Thirty five years ago the Pittsburgh Press argued that the First Amendment gave it the right to run sex-segregated want ads. The Supreme Court didn't buy that exception either.

As for being reversed on appeal, not every decision of the Ninth Circuit goes to the Supreme Court for review. I wouldn't bet on this one being reviewed, much less reversed.

This is a absurd decision. Could the telephone company be sued because some of its customers were violating fair housing laws on the phone? Could the postal office be sued because some of the mailers were violating fair housing laws via mail? Of course not. Same thing here. Web sites should not held liable just because some users are using it in ways which violate fair housing laws.

The tortoise always beats the hare unless you live in Bush & Co's alternate reality or you are telling a different story.

Are they not smart enough to realize that matching roommates is a slightly different thing than being a landlord? This has nothing to do with it being over the internet... seems like such preferences have long been allowed in paper classifieds and even dorm room assignments in college.

BTW, I (not a lawyer) have the impression that the court ruled not that Roommates.com was breaking the law, but that it was subject to certain anti-discrimination laws when it channels users toward discriminatory behavior. It hasn't been decided if classmates.com was actually guilty of anything.

This is a absurd decision. Could the telephone company be sued because some of its customers were violating fair housing laws on the phone? Could the postal office be sued because some of the mailers were violating fair housing laws via mail?

Al? What are the salient differences between the examples you give and this website? The post office and phone company aren't in the business of coordinating housing; the website is - in a role analogous to a realtor.

This isn't to say that I agree with the decision either, I'm just noting that your reasoning skills are really awful.

Landlords sometimes use Roommates.com to find tenants for vacant units, so it's not always just finding somebody to share an apartment with. Seems like the 9th circuit's cutting a pretty fine line here, though. Roommates could get rid of the drop down menus, allow people to post comments like "male only" or "female only," then just run a search program that made it function like a drop down menu. What's the difference? None, except it's legal under th 9th circuit's ruling.

That's what happens when technology runs into doctrine.

So if the site made those selections optional instead of required, the Court wouldn't have an issue with it? - Am I reading this correctly?

Drum: But it's yet another indication that the web triumphalists of the 90s...were wrong.

Not entirely, but wrong enough to support your point.

Duh -- the law is always going to be rooted in the past.

The post office and phone company aren't in the business of coordinating housing; the website is - in a role analogous to a realtor.

As much as I cringe at defending Al...

What about a university? Can a school ask students if they want to live in co-ed or same-sex dorms? What's the difference between a school doing it, and Roommates.com?

I think there is a huge difference between selecting your next door neighbor and selecting your roommate.

I'd want to know if the university, website, landlord was just asking to help me find the room I wanted or if they were actively trying to push me into a certain room or actively trying to push me out of certain rooms (or buildings).

Letting a person have some choice of where and with whom they live makes perfect sense and shows no bias on the part of the university, website or landlord.

Pushing a person to some choice (including not participating) could be prejudicial behavior.

-----------

BTW, iTunes just took over from WalMart (not mean plodder for sure) as #1 music seller.

Landlords sometimes use Roommates.com to find tenants for vacant units, so it's not always just finding somebody to share an apartment with.

I suspect this may be the root of the problem. If you only had two independent people choosing who they wanted to live with, there would be no problem. It's having a system that allows landlords to circumvent the law and choose tenants based on discriminatory criteria that led to the decision.

D'oh! More coffee before coding may be needed. Sorry, only second graf is mind.

At least from the article, all the ruling did was refuse to treat the Internet as conferring immunity from the housing laws.

Now that that issue's been dealt with, the "ruling sends the case down to the trial court to determine whether the site violated housing laws," says the article.

So let's not get prematurely upset here.

Low-tech cyclist is right. the appellate court did not rule at all on the question of whether the site violates fair housing laws. It simply addressed the question of whether the site was immune from liability under the Communications Decency Act.

The dividing line for CDA immunity is whether an internet services is simply a receptacle for the content of others or creates content itself. The court held that because of the pull down menus, the site had a hand in creating the content. (It also said that allowing users to post additional comments did not turn it into a creator of content.)

The heart of the decision, as far as I can tell from a two-minute glance at it, is that the pull down menus were mandatory, and compelled users to enter their gender, whether or not they had children, preference for living with straight or gay roommates, and so on.

The ruling doesn't seem at all out of line to me. It is one thing for a site to allow users to post what they want (and not post what they don't want) and to make decisions based on what others, doing the same, post. It is very different to run a sight that requires, as a ticket into using the site at all, the posting of information that may go far beyond what the users really want to post. I think that does change the nature of what the site provides.

just to second what low-tech cyclist and anoregonreader said: Contrary to Kevin's statement, the 9th Circuit did not say that Roommates.com is breaking the law, just that they are not immunized by the CDA.

Seems to me that no one on the 9th Circuit Court has financially needed a roommate in the last decade or three. If they had, the decision would have been a bit different.

Site users are required to select from drop-down menus whether they want to live with "straight or gay" males, only with "straight" males, only with "gay" males or with "no males," the court said.

It would seem to me that there would still be some things allowable under this reasoning. Of the following:

1) Asking applicants (but not requiring them) to answer some demographic questions;
2) Asking applicants to list characteristics of rommates that are NOT acceptable;
3) Requiring applicants to provide demographic information.

I would think only 3 would be unacceptable. Of course, if I say I don't want a gay roommate, that would eliminate from the pool everyone who volunteered that they were gay AND everyone who refused to answer. That may limit the effectiveness of the service. Still, it would seem that a system could be set up to get us to the same place without violating the law.

What about a university? Can a school ask students if they want to live in co-ed or same-sex dorms? What's the difference between a school doing it, and Roommates.com?

That's an interesting question. As I said, I don't necessarily agree with the decision. Note, though, that those universities ARE in the housing business, since they provide dorms.

This is completely un-analogous to what the phone company and post office do, which is to transmit information without involving themselves in the interaction.

But at least you're a descent enough person to cringe when defending Al.

What about a university? Can a school ask students if they want to live in co-ed or same-sex dorms? What's the difference between a school doing it, and Roommates.com?

There is no difference. That is what the court ruled. Roommates.com said that it should be shielded by the CDA. The Court just said, if it would be illegal IRL, it's illegal to do it on the internet. Whether it is, in fact, illegal for either one to do, the 9th Circuit did not say.

This might irritate you Kevin because its an internet issue, but the whole concept underneath the lawsuit itself is absurd to me. You mean if someone is going to try to find a roommate you can't state you prefer a straight male.

This is the essence of the modern fascism of liberalism. To try and keep everyone from being offended the state removes choice and liberty. Want to bet on the party affiliation of the people who brought the suit.

Ridiculous. You're legally allowed to discriminate based on gender, sexual orientation, status of children, etc., if you're renting a room in your home. A company that allows me to find an appropriate roommate should be allowed to let ME define who my roommate will be.

... and an employer may not inquire as to the religion of a prospective employee ...

--Some appellate judge

Someone may wanna share that with the DoJ, since they asked that type of question -- and many, many more -- of prospective employees during the past seven years.

:-)

As far as the case goes, I realize that this was just looking to see if certain laws apply on the 'net. But this does open up the chance to find whether or not Roommates.com actually violated any discrimination laws.

IMHO, people have every single right to choose with whom they live. If they don't want to room with a gay guy (or straight guy, for that matter), a single person, or even a Republican, that should be their choice.

It seems the solution is to have the drop-downs not be mandatory, and perhaps preventing business-running landlords (elucidated during the site's register process) from having any sort of "discriminatory" choices.

Of course, I could be ridiculously wrong on all of this ...

From the article that Kevin linked to:

"The three judges who dissented called the ruling an "unprecedented expansion of liability" that could chill the Internet's growth. They said the decision was at odds with rulings by five other federal appeals courts and threatened protections for all interactive sites.

Only three weeks ago, the 7th Circuit Court of Appeals in Chicago rejected a similar fair housing challenge to classified advertising site Craigslist."

Given that five other Circuits have found already found that immunity existed, the Supreme Court will have to take up the case to resolve the split among the Circuits in order to provide uniformity as to the interpretation of this federal law.

Chicounsel,

And here's the 9th Circuit's response to that argument, i.e., they agree with the other courts and there's no conflict:

In Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., No. 07-1101 (7th Cir. Mar. 14, 2008), the Seventh Circuit held the online classified website craigslist immune from liability for discriminatory housing advertisements submitted by users. Craigslist’s service works very much like the “Additional Comments” section of Roommate’s website, in that users are given an open text prompt in which to enter any description of the rental property without any structure imposed on their content or any requirement to enter discriminatory information: "Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination . . . .” Slip op. at 9. We similarly hold the “Additional Comments” section of Roommate’s site immune, see pp. 3471-75 infra. Consistent with our opinion, the Seventh Circuit explained the limited scope of section 230(c) immunity. Craigslist, slip op. at 5-7. More directly, the Seventh Circuit noted in dicta that “causing a particular statement to be made, or perhaps [causing] the discriminatory content of a statement” might be sufficient to create liability for a website. Slip op. at 9 (emphasis added). Despite the dissent’s attempt to imply the contrary, the Seventh Circuit’s opinion is actually in line with our own.

By the way, it may interest some of you to know that the author of this opinion, Alex Kozinski, is a conservative judge who's a favorite of the Federalist Society, etc.

It certainly does interest some of us, Glenn. Others will simply pretend they didn't hear you say that.

So from what actual legal people on this thread are saying (I love the internets!) it sounds like Roommates.com could easily solve this whole thing by adding a "no preference" to the menus so people don't have to specify characteristics that are potentially discriminatory. Doesn't sound like a horrible solution to me.

Back in the day, when we were enacting the first fair housing statutes, exempting owner-occupied small apartment buildings and roommate situations was standard practice.

Did something change?

I used to sell to classified advertising for a newspaper and we operated under these same rules. At first I thought they were pretty silly...until I realized how many straight up racists and creeps do everything in their power to make sure racism and sexism are alive and well.

Back in the day, when we were enacting the first fair housing statutes, exempting owner-occupied small apartment buildings and roommate situations was standard practice.

Did something change?

Well, again, the 9th Circuit didn't say that there were any violations of the FHA or California laws here. All the court said was, if the expression of preferences by the users of Roommates.com in fact violated such laws, Roommates.com had contributed to such expression and was thus a content provider in part, and therefore not immune from liability under CDA 230.

The FHA does have exemptions for certain single-family and owner-occupied homes. So, as I read it, I don't think there's any problem with you deciding that you only want a roommate who's male, single, whatever. Those exemptions don't, I think, apply to advertising, so you may not be able to say you only want a male, single, etc. I'm not an FHA expert, by any means though.

I know it's been said, but one more time WITH SHOUTING:

This isn't a ruling on the validity of antidiscrimination laws, it's a ruling on whether a website is inherently and automatically immune from them. Sez this court: no. If they don't appeal to the Supreme Court, I guarantee this will get settled with a consent decree saying they have to get rid of the offending drop-down menus. No big deal.

The underlying notion--that real estate AGENTS (and not people renting their own personal shared space) can't make you talk about your race, creed, color, etc., is pretty uncontroversial. Or it should be on a left-leaning site, I'd think.

This might irritate you Kevin because its an internet issue, but the whole concept underneath the lawsuit itself is absurd to me.

Oh, you've made it very clear that you find equal rights "absurd," no need to beat a dead horse.

You've made it very clear that you'd like to go back to a time when establishments could hang out a shingle that said "Whites Only" or refuse people euqal access based on their race, creed, gender, maritial status, sexual orientation, or color.

It's odd that you'd trumpet such a blatantly neanderthal and indefensible position, but there you go.

Fortunately for all the people you consider lesser or "separate but equal" or whatever nonsense you hold, the Fair Housing Act and Title VI of the Civil Rights Act were passed so that some people no longer had to remain second class citizens in a country of uptight, sputtering John Hansens.

This is the essence of the modern fascism of liberalism. To try and keep everyone from being offended the state removes choice and liberty.

Uh, no, actually it's the essence of living in a modern, rational culture. There is no "fascism of liberalism" anymore than there is a "fascism of women in the workplace" or a "fascism of Hispanic health club members."

Just because people who are different than you have the same rights as you doesn't mean you're being oppressed. It just means you're pissed at not having the easy cultural advantage you once had.

Want to bet on the party affiliation of the people who brought the suit.

Probably Democrats, Independents, or Greens, as Republicans are always looking for ways to turn back the clock to a time of at will discrimination where people have rights based on a formula of how white, Christian, and male they are.

trexy! You found the coal scuttle! Congratulations!

a "fascism of Hispanic health club members."

Hmm, what about a fascism of female Muslim health club members?

Roommates.com has an indemnity clause in its Terms of Service. It may recover costs and consequential damages from its posters. I would like to hear lawyer comment on this ubiquitous unjust clause.

I think Mnemosyne is right about the original complaint. Roommates.com, because its form does not allow the user to select "No Preference" for the gender of the roommate, is forcing its users to discriminate. No preference, no case.