Federal Court Decisions Add Uncertainty to Internet Law

Communications Decency Act and Fair Housing Rules Clash in 7th, 9th Circuits

Two spring 2008 cases asked federal courts to interpret a law designed to limit the liability for Internet service providers when their users engage in prohibited speech online in the context of federal fair housing standards. The key difference in the contrasting decisions appears to be the degree to which the different Web sites actively seek particular information from users.

On March 14, 2008, the 7th Circuit U.S. Court of Appeals ruled that the Web site Craigslist is not liable for free classified housing advertisements posted by its users that discriminate on the basis of race, religion, sex, and national origin.

In Chicago Lawyers’ Committee v. Craigslist, 519 F.3d 666 (7th Cir. 2008), the 7th Circuit held that Craigslist, an online network of classified advertisements featuring more than 30 million notices posted per month, neither created nor induced the posting of discriminatory ads by users on its Web site. Therefore, Judge Frank Easterbrook wrote for a three-judge panel, the “[plaintiffs] cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.”

The ruling was a victory for Web sites that display user-generated content, said Craigslist Chief Executive Jim Buckmaster in a statement, according to a March 17 Associated Press story.

“We’re pleased the Court agreed that online service providers like Craigslist should not be held liable as ‘publishers’ of content submitted by their users, and view this outcome as a win for the general public’s ability to self-publish content (such as free classified ads) on the Internet,” Buckmaster’s statement said.

Craigslist is a network of sites that allows users to self-publish classified advertisements for things like tenants, pets, services, and jobs. There are currently 450 Craigslist sites in 50 countries. In the U.S., there are sites for cities in all 50 states, Washington D.C., and a few U.S. territories. According to a Craigslist fact sheet posted on its Web site, Craigslist receives nine billion page views per month.

In February 2006, the Chicago Lawyers’ Committee, a consortium of Chicago attorneys, alleged that Craigslist was violating federal housing laws with discriminatory housing ads posted on its Web site. In its brief filed Oct. 9, 2007, the committee cited examples of the advertisements posted on Craigslist by users, including “African Americans and Arabians tend to clash with me so that won’t work out” or “No children.” The federal Fair Housing Act (FHA), 42 U.S.C. section 3604, prohibits advertisements for the sale or rental of housing that state a preference or discriminate on the basis of “race, color, religion, sex, handicap, familial status, or national origin.”

Lawyers for Craigslist argued that the Communications Decency Act (CDA) of 1996, 47 U.S.C. section 230(c)(1), provides broad immunity for Internet service providers from liability for content posted on their sites by users. The relevant provision of the CDA states: “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.”

Judge Easterbrook wrote that section 230(c)(1) of the CDA stands for the proposition that an online information system cannot be “treated as the publisher or speaker of any information provided by” another speaker. Since Craigslist did not create the content of the housing advertisements, it was not the speaker or publisher of the words and therefore cannot be liable under the FHA.

In contrast to the 7th Circuit’s decision, on April 3, 2008, the 9th Circuit U.S. Court of Appeals denied immunity under the CDA to Roommates.com, a Web site that allows users to indicate preferences for roommates based on gender, sexual orientation, and familial status.

Roommates.com offers an online service to help people find roommates and requires subscribers to create profiles featuring the answers to a series of questions. The questions require subscribers to state their preferences in roommates with respect to sex, sexual orientation, and familial status. Roommates.com offers profiles for individuals in 50 states in the United States and organizes its profiles by city.

The plaintiffs, local fair housing councils in California, sued the Web site’s operators for violating the FHA. Like Craigslist, Roommates.com argued that it was entitled to broad immunity under the CDA.

Chief Judge Alex Kozinski’s majority opinion in Fair Housing Council v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008), stated that by soliciting information containing discriminatory preferences as a condition for using its services, Roommates.com had become an information content provider and thus responsible in part for creating the discriminatory information.

Unlike Craigslist, which offers a forum for others to post advertisements that might state discriminatory preferences, Roommates.com actively solicited the discriminatory information through its questionnaire, the court noted. Therefore, Roommates.com removed itself from the protection of the CDA.

The 9th Circuit remanded the case to the district court to determine whether Roommates.com is liable under the FHA for its actions.

Eugene Volokh, the Gary T. Schwartz Professor of Law at the University of California-Los Angeles School of Law, wrote April 3, 2008 on his popular legal blog, The Volokh Conspiracy, that the difference between the 7th and 9th Circuit decisions stems from the degree of solicitation of discriminatory information the Web site is involved in. “[I]t 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,” Volokh wrote.

– Amba Datta
Silha Research Assistant

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This page contains a single entry by cla published on October 14, 2009 2:20 PM.

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