We’ve extensively covered the various fair-housing complaints against Craiglist (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, Dec. 1, 2006) for that service’s hosting ads for housing and roommates that fall afoul of non-discrimination laws—it’s technically illegal for a woman to say that she’s looking for another woman to share her apartment with, much less a co-religionist or someone without kids. We somehow missed the Santa Clara and San Diego lawsuits against Roommates.com over the same issue. While a district threw out the case, an appeal went to the Ninth Circuit Court of Appeals, and that was that: the three judges, Kozinski, Reinhardt, and Ikuta, wrote three separate opinions, with two of them deciding that there was enough for a suit to go forward on the grounds that there may be a cause of action under the Fair Housing Act because Roommate.com makes it easier for their users to express discriminatory preferences by using questionnaires that are then translated into searchable advertisements, thus supposedly running outside the Communications Decency Act’s immunity provision by being an “information content provider” because it is “responsible, in whole or in part, for the creation or development of [the] information”:
“By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.”
Worse, Judge Kozinski’s opinion issues irrelevant dicta, apparently aimed at a suit not being litigated before him:
Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this Web site would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee.
Kozinski posits that this site—plainly based on dontdatehimgirl.com (Apr. 9 and links therein)—would also flunk the CDA protection. (Cal Law reporter/blogger Brian McDonough notes this passage, but apparently thinks it’s just a joke and thus misses its significance.) The administrators of Autoadmit/xoxohth.com (May 3) might also be concerned about this dicta. (Rebecca Tushnet makes this point independently.)
This substantial narrowing of § 230(c) protections is also bad because it now means that a number of Internet sites that were plainly protected before no longer have unambiguous protection, a problem exacerbated by the lack of a clear majority opinion. Creative lawyering can argue that these websites might be within Fair Housing Counsel‘s fact-driven exception to the CDA exception, and thus get past the motion-to-dismiss stage, forcing defendants into expensive legal proceedings.
Volokh separately argues the underlying laws are unconstitutional as applied to roommates.