pageok
pageok
pageok
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.

Hans Bader (mail):
My guess is that the civil-rights groups will say that Section 230 only limits liability for the content of speech, not all restrictions on speech, and that antidiscrimination laws are content-neutral and only incidentally sweep up speech within larged prohibitions on conduct.

By Section 230 has already been applied to preempt claims alleging discrimination in public accommodations (e.g., internet access providers). (For example, a Muslim who claimed to be harassed on the Internet).

More importantly, as applied to small landlords and roommates, the fair-housing laws prohibit discriminatory speech (advertising a discriminatory preference) without regulating discriminatory conduct (they leave the lessor free to discriminate, as long as they don't advertise their discriminatory preference). So the restriction is expressly aimed at speech and is not "incidental" to any prohibition on discriminatory conduct. It's a content-based speech restriction.

Banning such ads doesn't serve any content-neutral goal, like eradicating the effects of discrimination. It doesn't promote any substantial state interest, as is required for a restriction on commercial speech to be constitutional. Indeed, it magnifies the harms of discrimination.

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)).

I don't mind ads limiting roommates to a particular sex. That's freedom of intimate association in action. I do mind wasting time and money calling someone up only to learn that they won't rent to me because of my gender.

Too bad the self-designated fair-housing watchdogs can't figure that out.
2.10.2006 2:03pm
Hans Bader (mail):
The first two paragraphs of my preceding entry contained typos and should read as follows (CHANGES IN CAPITALS):

My guess is that the civil-rights groups will say that Section 230 only limits liability for the content of speech, not all restrictions on speech, and that antidiscrimination laws are content-neutral and only incidentally sweep up speech within LARGER prohibitions on conduct.

BUT Section 230 has already been applied to preempt claims alleging discrimination in public accommodations (e.g., internet access providers). (For example, a Muslim who claimed to be harassed on the Internet).
2.10.2006 2:08pm
Kovarsky (mail):
Roommate's decision is certainly supports the dismissal here, but there's a major problem in the Carafano reference.

I am not speaking to the ultimate liability of Craigslist in light of 230, but Roommate confuses two issues quite badly. Yes, courts have taken an expansive interpreation of what it means to be an "interactive services provider" and therefore what entities are entitled to immunity from other causes of action. That is Carafano.

It does not follow - and I do not read the Roommate court as giving any explanation why it should - that just because "interactive srevices provider" is given an expansive interpretation in Carafano, that the set of statutes from which those entities should be granted immunity should be saddled with a similarly expansive interpretation.

Those are two entirely different legal issues, and an intent to give a broad reading to one bears little relationship I can glean from an intent to give a broad reading to the other. Under the Roommate court's reasoning, just because "interactive services provider" has been construed broadly to grant a defendent immunity, every other provision should also be broadly construed to grant immunity.

In any event, whether Roommate got it right or wrong, it's certainly quite favorable to Craigslist which, in my endgame, is a good thing.

"in the world of pigs whatever and" whatever the quote is from Rose v. Lindh on AEDPA, the CDA is also not a model of legislative drafting. I do read the bar on all state actions "inconsistent" with the statute to be a bar on those actions that punish defamatory and other speech less-protected by the first amendment. It goes without saying that housing postings are also "speech," so perhaps the safe harbor applies, but I don't think it's clear, and even if it is, I'm skeptical that it has anything to do with the the reasons Roommate cites - that "interactive service provider" enjoys a broad interpretation.
2.10.2006 2:11pm
Mary Katherine Day-Petrano (mail):
EV -- "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."'"

This is one of the nuances that make the Americans With Disabilties Act a much more powerful law than the FHA. The ADA contains an express vertical and horizontal preemption provision over all "other federal laws" in conflict with the ADA, and may even provide areas in which there is field preemption, including superceding the CDA. Thus, "expressio unius est exclusio alterius" does not apply in the context of the ADA to the subject matter addressed by this thread, interestingly.

Additionally, internet blogs and web sites that purposely avail of all 50 States (like Hustler magazine), such as Florida, are, at least in Florda, not governed by Ninth Circuit precedent as binding. The Eleventh Circuit, on the other hand, has clearly ruled in a decision binding in the Eleventh Circuit on the subject of the ADA's vertical and horizontal preemption provision, 42 U.S.C. Section 12201(b), Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003). Thus, Congress has evidenced the requisite contrary legislative intent with respect to the ADA (though not the FHA).

Ahh, but for the nuances of the law, none of us would much to do except sit around chatting in caves, as Temple Grandin would remind us on the worth of autistics.
2.10.2006 4:16pm
John Jenkins (mail):
What is it about Shotz v. City of Plantation, Fla. that makes you think it's on point here? The pre-emption provision you're referring to has to do with pre-emption of remedies and I read it as more of a savings clause than actual pre-emption (i.e. if you have a better remedy somewhere else, it's not restricted by this law).
2.10.2006 5:37pm
Kovarsky (mail):
I would say that I enjoy the discussion on these threads infinitely more than the discussions on the NSA threads, which are just plain nasty.
2.10.2006 6:26pm