The online classified service is not a publisher and can’t be forced to stop its users from posting alleged discriminatory housing advertisements, a U.S. District Court Judge has ruled.

The ruling is the latest of several in which courts have held that Web sites that serve as intermediaries to allow users to post ads or commentary enjoy protections under the Communications Decency Act not afforded to print publications such as newspapers.

Craigslist was sued in February by the Chicago Lawyers’ Committee for Civil Rights Under Law, a non-profit consortium of 45 law firms that works to end discriminatory housing practices.

The Lawyers Committee monitored posts on the Chicago Craigslist site between July 2005 and January 2006, finding more than 200 ads offering housing for rent that the group said violated the Fair Housing Act.

Examples cited by the Lawyers’ Committee included posts that specified, "NO MINORITIES," "Only Muslims apply," and "African Americans and Arabians tend to clash with me so that won’t work out."

The Fair Housing Act makes it illegal "to make, print, or publish … any notice or statement with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, national origin, sex, disability or family status."

The lawsuit sought an order requiring Craigslist to report to authorities anyone attempting to post a discriminatory housing advertisement, and to prevent those who did from accessing the site. In addition, the suit said Craigslist should be required to use software that would prevent discriminatory advertisements from being published on the site.

Attorneys for Craigslist maintained that its users provide the site’s content, and that it is not a publisher under the provisions of the Communications Decency Act.

Craigslist relies on its users to flag inappropriate posts for removal, and now also notifies users that stating discriminatory preferences in a housing post is illegal. In Chicago, Craigslist users are not charged for posting advertisements.

Holding Craigslist liable for discriminatory postings by its users "would subject it to a legal regime in which it would have to review, edit and/or screen third-party content," attorneys for the company argued.

Many of the listings identified by the Lawyers Committee as violating the Fair Housing Act simply stated factual information about the neighborhood, such as, "Walk to shopping restaurants, coffee shops, synagogue," and, "very quiet street opposite church."

In a 28-page opinion published Tuesday, Judge Amy St. Eve of the U.S. District Court for the Northern District of Illinois ruled in favor of Craigslist’s motion to dismiss the lawsuit.

St. Eve agreed that Craigslist is an "interactive computer service" under the provisions of the Communications Decency Act. Under the act, Congress intended that such services have the ability to permit "good Samaritan" users to screen offensive material, without being defined as publishers that wield full control over editorial content, St. Eve said.

The federal Department of Housing and Urban Development on Sept. 20 issued a policy memo concluding that it is illegal for Web sites to publish discriminatory advertisements, and instructing regional directors to continue to investigate such allegations.

"Some Web sites assert that they are exempt from liability under (the Fair Housing Act) because of a provision in the Communications Decency Act which limits the liability of interactive computer services for content originating with a third party user of the service," wrote Bryan Greene, HUD’s deputy assistant secretary for enforcement and programs. "However, HUD has concluded that the (Communications Decency Act) does not make Web sites immune from liability under the Fair Housing Act or from liability under state and local laws that HUD has certified as substantially equivalent to the Fair Housing Act."

In her decision, St. Eve called the memo "unpersuasive" and a "non-binding agency opinion" that does not carry the weight of a regulation.

But St. Eve also disagreed with past rulings in other cases that determined the Web sites that serve as intermediaries for third-party postings enjoy "broad" or "robust" immunity from prosecution or lawsuits.

In protecting the rights of Web sites to allow users or filtering software to screen content, Congress did not intend to give a broad grant of immunity to Web sites that do not screen third-party content at all, St. Eve said. State legislatures, she said, may be able to enact laws requiring online service providers to filter offensive content. 

Laurie Wardell, one of the attorneys who argued the case against Craigslist for the Lawyers’ Committee, said the group could either file a motion asking St. Eve to reconsider her decision, or take the case to the 7th Circuit Court of Appeals.

"We don’t believe Congress rescinded the Fair Housing Act in 1998 when it passed the Communications Decency Act," Wardell said.

Wardell said the Lawyers’ Committee would continue file complaints against housing providers and sellers who use Craigslist to post discriminatory housing ads.

An attorney for Craigslist did not immediately return a call from Inman News.

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