The Chicago Lawyers' Committee for Civil Rights Under Law and the Interfaith Housing Center of the Northern Suburbs are looking for Testers. We are seeking committed individuals to participate in fair housing testing. No experience is needed. Testers receive a stipend for their services and travel expenses. Time commitment is minimal, and tests can be worked into your schedule. Gain valuable experience while working for a great cause. People from all ethnic and racial groups are strongly encouraged to apply. We are also looking for testers who speak languages other than English, especially Spanish.
A lending tester training is scheduled for January 5th, 2008 from 11am until 5pm at our offices in downtown Chicago. Lunch will be served. A sales/rental tester training is scheduled for February in Evanston – contact us for details.
For more information, or to sign up for the training, please contact Justin Massa of CLCCRUL at 312-630-9744 x234 or Allison Forker of IHCNS at 847-501-5760. Space, is limited, and you must register in order to attend.
Reply brief of appellant in the Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. case.
REPLY BRIEF OF APPELLANT
CHICAGO LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, INC.
Stephen D. Libowsky
Wm. Bradford Reynolds
321 North Clark Street, Suite 3400
Chicago, IL 60610
Ph: (312) 595-1239; Fx: (312) 595-2250
Laurie A. Wardell
Matthew J. Ginsburg
Chicago Lawyers’ Committee for Civil Rights Under Law, Inc.
100 North LaSalle Street, Suite 600
Chicago, IL 60602
Ph: (312) 630-9744 ; Fx: (312) 630-1127
Counsel for Plaintiff-Appellant
January 4, 2008
ORAL ARGUMENT REQUESTED
Discriminatory housing advertising was “precisely one of the evils the [1968 Fair Housing Act] was designed to correct.” United States v. Hunter, 459 F.2d 205, 211 (4th Cir. 1972). Housing advertisements have moved to the internet, where housing providers who wish to discriminate may hide their identities and broadcast their discriminatory messages far and wide.1 If the Fair Housing Act’s important prohibition on discriminatory advertising is to have any teeth, it must apply to Craigslist and other online housing services. CLC and Craigslist agree that the plain terms of the Fair Housing Act (FHA) prohibit advertising media from printing, publishing or causing the printing and publishing of any discriminatory advertisement.
CLC and Craigslist differ as to the scope of the protection provided by another federal law, § 230(c) of the Communications Decency Act. Craigslist proposes a sort of “do-nothing” immunity, which would reward an Internet Service Provider (ISP) whether the ISP takes steps to screen unlawful third-party content or whether the ISP does nothing to screen unlawful third-party content. Craigslist also insists that § 230(c) immunizes an ISP from all claims derived from any sort of unlawful third-party content, whether those claims are based on federal or state law and whether those claims are triggered by efforts to screen or not. CLC believes that § 230(c) provides a safe harbor for an ISP’s screening efforts and thus precludes claims brought by information content providers whose content was wrongfully blocked. CLC believes that § 230(e) protects ISPs from state law claims derived from third-party content which would be inconsistent with the screening immunity.
Craigslist’s analysis of § 230 fails for two overriding reasons. First, Craigslist fails to consider the effect of any portion of the statute’s text other than the single sentence on which it relies. Craigslist never discusses the import of § 230(c)’s title, subheadings, or structure, or the interplay between §§ 230(c)(1) and 230(c)(2). Craigslist’s brief reads like an exegesis of a lengthy poem which mentions only a favored stanza.
Second, Craigslist overreaches in arguing that ISPs are immune from any liability under any theory for distributing offensive content.2 Craigslist’s position would immunize an ISP whether the ISP tried to block offensive content, whether the ISP took no steps to block offensive content or, more extreme, whether the ISP refused to remove the offensive content after being asked to do so. Such sweeping immunity would frustrate the core purposes of both the Fair Housing Act and § 230 of the Communications Decency Act.
Craigslist (Response at 9-14) relies heavily on Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), and cases from other jurisdictions in arguing that § 230(c) creates an absolute immunity from all claims arising from unlawful third-party content. As discussed in CLC’s opening brief (and in the district court’s opinion), these cases are not persuasive. Zeran held that § 230 immunity bars any claim that would hold an ISP liable for its exercise of editorial functions. But Zeran did not consider whether Congress intended immunity to apply in a case such as this one, where an ISP refused to exercise any editorial functions or to block and screen discriminatory housing advertisements. The opinions which follow Zeran also failed to discuss how § 230(c)(1) fits within the larger statute. Moreover, virtually all these opinions involved state law claims and thus failed to consider how § 230(c) might apply to a coequal federal statute (such as the FHA, which imposes liability on the maker of a discriminatory statement and on any other entity that causes the discriminatory advertisement to appear). When this Court gives § 230(c) and its legislative history a fresh look, this Court should conclude that Congress intended to provide a defense only to ISPs that take steps to screen unlawful third-party content.3
Craigslist mistakenly argues (Response at 13) that Congress endorsed Zeran’s interpretation of § 230 when Congress passed the “Dot Kids Implementation and Efficiency Act of 2002.” The Supreme Court has concluded that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” Wright v. West, 505 U.S. 277, 295 n.9 (1992) (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980)). Craigslist misleadingly quotes only part of a sentence from the legislative history of the Dot Kids Act. That sentence in its entirety reads: “The courts have correctly interpreted Section 230(c), which was aimed at protecting against liability for such claims as negligence (See, e.g., Doe v. America Online, 783 So.2d 1010 (Fla. 2001)) and defamation (Ben Ezra, Weinstein, and Co. v. America Online, 206 F.3d 980 (2000); Zeran v. America Online, 129 F.3d 327 (1997)).” H.R. Rep. No. 107-449, at 13 (2002) (emphasis added). Doe, Ben Ezra and Zeran held that an
ISP’s screening efforts should not expose the ISP to a more demanding defamation or negligence standard. In the Dot Kids Act, Congress viewed § 230 as an attempt to protect ISPs from exposure to certain state law defamation and negligence claims, not from federal civil rights claims.
Craigslist argues that a lone sentence in § 230(c)(1) precludes this Court from holding Craigslist liable as a publisher (or one that causes the publication of discriminatory advertisements) under the FHA. Yet, nothing in § 230’s text or history suggests that Congress meant to immunize an ISP from liability under the Fair Housing Act. In fact, Congress did not even remotely contemplate discriminatory housing advertisements when it passed § 230. Instead, Congress focused on obscenity and the perverse incentives created by the court in Stratton Oakmont, Inc. v. Prodigy Services Co., No. 03-063-94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), which penalized an ISP for screening offensive third-party content by “treating” that ISP as a “publisher” under state defamation law. As the Conference Committee Report states, “[o]ne of the specific purposes of this Section is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers or users as publishers or speakers of content that is not their own because they have restricted access to objectionable material.” H.R. Conf. Rep. No. 104-458 at 194 (1996) (emphasis added).
Craigslist also claims (Response at 18) that FHA liability would necessarily “treat” Craigslist as a “publisher” because FHA liability would require Craigslist to edit or screen third-party content. There is no evidence or reason to think Congress meant to preempt any law (such as the FHA) requiring an ISP to screen offensive third-party content. On the contrary, § 230(c)’s title and legislative history demonstrate that Congress meant to preclude enforcement of laws (such as defamation) that would penalize such screening. See, e.g., 141 Cong. Rec. H8470 (daily ed. Aug. 4 1995) (statement of Rep. Barton), describing section 230(c) as a “reasonable way” to help ISPs “self regulate themselves without penalty of law.”
Craigslist also argues (Response at 16-17) that any species of FHA liability would “treat” Craigslist as a “publisher” within the meaning of § 230(c)(1) because the FHA would “hold Craigslist liable on the very same theory of liability . . . that could be used against the individuals who originated the alleged unlawful postings.” In fact, the text of § 3604(c) suggests that authors make discriminatory advertisements and statements while publishers publish and cause them to be published. The FHA prohibits any person or entity from making, printing, or publishing or causing another to make, print to publish a discriminatory notice, advertisement or statement. 42 U.S.C. § 3604(c). CLC alleges that Craigslist is liable here (a) as an ISP provider who makes its servers available to others without restriction or any semblance of oversight, and thus has in fact “caused” discriminatory advertisements of third parties to reach the public in violation of the FHA and (b) for publishing, printing and causing the publishing and printing of discriminatory notices and advertisements.
The term “publisher” has a rich interpretative history, both in ordinary language and in the law. Yet, Craigslist reads § 230(c)(1)’s prohibition against the treatment of an ISP as a publisher far more expansively than that history has ever embraced, arguing that all forms of “intermediary liability” are reached by § 230(c)(1) “treatment” clause because “there is no such thing as a claim of ‘intermediary liability’ that would not treat the so-called ‘intermediary’ as a ‘publisher’ or ‘publisher’ or ‘speaker.’” (See Craigslist’s Response at 32; see also id. at 21, n.12 (arguing that Craigslist should not be held liable as an “intermediary” or as a “printer” because either theory would have the same effect as a ruling that Craigslist is a publisher)).
FHA liability includes liability for those who “cause” offensive information to be published or printed by others. Craigslist thus comes well within the reach of FHA liability because, as alleged here, it enables or causes third parties to print or publish content information on Craigslist’s servers. 42 U.S.C. § 3604(c). Equally telling, the only CDA immunity Congress has afforded to Craigslist in such circumstances is found in § 230(c)(2), which, by its express terms, applies if, but only if, Craigslist undertakes efforts to block or screen efforts offensive third-party content. (See Craigslist Response at 14-20.)
Congress, however, chose its words in § 230 more carefully than Craigslist and the amici wish to acknowledge. This Court needs to consult no more than § 230’s text and legislative history to discern what Congress intended to convey by using the phrase “treatment as a publisher or speaker.” The words chosen are limited to but two categories: publishers and speakers. Nowhere does Congress use the terms “intermediary” or “agent” or “distributor” or “aider” or “abettor,” nor any other similar term or terms. Moreover, the legislative history makes it clear that this was no accident. It shows in no uncertain terms that when Congress included the language in § 230(c)(1) to preclude ISPs from being treated as publishers of third-party content, it did so specifically to overturn the Stratton Oakmont case, which had applied “publisher” liability to an ISP because of the ISP’s screening efforts. See H.R. Conf. Rep. No. 104-458 at 194 (1996). The companion provision, § 230(c)(2), makes it clear that Congress intended to encourage (not discourage) just such screening efforts of third-party content by affording ISPs immunity from liability for their blocking and screening activities.
Craigslist breathlessly declares (Response at 23) that “broad immunity from liability for third-party content was necessary to promote freedom of speech online.” Nowhere does it explain why this is necessary or where Congress found such a necessity to arise. The industry amici (Amici Bi. at 27) extol the “communication revolution” in which on-line companies take “aggressive and creative steps . . . to self regulate their own services in innovative, robust ways.” This is precisely the sort of self-regulation Congress sought to promote by enacting liability protection for those ISPs who block and screen. Yet, Craigslist and the amici together offer a doomsday scenario if CLC prevails in this case: preposterously declaring that ISPs “faced with potential liability . . . likely would be forced to restrict or abandon altogether many of the features and forums that enable the dissemination of third-party content.” (Amici Br. at 23.)
Not surprisingly, this hyperbole is served up without any support, evidence or even an explanation. The internet will undoubtedly continue to thrive even if Craigslist is held accountable under the FHA. The “sky will not fall” if the FHA is enforced against ISPs who fail to block and screen discriminatory advertisements from their servers. The FHA has for nearly 40 years imposed strict liability on newspapers and other distributors of discriminatory content written by third parties, and none have been noticeably hindered in any way as a consequence. Schwemm, Discriminatory Housing Statements and Section 3604(c): A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 216 (2001) (“3604 is essentially a ‘strict liability’ statute: all that is required to establish liability is that the challenged notice, statement, or advertisement be made ‘with respect to the sale or rental of a dwelling’ and ‘indicate’ discrimination.”) Moreover, discriminatory advertisements—unlike other types of third-party content—are not entitled to First Amendment protection because they facilitate unlawful activity and mislead the public. Id. at 268-294; Ragin, 923 F.2d at 1003-05; Hunter, 459 F.2d at 211. Newspapers and magazines did not fail when FHA liability was found applicable to them. Neither Craigslist nor the industry amici have offered any reason or logic to expect otherwise upon similar application of the FHA to them. By including the word “publisher” in the statutory section titled “Protection for private blocking and screening of offensive material,” Congress did not intend sub silentio to immunize ISPs from the well-established prohibitions on discriminatory advertisements established by the FHA.
Craigslist and the industry amici acknowledge that Congress passed § 230(c) in order to encourage ISPs to screen third-party content, but they then argue that absolute immunity is necessary to encourage ISPs to screen. This counterintuitive observation is offered without any explanation as to why immunity for those ISPs who block and screen (as stated by Congress) is not only sufficient but also more effective. As this Court pointed out, a more narrow immunity for screening would more effectively encourage screening. “If [Zeran is sound] then 230(c) as a whole makes ISPs indifferent to the content of information they host or transmit: whether they do . . . or do not . . . take precautions, there is no liability. . . . As precautions are costly. . . ISPs may be expected to take the do-nothing option and enjoy immunity under 230(c)(1).” GTE, 347 F.3d at 660.
Craigslist and the industry amici further claim that without blanket immunity ISPs will not screen because screening might expose ISPs to liability. Craigslist and the industry amici ignore that Congress explicitly provided protection against such potential liability in § 230(c)(2), which immunizes an ISP that makes good faith screening efforts from any liability exposure relating to those efforts. And § 230(e)(3) preempts any state law claim (such as defamation) that would be inconsistent with the screening immunity found in § 230(c)(2). In short, § 230, as a whole, makes clear that ISPs need not fear that their screening efforts will expose them to liability.4
Craigslist’s contention that ISPs will not screen if ISPs can be held liable for any failure to screen is utter speculation. Further, such speculation defies common sense and is contradicted by Craigslist’s own actions. As Craigslist acknowledges (Response at 5), after this lawsuit was filed and the prospect of liability loomed, Craigslist claims to have begun some unknown method to screen and to remove discriminatory advertisements.5 The fact that Craigslist claims to have belatedly started to screen discriminatory advertisements shows that liability for failure to screen creates an effective incentive for ISP self-regulation and that ISPs can screen with no dire consequences to their business or to the internet.
This Court in GTE suggested that one sensible reading of § 230(c) (1) is that “an entity would remain a ‘provider or user’—and thus be eligible for the immunity under 230(c)(2)—as long as the information came from someone else, but it would become a ‘publisher or speaker’ and lose the benefit of 230(c)(2) if it created the objectionable information.” GTE, 347 F.3d at 660. This Court characterized that interpretation as a “definitional” one. Id.
Craigslist fixates on the “definitional” label and claims that § 230(c) (1) reads more like a prohibition than a definition because § 230(c)(1) falls outside the official “Definitions” section, and because the text of § 230(c)(1) allegedly has an imperative, rather than a definitional, ring. Section 230(c)(1) is definitional in the sense that it describes who may claim the § 230(c)(2) affirmative defense. The overall structure of § 230(c), as originally crafted, demonstrates the good sense of GTE’s suggested interpretation.
The House drafted § 230(c) in response to the Exon amendment, a Senate bill which authorized the FCC to regulate internet obscenity. Representatives Cox and Wyden rejected the Senate’s regulatory approach and proposed instead that Congress give ISPs an incentive to screen offensive third-party content. Thus the antiregulatory policies in § 230(a) reflect an aversion to the additional regulation imposed by the Exon amendment, not any desire to immunize ISPs from all existing federal laws or regulations. “If we regulate the Internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the Internet. That is why it is so important that we not have a Federal computer commission do that. ” 141 Cong. Rec. H8471 (daily ed. Aug. 4, 1995) (statement of Rep. Cox).6
In August 1995, when Congress debated § 230(c), and until Conference Committee, what is now § 230(c)(1) was simply the first sentence of a single blocking and screening provision:
(c) PROTECTION FOR ‘GOOD SAMARITAN’ BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.–No provider or user of interactive computer services shall be treated as the publisher or speaker of any information provided by an information content provider. No provider or user shall be held liable on account of –
(1) any action voluntarily taken in good faith to restrict access to material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (2) any action taken to make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
141 Cong. Rec. H8469.
The Conference Committee extracted the first sentence of what was § 230(c) and made it a separate section, § 230(c)(1), and then gave it a separate heading, “Treatment as Publisher or Speaker.” The Conference Committee acknowledged that by creating a separate § 230(c)(1), it had not intended to make any substantive changes to the bill.7 The fact that the prohibition on “treatment as publisher or speaker” was originally the first sentence of what is now § 230(c)(2) suggests that the prohibition on “treatment as publisher or speaker” was meant to explain and preface the § 230(c)(2) screening immunity.
Craigslist asserts (Response at 29) that the definitional interpretation would deprive § 230(c)(1) of any practical function. Craigslist argues that § 230(c)(1) is not needed to clarify § 230(c)(2) because an ISP would never sue itself for blocking its own content and thus would have no occasion to claim § 230(c)(2) immunity.
Craigslist wholly misunderstands § 230. Pursuant to this Court’s proposed definitional interpretation, § 230(c)(1) would preclude application of the § 230(c)(2) immunity where both an ISP and a third party developed the offensive content. Section 230(c)(2) is not directed at an ISP who is the content provider and thus entitled to no immunity whatsoever.8 Section 230(c)(2) is directed to ISPs who do not author in any way the content but who merely allow third parties to use their servers. These ISPs have a § 230(c)(2) affirmative defense to the extent they block and screen.
Craigslist’s interpretation of § 230(c)(1) would make § 230(c) entirely self defeating and render it entirely meaningless. Section 230(c) is captioned “Protection for good Samaritan blocking & screening of offensive material.” Section 230(c), like other Good Samaritan laws, immunizes efforts to help third parties. The Good Samaritan is the ISP who undertakes to screen out offensive material of others that is generally regarded as harmful to children or other third parties. Nothing in the statute or legislative history supports the distorted interpretation that Congress meant to immunize screening in § 230(c)(2) and then turn around and immunize inaction—or the failure to screen—in § 230(c)(1).9 To give an ISP total and absolute immunity for allowing third parties to place discriminatory advertisements on its servers would defeat and eliminate Congress’s incentive for Good Samaritans to block and screen.
This Court in GTE suggested an alternative to the definitional interpretation. “There is yet another possibility: perhaps 230(c)(1) forecloses any liability that depends on deeming the ISP a ‘publisher’—defamation law would be a good example of such liability—while permitting the states to regulate ISPs in their capacity as intermediaries.” GTE, 347 F.3d at 660. As CLC argued in its Opening Brief (at 22-23), and below (App. 27-28), § 230(c) does not preclude this case because FHA liability does not depend on deeming an ISP as a publisher. Although CLC believes the “definitional” interpretation of § 230(c) is correct, even if this Court adopts the alternative interpretation of the statute suggested in GTE, CLC’s FHA claim survives a motion to dismiss.
The alternate reading of § 230(c)(1) would protect ISPs from claims such as defamation that are brought by readers of third-party content and that depend on treating the ISP as a publisher. Section 230(c)(2), on the other hand, would provide an independent limited immunity to ISPs from claims brought against them by content providers whose content has been blocked or screened.
This alternative interpretation is consistent with Congress’s expressed desire to provide ISPs with an incentive to undertake voluntary screening. As discussed above, Congress recognized that if ISPs were to block and screen offensive material, ISPs might need protection from liability under defamation law and related common law doctrines where liability turns on the law “treat[ing] [the ISP] as the publisher or speaker of  information provided by another information content provider.” § 230(c)(1). In other words, in order to strengthen the incentive to screen contained in § 230(c)(2), Congress needed to protect ISPs from liability that could arise from the act of screening. As discussed above, nothing in § 230 indicates that Congress intended to provide ISPs with any more generalized immunity than was required to reverse the disincentives to screening represented by established defamation law doctrine.
But even if § 230(c)(1) provides a limited protection from defamation claims, it would not immunize ISPs from suits brought under the FHA. As Craigslist recognizes (Response at 32-33), the term “publisher” is a term of art in defamation law that distinguishes those entities that are subject to strict liability for tortious communications from mere intermediaries and distributors.
Craigslist is not being sued here under any defamation law and whatever publisher protection might exist in § 230(c) under defamation law is not applicable here. In contrast to defamation law, where “treatment as a publisher” may well determine liability, the FHA is utterly indifferent as to whether an ISP is “treated as [a] publisher or speaker.” Instead, the FHA reaches content providers that make discriminatory statements, agents of housing providers who allow discriminatory advertisements to be made, and any entity that makes, prints or publishes a discriminatory ad or causes a discriminatory ad to be made, printed or published. 42 U.S.C. §3604(c). See Schwemm, Discriminatory Housing Statements and 3604(c): A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 211, 214. Unless the words “to print” or “cause to be made, printed or published” are surplus—and there is no reason to believe they are—it is clear that Congress intended to prohibit printing separate and apart from publishing and also intended to prohibit acts that cause publication separate and apart from publication.
Craigslist does not deny that it causes the publication of discriminatory advertisements by permitting its users to post the advertisements to its website. None of the cases relied upon by Craigslist or the industry amici had occasion to decide whether § 230(c) precludes liability for causing the printing or publication of discriminatory advertisements. CLC argued these theories of FHA liability below. (CLC’s Memorandum in Opposition to Craigslist’s Motion for Judgment on the Pleadings, at 17, n.19.) These elements of FHA liability do not treat Craigslist as a publisher or speaker.
Moreover, § 230(e) does not preclude FHA liability. Section 230(e) preempts only inconsistent state law, not any federal laws. 47 U.S.C. §230(e). A savings clause expressly provides that the Communications Decency Act does not impliedly modify or repeal existing federal law. 47 U.S.C. §152 note (1996). Liability under the FHA is consistent with § 230(c). Since § 3604(c) of the FHA is effectively a strict liability statute, Jancik, 44 F.3d at 556, FHA liability here will not discourage an ISP from screening discriminatory third-party content and will be entirely consistent with § 230(c)(2) immunity.
The FHA imposes liability not only for making, publishing or printing discriminatory advertisements, but also for causing discriminatory advertisements to be made, printed or published. Section 230(c)(1) of the Communications Decency Act confers no substantive immunity but rather determines who can claim § 230(c)(2) immunity. Section 230(c)(2) of the CDA grants a limited protection from liability to ISPs who undertake to block or screen the placement by others of such housing advertisements. Alternatively, even if § 230(c)(1) confers immunity on ISPs that fail to block and screen, the FHA does not trigger this immunity because the FHA does not treat Craigslist as a publisher in the sense intended in § 230(c)(1): the FHA does not penalize an ISP for screening by holding it to a more demanding “publisher” standard of liability. Accordingly, CLC asks this Court to reverse the District Court’s decision and to remand this case for further proceedings.
Dated: January 4, 2008
Stephen D. Libowsky
Wm. Bradford Reynolds
321 North Clark Street, Suite 3400
Chicago, IL 60610
Laurie A. Wardell
Matthew J. Ginsburg
Chicago Lawyers’ Committee for Civil Rights
Under Law, Inc.
100 North LaSalle Street, Suite 600
Chicago, IL 60602
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitations set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. This brief contains 5,948 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure.
I further certify that this brief complies with the typeface and type style requirements of Rule 32(a)(5)-(6) of the Federal Rules of Appellate Procedure and Seventh Circuit Rule 32(a)-(b). This brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 12-point Times New Roman font for main text and 11-point Times New Roman for footnotes. Counsel for Plaintiff-Appellant
CERTIFICATE OF SERVICE
I hereby certify that two bound copies and one digital copy of the foregoing Reply Brief of Appellant Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., were served by messenger delivery this 4th day of January 2008 upon:
Eric D. Brandfonbrener
PERKINS COIE, LLP
131 S. Dearborn Street, Suite 1700
Chicago, Illinois 60603
(312) 324-9602 – FAX
I further certify that in accordance with Rule 25(d)(2) of the Federal Rules of Appellate Procedure that the required number of paper copies and a digital/electronic copy of the foregoing Reply Brief of Appellant Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., were filed with the Clerk of the Court of the U.S. Court of Appeals for the Seventh Circuit on this 4th day of January 2008.
Counsel for Plaintiff-Appellant
1Craigslist focuses on the least overtly discriminatory advertisements from CLC’s Complaint and argues that these advertisements do not violate the Fair Housing Act. As this Court noted in Jancik v. HUD, 44 F.3d 553, 556 (7th Cir. 1995) (citing Ragin v. New York Times, 923 F.2d 995, 999-1000 (2d Cir.) cert. denied, 502 U.S. 821 (1991)), “[C]ourts have not required that ads jump out at the reader with their offending message, but have found instead that the statute is violated by ‘any ad that would discourage an ordinary reader of a particular [protected group] from answering it.” In any event, other advertisements which Craigslist caused to be published and printed, such as the one which declared “no minorities,” unequivocally indicate a discriminatory preference. (See, e.g., A38 ¶ 19; A38 ¶ 21; A40 ¶ 40; A43 ¶ 66; A48 ¶ 134; A49 ¶ 137.)
2Along similar lines, Craigslist’s jurisdictional statement mistakenly asserts that an affirmative defense argument under § 230(c)(1) claiming immunity divests the district court of jurisdiction to adjudicate CLC’s federal Fair Housing Act claim. (Response at 1.) Since § 230(c) provides Craigslist only an affirmative defense argument, the district court properly had jurisdiction to decide this case. In any event, as CLC explained in its opening brief, § 230(c)(1) does not immunize all ISPs from suit, only those who block and screen discriminatory advertisements placed by others. The operative portion of § 230(c), subsection (2), provides only an affirmative defense, not a wholesale immunity to suit. Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003).
3One undercurrent pervading the briefs of both Craigslist and amici is the suggestion that this Court should simply fall in line with other circuits that have considered § 230. While it is certainly appropriate for this Court to respect the view of its sister circuits, any suggestion that this Court should forego its own independent analysis of § 230 in favor of its sister circuits is gravely misguided. See GTE, 347 F.3d at 659-660. See also United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995) (“We are not merely to count noses. The parties are entitled to our independent judgment.”)
4In arguing that Congress believed blanket immunity was necessary to protect freedom of speech (Response at 23) Craigslist misleadingly cites Rep. Goodlatte’s testimony that “[t]here is no way that any of those entities, like Prodigy, can take the responsibility to edit out information . . . .” Craigslist chose to ignore and not disclose that Rep. Goodlatte stated his agreement that ISPs should be “given incentives to police the use of their systems,” 141 Cong. Rec. H8471 (daily ed. Aug. 4, 1995) (statement of Rep. Goodlatte), and further stated that he endorsed § 230(c)(2)’s “block and screen” immunity as just such an appropriate incentive.
5Craigslist’s brief informed CLC for the first time that Craigslist had begun to screen in the Spring of 2007 and set forth facts not found in the record below.
6In any case, despite the House’s aversion to new regulation, Congress passed the Exon amendment and authorized the FCC to regulate internet obscenity, effectively mooting the antiregulatory sentiments expressed in § 230(a).
7The Conference Committee Report states, “The conference agreement adopts the House provision with minor modifications as a new Section 230 of the Communications Decency Act.” H.R. Conf. Rep. No. 104-458 at 194 (1996) (emphasis added). As discussed in the text, a blanket do-nothing immunity for third-party content would have been far more than a “minor modification” of the House bill; it would have gutted the House bill by undoing the screening incentive.
8Section 230(f)(3) defines an “information content provider” as someone who creates or develops content in whole or in part. 47 U.S.C. §230(f)(3). Despite this definition, ISPs have successfully argued that they are not information content providers and are entitled to § 230(1) immunity even where the ISP helped shape or contribute to the offensive content. See, e.g., Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (ISP not information content provider by virtue of ISP’s editing third-party content); Ben Ezra, Weinstein & Co., v. America Online, Inc. 206 F.3d 980, 986 (10th Cir. 2000) (ISP not an information content provider despite ISP’s deletion of information from third party). As this Court suggested in GTE, if the ISP helps create any part of the content, the ISP becomes a publisher or speaker and cannot claim the § 230(c)(2) screening immunity. GTE, 347 F.3d at 660.
9Craigslist’s interpretation of § 230(c)(1) would also nullify § 230(e)(3), which explicitly preserves consistent state law claims. If § 230(c)(1) immunizes an ISP against all liability for third-party content, it is hard to imagine any viable state law claims that might be preserved by § 230(e)(3).
PDF version of this document available here.