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.