Well, I got through the en banc opinion in the CDA immunity case of Fair Housing Council v. Roommates.com, case no. 04-56916 (9th Cir. Apr. 3, 2008) this weekend. There’s too much on the merits at the links provided in this post for me to get into them. Suffice it to say I’m terribly disappointed the court did not even address the free speech and free association issues I had hoped it would, based on the rehearing petition arguments made in those regards. It boggles my mind that someone might not be able to discriminate in their choice of roommate, and unless Roommates.com offers a very different service than its name suggests, the court’s consistent references to “landlords” and “real estate brokers” makes no sense at all to me.
Fortunately, the court leaves open the possibility of a First Amendment defense in a footnote near the end of the opinion:
We do not address Roommate’s claim that its activities are protected by the First Amendment. The district court based its decision entirely on the CDA and we refrain from deciding an issue that the district court has not had the opportunity to evaluate.
As for the link roundup I promised on Friday:
A commenter at Concurring Opinions — which has generally been critical of broad applications of immunity under the CDA — claims that even if it is lawful to discriminate in selecting a roommate, it is unlawful to run discriminatory ads:
Even though it is true that the “Mrs. Murphy” exception to the FHA permits discrimination in certain scenarios (e.g., selecting a roommate), it has the peculiar feature of banning all advertising about discriminatory preferences–even those that it allows in practice. Under the FHA, someone can lawfully choose to reject all potential roommate applicants except Malaysians, but they cannot run an ad that says “Malaysians only need apply”.
I don’t know if he’s right.
Since the decision involves the application of immunity under the Communications Decency Act, the case is attracting as much interest from tech bloggers as law bloggers. There are posts at Wired, Mashable, and ars technica.