En Banc 9th Circuit Panel Rejects Section 230 Immunity in Roommates.com Case
April 3, 2008. An en banc panel of the U.S. Court of Appeals (9thCir) issued its 8-3 opinion [PDF] in FHCSFV v. Roommates.com, a Section 230 immunity case.
The majority held, as did the three judge panel, that an interactive computer service, such as Roommates.com, can be held liable for the speech of users, despite language to the contrary in Section 230. Moreover, the majority held, the web site's search and e-mail notification functions, have no immunity.
This opinion is arguably inconsistent with both the language and purpose of Section 230, as well as the opinions of other circuits. This opinion argues that it is distinguishable from other Section 230 opinions because Roommates.com users provide information in response to an online questionnaire. This, the 9th Circuit asserts, causes or induces the users to make statements, and hence, makes Roommates.com a content creator.
This opinion will likely invite government regulation of internet speech, and private litigation to suppress internet expression. It may also lead some interactive web site operators to refrain from allowing users to post content out of fear of litigation and liability under this court's theory of inducement of speech.
Craigslist Opinion. On 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 case based upon similar facts. The 7th Circuit held that Craigslist does have Section 230 immunity. See, story titled "7th Circuit Applies Section 230 Immunity in Craigslist Case" in TLJ Daily E-Mail Alert No. 1,731, March 17, 2008.
In both the Roommates.com case, and the Craigslist case, attorneys filed lawsuits seeking to impose liability under civil rights laws upon web site operators for the statements of the web sites' users regarding roommates, apartments, and housing. The 7th Circuit held that Section 230 immunizes the web site operator. The 9th Circuit held that for some user statements it does not. The 7th Circuit opinion did not cite the opinion of the three judge panel of the 9th Circuit.
The just released 9th Circuit opinion attempts to distinguish the 7th Circuit opinion. It states that "No other circuit has considered a case like ours and none has a case that even arguably conflicts with our holding today. No case cited by the dissent involves active participation by the defendant in the creation or development of the allegedly unlawful content; in each, the interactive computer service provider passively relayed content generated by third parties, ... and did not design its system around the dissemination of unlawful content. ... Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination ... the Seventh Circuit’s opinion is actually in line with our own." (See, footnote 33.)
Background. For a review of the facts of the Roommotes.com case, 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. See also, story titled "9th Circuit to Rehear Section 230 Case En Banc" in TLJ Daily E-Mail Alert No. 1,657, September 18, 2007.
The just released opinion states that Roommates.com is a "website designed to match people renting out spare rooms with people looking for a place to live".
It adds that Roommates.com "requires each subscriber to disclose his sex, sexual orientation and whether he would bring children to a household. Each subscriber must also describe his preferences in roommates with respect to the same three criteria: sex, sexual orientation and whether they will bring children to the household. The site also encourages subscribers to provide ``Additional Comments´´ describing themselves and their desired roommate in an open-ended essay."
Statute. 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".
Court of Appeals Opinion. The majority wrote that in passing the Communications Decency Act (CDA), which includes Section 230, the "Congress sought to immunize the removal of user-generated content, not the creation of content".
It added that the CDA "was not meant to create a lawless no-man’s-land on the Internet".
The majority concluded that Roommates.com has no Section 230 immunity for statements made by users in response to its questionnaire. The majority imposed an inducement to speak exception to Section 230.
The majority wrote that "The CDA does not grant immunity for inducing third parties to express illegal preferences. Roommate's own acts -- posting the questionnaire and requiring answers to it -- are entirely its doing and thus section 230 of the CDA does not apply to them. Roommate is entitled to no immunity."
It also wrote that "By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not ``creat[e] or develop ´´ the information ``in whole or in part.´´"
It also wrote that "When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information."
The 7th Circuit's Craigslist opinion rejected a causation or inducement exception based upon the facts in that case. It wrote this: "Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination; for example, craigslist does not offer a lower price to people who include discriminatory statements in their postings. If craigslist ``causes´´ the discriminatory notices, then so do phone companies and courier services (and, for that matter, the firms that make the computers and software that owners use to post their notices online), yet no one could think that Microsoft and Dell are liable for ``causing´´ discriminatory advertisements." (Parentheses in original.)
The 9th Circuit majority also held that Roommates.com "is not entitled to CDA immunity for the operation of its search system, which filters listings, or of its email notification system, which directs emails to subscribers according to discriminatory criteria. Roommate designed its search system so it would steer users based on the preferences and personal characteristics that Roommate itself forces subscribers to disclose. If Roommate has no immunity for asking the discriminatory questions, ... it can certainly have no immunity for using the answers to the unlawful questions to limit who has access to housing." (Footnote omitted.)
Judge Alex Kozinski wrote the opinion of the Court of Appeals, in which Judges Stephen Reinhardt, Barry Silverman, William Fletcher, Raymond Fisher, Richard Paez, Milan Smith, and Randy Smith joined. Judge Kozinski, who also wrote the opinion of the three judge panel, was appointed by former President Reagan.
Dissent. Judge Margaret McKeown wrote a dissent, in which Judges Pam Rymer and Carlos Bea joined. Judge McKeown was appointed by former President Clinton. Judge Rymer was appointed by the elder President Bush. Judge Bea was appointed by the current President Bush.
The dissenting opinion states that "The majority's unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned."
It adds that the majority's "approach would essentially swallow the immunity provision. The combination of solicitation, sorting, and potential for liability would put virtually every interactive website in this category. Having a website directed to Christians, Muslims, gays, disabled veterans, or childless couples could land the website provider in hot water."
This case is Fair Housing Council of San Fernando Valley and Fair Housing Council of San Diego v. Roommate.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.
The web site is named Roommates.com (a plural). However, the business entity is named Roommate.com (a singular). This article uses the singular version to refer to both the web site and the legal entity that operates the web site.