5/15. The U.S. Court of Appeals
(9thCir) issued its
opinion [23 pages in PDF] in FHCSFV v. Roommates.com, a Section 230
interactive computer service immunity case. This opinion builds an exception
to Section 230 immunity for user content that the online service helps to develop.
Introduction and Summary. Individuals select dates, spouses,
roommates, and other persons with whom to socialize or interact on the basis of
many criteria, including age, sex, appearance, religious faith, whether or not
they have children, and whether or not they are gay. This case is about people
searching for roommates. On the other hand, various state and federal statutes
prohibit housing discrimination. But, this case does not involve property owners
who discriminate in selling or leasing property.
The two local government agencies that initiated this litigation object to individuals
applying these criteria in seeking roommates. However, rather than suing the individuals who
have criteria, they sued an interactive computer service that enables individuals to seek out
compatible matches to be roommates. The individuals supply information about
themselves. Roommates.com assists in matching prospective roommates.
The just released opinion does not concern whether
violated any federal or state statute, whether the statutes as applied are Constitutional,
or even the sanity of the local government regulators. Rather, this opinion addresses
only the question of whether an interactive computer service can be treated as the speaker
of statements made by the users of its online service, and held liable for such speech. The
Court of Appeals held that it can be held liable for certain speech of others. (Of course,
Roommates.com could ultimately prevail on the grounds that housing discrimination statutes
do not apply to the conduct in this case.)
The government agencies allege discrimination in violation of the federal
Fair Housing Act. Various federal statutes prohibit discrimination based upon
numerous criteria (such as sex and age) in public accommodations, housing,
education and employment. These statutes do not reach most individual's use of
criteria (such as sex or age) in finding matches. This action by
the governments in this case may be construed as attempts to regulate these individuals'
choices by regulating the interactive computer services which they use to find
The Congress provided broad immunity to interactive computer
services in the Telecommunications Act of 1996. Section 230 provides that "No
provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
The Court of Appeals reasoned that Section 230 immunity may not apply because the
speech of the users can be treated as the speech of the interactive service.
The District Court had granted summary judgment to Roommates.com. The Court of
Appeals reversed and remanded. It directed the District Court to reexamine
Roommates.com's liability for requiring users to fill out questionnaires, for
publishing responses, and for allowing users to search for compatible matches based
upon responses to the questionnaires.
This case goes to questions such as sex, sexual preference, and children, but not race.
The Court of Appeals wrote that Roommates.com "does not ask questions about race, nor
does it categorize or channel the information based on racial preferences."
The majority did not go so far as to direct the District Court to reexamine
Roommates.com's liability for users' statements in blank text boxes, where such information
is not used by Roommates.com to match people.
This opinion stretches the statute in a manner that is likely to lead to
further litigation against web site operators. It will also create uncertainty for these
operators. Moreover, it cannot be
easily reconciled with the 9th Circuit's opinion in the Carafano case, which
extended Section 230 immunity to an online dating service that required users to
fill out a questionnaire.
This opinion affects interactive computers services that
either solicit certain types of information, match users based upon information
provided by users, or allow users to search for certain information published by others.
Section 230. Section 230 was enacted as part of the Communications
Decency Act (CDA), which was part of the Telecommunications Act of 1996. While
Section 230 protects speech on the internet, other parts of the CDA restricted
free speech on the internet. The Supreme Court overturned those restrictions
as unconstitutional restraints on protected free speech. Judge Kozinski, who
wrote the opinion of the Court of Appeals, refers to Section 230 as
47 U.S.C. § 230 provides that "No 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."
It defines "interactive computer service" as "any information service,
system, or access software provider that provides or enables computer access by multiple
users to a computer server, including specifically a service or system that
provides access to the Internet and such systems operated or services offered by
libraries or educational institutions".
The parties and the Court agreed that Roommates.com is an interactive computer service.
Section 230 also defines "information content provider" as "any person
or entity that is responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer
service". This is the language upon which the Court relies to overturn the
District Court's summary judgment for Roommates.com.
Proceedings Below. One plaintiff, the Fair Housing
Council of San Fernando Valley (FHCSFV), maintains a
web site that consists only of
an "Under Construction" notice.
The other plaintiff, the Fair Housing
Council of San Diego (FHCSD), states in its web site that its purpose
is "To eliminate unlawful housing discrimination in the housing rental, sales,
lending and property insurance markets on the basis of race, color, religion,
national origin, sex, familial status (presence of children in the family),
disability, age, ancestry, sexual orientation, marital status, source of income,
or other basis ..." (Parentheses in original.)
The FHCSFV and the FHCSD filed a complaint in
U.S. District Court (CDCal) against
Roommates.com alleging violation of the federal Fair Housing Act and various
state laws in connection with Roommates.com's operation of an interactive web
site in which users publish information about themselves, including age and sex.
The plaintiffs, FHCSFV and FHCSD, did not name
as defendants any of the individuals who used Roommates.com's web site.
The District Court granted summary judgment to
Roommates.com on the grounds that it is immune under Section 230 from liability
for the statements of its users in its web site. The District Court then
declined to exercise jurisdiction over the state law claims.
The plaintiffs brought the present appeal.
Opinions of the Court of Appeals. Judge
Kozinski wrote the opinion of the three Judge panel, reversing and remanding.
He wrote that Roommates.com is indeed an interactive computer service, and that Section
230 does provide limited immunity to interactive computer services. However, he wrote that
"Roommate is not immune for publishing materials as to which it
is an ``information content provider.´´"
He continued that "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
He opined that there are three categories of information at issue
in this case. He reversed the summary judgment as to the first two, and affirmed
as to the third. The two other members of the panel concurred as to the first
category. One would have also affirmed as to the second category. One would have
also reversed as to the third category. Thus, each component of the opinion
enjoyed the support of at least two of the three judges. Albeit, it was a
First, Judge Kozinski established a category of information that consists of questionnaires. He wrote that "it posts the questionnaires on its website and
requires individuals who want to take advantage of its services to complete them".
For example, users must use a drop down menu to identify whether they a man or a woman.
He added that "They must use a drop-down menu to indicate whether they are
willing to live with ``Straight or gay´´ males, only ``Straight´´ males, only ``Gay´´
males, or ``No males,´´ or may choose to select a blank response. Users must make
comparable selections for females."
The Court of Appeals reversed the summary judgment for Roommates.com as to this category.
"It will be up to the district court on remand to decide initially whether Roommate
violated the FHA by publishing its form questionnaires."
Second, Judge Kozinski established a category of information
that consists of the members' profiles that Roommates.com publishes in its web
site, distributes by email, and makes searchable by members.
He elaborated that "Roommate allows members to search only the profiles of members
with compatible preferences. For example, a female room-seeker who is living
with a child can only search profiles of room-providers who have indicated they
are willing to live with women and children. Roommate also sends room-seekers
email notifications that exclude listings incompatible with their profiles.
Thus, Roommate will not notify our female about room-providers who say they will
not live with women or children."
He reasoned that "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. 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. ... Whether these actions ultimately violate the FHA is a question
the district court must decide in the first instance."
Third, Judge Kozinski established a category of information that consists of information
that users write in an "Additional Comments" form. Members provide this information
by filling in a blank text box.
He wrote that "We conclude that Roommate’s involvement is insufficient to make
it a content provider of these comments. Roommate's open-ended question suggests
no particular information that is to be provided by members; Roommate certainly
does not prompt, encourage or solicit any of the inflammatory information
provided by some of its members."
"Nor does Roommate use the information in the ``Additional
Comments´´ section to limit or channel access to listings", wrote Judge Kozinski.
"Roommate is therefore not ``responsible, in whole or in part, for
the creation or development of´´ its users' answers to the open-ended ``Additional
Comments´´ form, and is immune from liability for publishing these responses.
Most of the opinions applying Section 230 immunity have involved tort claims
of defamation, negligence, or invasion of privacy.
In contrast, this case involves a civil rights statute. However, neither the opinion of
the Court in the present case, nor either of the two other opinions, cite either the District
Court or Court of Appeals opinions in Noah v. AOL. In that case the
U.S. District Court (EDVa) and
U.S. Court of Appeals (4thCir) applied Section
230 immunity to a case involving Civil Rights Act of 1964 and religious discrimination.
story titled "4th Circuit Affirms That Section 230 Immunity Extends to
Federal Civil Rights Action" in
TLJ Daily E-Mail
Alert No. 863, March 25, 2004. See also, District Court
However, this was a private action, rather than a state action. Also, the Court
of Appeals designated its
pages in PDF] "unpublished".
There is nothing in Judge Kozinski's opinion to suggest that Section 230 is
inapplicable in the context of suits brought under state or federal civil rights
statutes. Also, while the present case involves an action by government regulators under a
civil rights statute, there is nothing in the opinion that limits its reach to
government actions. This opinion opens interactive computer services, such as Roommates.com,
to private actions, including class actions, asserting violation of civil rights
Carafano and Zeran. The Court of Appeals did not follow its own
opinion [12 pages in PDF] in Carafano v. Metrosplash.com. In that
case the Court of Appeals held that a online dating service has
Section 230 immunity, notwithstanding the fact that it writes the questionnaire
that its users must complete.
story titled "9th Circuit Applies Section 230 Immunity to Online Dating
Service" in TLJ
Daily E-Mail Alert No. 718, August 14, 2003.
Judge Kozinski attempted to distinguish the present case from the Carafano
case. In so doing, he expand the discussion from the applicability of Section
230 in civil rights actions to defamation and other tort actions.
He wrote that "Carafano differs from our case in at least one significant
respect: The prankster in Carafano
provided information that was not solicited by the operator of the website. The
website sought information about the individual posting the information, not
about unwitting third parties. Nothing in the questions the dating service asked
suggested, encouraged or solicited posting the profile of another person, and
the website's policies prohibited altogether the posting of last names and
He continued that "We are not convinced that Carafano would control in a
situation where defamatory, private or otherwise tortious or unlawful
information was provided by users in direct response to questions and prompts
from the operator of the website."
He added that "By providing a forum designed to publish sensitive and
defamatory information, and suggesting the type of information
that might be disclosed to best harass and endanger the
targets, this website operator might well be held responsible
for creating and developing the tortious information."
The present opinion ignores the landmark Section 230 case of Zeran v.
America Online and its progeny. The U.S. Court of Appeals (4thCir) applied Section 230 in
holding that AOL is not liable for defamatory statements contained in postings
in various AOL bulletin boards by an AOL subscriber. See also,
Appeals opinion, and
TLJ summary of
Zeran v. AOL. Judge Kozinski's statements may be interpreted as reopening
tort liability for interactive computer services if it creates a web site for
"sensitive" information, whatever that term might mean.
TLJ spoke with an attorney who closely follows cases involving Section 230
immunity. He said that Judge Kozinski's discussion of the Carafano case
and defamation actions was unnecessary, and merely one judge's dicta. He added that web sites need
a clear line as to what is immune and what is not, but that this dicta supplies
a very fuzzy line that may invite others to bring further lawsuits to test the
limits of Section 230 immunity.
He added that there does need to be a line separating what is the user's
content and what is the web site's content. He said that the web site should not
immune for its own content. He added that "I certainly do not view this as any
kind of sky is falling situation".
Three Judge Panel. This is an opinion of a three Judge panel of the
9th Circuit comprised of Judges Alex Kozinski, Stephen Reinhardt, and Sandra Ikura.
Judge Kozinski wrote the opinion of the Court of Appeals.
Judge Reinhardt is an
eccentric renegade judge who is frequently overturned by the Supreme Court,
sometimes in unanimous per curiam opinions. He
has a long history (President Carter appointed him) of pursuing his social policy
agenda regardless of the Constitution, federal statutes and Supreme Court precedent. He
is one of the reasons that the 9th Circuit enjoys the highest reversal rate of
all of the circuits.
Reinhardt concurred with Kozinski, except as to the "Additional Comments"
provided by users. He would have allowed Roommate.com to be held liable for
statements made in these blank text boxes.
He argued that Roommate.com is responsible in part for creating or developing
the information in its web site merely by providing a blank text box for users
to fill in. His position, if adopted by the courts, would be tantamount to a repeal
of Section 230, at least in civil rights type actions.
Sandra Ikura is a recent appointee. She has been on the Court less than one
year. She was a long time environmental lawyer for the law firm of O'Melveny &
Myers. Governor Arnold Schwarzenegger appointed her Deputy Secretary and General
Counsel of the California Resources Agency. She also once clerked for Judge Kozinski.
Ikura concurred as to parts one and three of Judge Kozinski's opinion, and
dissented as to part two. That is, of the three Judges, she advocated doing the
least damage to internet based discourse.
More Section 230 Opinions. On June 24, 2003, the
U.S. Court of Appeals (9thCir) issued its
opinion [41 pages in PDF] in Batzel v. Smith, a case involving the application
of California's Anti-SLAPP statute to a suit alleging defamation on an internet listserv.
The District Court denied a defendant's motion to dismiss under the Anti-SLAPP statute. The
Appeals Court, relying upon Section 230, vacated and remanded. See,
"9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator" in
TLJ Daily E-Mail Alert No.
687, June 25, 2003. On December 3, 2003, the Appeals Court issued an
order [16 pages in PDF] denying the petition for rehearing and the petition
for rehearing en banc. See, story titled "9th Circuit Denies Petition for
Rehearing En Banc in Section 230 Immunity Case" in
TLJ Daily E-Mail
Alert No. 792, December 4, 2003. Then, the Supreme Court denied certiorari.
See, story titled "Supreme Court Denies Certiorari in Section 230 Immunity Case"
in TLJ Daily E-Mail
Alert No. 913, June 8, 2004.
On November 20, 2006, the Supreme
Court of California issued its
opinion [41 pages in PDF] in Barrett v. Rosenthal. The Court extended immunity to someone who posted to two
internet newsgroups an allegedly defamatory article written by another person. See, story
titled "California Supreme Court Rules in Section 230 Case" in
TLJ Daily E-Mail Alert No.
1,493, November 21, 2006.
On February 23, 2007, the U.S. Court of Appeals
(1stCir) issued its
Universal Communication Systems v. Lycos. The Court of Appeals held that Lycos and others are entitled to immunity under Section 230. The
Court of Appeals rejected attempts by the plaintiffs to get around Section 230 by pleading
trademark dilution (intellectual property claims are an exception to Section 230 immunity),
and federal cyberstalking (which is also an exception), and state securities fraud
and cyberstalking claims. See,
titled "1st Circuit Rules in Section 230 Case" in
TLJ Daily E-Mail
Alert No. 1,543, February 26, 2007.
On July 18, 2006, the U.S. Court of
Appeals (11thCir) issued its
[25 pages PDF] in Almeida v. Amazon.com. The District Court held that
Amazon is immune under Section 230 from Florida right of publicity and invasion
of privacy claims for listing a book and picture in its web site. The Court of
Appeals affirmed, but solely on state law grounds. In a long but not always
clear opinion, it wrote that whether § 230 provides immunity against claims for
violation of state intellectual property laws, including the right of publicity,
misappropriation, and invasion of privacy, remains an open question. See,
titled "11th Circuit Addresses § 230 Interactive Computer Service Immunity and
Amazon Book Listing" in
TLJ Daily E-Mail
Alert No. 1,413, July 19, 2006.
On October 21, 2003, the U.S. Court of
Appeals (7thCir) issued its
opinion [12 pages in PDF] in Doe v. GTE. The District Court dismissed
the complaint against a pair of interactive computer service providers who had
provided web hosting services to smut merchants who had surreptitiously
videotaped the plaintiffs, and then sold the videotapes through their web sites.
The Appeals Court affirmed. The Court also held that the ISPs are not liable
under the Electronic Communications Privacy Act (ECPA) when their users sell
videotapes that were made in violation of the ECPA. See, story titled "7th
Circuit Interprets Section 230 Immunity and ECPA" in
TLJ Daily E-Mail
Alert No. 763, October 22, 2003.
The state courts of Florida have also construed Section 230. In Doe v. America
Online, the Court applied Section 230 in holding that AOL
was not liable for statements made by an AOL subscriber in an AOL chatroom.
Plaintiff appealed to Florida's Fourth District Court of Appeals. The
appeals court affirmed the trial court decision. See,
appeals court opinion.
See also, Blumenthal v. Drudge and AOL, in which AOL raised Section 230 as a
defense to Sidney Blumenthal's claim that AOL was liable for alleged defamation of content
provider Matt Drudge. The District Court granted AOL's Motion for Summary Judgment based on
Section 230. See, District
Court opinion and TLJ
summary of Blumenthal v. Drudge.
See also, Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d
980 (10th Cir. 2000), and Green v. America Online, 318 F.3d 465 (3d Cir. 2003).
In the present case, Timothy Alger, Lesley Williams and Steven Stiglitz of the law
firm of Quinn Emanuel Urquhart Oliver & Hedges represented Roommates.com before
the Court of Appeals.
Samir Jain, and Colin Rushing of the
Washington DC office of the law firm of Wilmer Hale represented amicus participants before
the Court of Appeals. These included Amazon.com, America Online, Ebay, Google, Yahoo, and
the U.S. Internet Service Provider Association. Carome and Jain have litigated many of the
landmark Section 230 cases
This case is Fair Housing Council of San Fernando Valley and Fair Housing
Council of San Diego v. Roommates.com, LLC, U.S. Court of Appeals for the
9th Circuit, App Ct. Nos. 04-56916 and 04-57173, appeals from the U.S. District
Court of the Central District of California.