En Banc Rehearing Granted in Fair Housing Council v. Roommates.com, LLC

Last May, I covered the panel decision in Fair Housing Council v. Roommates.com, LLC (9th Cir. 2007) 489 F.3d 921. I had only been blogging for about two weeks at the time, so I stuck to the more technical aspects of the case; specifically, the issue of the scope of immunity that the Communications Decency Act provides for internet service companies. I voice my personal opinion more these days . . . but we’ll get to that in a minute.

The 60-second review, for those who do not want to go to the original post, (though I encourage you to visit it because it contains so many related links) is this: (1) Roommates.com is an internet clearinghouse for people seeking roommates,; (2) two fair housing councils sued Roommates.com, alleging that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws; (3) the trial court granted summary judgment on the ground that the CDA conferred immunity. The Ninth reversed, and I described its holding as follows:

Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process. But . . . Roommates is immune from liability for publishing the free-form comments submitted by its members. Concurring and dissenting, Judge Reinhardt would also find immunity lacking for the latter publication.

No doubt this announcement is going to garner as much attention from bloggers as the panel decision — this time, no doubt, with lots of predictions.

My initial reaction to the case had nothing to do with the actual grounds of decision. Instead, I was astounded that the decision said nothing about whether a person has a right to discriminate in choosing a roommate. The decision seems to presume that one cannot.

That is what I found so astounding. Roommates may not be the most intimate of associates, but the relationship certainly is a personal one. Are we ready to start imposing liability on people who decline a roommate of their disfavored race or religion? Don’t we need to ask whether roommate seekers are engaged in commerce as opposed to intimate association? Take a look at how the court described some of the preferences placed in ads on the website:

Some state that they “Pref[er] white Male roommates,” while others declare that they are “NOT looking for black muslims.” Some don’t want to deal with annoyances such as “drugs, kids or animals” or “smokers, kids or druggies,” while others want to stay away from “psychos or anyone on mental medication.” More friendly folks are just looking for someone who will get along with their significant other or their most significant Other.

The references to “significant other” and “significant Other” (that’s with a capital “O”) were explained in the following footnotes. Re “other”: “The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic].” Re “Other”: “We are 3 Christian females who Love our Lord Jesus Christ . . . . We have weekly bible studies and bi-weekly times of fellowship.”

“[very sic]” . . . that’s quite funny. I have to confess I missed that completely last May.

Anyway, my reaction was just a gut reaction. For a more intellectual analysis of the free speech and free association rights involved, see Professor Eugene Volokh’s post at The Volokh Conspiracy — in which you’ll learn that we have, indeed, already imposed liability for the emotional distress inflicted by a person’s rude refusal of a roommate.

UPDATE (10/12/07): You can access the petition for rehearing and associated briefing at Professor Eric Goldman’s Technology & Marketing Law Blog. Thanks to How Appealing for the link.

UPDATE #2 (10/12/07): Well, I guess Professor Volokh and I have reason to hope. I had a chance to look at the rehearing petition, and it takes up the free speech and free association issues.

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