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COPYRIGHT 2002 Stanford Law School
INTRODUCTION
As one commentator has noted, "[t]he Internet was the equivalent of two tin cans and a string when the Fair Housing Act was passed back in 1968." (1) In the years since, the Internet has become a mainstay of the housing market, providing new opportunities for promoting diverse communities as well as new forums for bigotry and exclusion. Just as the United States Department of Housing and Urban Development has taken to cyberspace to improve its fair housing enforcement efforts, (2) real estate brokers, landlords, and other housing service providers are flooding onto the Internet as well, compiling disappointing records with respect to fair housing mandates. (3)
In particular, the rapid development of the Internet (4) has been accompanied in recent years by its increased use by housing providers to post notices of housing availability. Online service providers (OSPs) (5) make available to Internet users a variety of classified services that enable individual housing providers to post advertisements. Numerous housing consumers now rely upon listing services such as Yahoo! Rentals, AOL ClassifiedPlus, and Craigslist as their primary means of searching for vacant housing. (6) In 2001, Homestore.com Network, one online housing services provider, boasted more than 6 million apartment listings, as well as 1.7 million homes for sale accessed by more than 10.6 million different Internet users. (7)
In many cases, advertisements posted on online listing services are not actively prescreened for content violating the fair housing laws. (8) Section 804(c) of the federal Fair Housing Act (FHA) (9) (codified at 42 U.S.C. [section] 3604(c), and which I will refer to as [section] 3604(c)) provides that it is unlawful "[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin." (10) Yet consumers who log on to the Internet to search for housing are commonly faced with listings that clearly express illegal preferences based on race, national origin, gender, age, and other protected categories. (11) Examples of discriminatory advertisements posted on housing listing sites include:
Looking for: Two roomates [sic], white, professional or grad student ... to share room with young professional white male. (12) I'm a 38 year old single white female with a room available ... I'd prefer an English-speaking female or a gay male. (13) Looking for clean, considerate roommate, preferably Asian .... (14) Perferably [sic] female. No smoking, no kids, no pets. (15) Asian Male Roommate Wanted by Gay White Male. Seeking single, gay, or bi, 20s to 30s to share my small, cozy studio. (16) Christian man looking for a Roommate to share a two bedroom apartment that I have. (17)
Just as these types of illegal listings are finding their way online, courts across the country are dismissing suits against OSPs for everything from knowingly distributing advertisements for child pornography (18) to spreading defamatory rumors through an online gossip column. (19) The source of this burgeoning immunity for OSPs is [section] 509 of the Communications Decency Act of 1996 (CDA) (20) (codified at 47 U.S.C. [section] 230, and which I will refer to as [section] 230), which provides 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." (21) Since the CDA's enactment, courts have applied [section] 230 to immunize "interactive computer service" (ICS) providers (22) from liability for a broad array of harms arising out of information provided to the ICS by a third party. (23)
Prior to the enactment of the CDA, the case for holding OSPs liable under the FHA for distributing discriminatory housing listings would have been a strong one, although no court had ever addressed the precise question. Since the enactment of the CDA, however, the question has become a much more difficult one, one that has not yet been examined by either courts or commentators.
This Note investigates the impact of [section] 230 immunity on the liability of OSPs for the distribution of discriminatory housing advertisements under the FHA. In Part I, I discuss the harms prevented by the discriminatory advertising provision of the FHA and examine the possible liability of OSPs for furthering such harms. I argue that [section] 3604(c) applies squarely to OSPs that participate in the distribution of discriminatory advertising online, and propose reasonable limitations on such liability. In Part II, I examine the text, legislative history, and judicial interpretations of [section] 230 in order to determine the extent of the statutory immunity conferred by Congress. I argue that the courts that have considered [section] 230 have misconstrued the aims of Congress in passing the CDA, applying an overly broad immunity to suits against OSPs. In Part III, I draw together the considerations of text, legislative purpose, and case law discussed in the previous Parts to argue that [section] 230 immunity should not protect OSPs from liability for violations of the FHA. I argue that, given the conspicuous absence of any explicit congressional intention to abrogate the FHA and the lack of an irreconcilable conflict between the two statutes,[section] 230 cannot be applied to defeat the important national policies of equal opportunity in housing embodied in the FHA.
I. THE FAIR HOUSING ACT IN CYBERSPACE
A. The Harms of Discriminatory Housing Listings
Section 3604(c)'s ban on discriminatory advertising is broader in its reach than the FHA's other prohibitions against discrimination, covering even those housing providers who are exempt from the prohibitions against discrimination in the sale or rental of housing. (24) Even those landlords who are legally permitted to discriminate in the sale or rental of housing may not advertise their intention to do so. As the Fourth Circuit has asserted, "[w]hile the owner of an exempted dwelling is free to indulge his discriminatory preferences in selling or renting that dwelling, neither the Act nor the Constitution gives him a right to publicize his intent to so discriminate." (25) Accordingly, the publication of virtually any discriminatory statement in regard to the sale or rental of housing is prohibited by the FHA, without regard to the type of housing in question. (26) In this section, I address the harms caused by the spread of discriminatory housing listings and how they are mitigated by the broad sweep of [section] 3604(c). (27)
Although banning discriminatory advertisements in situations where the housing provider is legally permitted to (and intends to) discriminate may seem inefficient to some, (28) the rationales for the FHA's broad prohibition are manifold. First, the provisions of [section] 3604(c) prevent the deterrence of minority home seekers and the resulting circumvention of the FHA's other nondiscrimination provisions. Second, the prohibition prevents the humiliating and stigmatizing effects on minority home seekers of encountering exclusionary statements. Third, the prohibition lessens the spread of misinformation about the law. I discuss each of these considerations below.
The ban on discriminatory advertising furthers the overall goals of the FHA by preventing housing providers from deterring minorities from seeking housing in certain communities and screening out "undesirable" minority applicants ex ante. Two of the principal aims of the FHA are to eliminate discrimination in housing and to promote diverse communities. (29) Discriminatory housing notices frustrate these goals by creating a climate of exclusion and deterring minorities from seeking homes where they choose. Specifically, the discriminatory notices of exempted landlords in a given neighborhood would deter minorities from inquiring after other housing in the same neighborhood that is equally available to all. As the Fourth Circuit has noted, widespread discriminatory advertisements have an exclusionary effect because "seeing large numbers of `white only' advertisements in one part of a city may deter nonwhites from venturing to seek homes there, even if other dwellings in the same area must be sold or rented on a non-discriminatory basis." (30) In addition to reinforcing patterns of residential segregation in this way, discriminatory housing advertisements would enable housing providers to circumvent the fair rental and fair sales provisions of the FHA by ensuring that minority housing consumers never inquire about the housing in question. (31) If large numbers of exempted landlords were permitted to advertise their discriminatory intent and thus create a generalized environment of exclusion, covered landlords in the same neighborhood would effectively be excused from FHA mandates since minority home seekers would be discouraged from contacting them in the first place. The Sixth Circuit has described this goal of the discriminatory advertising provision:
Without regulation of advertisements, realtors could deter certain classes of potential tenants from seeking housing at a particular location, effectively discriminating against these classes without running afoul of the FHA's prohibition against [other] discriminatory housing practices. Congress obviously recognized the key role housing advertisements play in potential real estate transactions and concluded that the regulation[] of real estate advertisements is warranted. (32)
The FHA's prohibition on discriminatory advertising thus works in tandem with its ban on refusals to rent or sell and other practices, preventing circumvention of the Act's important policy of providing fair and equal opportunity in housing throughout the country.
Section 3604(c) also works to prevent the substantial stigma, humiliation, and other emotional injuries caused by encountering discriminatory preferences or exclusions. (33) A minority home seeker confronting an advertisement for a white roommate (34) immediately suffers an infringement on her right to participate on an equal basis in the greater American community. Recognizing the potent harm that can come from exposure to exclusionary advertisements or discriminatory statements, courts have awarded emotional distress damages for insult, distress, humiliation, and other injuries in [section] 3604(c) cases. (35) Thus, by prohibiting the expression of discriminatory intent in all situations, regardless of whether a landlord is exempt and intends to discriminate privately, [section] 3604(c) minimizes the emotional costs of discrimination.
Finally, the ban on discriminatory housing advertising prevents the spread of misinformation about the law among members of the public. As fair housing advocates experience on a daily basis, the continued appearance of discriminatory housing advertisements causes those who encounter such advertisements--housing consumers and landlords alike--to believe mistakenly that discriminatory housing advertisements and discriminatory housing practices are legally permissible. (36) Allowing discriminatory advertisements for exempted housing would contribute further to this misinformation, since many housing consumers may lack the legal sophistication to recognize that discriminatory practices may be legally permitted for a limited category of housing but not for all. For example, a housing consumer faced with numerous notices specifying "no kids" might conclude that discrimination against families with children is permissible in all cases. Such miseducation of the public further frustrates fair housing enforcement efforts, which rely heavily on private complainants who identify illegal housing practices. Unless housing consumers are aware of their fights, they will not be alert to violations of those rights.
In sum, the broad prohibition on discriminatory notices, statements, and advertisements contained in [section] 3604(c) plays an essential role in promoting fair and integrated housing. The prohibition prevents the use of discriminatory advertisements to deter minority home seekers and circumvent the other provisions of the FHA, protects minority home seekers from the deeply stigmatizing and humiliating effects of exclusionary statements, and promotes awareness of fair housing fights among members of the public. These are the important policies at stake when online actors are allowed to flout the fair housing laws with impunity.
In the following section, I examine the text and judicial interpretations of [section] 3604(c) in order to determine whether and to what extent OSPs are liable under the FHA for publishing discriminatory advertisements.
B. Holding Online Service Providers Liable Under the Fair Housing Act
Although the possibility of discriminatory housing listings on the nascent Internet could not possibly have been a concern of the legislators who passed the FHA, the text of the Act is broad enough to reach the discriminatory behavior that now occurs daily on the Internet. (37) Section 3604(c) provides that it shall be unlawful:
To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. (38)
On its face, the Act appears to prohibit participation by anyone in the dissemination of any notice, statement, or advertisement for housing that conveys an illegal preference. (39) Unlike the fair advertising provisions of Title VII and the Age Discrimination in Employment Act (ADEA), which apply to a finite group of employment-related actors, (40) [section] 3604(c) does not limit the field of possible defendants to members of the housing industry. This distinction suggests a conscious choice on the part of Congress to make the FHA's advertising prohibition extremely broad in scope, reaching a larger range of potential wrongdoers than analogous provisions of other civil rights statutes. (41) Section 3604(c) also prohibits several different facets of participation in the communication of an illegal housing preference. Since none of the words in the statute may be presumed to be redundant, each phrase in the Act's thorough listing of the words "[t]o make, print, or publish, or cause to be made, printed, or published" must be understood to describe a distinct type of communicative activity. (42) As the Fourth Circuit has noted, "[i]n the context of classified real estate advertising, landlords and brokers `cause' advertisements to be printed or published and generally newspapers `print' and `publish' them." (43) Courts have thus applied [section] 3604(c) to the activities of a wide variety of actors: housing providers in "causing" discriminatory notices to be "made, printed, or published" (44); newspapers and multiple listing services in "printing" or "publishing" them (45); and advertising agencies in creating or "making" such notices. (46) Further, the wording of the statute suggests that the verb "publish" should apply broadly to any method of making a housing advertisement known to the general public:
If the framers had intended to limit the clause to publication of racial preferences in newspapers, the prohibition against "printing" notices and statements would have been sufficient to serve their purpose. The additional proscription against "publication" should therefore be read more broadly to bar all devices for making public racial preferences in the sale of real estate, whether or not they involve the printing process. (47)
These considerations demonstrate that the coverage of [section] 3604(c) is certainly broad enough to reach the activities of OSPs in making illegal housing listings publicly available. Less clear, however, are the precise contours of such a liability: What types of OSP activities ought to be deemed within the reach of [section] 3604(c), and what types of OSP activities should be deemed outside of its scope?
Because OSPs play a number of different roles and provide a variety of services on the Internet, (48) it seems necessary to clearly distinguish the kinds of OSP activities that implicate the concerns of the FHA from those that do not. As discussed above, [section] 3604(c) has been construed to cover advertising agencies that make or design discriminatory advertisements, newspapers that publish discriminatory advertisements, and multiple listing services that include discriminatory listings in their information services, in addition to landlords and their agents who make such statements or cause them to be made. (49) Accordingly, OSPs should be held legally accountable insofar as their activities resemble the housing-related activities of these entities traditionally held liable under the FHA.
Under this reasoning, an OSP should not be held liable for merely providing the technological means for a user to access the Internet or send an email message, just as telephone companies have not been held liable for making it physically possible for housing providers to communicate discriminatory preferences to housing consumers at the other end of the telephone line. (50) However, if an OSP assists a housing provider in designing the format and "look" of an individual advertisement, for example, the OSP should be held liable because it is performing a service for which an advertising agency would be legally accountable. The OSP that collaborates with a housing provider to design the presentation of a discriminatory advertisement would thus be liable for "making" such an advertisement. (51)
Similarly, an OSP that creates a forum in which housing consumers and providers may read and post housing advertisements in a centralized online location performs a crucial housing service analogous to that of a newspaper or multiple listing service in "publishing" notices of housing availability. An OSP that initiates and maintains a classified housing listings service serves as a bridge between housing seekers and providers, facilitating a centralized marketplace whose value is far greater than the sum of its individual parts. In this context, the OSP functions as "a clearinghouse for information regarding residential properties listed with participating [housing providers]," (52) a "crucial intermediary" between players in the housing market. (53) In disseminating discriminatory housing listings, an OSP "collect[s] them in a manner that facilitates access to them by prospective buyers." (54)
As a key provider of housing information--a listings service that markets itself specifically to housing consumers and providers and that reaps the benefits of such marketing--an OSP begins to resemble a newspaper or multiple listing service rather than a telephone operator or postal carrier. Whereas telephone companies and postal carriers indiscriminately facilitate communication on a variety of topics, an OSP maintaining a housing listings website provides a service specifically geared toward housing, thus implicating the core concerns of the FHA. While housing consumers generally do not look to the telephone company for specialized information on housing availability, they rightly gravitate toward online services aimed at facilitating transactions on the housing market. Such concentration of housing information in one centralized location thus uniquely attracts housing consumers and increases the potential for harm of discriminatory advertisements in such a way that the transmission of conversations by telephone companies does not. Accordingly, while an OSP such as Yahoo! should not be held liable for its activities in regard to its status as a provider of email accounts, it should be fully liable in regard to its status as the operator of a housing listing service such as Yahoo! Rentals.
The necessity of holding OSPs liable for discriminatory housing listings posted on their listing services becomes ever clearer when we consider the case of a realty company that conducts business online, advertising vacant properties on its own website and inviting landlords to post housing advertisements. Presumably, the realty company could maintain its own servers and other necessary equipment (thus qualifying as an OSP or interactive computer service). An OSP that provides its own housing listing service, the same kind of service as that provided by the housing listings feature on the realty company's website, cannot be distinguished from the realty company in any principled way. (55) If the realty company can be held liable under [section] 3604(c) for publishing discriminatory advertisements online, as undoubtedly it must be, then the OSP must be liable as well.
In sum, when an OSP plays the role of a "crucial intermediary" between participants in the housing market, by collecting and "publishing" housing listings just as newspapers or multiple listing services do, its...
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