Conflicting Federal Laws Lead to Uncertainty

HUD's position is that online media sources are equally bound by the FHA's ban on discriminatory advertising, but enforcement efforts have hit a roadblock: the Communications Decency Act (CDA). HUD has declared that the CDA doesn't protect Web sites from liability for housing discrimination under the FHA or other civil rights violations, but court decisions suggest that whether a Web site is entitled to immunity under the CDA depends on the circumstances.

In March 2008, a federal court ruled the CDA protected Craigslist from liability under the FHA for discriminatory ads posted by third parties with statements such as “No Minorities” and “No Children.” Applying the terms of the CDA, the court reasoned that Craigslist was not the “publisher” of the ads. Nor did it cause the ads to be made, printed, or published because its Web site didn't induce anyone to express a preference for discrimination [Chicago Lawyers' Committee for Civil Rights Under the Law, Inc. v. Craigslist, Inc., March 2008].

In contrast, another federal court ruled that the CDA wouldn't protect an online Web site for its part in posting discriminatory content in violation of fair housing laws. The case was filed against Roommates.com, an online roommate-matching service, which allegedly required new users to create a profile by answering questions about their gender, sexual orientation, and whether they would bring children into the household; it also required them to state preferences in roommates based on the same criteria. After a new subscriber completed the application, the service assembled the answers in a profile page, which included his preferences.

A federal appeals court ruled that Roommates.com could be liable under fair housing law for some of the content on its Web site. The court explained that immunity under the CDA applied only when a Web site operator acted as a service provider, but not when it acted as a content provider. If it passively displayed content that was entirely created by third parties, it was only a service provider and was protected under the CDA.

But as to content a Web site created itself—or was responsible for creating or developing—it was a content provider and not entitled to immunity under the CDA. For example, the court said that the company was a content provider by creating the questions and choices of answers, and by designing its Web site registration procedures around it. Consequently, the CDA wouldn't shield the company from liability under fair housing law for posting the questions on its Web site or for forcing subscribers to answer them as a condition for using its service [Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, California, April 2008].

Finally, although it doesn't involve fair housing law, a recent case from New York's highest court suggests that the CDA may protect communities from liability for unlawful comments posted by third parties on their Web sites or social media sites. The case was filed against an apartment rental company that operated a blog dedicated to New York City's real estate industry. Allegedly, an anonymous user posted a lengthy comment with defamatory statements about a competing realty company; among other things, the user's post accused the competitor's owner of being racist and anti-Semitic. The complaint alleged that the blog administrator moved the comment to a stand-alone post, added an offensive heading and picture, prompting anonymous users to post additional defamatory statements. When the blog administrator allegedly refused his request to remove the offensive material, the competitor sued the company for defamation.

After a series of proceedings, the court dismissed the case, ruling that the company was an interactive service provider, so it was entitled to immunity under the CDA for the allegedly defamatory statements posted on its blog. The court noted that the realty company neither authored the comments nor did anything to invite users to bash the competitor or his company. The company didn't become a content provider simply by reposting the comment to its own post. The headline and the picture accompanying the reposting may have been offensive, but they weren't defamatory [Shiamili v. Real Estate Group of New York, Inc., June 2011].

Although not directly related to community liability, the cases offer some insight into how courts are likely to resolve the inherent conflict between the FHA and the CDA.

Most important, the CDA wouldn't protect communities from liability as content providers for any of their own discriminatory statements or pictures or other material on Web sites, blogs, or social media sites. Without immunity under the CDA, communities are accountable under the FHA for making discriminatory statements both online and in traditional media.

And communities should take care to monitor those sites carefully for discriminatory statements posted by third-party users. If allowed to remain, the posts could trigger a fair housing complaint, even if the CDA might ultimately shield communities from liability under the FHA.