Caseflicks

Court of Appeals for the Ninth Circuit • 2008

Fair Housing Coun., San Fernando v. Roommates. Com

521 F.3d 1157 | 2008 U.S. App. LEXIS 7066

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Takeaway

In short, this case holds that § 230 protects a website’s passive display of user-generated content, but not the site’s own material role in requiring, structuring, and using content in a way that allegedly makes the underlying conduct unlawful.

Background

Roommate.com operated a website matching people who had rooms to rent with people seeking housing. Before using the site, subscribers had to create profiles. The site required users to disclose their sex, sexual orientation, and whether children would live in the household, and required them to state roommate preferences on those same subjects. Roommate.com supplied the questions and preset answers, displayed the resulting profiles, and used the information to filter searches and send matching email notices. It also offered an open-ended “Additional Comments” box in which users could write whatever they wished.

The Fair Housing Councils of San Fernando Valley and San Diego sued under the federal Fair Housing Act and California antidiscrimination law. They alleged that the required questions, profile displays, matching system, and user comments facilitated unlawful housing discrimination. The district court held that Roommate.com was entirely immune under § 230 of the Communications Decency Act (CDA), dismissed the federal claim without reaching its merits, and declined supplemental jurisdiction over the state claims. The Councils appealed; Roommate.com cross-appealed the denial of attorney’s fees.

Issues

Issue #1

Whether CDA § 230 immunized Roommate.com for creating and requiring answers to questions about users’ sex, sexual orientation, and family status.

Holding

No. Roommate.com was an information content provider as to the questions it created and the answers it required, so § 230 did not immunize those acts.

Reasoning

Section 230 protects an interactive computer service from being treated as the publisher or speaker of information provided by another information content provider. But a service loses that protection for information it creates or develops, in whole or in part. A website may therefore be immune for some material on its site while remaining liable for other material it helped create or develop.

Roommate.com itself designed the registration questionnaire, chose the available answers, and made answering the challenged questions a condition of using its service. Those features were Roommate.com’s own conduct, not third-party content passively transmitted by the site.

The court did not decide whether these questions actually violated the Fair Housing Act or state law. It held only that the CDA did not bar those claims. Questions that would be unlawful when asked by an offline housing intermediary do not become immune merely because they are asked through a website, and the CDA was not intended to create a law-free zone online.

Issue #2

Whether CDA § 230 immunized Roommate.com for publishing user profiles and using the required answers to filter searches and send housing-match emails.

Holding

No. By requiring protected-status information and discriminatory preferences, supplying limited answer choices, and using those answers to channel housing opportunities, Roommate.com materially contributed to the alleged illegality of the content and matching process.

Reasoning

Although users supplied particular answers and were themselves information content providers, Roommate.com could also be a content provider. Each challenged profile was a collaborative product: the user selected answers, but Roommate.com required the disclosures, dictated the choices, converted the information into profiles, and used it in its matching system.

The court defined “development” for § 230 purposes as materially contributing to the alleged unlawfulness of the content. This reading gives independent meaning to the statute’s reference to both creating and developing information, while preserving immunity for websites that merely provide neutral tools for user-generated content.

Roommate.com’s search and email functions did more than organize information neutrally. The site was designed to exclude or direct users from listings according to sex, sexual orientation, and the presence of children—criteria that the site itself required users to disclose. If that steering violates housing law, Roommate.com’s direct role in designing and operating it is sufficient to defeat CDA immunity.

The court distinguished ordinary search engines and neutral online tools. A general search engine does not become a content developer merely because a user enters an unlawful search query. Likewise, a site normally remains immune when it makes edits unrelated to the alleged illegality. But a site loses immunity when its own design or edits materially contribute to the specific unlawful quality alleged.

Issue #3

Whether CDA § 230 immunized Roommate.com for discriminatory statements that users placed in the open-ended “Additional Comments” field.

Holding

Yes. The comments were created entirely by users, and Roommate.com’s generic invitation to describe oneself and desired roommates did not materially contribute to their alleged unlawfulness.

Reasoning

The Additional Comments field was a blank text box that users could complete as they chose. Roommate.com neither required users to state discriminatory preferences nor instructed them to include particular content. It simply displayed the resulting essays as written.

Unlike the mandatory questionnaire and matching system, the generic prompt did not directly encourage or enhance discriminatory statements. Determining whether a particular essay was unlawful would require Roommate.com to review user-generated content, precisely the type of editorial monitoring and removal burden that § 230 was designed to avoid.

The court emphasized that close cases involving only implied or weak encouragement should generally be resolved in favor of immunity. Otherwise, websites would face costly litigation over ordinary tools for user expression and would lose the protection Congress provided for passive publication of third-party content.

Issue #4

Whether the district court’s dismissal of the federal and state claims, and its denial of Roommate.com’s request for attorney’s fees, should stand.

Holding

The dismissal of the federal claim was reversed in part, the dismissal of the state claims was vacated, and the denial of attorney’s fees was affirmed.

Reasoning

Because Roommate.com was not immune for the mandatory questions, standardized answers, profiles, and discriminatory filtering functions, the district court had to consider on remand whether those practices actually violated the Fair Housing Act. The Ninth Circuit expressly left unresolved the merits of the statutory claim and Roommate.com’s constitutional defenses, including its First Amendment argument.

The court vacated the dismissal of the California claims so that the district court could reconsider supplemental jurisdiction after addressing the surviving federal claims. The original decision to decline supplemental jurisdiction had followed the complete dismissal of the federal claim, a premise no longer valid after the partial reversal.

Roommate.com was not entitled to attorney’s fees or costs because the Councils prevailed on significant arguments on appeal. Their action therefore could not be characterized as frivolous.

Dissents

Judge McKeown

Reasoning

Judge McKeown agreed that § 230 did not protect Roommate.com from liability for the bare act of asking allegedly unlawful questions. But she disagreed with the majority’s conclusion that the site lost immunity for publishing, sorting, matching, and transmitting the users’ profile information. In her view, that portion of the decision improperly narrowed the broad immunity Congress gave interactive online services.

She read the statute to distinguish sharply between an interactive computer service and an information content provider. Users created the relevant content by selecting their own characteristics and preferences; Roommate.com merely provided a standardized form and used an algorithm to organize and match the user-supplied information. A drop-down menu, in her view, does not create or develop the user’s chosen answer.

Judge McKeown objected to the majority’s test that a website develops content when it materially contributes to its alleged unlawfulness. The CDA does not make immunity turn on unlawfulness, she reasoned, and assessing whether a website contributed to illegality improperly blends the immunity inquiry with the unresolved merits of the Fair Housing Act claim.

She also relied on the statutory definition of an access-software provider, which expressly includes tools that filter, screen, pick, choose, analyze, search, organize, and reorganize content. Those functions, she concluded, demonstrate Congress’s intent to immunize the very sorting and matching functions that Roommate.com performed.

Finally, Judge McKeown warned that the majority’s approach would generate uncertainty and chill online speech and innovation. Countless websites use prompts, categories, drop-down menus, structured searches, and matching features. In her view, exposing those services to liability whenever their tools may be used in connection with unlawful content would undermine Congress’s policy of promoting the continued development of the Internet.