HOUSING DISCRIMINATION SPRING 2009:
INFORMATION MEMO #4: INFO ON UNIT TWO
TABLE OF CONTENTS
A. ADDITIONAL INFORMATION ON ONLINE ADVERTISING
B. WRITE-UP OF DISCUSSION QUESTIONS 39-40
C. GROUP DISCUSSION #3: ADVERTISING COUNSELING
(A) Additional Information on Online Advertising
In class, we briefly discussed whether an online listing service would be liable under §3604(c) for discriminatory advertisements posted on its website by third parties. As I noted in class, two very recent federal Court of Appeals cases have addressed the liability of online listing services for discriminatory housing ads, although the crucial statute has turned out to be Communications Decency Act. Here are brief descriptions of the statute and the two cases:
1. The Communications Decency Act of 1996 (CDA) is a complex federal statute containing a wide range of measures largely aimed at finding ways to control access to pornography and other adult content on the internet. One goal of the statute was to ensure that internet service providers like AOL and Netscape would not be held liable for obscene or indecent material on websites accessed by their customers via their service. The relevant provision is 47 U.S.C. §230(c)(1):
(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
An “information content provider,” is defined as someone who is “responsible, in whole or in part, for the creation or development of” the offending content. §230(f)(3).
2. Chicago Lawyers' Committee for Civil Rights Under Law v. Craigslist, 519 F.3d 666 [“the citation of the beast”] (7th Cir. 2008) (Easterbrook, C.J.)
a. The defendant “provides an electronic meeting place for those who want to buy, sell, or rent housing (and many other goods and services)” on the internet. Some of the advertisements for housing posted on the defendant’s website “proclaim ‘NO MINORITIES’ and ‘No children’, along with multiple variations, bald or subtle.”
b. The plaintiff argued that the defendant should be liable under §3604(c) for discriminatory ads posted on its website. The court said that the only plausible way to fit the defendant into the language of §3604(c) would be to find that Craigslist “published” the ads others posted on its website. However, the court did not find it necessary to rule on this issue.
c. Instead, the court held that the plain language of the CDA meant that Craigslist could not be liable under the FHA as publisher of the ads: “No provider … of an interactive computer service [Craigslist] shall be treated as the publisher … of any information [the offending ads] provided by another information content provider [the person who created or developed the ad].
d. Two interesting asides:
i) The court noted that it would be nearly impossible for Craigslist to monitor online posting to screen out discriminatory ads. “Every month more than 30 million notices are posted to the Craigslist system. Fewer than 30 people[!!], all based in California, operate the system, which offers classifieds and forums for 450 cities.”
ii) Judge Easterbrook noted the existence of an issue I have worried about for some time (see DQ62), which is the constitutionality of forbidding advertisements truthfully describing legal transactions:
“Many who offer housing for sale or rent [on Craigslist] satisfy 42 U.S.C. §3603(b)(1), which exempts ‘any single-family house sold or rented by an owner ... [who] does not own more than three such single-family houses.’ Although this exemption does not take single-family homes outside the scope of §3604(c), any rule that forbids truthful advertising of a transaction that would be substantively lawful encounters serious problems under the first amendment.”
3. Fair Housing Council of San Fernando Valley v. Roommates.com, 2008 WL 879293 (9th Cir. April 3, 2008) (en banc) (Kozinski, C.J.)
a. This case again involved an online listing service alleged to have violated §3604(c) as well as California’s state fair housing laws. This defendant also relied on the CDA §230(c)(1) as a defense, but here was unsuccessful.
b. The defendant “operates a website designed to match people renting out spare rooms with people looking for a place to live. At the time of the district court's disposition, [the] website featured approximately 150,000 active listings and received around a million page views a day. … Before subscribers can search listings or post housing opportunities on [the] website, they must create profiles, a process that requires them to answer a series of questions. … [The defendant] 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.”
c. The court held that §230(c)(1) did not protect the defendant because, unlike Craigslist, it was not the passive transmitter of content created by others. Instead, it was itself an “information content provider,” because it was “responsible, in whole or in part, for the creation or development of” the offending content. §230(f)(3). Indeed, the defendant’s website would not allow a subscriber to search or post listings until the subscriber had filled out entries in a drop-down screen listing the subscriber’s preferences with regard to protected characteristics and this process created the content in question.
(B) Write-Up of Discussion Questions 39-40
Group Discussion from Prior Years
DQ39. Saunders holds that discriminatory advertising does not violate §1982. Assuming plaintiffs appealed that decision, what arguments would you make for each side based on the statutory language and Congressional intent?
A. Does §1982 Prohibit Discriminatory Advertising?
1) Arguments that §1982 does not prohibit discriminatory advertising:
a) Language: §1982 explicitly protects the rights “to inherit, purchase, lease, sell, hold, and convey real and personal property.”
i) Advertising. is not one of the verbs explicitly listed.
ii) Expressing a preference in a discriminatory ad does not prevent someone from, e.g., purchasing or leasing the housing described in the advertisement. See Saunders.
iii) Unlike the examples on this list, advertising is not a property transaction.
iv) Expressio unius est exclusio alterius: Congress agreed on this list of verbs, advertising isn’t there, so it’s not included in the statute.
b) Precedent:
i) Supreme Court dicta in Jones says it does not.
ii) Jones also says §1982 “must encompass every racially motivated refusal to sell or rent.” Advertising is not a refusal. Saunders. One former group argued, based on the same passage, “If they are motivated to discriminate in advertising for the property, they are most likely going to discriminate in practice.” While I agree about the likelihood of future discrimination, that doesn’t mean that §1982 needs to apply until there has been an actual “refusal to sell or rent.”
c) Congressional Intent:
i) In 1866, advertising for housing might have been much less common (fewer avenues to advertise), less widespread or less sophisticated. If so, Congress may not have thought it important enough to address or may not have thought of it at all. (This is a nice argument if you can substantiate it).
ii) Congress using specific language to encompass advertising in the FHA may show an understanding that §1982 did not cover advertising. It is unlikely Congress intended to provide double damages. It also shows that Congress can easily regulate advertising explicitly if it chooses.
2) Arguments that §1982 does prohibit discriminatory advertising:
a) Language: “the same rights”
i) Advertising often is an important part of the process of selling or renting property. It can make targeted readers feel inferior and excluded. (Ruby). Thus, people of color arguably do not have “the same right as … white citizens” to purchase or lease housing where the process is infected with discrimination or where they are not protected from a significant means of discrimination.
ii) Advertising that discourages people of color from even applying for housing is an effective way of denying them of their rights under §1982. As the courts have held in the context of the “futile gesture” doctrine, people of color seeing a discriminatory ad should not have to face the humiliation of likely rejection in order to invoke their rights under §1982. (I think this is very clever).
b) Congressional Intent/Statutory Purpose
i) Very broad language of §1982 shows Congress intended to ban all types of housing discrimination on the basis of race, particularly given that this was an enactment of the Republican reconstruction Congress.
ii) Statute should be read broadly to fulfill its purpose. Legislature can’t think of everything in advance. (Miller in Speluncean Explorers). One of the purposes of the statute is to eliminate “badges and incidents” of slavery. Jones. Discrimination in advertising erects barriers to fair access to housing that can be seen as “badges and incidents”
iii) It is possible that discriminatory ads were well-known and would have been considered by Congress. (Again, you’d need evidence of this).
B. Circumstances Where the FHA Would Not Ban Discriminatory Advertising, But §1982 Might
1. Advertising re Transactions Not Addressed by the FHA
a) Ads re non-residential real property (commercial, agricultural, or industrial)
b) Ads re personal property: For example: a high end car dealership puts out ads featuring only white people, or even just white males. This wouldn’t violate the FHA because it does not relate to housing, but it does influence the purchase of personal property. In this instance it give the inference that only white males are welcome to inquire about purchasing a vehicle at that dealership.
c) Advertising that does not fit into the FHA’s specific list of verbs: As the Miami Beach Code shows, there are forms of advertising that do not literally fit into the FHA’s literal language: “make, print, or publish or cause to be made, printed, or published….” These might include posting ads on bulletin boards or online. The more general language of §1982 might cover some of these.
2. Procedural Differences
a) §1982 has a longer statute of limitations. A §1982 claim might be available even when time has expired on the FHA claim. See Pinchback.
b) Differences in allowable remedies. We didn’t study any of these, but this might be particularly true with regard to attorneys fees.
3. Problematic Responses
a) Smallholder’s Exceptions to the FHA: The exceptions listed in §3603 apply to §3604 (a), (b) & (d), but not to §3604(c). Thus, §3604(c) prohibits you from advertising that you will discriminate, even if you are allowed to actually discriminate in, e.g., choosing roommates. As a result, §1982 would not expand coverage in these situations.
b) “If the people were buying a condo rather than renting one.” This is completely irrelevant. Both the FHA and §1982 address both sale and lease transactions.
c) “In situations where the discrimination is so blatant in the advertising.” Again irrelevant. Blatant discrimination presumably would make the FHA case stronger, so §1982 would not add anything.
d) “The statutory question might be relevant in a situation where, along with the human model violation, a defendant had denied an individual/petitioner housing, violating a constitutional right. In that situation, a court could likely find a separate damage award appropriate.” Two problems:
i) The question asked for situations in which it would be relevant to decide if §1982 addressed advertising. Adding a claim for denial of housing would not require you to decide this; we already know §1982 covers denials of housing.
ii) A private defendant denying someone housing cannot violate a constitutional right. Except for the ban on slavery, constitutional rights generally can only be violated by the government or its agents.
DQ69. Suppose a developer wishes to advertise a new set of houses (“Fungible Estates”) built on the outskirts of a major city. She runs ads on billboards across the city which say: “We At The New Fungible Estates Development (Located at 17000 175th Ave) Believe That The Fair Housing Act is a Violation of Your Constitutional Rights to Property and Association.” Does this violate the FHA?
A. General Comments:
1. Ordinary Reader Test: The bottom line question is whether an ordinary reader would take the sign to indicate a preference involving one or more protected characteristic. Some unspecified facts about context that could affect how a reader viewed the sign and whether it triggered thoughts of particular groups.:
a. Location
(i) Location of the billboards may suggest what groups are likely to be targets of discrimination. The billboards may not appear to be neutral if they were placed primarily in areas of heightened racial tension.
(ii) The further away the signs are from the development, the less likely the ad would affect buyers and the more it looks like a purely political statement.
(iii) placement at the outskirts of a major city is consistent with the common pattern of developers trying to create primarily white neighborhoods far from the inner city.
b. Other Context
(i) Has there been any related controversy in the area that would make it more likely that a developer would be engaged in political activity (e.g., crackdown by HUD on sellers & landlords) or that would make an ordinary reader understand the ad as specific code for a protected characteristic (e.g., lots of publicity about the changing racial character of the area).
(ii) What else is on the sign? A stronger argument (either way) could be made if the ad included human models, additional words, presence/absence of an equal housing symbol. “If the advertisement included [pictures of] a homogenous group of people, for example a group of upper- and middle-class white people, along with the statement, it may … suggest a preference for white people.”
(iii) If in fact people with particular protected characteristics are having trouble getting housing, then the sign could be evidence of discriminatory intent.
2. Relation to First Amendment Issues
a. Whether the ad violates the FHA is a completely separate question from whether it would violate the First Amendment for the government to punish the developer for putting up the sign. When you have the juxtaposition of statutory and constitutional issues, you usually should first decide whether the activity in question violates the statute. If it does, you then ask if punishing the activity raises First Amendment issues. (thus, discussion of whether the billboard is political or commercial speech is not responsive to the question I asked).