Craigslist Gets Seventh Circuit 230 Win in Fair Housing Act Case–Chicago Lawyers’ Committee v. Craigslist

By Eric Goldman

Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist, Inc., 2008 WL 681168 (7th Cir. March 14, 2008)

Yesterday, I declared this week “47 USC 230 Week” at the Technology & Marketing Law Blog. The Seventh Circuit helps us end 47 USC 230 Week with a bang with its Craigslist ruling, an important opinion that reinvigorates 47 USC 230 doctrine in the Seventh Circuit. Sadly, like the district court opinion, this opinion is filled with gratuitous and unfortunate dicta that dilutes the analysis. Nevertheless, on the plus side, the Seventh Circuit (like the district court) emphatically reaches the right result and grants Craigslist a solid win under 47 USC 230.

Easterbrook’s opinion takes a loving and lengthy gaze at his previous Doe v. GTE opinion (including using about 20% of this opinion to quote from the prior opinion), but I don’t think there’s much value to parsing his confusing statutory analysis to figure out how the two opinions sit together. Instead, the key part of the opinion is that Easterbrook fully realizes the costs and benefits of making an intermediary filter user content. Craigslist provides an excellent test case for that because they are so leanly staffed, and the Fair Housing Act is a good test statute because of the squishy nature of making discrimination assessments. More fundamentally, Easterbrook also understands that any filtering system is imperfect: “Automated filters and human reviewers may be equally poor at sifting good from bad postings unless the discrimination is blatant; both false positives and false negatives are inevitable.”

As a result, Easterbrook recognizes that turning Craigslist into a content cop may not be the best solution. I think his conclusion says it best:

Using the remarkably candid postings on craigslist, the Lawyers’ Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination….It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.”

It will be interesting to see how this opinion affects the Ninth Circuit’s en banc consideration of the case. After all, the legal issues are identical, and Easterbrook’s Doe v. GTE ruling was a key precedent for the plaintiffs. Now, with Easterbrook having said (decisively) that 230 preempts claims for the Fair Housing Act, it seems like the Doe precedent is effectively worthless to the plaintiffs. As a result, the only solid way for the plaintiffs to distinguish the uniformly defense-favorable precedent is by hammering on the fact that provided structured categories for user content–a fact that might be enough to craft an exception to 230, though I think it shouldn’t.

UPDATE: Randy Picker: “Chicago Lawyers’ Committee v Craigslist: Yet Another Reason Newspapers are Dying