I Am Not a Lawyer

As soon as I cracked open the paper this morning and saw the article on Roommates.com, I knew I had missed a large and thorough post on the subject by Prof. Eric Goldman of Santa Clara. Yup; there it is. I am referring to Fair Housing Council of San Fernando Valley v. Roommates.com, a Ninth Circuit decision from April 3. In a nutshell, the majority says Roommates.com is not immune from fair-housing lawsuits alleging it discriminates because users can specify the race, gender etc. of the roommates they’re looking for. Roommates.com was trying to use part of the Communications Decency Act, 47 U.S.C. 230, to argue that they were immune because they were just the platform. Many better-educated people than me have analyzed it in more detail, including many people listed at the bottom of Prof. Goldman’s post; and the folks at The Volokh Conspiracy. Not to mention the mainstream media.

You may be thinking “Eh? But doesn’t that create a split with the Seventh Circuit in the craigslist case?” Not exactly, because the Roommates.com case turns, in part, on the fact that Roommates.com makes you choose certain impermissible roommate preferences from a drop-down menu. Whereas on craigslist, you just get a text box that you can type anything into. (Almost literally anything, judging by some users’ choices.) While I can state illegal preferences on craigslist, they don’t officialize or require it.

Because this is a controversial and apparently frequent topic in the federal courts, I think this is a decent candidate for U.S. Supreme Court review. I hope so, because as a relatively recent user of online roommate-matching services, I find it really obvious that some demographics matter. Maybe not race so much, but it really, really matters to most people what gender a potential roommate is, or whether the person has children. Without any ability to communicate that, these online services would be useless. Not that this decision makes it impossible to communicate that (the craigslist decision leaves you free to place restrictions in a free-text box), but I think its logical extension would. My gut thinks this decision doesn’t make good public policy. On the other hand, the decision merely opens liability; the Fair Housing Council folks still have to make their case. The question is really about what interpretation of sec. 230 best protects the messenger.

On a side note, I was surprised at first that Judge Kozinski was behind an opinion that could be considered liberal for its strict interpretation of fair housing laws. Nobody else seems surprised, so maybe it’s more of a legally conservative decision. (Prof. Goldman noted that the decision seemed quite negative on what he called “cyberspace exceptionalism.”) Or, more likely, the whole liberal judges vs. conservative judges is mostly hooey anyway. Professor Martin of the California Appellate Report has a side note about internal Ninth Circuit politics.