“Straight or gay? U.S. court says Web site can’t ask.” That’s the headline Reuters put on its story about a decision just out of the Ninth Circuit U.S. Court of Appeals.
The article continued: “A roommate-finding site cannot require users to disclose their sexual orientation, a U.S. appeals court ruled on Thursday, in the latest skirmish over whether anti-discrimination rules apply to the Web.”
That’s an outrageous violation of freedom of speech and association.
Fortunately, however, the story is dead wrong. The Court did not hold that Roommates.com can’t have users fill out a form on which they indicate (among many other things) their sexual preference, or impose any restriction on Roommates.com or its users.
An Outrageous Lawsuit
Make no mistake: this lawsuit is outrageous.
In the suit, filed in a California federal court, the plaintiffs allege that Roommates.com violates the federal Fair Housing Act and a California anti-discrimination law. How does Roommates.com supposedly do this? By having users fill out a form on which they list information about themselves and the roommate they would like to have. And what is the supposedly improper, discriminatory information that the website seeks? The user’s sex, sexual orientation, and whether or not the roommate will bring children into the household.
The questions about sex and children allegedly violate federal law; the question about sexual orientation allegedly violates California law. (Federal law doesn’t prohibit housing discrimination based on sexual orientation.)
Of course, this lawsuit seeks an atrocious violation of freedom of speech and association. And if people looking for a roommate online can’t say whether or not they want to room with someone with children, then the internet may become useless as a tool for finding roommates.
In response to the lawsuit, Roommates.com raised the federal Communications Decency Act (“CDA”) as a defense. The CDA provides that if a website’s owner passively displays content created by its users, then the website owner can’t be held liable for that content. So Roommates.com argued that, sure, they provide the form, but it’s the user’s content, because the user fills out the form.
The trial court concluded that the CDA applied and dismissed the federal claims. Having dismissed the federal claims, it declined to exercise jurisdiction over the state claims.
On appeal, Judge Alex Kozinski, writing for the Ninth Circuit Court of Appeals, considered whether the trial court made the right decision about the CDA, and concluded the trial court got it wrong.
Although this is an outrageous lawsuit, the Ninth Circuit did not reach an outrageous conclusion.
It is entirely reasonable to conclude that Roommates.com is partly responsible for the discrimination that occurs on its website, because it provides forms with questions you have to answer about sex, sexual orientation, and children. Therefore — just applying simple logic, looking at the facts and the law — the CDA won’t suffice to get Roommates.com off the hook if Roommates.com violated the law.
The Court specifically declined to consider whether the discriminatory speech here is protected by the First Amendment — that’s up to the lower court to decide first, which it will now, because the case has been sent back there for further proceedings.
The Court also held that users’ comments about what they’re looking for — that is, the part they can write themselves that doesn’t involve checking a box on a form — are protected by the CDA. So you can still discriminate to your heart’s content there.
And that’s all there is to it. There was no holding prohibiting Roommates.com or its users from doing anything just yet — there was only a holding that the site can’t rely on the CDA as its defense. Instead, it can raise some other defense, like the First Amendment. I suspect that defense and any others Roommates.com raises will fail, but it hasn’t happened yet.
Now all of that may be a relief. But Judge Kozinski is nonetheless due some harsh criticism.
His decision contains the following gratuitous statement in a footnote:
The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations…. [I]ts vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online business an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.
Shouldn’t judges always be careful to prevent “overzealous enforcement of laws and regulations”? And who gave federal judges the power to determine when exactly the internet would be ready for “overzealous enforcement of laws and regulations”? Judge Kozinski had no need to say any of this, but his comment creates something other judges can now cite to support decreased protection for online liberty.
Judge Kozinski’s lack of concern for liberty should come as no surprise. The so-called libertarian judge showed a similar disregard for government abuses on the Cato Institute’s website, and suggested that anyone who thinks we need more liberty than the status quo should shut up and thank the government for the freedom it’s already so graciously granted us:
There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it — that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.
(Judge Kozinski also displayed a rather more benign sort of aggression in his appearance as a contestant on The Dating Game.)
In the worst-case scenario, the trial court (or the Ninth Circuit on another appeal) will decide the next time around that Roommates.com does violate the Fair Housing Act or California law, and that the First Amendment does not protect the website and its users’ speech. The part of that decision pertaining to sexual orientation would only apply to California, because such discrimination is only illegal under state law, not federal law. And the part of the decision pertaining to sex and children would apply only in the states included the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
That’s too bad for them, but it might be good news for the rest of us. The Ninth Circuit Court of Appeals has a terrible reputation — its decisions are overturned by the U.S. Supreme Court more than any other circuit’s, and other circuits around the country often do the opposite of whatever the Ninth Circuit does.
So in a sense, a bad Ninth Circuit decision on this issue could serve as sort of a national inoculation against the most outrageous offenses against everyone else’s freedom.
In the meantime, we should all remain wary of both government intrusion and sensationalist mainstream media misinformation.
J. H. Huebert [send him mail] an award-winning attorney, a former clerk to a judge of the Sixth Circuit U.S. Court of Appeals, and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.