The Volokh Conspiracy
[Eugene Volokh, October 12, 2007 at 3:26pm] Trackbacks
Ninth Circuit Agrees to Rehear the Roommates.com Case En Banc.

More details, if I can think of any, later today.

Viewer:
Eric Goldman has the opinion and the briefs available on his blog.
10.12.2007 3:39pm
Dan Weber (www):
I used roommates.com for a long time before I realized the phrases people used to say what ethnicities they were shopping around for. I think that explains the funny looks I got. Well, some of them, anyway.
10.12.2007 4:03pm
scote (mail):
I'm new to this decision. Why would roommates.com even need immunity under Section 230. I thought fair housing laws only applied to self-contained units and houses, not to roommate situations?
10.12.2007 4:33pm
Sasha Volokh (mail) (www):
Take a look at footnote 10 in Kozinski's opinion, p. 5723 (p. 13 of the PDF).
10.12.2007 4:54pm
Sasha Volokh (mail) (www):
Scote: The decision doesn't decide whether fair housing laws apply here. It's true that Roommates.com was accused of violating fair housing laws, but if its immunity argument is true, it's off hook regardless of what fair housing laws say. And that's what the trial court held.

So, in rejecting part of the immunity argument, the Ninth Circuit just held that the case has to go back to the trial court, so the trial court can actually reach the question of whether fair housing laws apply.
10.12.2007 5:05pm
happylee:
Is "Reinhardt" german for "freedom sucks"?

Reinhardt's concurrence put chills down my spine. How then is a black gay man or a white christian woman to find a compatible roommate? Or, to leave pesky natural law questions aside, where in the generous immunity provisions does it impose upon a internet service provider the obligation to impose political correctness on its subcribers? Last I checked, personal ads still carry horrificly detailed information on sex (aka "gender"), race (horrors!!!!), age (mein Gott!) and national origins (Palestinian male looking to date nice israeli jewish girl into S&M). Will Richter Reinhardt next send them to the gashaus? Pfui.
10.12.2007 5:11pm
Sasha Volokh (mail) (www):
happylee: Don't read too much into the opinion. Whether it's O.K. for a black gay man to find a compatible roommate is a question of Fair Housing law. The opinion doesn't even look at whether that's illegal -- it just says that it might be illegal, depending on what the law says, but that only becomes a question if the law applies to Roommates.com.

That's why it's important to look at whether Roommates.com is excluded from the law by the immunity provision, which would provides immunity even if the content were clearly, clearly illegal and immoral.

So it's possible that Roommates.com, because it took a semi-active role in structuring the content of the ads, isn't immune. But, at the next stage, we may still find that the conduct was legal because the law doesn't prohibit demanding a particular sex, or that the prohibition is unconstitutional as applied to individual roommate ads, or whatever. But that's not at issue in this case yet.
10.12.2007 5:25pm
C. Denlane (mail):
happylee: I believe Judge Reinhardt's first name is Stephen, not Richter. And "gashaus" is over the top.
10.12.2007 5:29pm
Former Law Review Editor:
Denlane-

While I agree with you about the whole gashaus thing, "Richter" means "Judge" auf Deutsch.
10.12.2007 5:32pm
scote (mail):

So, in rejecting part of the immunity argument, the Ninth Circuit just held that the case has to go back to the trial court, so the trial court can actually reach the question of whether fair housing laws apply.


Ah, now it makes sense! Thanks.
10.12.2007 6:04pm
Andrew Janssen (mail):

Take a look at footnote 10 in Kozinski's opinion, p. 5723 (p. 13 of the PDF).


That and footnote 11 made me laugh hard enough that I had to clean off my monitor.
10.12.2007 8:12pm
David M. Nieporent (www):
Scote, there's another issue which Sasha doesn't touch upon. There's no question that the FHA generally exempts roommates; the problem is the (IMO unconstitutional) provision of the FHA that say that even though it's legal to discriminate in picking a roommate, it's illegal to advertise that.

That is, a black gay man can legally choose to only live with other black gay men, discriminating against all other races and sexes -- but it is illegal for his newspaper ad to say, "Black gay men only." That's why it's Roommates.com that's being sued, rather than the users of Roommates.com.
10.12.2007 9:31pm
M. Simon (mail) (www):
I get it. When advertising it is illegal to provide the relevant information so as to maximize the utility of all involved.
10.12.2007 11:05pm
Greg May (mail) (www):
The rehearing petition raises the free speech and free association arguments.
10.13.2007 2:29pm
Mary Katherine Day-Petrano (mail):
I hope we will be getting more threads on the en banc hearing of this very important case we should all be following in the blogosphere.
10.15.2007 12:10am

PicoSearch
Help