Another 47 USC 230 Case, Another Defense Win–Fair Housing Council v.

By Eric Goldman

Fair Housing Council of San Fernando Valley v., LLC, 2005 WL 3299077 (C.D. Cal. Sept. 30, 2005) [actually 2004–see below]

I’m not sure why this case took so long to hit Westlaw [see below for explanation]. Whatever the reason for the delay, this is another run-of-the-mill 47 USC 230 case with entirely-predictable results. When are plaintiffs going to get the message???

In this case, defendants run a roommate-matching service called allows users to build a profile using a questionnaire, an open narrative and a photo. The website operators screen the photos but otherwise do not pre-review content.

The plaintiffs sued under the Fair Housing Act, which restricts housing advertisements that indicate a preference for or discrimination based on race, color, religion, sex, handicap, familial status or national origin. There were three principal ways that users allegedly manifested such preferences or discriminatory intent:

* user-selected user names, some of which communicate demographic information (e.g., “Whiteboy,” “Asianpride”)

* some user narratives expressed potentially discriminatory preferences

* the service’s questionnaire elicited (and then published) demographic information that could facilitate discriminatory treatment (e.g., age, gender, sexual orientation, occupation and familial status).

But all of this information is user-supplied content, and replied “47 USC 230.” The court concluded:

“The Ninth Circuit’s decision in Carafano compels the conclusion that Roommate cannot be liable for violating the FHA arising out of the nicknames chosen by its users, the free-form comments provided by the users, or the users’ responses to the multiple choice questionnaire. Plaintiffs’ federal claims against Roommate are therefore barred by the CDA. This result does not, however, leave Plaintiffs without a remedy under the fair housing laws. Any individual user of Roommate’s service who posts discriminatory preferences is not shielded from liability by the CDA. The users who posted the descriptions and preferences of which Plaintiffs complain are responsible for the content they have provided.”

The plaintiffs contended that this outcome eviscerates the FHA. The court accurately responds that 47 USC 230 may, at most, give favorable treatment to websites over print publishers. For example, a newspaper is liable for running a defamatory letter-to-the-editor in its print edition. However, the newspaper is not liable if it posts that exact same letter only to its website. As usual, the medium is the message. I’ve never been able to come up with a policy rationale to explain that difference in outcomes, but this court understood the statutory language perfectly.

Once the FHA claim was dismissed, the only remaining claims were based on state (not federal) law. Because state claims are squarely preempted by 230, the court could have and should have dismissed the claims outright. Instead, the court dismisses them for lack of jurisdiction, leaving the door open for further proceedings (however futile they will end up being).

UPDATE: Ugh, I’m a victim of bad reporting by Westlaw. The correct date of this case is Sept. 30, 2004, not 2005. I mistakenly thought this was a new ruling in the case, but it’s the same one. My understanding is that the case is on appeal. Sorry for the confusion.

UPDATE 2: I have blogged on the similar Chicago Lawyers Committee v. Craiglist lawsuit.