Web 2.0 beware: Fair Housing Counsel of San Fernando Valley v. Roommate.com

by Ted Frank on May 20, 2007

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.

Elsewhere on the Internet: Volokh; Eric Goldman; Adam Liptak @ NYT; Slashdot; Laura Quilter; Aaron Perzanowski; Lillian Edwards; The Register. Joe Gratz has purchased harassthem.com.

Volokh separately argues the underlying laws are unconstitutional as applied to roommates.

{ 3 comments }

1 Justinian Lane 05.20.07 at 1:29 pm

I knew you were allowed to discriminate in your choice of roommates. But I did not know you couldn’t advertise your preferences. In a word, that’s ridiculous.

As Volokh concludes, it’s not doing a minority any favors by allowing them to waste their time trying to rent from a person who won’t rent to minorities.

2 Jake 05.20.07 at 9:35 pm

Let me see if I get this straight. Roommate.com publishes online questionnaires about roommate preferences. Readers and users of the questionnaires and the data compiled therefrom may choose to discriminate against others, in violation of the Fair Housing Act. This in turn defeats Roommate’s claim of immunity under the CDA.

Heaven help the Census Bureau, should it distribute census questionnaires online.

3 Deoxy 05.21.07 at 5:55 pm

I’m with Volokh on this one – the “law” being violated is among the most clearly unConstitutional I’ve seen, which is saying quite a lot.

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