A Chicago lawyers’ group is appealing a court decision, which found that the online community listings site Craigslist.org is not liable for discriminatory real estate listings posted by site users.
The Chicago Lawyers’ Committee for Civil Rights Under Law Inc., a nonprofit organization that advocates for fair-housing-law compliance and affordable housing, among other issues, filed an appeal Jan. 11 with the 7th U.S. Court of Appeals.
In November, a U.S. District Court judge found that Craigslist.org is an “interactive computer service” under the federal Communications Decency Act, and is not considered a publisher by law. There are Craigslist sites in about 450 cities and 50 countries, and the sites collectively gather about 5 billion page views each month.
The case focused on whether Craigslist has violated the federal Fair Housing Act, which outlaws discriminatory statements in marketing properties for sale or rental, by allowing its users to post discriminatory content. Craigslist does not pre-screen content, and relies on its users to flag improper and illegal content. The site does include information about the provisions of the Fair Housing Act.
The lawyers group charged that users’ postings at Craigslist have included such discriminatory language as: “NO MINORITIES,” “Only Muslims apply,” and “African Americans and Arabians tend to clash with me so that won’t work out,” among other examples.
“The Web is a marvelous place but not a perfect place,” said Stephen D. Libowsky, a lawyer for the Chicago group. The Fair Housing Act is clear in its intent to stop discriminatory advertising, Libowsky said. “Our view of the world is the FHA need not be amended (for the Internet) — it already covers it.”
On Jan. 10, the U.S. District Court issued an order that blocked a motion by the lawyers group to amend or correct its complaint against Craigslist, and the lawyers’ appeal is in response to this court order and to the earlier judgment on the case.
The Jan. 10 order states that the lawyers group had asked the court to “reconsider its meager reading of the words ‘to print’ in … the Fair Housing Act” to include “Craigslist’s alleged conduct” and “modern day forms of printing.” But the court, according to the order, “sees no reason to so extend the meaning of the term ‘to print,’ especially when doing so would have the effect of trumping a more-recent legislative enactment.”
The legal question raised in the case, Libowsky said, is to what extent Internet service providers or Web providers may allow users to post content on a site even if the providers “do not in any way sponsor what they’re saying.” The lawyers group, he said, believes that site managers must “make certain that postings on your Web site comply with … the law.”
Rebecca Jeschke, a spokeswoman for the nonprofit Electronic Frontier Foundation, a group founded in 1990 that advocates for the protection of the public’s “digital rights,” said the case is important to upholding provisions of the Communications Decency Act. Section 230 of the act, she said, “gives Web sites like Craigslist the ability to act as a public forum and doesn’t hold Craigslist responsible for what posters say.”
She added, “The idea is that you don’t hold the soapbox liable for what the speaker says — if people who hosted forums were liable for what anybody said, then no one would risk hosting these forums. They just simply wouldn’t exist.”
The foundation earlier joined with a group of major tech companies including such heavyweights as AOL, Amazon.com, eBay, Google and Yahoo, among others, in filing a court brief to support Craigslist in the original lawsuit.
The lawyer group’s interpretation of the Communications Decency Act “would fundamentally undermine Congress’s key goals,” the court brief charged. The brief also stated that Internet service providers may “be forced to restrict or abandon altogether many of the features that enable the dissemination of third-party content in the first place” if they were subject to liability for this third-party content.
Libowsky said that while Craigslist does in some cases remove content posted by users at the site, it is possible that damage has already been done — the property in question may already have been sold or rented. And while users of the site may be the ones responsible for the discriminatory content, he said that site users can disguise their identity so that it can be difficult to track down the violators.
“We don’t know who they are without first suing Craigslist and issuing a subpoena to get the name of this person. A possible solution would be if the Craigslists of the world made people use their real name and real identifiable information,” he said.
Craig Newmark, Craigslist founder, referred questions about the lawsuit to company president and CEO Jim Buckmaster, who did not respond to Inman News‘ requests for comment.
While advertising dollars are increasingly shifting from traditional print media to the Web, with Craigslist and other sites enjoying revenue that formerly flowed to newspapers, for example, Libowsky said this court case is not an effort to reverse that trend.
“We’re not a part of that debate.” Rather, the Chicago lawyers’ group believes that fair-housing laws “should be the same regardless of where this is going to be seen,” and there should not be a double standard for publishing in print vs. publishing online, he said.
Newmark, meanwhile, said at a real estate conference last week that Craigslist is clearly protected by federal law. “We’re pretty much like the wall on which you might write something,” he said, or like a phone company that allows its customers to make calls but is not responsible for the content of those calls.
