The Web is different
It’s a reasonably fair ruling, as reported, but the distinction is not obvious:
Craigslist is not liable for discriminatory housing ads posted on its Web site, a federal appeals court has ruled.
The decision is a victory for the Internet bulletin board where every month more than 30 million people post offers to buy, sell or rent goods and services, including housing, free of charge.A group of Chicago lawyers sued the Web site in 2006 because some of its housing notices illegally discriminate on the basis of race, gender, religion and ethnicity.
Various ads say “no minorities” or “no children.” Declaring such preferences violates the U.S. Fair Housing Act and would be illegal in a newspaper.
But a three-judge panel of the Seventh Circuit of the U.S. Court of Appeals on Friday found that Craigslist is not the publisher of these ads, as a newspaper would be.
Instead, the Web site is more like an intermediary carrying information from one person to another and, therefore, not liable for its content, the panel said in a ruling that upholds a lower court decision.
The attorneys “cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination,” Judge Frank Easterbrook concluded.
He suggested the attorneys instead use Craigslist to find landlords with discriminatory ads, then forward their names to the states attorney general for prosecution.
The extension of liability for unlawful discrimination to publishers has never made much sense, unless it is obvious that they are actively involved in discrimination. But why newspapers yes and websites no? Perhaps because in the case of websites there truly is so little review — the website being merely akin to a common carrier, rather than a publisher, with essentially zero intermediation? We will have to check the decision, but based on the quote from Easterbrook it appears that could be the answer. If it is, I would be inclined to say that such a rule permits too much; but considering that this is the Seventh Circuit, I’d be surprised if such a broad rule were actually announced.
It’s a busy Sunday, so I’ll be back when I get to look at the decision; comments from those who have are welcome, of course.
UPDATE: Evan Brown has a roundup, and the opinion. As usual I am partial to Eric Goldman’s take.
May 25th, 2008 at 12:48 pm
[...] at least, discriminatory ads posted by users won’t result in liability for Craigslist (Volokh/Coleman; [...]