If We're Going To Talk About Discrimination In Online Ads, We Need To Talk About Roommates.com

from the deja-vu-all-over-again dept

It has been strange to see people speak about Section 230 and illegal discrimination as if it were somehow a new issue to arise. In fact, one of the seminal court cases that articulated the parameters of Section 230, the Roommates.com case, did so in the context of housing discrimination. It's worth taking a look at what happened in that litigation and how it bears on the current debate.

Roommates.com was (and apparently remains) a specialized platform that does what it says on the tin: allow people to advertise for roommates. Back when the lawsuit began, it allowed people who were posting for roommates to include racial preferences in their ads, and it did so in two ways: (1) through a text box, where people could write anything about the roommate situation they were looking for, and (2) through answers to mandatory questions about roommate preferences.

Roommates.com got sued by the Fair Housing Councils of the San Fernando Valley and San Diego for violating federal (FHA) and state (FEHA) fair housing law for allowing advertisers to express these discriminatory preferences. It pled a Section 230 defense, because the allegedly offending ads were user ads. But, in a notable Ninth Circuit decision, it both won and it lost.

In sum, the court found that Section 230 indeed applied to the user expression supplied through the text box. That expression, for better or worse, was entirely created by the user. If something was wrong with it, it was the user who had made it wrongful and the user, as the information content provider, who could be held responsible—but not, per Section 230, the Roommates.com platform, which was the interactive computer service provider for purposes of the statute and therefore immune from liability for it.

But the mandatory questions were another story. The court was concerned that, if these ads were illegally discriminatory, the platform had been a party to the creation of that illegality by prompting the user to express discriminatory preferences. And so the court found that Section 230 did not provide the platform a defense to any claim predicated on the content elicited by these questions.

Even though it was a split and somewhat messy decision, the Roommates.com case has held up over the years and provided subsequent courts with some guidance for how to figure out when Section 230 should apply. There are still fights around the edges, but figuring out whether it should apply has basically boiled down to determining who imbued the content with its allegedly wrongful quality. If the platform, then it's on the hook as much as the user may be. But its contribution to wrongful content's creation still had to be more substantive than merely offering the user the opportunity to express something illegal.

The fact that Roommate encourages subscribers to provide something in response to the prompt is not enough to make it a "develop[er]" of the information under the common-sense interpretation of the term we adopt today. It is entirely consistent with Roommate's business model to have subscribers disclose as much about themselves and their preferences as they are willing to provide. But Roommate does not tell subscribers what kind of information they should or must include as "Additional Comments," and certainly does not encourage or enhance any discriminatory content created by users. Its simple, generic prompt does not make it a developer of the information posted. [p. 1174].

The reason it is so important to hold onto that distinction is because the Roommates.com litigation has a punchline. The case didn't end there, with that first Ninth Circuit decision. After several more years of litigation there was a another Ninth Circuit decision in the case, this time on the merits of the discrimination claim.

And the claim failed. Per the Ninth Circuit, roommate situations are so intimate that the First Amendment rights of free association must be allowed to prevail and people be able to choose whom they live with by any means they like, even if its xenophobic prejudice.

Because of a roommate's unfettered access to the home, choosing a roommate implicates significant privacy and safety considerations. The home is the center of our private lives. Roommates note our comings and goings, observe whom we bring back at night, hear what songs we sing in the shower, see us in various stages of undress and learn intimate details most of us prefer to keep private. Roommates also have access to our physical belongings and to our person. As the Supreme Court recognized, "[w]e are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings." Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Taking on a roommate means giving him full access to the space where we are most vulnerable. [p. 1221]

[…].

Government regulation of an individual's ability to pick a roommate thus intrudes into the home, which "is entitled to special protection as the center of the private lives of our people." Minnesota v. Carter, 525 U.S. 83, 99, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Kennedy, J., concurring). "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home." Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Holding that the FHA applies inside a home or apartment would allow the government to restrict our ability to choose roommates compatible with our lifestyles. This would be a serious invasion of privacy, autonomy and security. [id.].

[…].

Because precluding individuals from selecting roommates based on their sex, sexual orientation and familial status raises substantial constitutional concerns, we interpret the FHA and FEHA as not applying to the sharing of living units. Therefore, we hold that Roommate's prompting, sorting and publishing of information to facilitate roommate selection is not forbidden by the FHA or FEHA. [p. 1223]

This ruling is important on a few fronts. In terms of substance, it means that any law that itself tries to ban discrimination may itself have constitutional problems. It may be just, proper, and even affirmatively Constitutional to ban it in many or even most contexts. But, as this decision explains, it isn't necessarily so in all contexts, and it risks harm to people and the liberty interests that protect them to ignore this nuance.

Meanwhile, from a Section 230 perspective, the decision meant that a platform got dragged through years and years of expensive litigation only to ultimately be exonerated. It's amazing it even managed to survive, as many platforms needlessly put through the litigation grinder don't. And that's a big reason why we have Section 230, because we want to make sure platforms can't get bled dry before being found not liable. It is not ultimate liability that can crush them; it's the litigation itself that can tear them to pieces and force them to shut down or at least severely restrict even lawful content.

Section 230 is designed to avoid these outcomes, and it's important that we not let our distaste, however justified, for some of the content internet users may create prompt us to make the platforms they use vulnerable to such ruin. Not if we want to make sure internet services can still remain available to facilitate the content that we prefer they carry instead.

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Filed Under: civil rights, discrimination, online ads, section 230
Companies: roommates


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  1. icon
    Koby (profile), 9 Feb 2021 @ 11:15am

    FSBO Model

    Traditional real estate brokerages have, for several decades now, strived to adhere to fair housing law. In recent years, in my state, a new wave of minimum service brokerages have sprouted up, offering little more than the opportunity for For-Sale-By-Owner people to post their home on the local Multiple Listing Service database so that their home gets noticed when a traditional broker does a search for a home. Laws have been changed to accommodate the minimum service brokerages.

    It worries me that the direction of home buying is becoming more of a do-it-yourself variety. If the home buying and selling process is reduced to little more than users typing their own home info into a database, combined with the above Roommates.com decision, it opens a path for discrimination to occur once again. It could go beyond just a roommate rental.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 9 Feb 2021 @ 11:29am

    Re: FSBO Model

    There is a difference between choosing who you share a home with, and who you sell a home to. An exception to discrimination laws in the first case does not lead to an exception in the second case.

    reply to this | link to this | view in thread ]

  3. icon
    crade (profile), 9 Feb 2021 @ 11:46am

    "it allowed [bad stuff]"
    in much the same way a wrench manufacturer "allows" you to bash someone's head open with it

    In my opinion where the decision goes wrong is in claiming this is "Government regulation of an individual's ability to pick a roommate", when in it's really I'd say it's just government regulation of an individuals ability to advertise for a roomate and the decision is left alone. No one is under obligation to accept a roomate they don't feel comfortable with just because they can't filter them out of the ad

    reply to this | link to this | view in thread ]

  4. icon
    Koby (profile), 9 Feb 2021 @ 12:16pm

    Re: Re: FSBO Model

    Descriptions of a property have been considered to be potentially discriminatory. "Close to a church" or "batchelor pad" demonstrate bias against particular protected groups. Real estate agents have been trained to filter out objectionable advertising descriptions. The minimum service model allows a path for these phrases to re-enter the property description as typed by homeowners, which then does affect the person who buys the home.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 9 Feb 2021 @ 2:29pm

    Re:

    I would submit that the information is just as valuable, if possibly not moreso, to the prospective roommate. I am certainly willing to entertain other arguments and perspectives (especially from persons directly affected by discrimination or other things, whether they are the advertiser or the potential market).

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 9 Feb 2021 @ 4:55pm

    Re: Re:

    I agree. I would really strongly prefer roommate listings be allowed to express discriminatory preferences so I don't waste my time/open myself up to mistreatment by following up on them.

    reply to this | link to this | view in thread ]

  7. icon
    PaulT (profile), 10 Feb 2021 @ 12:10am

    Re: Re: Re: FSBO Model

    "Close to a church"... demonstrate(s) bias against particular protected groups. "

    Really? Factual information is bias?

    I can sort of understand why "bachelor pad" could be considered discriminatory (implies age and gender of the preferred renter/buyer), but not factual information about where it's located.

    reply to this | link to this | view in thread ]

  8. identicon
    bob, 10 Feb 2021 @ 2:07am

    the wording matters

    Now if only this nuance of the 230 ruling and the text of the law was actually understood by those writing laws.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 10 Feb 2021 @ 6:10am

    Re: the wording matters

    Now if only this nuance of the 230 ruling and the text of the law was actually understood by those writing laws.

    It does take a certain amount of time and dedication to pick up Title 47, and read through it cover-to-cover — like a book. Then, that right there is not at all sufficient to really understand what's in it, you still have to read through many of the major cases interpreting it, such as, for example Roommates.

    (And, of course, reading the cases means going back and refreshing your memory on the actuall text of the law. I've certainly never been a read-once and auto-memorize type — and I'm not sure I've ever actually met one of those rare people, although I've known people whose abilities come close to that.)

    Then, that effort doesn't make you an expert. It just means you've started to learn who the experts in the field actually are.

    And that's just one title!

    Now, do the same for say, Title 17, too.

     

    Oh, and meanwhile, you need to raise campaign funds? Priorities… priorities…

    reply to this | link to this | view in thread ]

  10. identicon
    Paul B, 10 Feb 2021 @ 6:19am

    Re: Re: Re: Re: FSBO Model

    He's using nicer coded language for the sake of making an argument. Redlining was a real problem and even today I've run into it with agents in the market.

    reply to this | link to this | view in thread ]

  11. icon
    n00bdragon (profile), 10 Feb 2021 @ 7:09am

    Re: Re: Re:

    The CRA was/is a bad law that created far more harm than it resolved. Perhaps if people won't understand that the right to be a jerk is essential then they'll understand that the right of jerks to let it be known to society that they are jerks so that others can avoid them must be absolute.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 10 Feb 2021 @ 7:13am

    Re: FSBO Model

    Do you have a financial interest in the real estate brokerage market?

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 10 Feb 2021 @ 7:15am

    there's a difference tho

    We're all racist. ('why I never')
    If you believe that there are different races of people, then you're a racist.

    We're not all bigots.
    If you believe that one race of people is better than another race (or other races) of people, then you're a bigot.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 10 Feb 2021 @ 8:35am

    Re: Re: Re: FSBO Model

    I thought people looked at the property before purchasing, but I guess today that may be more difficult.

    Being close to a church may be positive to some and negative to others, but they will soon notice once they actually visit the property. I do not see how this is discriminatory, it is fact.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 10 Feb 2021 @ 8:52am

    Re: there's a difference tho

    Are those your own interpretations of the words or does that reflect common usage found in society and numerous reference material?

    "If you believe that there are different races of people, then you're a racist."

    .. Acknowledging the diversity within nature is not racist. Scientists tracing human history, genealogy, etc are not being racist with the attempts to define the human species and its branches over time. What are we supposed to call the different branches of human species? I am not a biologist.

    "If you believe that one race of people is better than another race (or other races) of people, then you're a bigot."

    .. Sorry to be pedantic but, I think what you describe here is racist, a subset of bigotry. Communication is much easier when common definitions are used.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 10 Feb 2021 @ 9:09am

    Re: Re: there's a difference tho

    I noticed you didn't mention whether or not you're a bigot...

    I'm not a bigot. We're all exclusively biologically individual, yet we also have so much in common. Some are better at doing certain things than others, but no one is better than anyone else.

    Which is greater: our individuality (personality, finger prints, etc.) or what we share in common (physical characteristics, fears)? Kinda like 'which is greater: outer space (planets, galaxies) or inner space (cells, sub atomic particles)'?

    reply to this | link to this | view in thread ]

  17. icon
    PaulT (profile), 10 Feb 2021 @ 10:01am

    Re: Re: Re: Re: FSBO Model

    It's not even necessarily about the renters, if you're in a hurry and you have no local knowledge, you could miss a church 2 blocks away if that's not on your agenda. But, being told about that beforehand - some people will think "cool, there's my local church", other might thing "crap, traffic and parking will take a nosedive every weekend". That's not discrimination to let people know either way.

    reply to this | link to this | view in thread ]

  18. icon
    crade (profile), 10 Feb 2021 @ 10:02am

    Re: Re: Re: Re:

    The trouble is that avoiding jerks clearly isn't good enough.. Ignorance is too easy and mob mentality is too easy to manipulate and only the privileged can afford to ignore it. Taking advantage of others is too easy and too profitable for those who are willing and already at advantage. If a Lincoln doesn't come along and let people know that crap won't be tolerated, you will never manage to shake slavery forever (for example)

    Taking steps to handle it is absolutely appropriate, but the steps can't be to just sweep it under the rug and pretend the jerks aren't there.

    reply to this | link to this | view in thread ]

  19. icon
    bhull242 (profile), 10 Feb 2021 @ 2:55pm

    Re: Re: Re: FSBO Model

    “Close to a church” doesn’t demonstrate bias against anyone. It provides factual information about the location of the property.

    reply to this | link to this | view in thread ]

  20. icon
    bhull242 (profile), 10 Feb 2021 @ 2:58pm

    Re: Re: Re: FSBO Model

    That is irrelevant to the case at hand, which is about roommates sharing a home, not selling or renting out a house, land, or apartment to customers. The Ninth Circuit explicitly stated that there is a distinction there.

    reply to this | link to this | view in thread ]

  21. icon
    bhull242 (profile), 10 Feb 2021 @ 3:09pm

    Re: Re: Re: there's a difference tho

    You’re missing their point, which has nothing to do with whether or not they are a racist or a bigot. It’s solely a disagreement with your definitions of racism and bigotry. In particular, recognizing that there are different races (read: skin color and ethnicity) is not racist; attributing internal and social characteristics to an entire race or putting one race above or below others is racism. Furthermore, racism is a subset of bigotry, so it’s impossible, by definition, to be racist and not a bigot at the same time.

    Also, your question about which is greater doesn’t really have one single, simple answer, as belied by your comparison.

    reply to this | link to this | view in thread ]


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