Metropolitan News-Enterprise


Wednesday, May 16, 2007


Page 1


Court Reinstates Bias Suit Against

Appellate Panel Rejects Claim of Immunity Under Federal Statute




Fair housing groups may sue a Web site that matches potential roommates for disseminating information regarding individuals’ discriminatory roommate preferences, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel did not rule on whether, LLC is violating state and federal housing laws as alleged by the Fair Housing Council of San Fernando Valley and the Fair Housing Council of San Diego. But it sent the case back to U.S. District Judge Percy Anderson, saying he erroneously granted summary judgment on the ground of federal statutory immunity.

In a decision that drew three separate opinions, the court held that Sec. 230 of the Communications Decency Act does not confer immunity when the Web site operator creates a questionnaire that users can fill out online, and then posts the responses or profiles created from the responses.

The statute provides in part that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The effect of the legislation, Judge Alex Kozinski wrote for the court, is that:

“[I]f Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity.” or—both domain names appertain to the site—invites users to register for free membership, which requires completion of a series of questionnaires. If one is looking for a place to live, the user completes a drop-down menu to identify himself or herself according to gender and as to whether he or she is willing to live with children.

Similarly, if one has a residence and is looking to share it, he or she must use a check-box menu to indicate whether “Straight male(s),” “Gay male(s),” “Straight female-(s),” and/or “Lesbian(s)” now live in the household, and a drop-down menu to disclose if there are “Children present” or “Children not present.”

The site operator then publishes those responses, along with profiles generated from the responses. The profiles include an “Additional Comments” section, in which users may write what they wish, but only fee-paying members can read the comments or receive e-mails from prospective roommates.

Some of the statements made in the “Additional Comments,” Kozinski noted, express a desire that roommates be, or not be, of a particular race or religion, a possible violation of the Fair Housing Act.

The judge concluded that to the extent the information published by is solicited by the site operator through the use of drop-down menus and check boxes, and is actively disseminated through e-mails, it acts as a content provider and not as a mere service provider.

“While Roommate provides a useful service, its search mechanism and email notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals,” the judge wrote, citing Sec. 230. “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.”

The judge went on to conclude, however, that since users were free to post their own “Additional Comments” without facilitation by, Sec. 230 precludes the site operator from being held liable based on those comments.

Judge Stephen Reinhardt, concurring in part and dissenting in part, argued that Sec. 230 did not apply to the “Additional Comments or that there is “at the very least...a genuine dispute of material fact as to this question.” Reinhardt argued that the comments were part of the profiles and were no more entitled to immunity than the rest of their content.

“There is no justification for slicing and dicing into separate parts the material that Roommate elicits and then channels as an integral part of one package of information to the particular customers to whom it selectively distributes that package,” he argued.

Reinhardt also argued, citing evidence in the record, that the defendant intentionally created the comments section in order to permit users to assert discriminatory preferences, and also facilitates possible fair housing violations by displaying user names “such as Christianldy, Chinesegirl, Whiteboy73, africanboy,

Latinagirl, gaycouple, blackbarbie.”

Judge Sandra Ikuta also wrote separately, concurring in the result but suggesting that the majority’s view of the immunity was overly restrictive.

Attorneys on appeal were Gary Rhoades of Rhoades & Al-Mansour in Los Angeles, Michael Evans of Costa Mesa, and Christopher Brancart of Brancart & Brancart in San Mateo County for the plaintiffs and Timothy L. Alger, Lesley E. Williams and Steven B. Stiglitz of Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles.

The case is Fair Housing Council of San Fernando Valley v., LLC, 04-56916.


Copyright 2007, Metropolitan News Company