Fair Housing Coun., San Fernando v. Roommates.Com, No. 04-56916.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Kozinski
• Citation: 521 F.3d 1157
• Decision Date: 03 April 2008
• Docket Number: No. 04-57173.,No. 04-56916.
• Parties: FAIR HOUSING COUNCIL OF SAN FERNANDO VALLEY; The Fair Housing Council of San Diego, individually and on behalf of the General Public, Plaintiffs-Appellants, v. ROOMMATES.COM, LLC, Defendant-Appellee. Fair Housing Council of San Fernando Valley; The Fair Housing Council of San Diego, individually and on behalf of the General Public, Plaintiffs-Appellees, v. Roommate.Com, LLC, Defendant-Appellant.

521 F.3d 1157 FAIR HOUSING COUNCIL OF SAN FERNANDO VALLEY; The Fair Housing Council of San Diego, individually and on behalf of the General Public, Plaintiffs-Appellants,
v.
ROOMMATES.COM, LLC, Defendant-Appellee.
Fair Housing Council of San Fernando Valley; The Fair Housing Council of San Diego, individually and on behalf of the General Public, Plaintiffs-Appellees,
v.
Roommate.Com, LLC, Defendant-Appellant. No. 04-56916. No. 04-57173. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 12, 2007. Filed April 3, 2008.

[521 F.3d 1160]

Michael Evans, Christopher Brancart, Brancart & Brancart, Pescadero, CA; Gary Rhoades, Rhoades & Al-Mansour, Los Angeles, CA, for the plaintiffs-appellants/cross-appellees.

Timothy L. Alger, Kent J. Bullard, Steven B. Stiglitz and Lesley E. Williams,

[521 F.3d 1161]

Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles, CA, for the defendant-appellee/cross-appellant.

Kelli L. Sager, Los Angeles, CA; Thomas R. Burke, San Francisco, CA; Bruce E.H. Johnson and Ambika K. Doran, Davis Wright Tremaine LLP, Seattle, WA, for News Organizations as amici curiae in support of the defendant-appellee.

Ann Brick, Margaret C. Crosby and Nicole A. Ozer, American Civil Liberties Union Foundation of Northern California, San Francisco, CA, for American Civil Liberties Union of Northern California as amicus curiae in support of neither party.

John P. Relman, Stephen M. Dane and D. Scott Chang, Relman & Dane PLLC, Washington, DC; Joseph D. Rich and Nicole Birch, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for National Fair Housing Alliance and Lawyers' Committee for Civil Rights Under Law as amici curiae in support of the plaintiffs-appellants.

Appeal from the United States District Court for the Central District of California; Percy Anderson, District Judge, Presiding. D.C. No. CV-03-09386-PA.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, PAMELA ANN RYMER, BARRY G. SILVERMAN, M. MARGARET McKEOWN, W. FLETCHER, RAYMOND C. FISHER, RICHARD A. PAEZ, CARLOS T. BEA, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges.

KOZINSKI, Chief Judge:

We plumb the depths of the immunity provided by section 230 of the Communications Decency Act of 1996 ("CDA").

Facts¹

Defendant Roommate.com, LLC ("Roommate") operates a website designed to match people renting out spare rooms with people looking for a place to live.² At the time of the district court's disposition, Roommate's website featured approximately 150,000 active listings and received around a million page views a day. Roommate seeks to profit by collecting revenue from advertisers and subscribers.

Before subscribers can search listings or post³ housing opportunities on Roommate's website, they must create profiles, a process that requires them to answer a series of questions. In addition to requesting basic information — such as name, location and email address — Roommate 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. After a new subscriber completes the application, Roommate assembles his answers into a "profile page." The profile page

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displays the subscriber's pseudonym, his description and his preferences, as divulged through answers to Roommate's questions.

Subscribers can choose between two levels of service: Those using the site's free service level can create their own personal profile page, search the profiles of others and send personal email messages. They can also receive periodic emails from Roommate, informing them of available housing opportunities matching their preferences. Subscribers who pay a monthly fee also gain the ability to read emails from other users, and to view other subscribers' "Additional Comments."

The Fair Housing Councils of the San Fernando Valley and San Diego ("Councils") sued Roommate in federal court, alleging that Roommate's business violates the federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., and California housing discrimination laws.⁴ Councils claim that Roommate is effectively a housing broker doing online what it may not lawfully do off-line. The district court held that Roommate is immune under section 230 of the CDA, 47 U.S.C. § 230(c), and dismissed the federal claims without considering whether Roommate's actions violated the FHA. The court then declined to exercise supplemental jurisdiction over the state law claims. Councils appeal the dismissal of the FHA claim and Roommate cross-appeals the denial of attorneys' fees.

Analysis

Section 230 of the CDA⁵ immunizes providers of interactive computer services⁶ against liability arising from content created by third parties: "No provider ... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c).⁷ This grant of immunity applies only if the interactive computer service provider is not also an "information content provider," which is defined as someone who is "responsible, in whole or in part, for the creation or development of the offending content. Id. § 230(f)(3).

A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is "responsible, in whole or in part" for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for

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some of the content it displays to the public but be subject to liability for other content.⁸

Section 230 was prompted by a state court case holding Prodigy⁹ responsible for a libelous message posted on one of its financial message boards.¹⁰ See Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995) (unpublished). The court there found that Prodigy had become a "publisher" under state law because it voluntarily deleted some messages from its message boards "on the basis of offensiveness and `bad taste,'" and was therefore legally responsible for the content of defamatory messages that it failed to delete. Id. at *4. The Stratton Oakmont court reasoned that Prodigy's decision to perform some voluntary self-policing made it akin to a newspaper publisher, and thus responsible for messages on its bulletin board that defamed third parties. The court distinguished Prodigy from CompuServe,¹¹ which had been released from liability in a similar defamation case because CompuServe "had no opportunity to review the contents of the publication at issue before it was uploaded into CompuServe's computer banks." Id.; see Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135, 140 (S.D.N.Y.1991). Under the reasoning of Stratton Oakmont, online service providers that voluntarily filter some messages become liable for all messages transmitted, whereas providers that bury their heads in the sand and ignore problematic posts altogether escape liability. Prodigy claimed that the "sheer volume" of message board postings it received — at the time, over 60,000 a day — made manual review of every message impossible; thus, if it were forced to choose between taking responsibility for all messages and deleting no messages at all, it would have to choose the latter course. Stratton Oakmont, 1995 WL 323710 at *3.

In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn't edit or delete. In other words, Congress sought to immunize the removal of user-generated content, not the creation of content: "[S]ection [230] provides `Good Samaritan' protections from civil liability for providers ... of an interactive computer service for actions to restrict ... access to objectionable online material. One of the specific purposes of this section is to overrule Stratton-Oakmont [sic] v. Prodigy and any other similar decisions which have treated such providers ... as publishers or speakers of content that is not their own because they have restricted access to objectionable material." H.R.Rep. No. 104-458 (1996) (Conf.Rep.), as reprinted in 1996 U.S.C.C.A.N. 10 (emphasis added).<sup>12</sup> Indeed, the section is titled "Protection for `good Samaritan' blocking and

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screening of offensive material" and, as the Seventh Circuit recently held, the substance of section 230(c) can and should be interpreted consistent with its caption. Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., 516 F.3d 666, ____ (7th Cir.2008) (quoting Doe v. GTE Corp., 347 F.3d 655, 659-60 (7th Cir.2003)).

With this backdrop in mind, we examine three specific functions performed by Roommate that are alleged to violate the Fair Housing Act and California law.

1. Councils first argue that the questions Roommate poses to prospective subscribers during the registration process violate the Fair Housing Act and the analogous California law. Councils allege that requiring subscribers to disclose their sex, family status and sexual orientation "indicates" an intent to discriminate against them, and thus runs afoul of both the FHA and state law.¹³

Roommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the "information content provider" as to the questions and can claim no immunity for posting...