Court Ruling Could Affect Gay Roommate Services
by Scott Stiffler
EDGE Contributor
Thursday May 22, 2008

While everyone’s attention has been monopolized by the landmark May 15th California Supreme Court ruling legalizing same-sex marriage in the Golden State, another ruling in California may have very different repercussions. The recent ruling from California’s Ninth Circuit may ultimately prohibit roommate matching services--and any other businesses, for that matter--from requiring that prospective clients disclose their sexual preference or gender.

In April,
California’s Ninth Circuit Court of Appeals ruled against, declaring it did not qualify for the Communications Decency Act’s Section 230 Safe Harbor Protection. That law gives service providers immunity to liability from the actions of their clients so long as the provider is only supplying the forum and not influencing or imposing content. According to the Fair Housing Councils of San Fernando Valley and San Diego, crossed the line when it required applicants to declare their sexual orientation as a pretext to joining the site.

In addition, the site asked whether or not clients had children; and, if so, how many. Although the court declared that had indeed created content, it stopped short of ruling on whether or not it violated the Fair Housing Act.

Chief Jude Alex Kozinski observed that "makes answering discriminatory questions a condition of doing business," according to Kozinski went on to declare that there was no difference from their actions and those of a real estate broker in "real life" rejecting potential clients if they refused to declare whether or not they were Jewish.

But does Kozinski’s telling reference to "real life" somehow exempt or otherwise distinguish Internet businesses from their brick and mortar counterparts?

"When it comes to a website, Congress passed the CDS [Communications Decency Act], which was primarily to protect operators if someone posts something on the site they are not responsible for; so long as they provide a neutral site where people can post things," notes Michael Seng, a professor at Chicago’s John Marshall Law School and the Executive Director of the John Marshall Law School Fair Housing Legal Support Center and Clinic.

The issue for Seng resembles a Craigslist case in the Seventh Circuit in
Chicago, in which a website’s operators were found immune if they provide a neutral website in which a poster placed a discriminatory ad. As a result, Seng points out, "Most of the websites, once they are notified of such an action, are taking it off," even though it’s not clear that the law presently requires that.

This strategy may be a good legal precaution, according to Seng: " is not neutral. They asked a number of questions that had to be answered in order to post your ad; questions about race, sexual orientation--what you were looking for in terms of a roommate. The court held that by asking those questions, they were directing people to give discriminatory statements."

In a dissenting opinion, Judge M. Margaret McKeown’s concern "is not an empty Chicken Little ’sky is falling’ alert," according to’s analysis of the decision. "By exposing every interactive service provider to liability for sorting, searching and utilizing the all too familiar drop-down menus, the majority has dramatically altered the landscape of Internet liability."

This legal disconnect between user and provider is the key to determining exactly who is liable and who can openly discriminate. "Under the Fair Housing Act, if a person is looking for a roommate or if it’s a single family dwelling exempt from the FHA, you are free to discriminate," Seng says. "What the FHA says is, you may not advertise the fact. If you are using a broker or an agent, you are generally not exempt from the FHA."

If a website posting specifies only wanting straight or male roommates, say, violates local law it could be liable. Paris Baldacci, a clinical professor of law at the Benjamin N. Cardoza School of Law in
New York is an expert on tenant succession rights. "It now goes back to trial to see if they, under California law and the Fair Housing Act, violate the anti-discrimination laws," Baldacci says about the California ruling.

In the meantime, the site is not obligated to take any action; it might start taking protective action, he adds, since it be violating the letter of the law. Seng notes that the Court of Appeals ruling remains valid at least throughout the Ninth Circuit, which includes most of the western states:
California, Nevada, Washington and Arizona.

There are twelve different circuits in the
U.S., so that ruling may not apply to them all. But any website in the sates covered by the ruling would be within the jurisdiction of the court.

But shouldn’t a gay man, citing freedom of speech, be able to openly declare in any forum his preference for a roommate of the same sexual orientation?

The courts appear somewhat conflicted when interpreting where the First Amendment ends and where the Fair Housing Act begins. "As it applies to the First Amendment, advertising is normally covered--labeled as commercial speech," Seng points out. "But commercial speech has less protection that political or artistic speech."

The Supreme Court has ruled that commercial speech involving discrimination can be regulated without violating the First Amendment in forums such as newspaper ads. "This is the kind of concern that First Amendment people have," Baldacci adds, "that sites worry about liability and won’t facilitate people being able to ask these questions."

On the other hand, anti-discrimination advocates are hailing the decision because, they argue, it’s wrong for websites to facilitate discrimination by providing a safe space to say, "I don’t want to live with people who are gay, straight, or of a different religion or ethnicity." "These are the issues that will be front and center when it goes back to the court," Baldacci says. "It’s a battle of policy interests: First Amendment, discrimination and privacy."

Douglas Leavy, owner of Rainbow Roommates, has found a solution by observing the very same loophole that protects businesses from libelous actions of their clients: providing a neutral forum where prejudicial and preferential information is not solicited, but can be expressed.

"Sexual orientation is not part of our listing," Leavy says. "They don’t have to state it, but they can. There is a Notes section where they can elaborate. There are gay people who are surprised when someone calls them about a room, but is straight. They say, ’I thought this was a gay-only service.’ But we turn no one away. There’s a large number of people who would consider themselves straight but gay friendly."

Leavy, whose business is licensed as an apartment sharing agency, uses the website component of Rainbow Roommates primarily as a way to market its face-to-face boutique service: "The website is not the foundation of my business. What they are purchasing are listings in a report format that contains roommate information. Then there is a section where they can indicate preferences for smoking, pets, sexual orientation. But for us, orientation is not part of the listing."

Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His solo shows include Damaged by the 70s and An Evening With Insane Mark Twain & Dead Bette Davis. He must eat twice his weight in fish every day, or he becomes radioactive.


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