Craigslist is not liable for discriminatory posting

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Internet service providers (ISPs) can’t be sued for postings that violate the Fair Housing Act.

The Web site, Craigslist , sometimes includes notices that would violate the act if printed in a newspaper, e.g., “no minorities.”

Nevertheless, a Mar. 14 decision from the Seventh Circuit holds that the site cannot be liable under the law in a lawsuit brought by a consortium of law firms called the Chicago Lawyers’ Committee for Civil Rights Under Law Inc.

The court listed a number of tactics the consortium could take against the posters themselves, such as sending testers to the offending properties and notifying the attorney general.

But, the court concluded, “[The plaintiff] cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.”

The court acknowledged that 42 U.S.C. 3604(a) does not merely prohibit discrimination on account of race, religion, sex, or family status, but it prohibits advertisements that state a preference with respect to such classes, as well.

In addition, newspapers and other publishers are subject to the Fair Housing Act.
However, the court concluded that Craigslist, which posts such ads online, is not similarly liable, for two reasons.

First, the court found it would be impossible for Craigslist to monitor such postings.
While 30 million notices are posted to the Craigslist system every month, the company has few employees.

Even if staff were increased, the court concluded, given the sheer volume of postings, neither automated filters nor human reviewers could effectively sort illegal ads from lawful ones.

Second, the court concluded that Craigslist is protected from suit by the Communications Decency Act of 1996, which provides that no provider of an Internet service can be treated as a publisher or speaker of information provided by another.

The court noted that it has previously questioned whether the act creates immunity. Although other circuits have adopted broad immunity from civil liability for content provided by third parties, in Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003), the Seventh Circuit rejected the application of broad immunity.

Despite reaffirming the view in GTE rejecting broad immunity, the court concluded last week that Craigslist is nevertheless protected.

The court agreed with the Chicago Lawyers’ Committee that nothing in the text suggests that Congress meant to immunize ISPs from liability under the act, but concluded that was not the relevant inquiry.

Instead, the question is whether anything in the Communications Decency Act excludes the Fair Housing Act from its reach.

Noting that Congress protected “information” in the statute, the court concluded “That 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.”