7th Circuit Applies Section 230 Immunity in Craigslist Case
March 14, 2008. The U.S. Court of Appeals (7thCir) issued its opinion [10 pages in PDF] in Chicago Lawyers v. Craigslist, a Section 230 interactive computer service immunity case. The Court of Appeals affirmed the summary judgment of the District Court for Craigslist on Section 230 grounds.
This opinion is consistent with Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), and its progeny. See, opinion and TLJ summary of Zeran v. AOL. This arguably leaves the 9th Circuit's recent opinion [23 pages in PDF] in FHCSFV v. Roommates.com isolated and in conflict with other circuits. See, story titled "9th Circuit Holds Roommates.com May be Liable for Speech of Users" in TLJ Daily E-Mail Alert No. 1,581, May 15, 2007.
The defendant, Craiglist, Inc., is a corporation that operates a web site named Craigslist. It is named for its founder, Craig Newmark. The Court of Appeals wrote that it "provides an electronic meeting place for those who want to buy, sell, or rent housing (and many other goods and services)". (Parentheses in original.)
It is an interactive computer service within the meaning of 47 U.S.C. § 230. This section 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 statute 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".
Third parties who publish notices of items for sale or lease in the Craigslist web site advertise, among other things, houses and apartments for sale or rent. Some of these people reference race, religion, sex, or family status.
The plaintiff, the Chicago Lawyers' Committee for Civil Rights Under Law, Inc. (Chicago Lawyers), filed a complaint in U.S. District Court (NDIll) against Craigslist alleging violation of 42 U.S.C. §3604(a), which bans housing discrimination based upon race, religion, sex, or family status.
The District Court held that Craigslist is protected by Section 230 immunity. The Court of Appeals affirmed.
This case would have been just another in a long series of straightforward applications of Section 230 to interactive computer services, but for two circumstances.
First, this Court of Appeals issued an opinion in 2003 that suggested that it might depart from other circuits. See, Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003).
Second, the 9th Circuit recently issued an opinion that departs from other circuits; moreover, it did so in a housing discrimination case. See, May 15, 2007, opinion [23 pages in PDF] of the U.S. Court of Appeals (9thCir) in FHCSFV v. Roommates.com.
The just issued 7th Circuit opinion does not reference the 9th Circuit's Roommates.com opinion. It does, however, cite Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), which extended Section 230 immunity to the defendant. See, June 24, 2003, opinion [41 pages in PDF]. See also, story titled "9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator" in TLJ Daily E-Mail Alert No. 687, June 25, 2003; 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; and story titled "Supreme Court Denies Certiorari in Section 230 Immunity Case" in TLJ Daily E-Mail Alert No. 913, June 8, 2004.
Judge Frank Easterbrook (at right) wrote the just released opinion of the Court of Appeals.
He reasoned that "What §230(c)(1) says is that an online information system must not ``be treated as the publisher or speaker of any information provided by´´ someone else. Yet only in a capacity as publisher could craigslist be liable under §3604(c). It is not the author of the ads and could not be treated as the “speaker” of the posters’ words, given §230(a)(1)."
He noted that that the Chicago Lawyers argued that "nothing in §230’s text or history suggests that Congress meant to immunize an ISP from liability under the Fair Housing Act. In fact, Congress did not even remotely contemplate discriminatory housing advertisements when it passed §230."
Easterbrook responded that "That's true enough, but the reason a legislature writes a general statute is to avoid any need to traipse through the United States Code and consider all potential sources of liability, one at a time. The question is not whether Congress gave any thought to the Fair Housing Act, but whether it excluded §3604(c) from the reach of §230(c)(1)."
"Section 230(c)(1) is general". Easterbrook continued that it "covers ads for housing, auctions of paintings that may have been stolen by Nazis, biting comments about steroids in baseball, efforts to verify the truth of politicians' promises, and everything else that third parties may post on a web site; ``information´´ is the stock in trade of online service providers."
The Chicago Lawyers do have remedies against the persons who have violated federal housing discrimination laws -- some of the persons who posted notices in the Craigslist web site. Judge Easterbrook wrote that it "can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination. It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination."
This case is Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., U.S. Court of Appeals, App. Ct. No. 07-1101, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 06 C 657, Judge Amy St. Eve presiding. Judge Frank Easterbrook wrote the opinion of the Court of Appeals, in which Judges Wood and Evans joined.