Web Sites Not Liable for Ad Discrimination

Published May 1, 2008

A change may be underway regarding whether online or print publications can be held responsible for housing ads found to be discriminatory, thanks to a ruling by a three-judge panel of the Seventh Circuit of the U.S. Court of Appeals.

On March 14, the judges found the Craigslist Web site not liable for discriminatory housing ads placed on the free Web bulletin board.

The Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. had taken the online company to court, arguing the ads violated the U.S. Fair Housing Act. The ads contained messages such as “Only Muslims apply,” “No Minorities,” “No Children,” and “Requirements: Clean, Godly Christian Male.”

Law Does Not Apply

The Chicago attorneys filed suit in February 2006 stating such ads discriminated against home-seekers based on race, religion, and gender. Because print publications are banned by the U.S. Fair Housing Act from running such ads, the lawyers argued Craigslist should be held to the same standards.

But the court did not agree and instead upheld a November 2006 ruling that dismissed the case because Craigslist serves as an intermediary party and not a publisher, as is the case with newspapers.

“Nothing in the service Craigslist offers induces anyone to post any particular listing or express a preference for discrimination,” reads the court’s opinion. “For example, Craigslist does not offer a lower price to people who include discriminatory statements in their postings. If Craigslist ’causes’ the discriminatory notices, then so do phone companies and courier services (and, for that matter, the firms that make the computers and software that owners use to post their notices online), yet no one could think that Microsoft and Dell are liable for ‘causing’ discriminatory advertisements.”

Could Extend to Print

The decision could mean one of two things for online and print publications, say policy experts.

“If online publications are protected from lawsuits that regular publications will be liable for, then it gives an advantage to online publications,” explained Doug Bandow, vice president of Citizen Outreach, a Washington, DC-based nonprofit. “The question is whether the courts are willing to protect online publications and go on to immunize print publications. It could be an unfair advantage or the start of the liberalization of the rules for print publications.”

“This is a classic case of the conflict between freedom of association and our modern anti-discrimination laws,” said Roger Pilon, vice president for legal affairs at the Cato Institute in Washington, DC. “To say that a person cannot put an ad in the newspaper advertising a room or apartment and mention that it is in walking distance to a synagogue because it will imply a bias toward Jewish tenants is outrageous.

“People should be able to associate with whomever they wish for any reason, good or bad,” Pilon continued. “But our anti-discrimination law has been applied not solely in the public where it belongs, but to the private sector as well–and therefore has undermined the tradition of a right to freedom of association.”

Activists Will Change Targets

Though the Chicago Lawyers Committee was not enthused by the decision, the group is taking the court’s advice regarding whom to sue.

“While we are of course disappointed with the overall outcome of the case, we are gratified that the Court emphasized in the final paragraph of its decision that landlords and other housing providers who post discriminatory advertisements remain fully liable under the federal fair housing laws,” reads a March 14 statement by the organization.

“The Chicago Lawyers’ Committee for Civil Rights Under Law will continue its efforts to identify and aggressively pursue housing providers who violate the law, whether they publish their discriminatory advertisements in newspapers or on-line,” the statement continued.

More than 30 million ads are posted on Craigslist each month. The Web site is available to people in more than 450 cities across the United States and abroad.

Aricka Flowers ([email protected]) writes from Chicago.