Craigslist Wins 230 Defense in Fair Housing Case–Chicago Lawyers’ Committee for Civil Rights under the Law v. Craigslist

By Eric Goldman

Chicago Lawyers’ Committee for Civil Rights under the Law, Inc. v. Craigslist, Inc., 1:06-CV-00657 (N.D. Ill. Nov. 14, 2006)

A group of lawyers sued Craigslist for displaying user-submitted classified ads that putatively violated the federal Fair Housing Act. This situation on its face is unambiguously covered by 47 USC 230, and there was even a directly-on-point precedent (the Roommate.com case) saying so. So it was easy to predict this case would immediately go down in flames, and I’m embarrassed for our profession that a group of lawyers (who should know the law) decided to bring such an obviously deficient and wasteful case.

And in a single paragraph, starting on page 26 of a 27 page opinion, the judge reinforces the case’s complete lack of merit, succinctly dismissing the claim on its pleadings. The court says that (1) websites are ICS providers, (2) the classified ads on Craigslist originate from “another information content provider,” and (3) the Fair Housing Act statutory language uses the verb “publish” as one of the restricted activities and the plaintiffs characterize Craigslist’s behavior as “publishing” in their pleadings, so the plaintiffs are trying to treat Craigslist as a publisher of that third party content. All of the elements of a successful 230 defense are satisfied, so just like that–boom, boom, boom–case over.

But…what about those other 26 pages? Unfortunately, the judge joined the burgeoning trend of adding dicta suggesting limits to 230′s parameters–other prominent examples of this trend include the 7th Circuit Doe v. GTE case and two recent 11th Circuit cases.

In this case, the judge questions the scope of Zeran, even though the judge acknowledges that she is attacking an “essentially uniform body of case law” (a particularly perilous endeavor in dicta). I’d like to explain how the judge picked a fight with Zeran, but her analysis is so muddled, rambling and filled with internal inconsistencies (which is ironic, because it complains that Zeran had internal inconsistencies) that it defies any easy summarization. Clearly, the judge thinks the word “publisher” doesn’t mean what Zeran thinks it means (vaguely reminiscent of a line from Princess Bride), but the judge won’t tell us what she thinks the word means, either (see FN 14). The judge intimates that an ICS isn’t a publisher if it either (a) is too passive, or (b) edits third party content, suggesting that there is some hypothetical but undefined sweet spot of behavior that constitutes “publishing” for 230 purposes. But there was no need to clarify this sweet spot further because everyone agreed that Craigslist was a publisher here.

I really wish that judges would reconsider indulging themselves through 230-bashing dicta. All it does is encourages more plaintiffs to bring futile and wasteful lawsuits that impose real costs on defendants (like this case–which was inspired partially by the dicta from the Doe v. GTE case). So, my suggestion to understand the precedential import of this case: skip its dicta and just focus on its outcome–just like dozens of other precedents, the plaintiffs lost on the pleadings

Other commentary on this case:

* the EFF says the “court misreads the key cases, and creates a needless limitation that is contrary to the plain reading of Section 230, the intent of Congress and the needs to have open forums on the Internet”

* David Fish (a plaintiff-side lawyer), says “I predict that the judge’s ruling will be adopted as it is extremely well-reasoned. I also believe that the Seventh Circuit is now the best place to bring a case that will be met with a Section 230 defense.” Eric’s comment: just what we need–plaintiff forum-shopping to find a weak link in the federal immunization of global Internet activity.

* Joe Zekas has even harsher things to say about this lawsuit than I do!

* Susan Crawford decided to update her blog post “to make the “dicta” point a few more times.”

* The Zillow Blog says “this decision is a major victory for craigslist and self-policing real estate communities on the Web.”