, the only question is where you draw the line. I have no problem with prohibiting advertising for certain classes or groups of people in the SALE of houses, but the restrictions against things like "walking distance" or noting that it's near schools or religious institutions are absolutely insane, and hinder the market by restricting valuable information.

I see no problem discriminating against anybody in any way shape or form in roommate requests. Who does it benefit if the African American resident is prohibited from saying (whether in advertising or in person) that he does not want any White Supremacist roommates?

Similarly, owner-operated non-commercial leaseholds should be the same. I currently live in a townhouse that is rented to me by my landlord, who lives at most 2 miles away after just buying a new house this summer. In situations like this, what is the problem with landlords choosing tenants who they feel would do the least wear-and-tear to the house? There is nothing wrong with a landlord saying that he won't rent a three bedroom townhouse to a family of 14, as it's the owner-landlord's investment that is at stake.

In a very real sense, the government is forcing the owner-landlord to not be risk-averse with his own property at the risk of personally and financially damging housing discrimination suit. It's like the government saying that employers couldn't compete on working environment or benefits, or that they couldn't consider the potential employee's effect on the other employees.
2.10.2006 4:46pm
David M. Nieporent (www):
Urho hits the nail on the head.
Unfortunately, he doesn't. He misses the point entirely, as do you. We're not talking about outlawing the advertising of illegal discrimination. We're talking about outlawing the advertising of discrimination that we don't want to ban -- that we have explicitly chosen not to ban.

We don't think there's something wrong with a woman who only wants a female roommate. There is no "countervailing interest" there. That situation doesn't represent the unfortunate vestige of a society that you're hoping to evolve beyond. It's reasonable and rational.

Now, maybe you think the same isn't the case with a black and white roommate. Maybe you think that we should hope one day that neither roommate cares about the race of the other. But what you and Urho are saying is still frightening. You're not saying that we should try to persuade them not to care; you're saying that we should censor them so that they, and other people, don't think the wrong thoughts. There's a government "norm," and anything else is ungoodthink.

But "discrimination is bad" is no more a legitimate "norm" to establish via infringement on the first amendment than "patriotism is good" is. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Or, anyway, I think I read that somewhere.

If you want to ban the behavior, and then ban the advertising because it's an advertisement for illegal behavior, that's one thing. But once we've chosen not to ban the behavior, the government has no legitimate interest in banning advertising for it.
2.10.2006 4:48pm
David M. Nieporent (www):
I guess perhaps an 11 year old article in a newspaper might be some sort of proof that "realtors and newspapers sometimes avoid phrases" in their adds. (Or at least they might have at some point 11 or 12 years ago.)

But, unfortunately, newspaper articles are at least as guilty in the spread of nonsensical urban legends as, say, blogs are.
TE, you're skeptical, so start with this uncontroversial premise: corporations tend to avoid doing things that will get them sued.

Add this in: advocacy groups with too much money, too few real ills to attack, and too much free time on their hands will sue over such language. (Evidence: read the complaint filed against Craigslist. While some of the allegations might have involved "traditional" discriminatory language, they managed to find discriminatory code words in the most innocuous language. (Not, admittedly, the actual "master bedroom" one -- but ones equally absurd. For instance, apparently telling people the size of an apartment is "discriminating on the basis of 'familial status.'")

Given that, maybe you're a little off on pointing the p.c. finger.
2.10.2006 5:11pm
Urho from Virginia (mail):
The problem with Internet debate is that people often do not read very closely.

Dave writes:
But what you and Urho are saying is still frightening. You're not saying that we should try to persuade them not to care; you're saying that we should censor them so that they, and other people, don't think the wrong thoughts. There's a government 'norm,' and anything else is ungoodthink.
I never said what we should do. In fact, my prior posting was merely descriptive. As I wrote:

by passing an effective (if possibly overbroad and not entirely cost-free) rule banning discriminatory advertising, there is a real effect on actual discrimination.
I'm not saying that the effect is always beneficial, or that it is beneficial in this particular case. I was just reminding people that sometimes problems can be attacked (and rules can be designed) indirectly, and that such an understanding is conceivable in this case.

Moreover, Dave writes:
Unfortunately, he doesn't. He misses the point entirely, as do you. We're not talking about outlawing the advertising of illegal discrimination. We're talking about outlawing the advertising of discrimination that we don't want to ban -- that we have explicitly chosen not to ban.
Dave seems to have overlooked where I wrote that the law is "possibly overbroad" (which seems to be his very concern). There is a relationship between overbreadth, underinclusion, and the costs of enforcement. In this case, it may be that, in order to get at the invidious discrimination we wish to attack, at an explicit cost we can tolerate, we have to put up with some overbreadth in our rules.

Whether this is good or not, I leave up to the policy wonks and the sophists. Also, there may be an effective way to reword the rule, fix the overbreadth, and address some of the concerns raised by Dave, et al. (I leave that, again, to the wonks and the sophists, hopefully with the input of housing experts and econometricians).

But the fact of overbreadth alone (except when talking about Constitutional Overbreadth) is not enough to condemn a rule.

(Additionally, I can't agree that we do not legislate norms. In addition to explicit norm-setting, like the Thousand Points of Light program, the battles over the NEA, and Kennedy's "Ask not" rhetoric, our everyday legislation serves as much to set an example and a metric for people to live by as it does to set merely descriptive rules for private cause-government effect.)
2.10.2006 5:19pm
anonprof (mail):
I think that those involved in this discussion are laboring under a misconception about the state of federal antidiscrimination law. Although the FHA does not ban discrimination by Mrs. Murphy landlords, 42 U.S.C. § 1982 does. See Morris v. Cizek, 503 F.2d 1303 (7th Cir. 1974). That case involved leases of apartments, not condominium sales, and it seems plausible that if section 1982 bars racial discrimination by Mrs. Murphy landlords, it covers racial discrimination by subletting roommates too. So, Chicago bars both the underlying conduct (discrimination against tenants on the basis of race) and advertisements of an intent to discriminate on the basis of race (under the FHA). I believe this 7th Circuit authority renders racially restrictive Craig's List apartment ads akin to commercial speech for contraband, which is unprotected by the First Amendment.
2.10.2006 5:45pm
Rob Breymaier (mail) (www):
You all make a good point. Small landlords shouldn't be exempt from any part fo the Act. Unfortunately, the Act couldn't get passed unless those exemptions were added. The same is true for just about every local and state protection as well. Some like to defend the right of small landlords to discriminate.
2.10.2006 10:52pm
Kev (mail) (www):
The PC nonsense cited above (master bedroom, view, etc.) is certainly ridiculous, and I'm not one for a lot of regulation on the Internet, but the past few comments have made me wonder if I would've had some sort of a case about ten years ago. A friend of mine and I were looking to get out of apartment-land (we're both musicians and needed to be able to practice without bothering neighbors who shared a wall), and we looked at one rental house that we liked. We found out later (from the Realtor who was acting as the owner's agent) that the owner would not rent to two single guys. His reasons evidently were: 1) He was afraid that we'd always be throwing wild parties, or 2) He was afraid we might be gay (and thus would've thrown *really* wild parties??--who knows...). We eventually found an even better place, but now this makes me wonder--could we have sued the guy and maybe even ended up owning the house ourselves?
2.10.2006 11:41pm
David M. Nieporent (www):
(Additionally, I can't agree that we do not legislate norms. In addition to explicit norm-setting, like the Thousand Points of Light program, the battles over the NEA, and Kennedy's "Ask not" rhetoric, our everyday legislation serves as much to set an example and a metric for people to live by as it does to set merely descriptive rules for private cause-government effect.)
If you want to lecture about reading carefully, don't you think you ought to take equivalent care? I didn't say that we don't legislate norms; I said that we don't legislate norms through censorship. None of the examples you cite involve criminalizing speech contrary to those norms.

But the fact of overbreadth alone (except when talking about Constitutional Overbreadth) is not enough to condemn a rule.
But we are talking about constitutional overbreadth here; again, we're talking about criminalizing speech.

Now, anonprof makes a good point (although I think the 7th circuit's analysis was wrong; its reasoning would basically render the FHA superfluous). But I think, at least for roommates, the court would find a first amendment associational problem with applying §1982.
2.10.2006 11:48pm
Rob Breymaier (mail) (www):
Kev, you could have filed based on sex/gender. You would not have gotten the house. Damages in fair housing suits often are minimal. It proabbly would have resulted in training for the agent and owner along with a small amount for you.

In my nearly 10 years experience, no one has ever filed a complaint with my organization because they wanted to get rich. For one, they'd be wasting their time. But, more importantly they file because they have been denied the choice of where to live. they believe that the reason for this denial is because they are of a protected class. And, the denial brings with it economic and other costs.
2.11.2006 9:28am