Section 230 On Appeal (47 USC 230(c)(1))

Full Ninth Circuit to rehear case

with 6 comments

Remember the Ninth Circuit’s ruling in Fair Housing Council of San Fernando Valley v. LLC? How could you forget.

Plaintiff fair-housing groups had charged with Fair Housing Act violations in connection with its online questionnaires and member profiles. This past May a three-judge Ninth Circuit panel ruled that Section 230 does not immunize for all of the content on its website and in its email newsletters. Specifically, the panel concluded that Roommate was “responsible” for its questionnaires because it created or developed the forms and answer choices (rendering the website a content provider of the questionnaires). Explaining that it did not read Carafano “as granting CDA immunity to those who actively encourage, solicit and profit from the tortious and unlawful communications of others,” the panel also ruled that

[b]y categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.

The decision thus left exposed to potential FHA liability for its questionnaires and user profiles. But that may change.

Eric Goldman and Howard Bashman report on their respective blogs today that the Ninth Circuit has granted’s petition for rehearing en banc. Stay tuned.

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Written by Michael Erdman

Friday, October 12, 2007 at 1:33 pm

6 Responses

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  1. [...] Online Liability Blog™ Laws and litigation that regulate, challenge and immunize services offered via the Internet « Full Ninth Circuit to rehear case [...]

  2. I am happy to see that the petition for rehearing raises first amendment issues of free speech and free association. It’s quite possible, then, that the en banc panel could reach a different outcome without ever considering CDA immunity.

    Greg May

    Friday, October 12, 2007 at 4:28 pm

  3. Thanks for your comment, Greg.

    My recollection is that neither the district court nor the panel addressed the question of whether violated the FHA.

    Are you suggesting that the en banc panel (whether it addresses the CDA question or not) may get at whether the FHA, as applied here, comports with the First Amendment?

    Michael Erdman

    Friday, October 12, 2007 at 8:20 pm

  4. Michael,

    I’m not sure it’s an FHA issue. But the rehearing petition argues that the court did not need to reach the CDA issue because a person has a right to seek out and select the roommate of his or her choice. If that’s the case, there can be no liability for the online speech.

    Professor Goldman’s Technology & Marketing Law Blog links to the rehearing petition and related documents here:

    Greg May

    Tuesday, October 16, 2007 at 10:23 am

  5. If this comes down against, would every website with a questionaire be in jepoardy?

    MySpace, FriendFinder, iFreind, Yahoo Personals, eHarmony…

    The issue in the case was raised by Fair Housing but the ruling has nothing to do with fair housing but with if a company is a content provider vs just a publisher.

    Don’t they have a forms with predetermined selections ?
    I can limit my results by Age, Sex, religion…. therefore all of the sites are allowing (through their forms, questionaires, and drop down answers) to discrimate against who I select for online chat, dating, et all ?

    Where will it stop?

    Seige by

    It is not right for businesses to discrimate… but I should be able to personally select who I want to hang out with, talk to, or live with !


    Thursday, October 25, 2007 at 8:24 am

  6. [...] cite, the Ninth Circuit’s decision. Several weeks later of course the Ninth Circuit agreed to rehear en banc. Regardless, in light of the more reasoned analysis of the publication issue, [...]

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