"I may not be a gay man, but I have a lot of things in common with gay men. I'm very tidy. I have a great sense of decoration. Whatever."
So said Judge Alex Kozinski, during the freewheeling appellate arguments of a lawsuit alleging discrimination of the part of the roommate matching service roommates.com. He was speaking for a hypothetical woman who might like to reply to an ad requesting a gay male roommate, perhaps imagining herself Grace to the poster's Will.
The suit, filed by the Fair Housing Council of the San Fernando Valley and the Fair Housing Council of San Diego, and heard by the Ninth Circuit in Pasadena last month, claims that such ads are discriminatory and is suing roommates.com to force them to police their content.
The ads cited in the lawsuit aren't the cream of tolerant humanity, but they aren't that bad either: Posters ask for "no drugs, kids, or animals," say they "prefer white male roommates," and declare "no psychos or anyone on mental medication." One writes that he "prefer[s] a Christian male, no women allowed in home, living for Christ…" One man may have been looking for more than just a roommate when he posted asking for "a Hispanic female roommate so she can make me fluent in Spanish" or "an Asian female roommate just because I love Asian females."
The case, on which there hasn't yet been a ruling, brings up a slate of issue from racism to Internet privacy. In a recent interview with Reason, Kozinski who is often called contrarian or libertarian, aired his views on some kinds of discrimination, particularly discrimination that favors previously downtrodden groups, like the ad for gay roommates:
We have laws against discrimination, and we have to enforce the laws. By and large, if private parties want to use racial preferences, it probably should be OK. Whether it's OK under our laws, I don't know. But in this country there is a history of discrimination. So I certainly don't see any problem with any private party wanting to correct for that. …There are certain things individuals should be able to do with their own property that the state is not entitled to do. But we have constitutional protections, we have federal laws, we have state laws. It gets very difficult to navigate these things. We don't live in an essentially libertarian society.
How right he is. The roommates.com lawsuit runs into a snarl of relevant laws.
The first is the Fair Housing Act of 1968, which originally prohibited discrimination on the basis of race, color, religion and national origin, but was later expanded to include sex, disability, and familial status. There is a provision in the law-called the Mrs. Murphy rule-which allows more leeway to owners who rent fewer then three units in homes they occupy. The hypothetical Mrs, Murphy, who runs a boarding house, need not share a bathroom with three gay black men if she would rather not. This exception, though, is only for owners. And while some of the listings on roommates.com are posted by owners of condos or houses, others are just looking for another name to add to the lease on an apartment, and it's often hard to tell the two apart.
Either way, the Fair Housing Act makes it illegal to publish anything about whatever discrimination you plan to exercise, even if that discrimination is legal.
Which brings us to the Communications Decency Act of 1996, which protected websites from lawsuits over content created by other people on their pages. Under the law, websites like roommates.com are not considered "publishers." The practical upshot of this is that an ad that would be illegal for a newspaper to run poses no such threat to owners of website on which it appears.
In November, a similar lawsuit against Craigslist was dismissed. Drawn from a pool of 200,000 ads from a six-month period, the suit managed to find 100 objectionable ads, which included incendiary phrases like "near St Gertrude's church," and "Buddhist temple nearby." Equally offensive were the descriptions of a "vibrant southwest Hispanic neighborhood offering great classical Mexican culture, restaurants, and businesses." And then there were those who wrote that they "prefer christian roommate" or "want one nice quiet person." Niceness is not a protected attribute in the Fair Housing Act.
Craigslist has an internal policing system where users flag, and eventually delete, ads they find offensive. The system, says Craigslist CEO Jim Buckmaster, is more effective at catching unacceptable ads than a centralized editor could be. He also cited privacy concerns about disclosure requirements:
Overreaching further, the suit demands that craigslist proactively volunteer personal information about posters who post a discriminatory preference (e.g. "church next door") to regulatory authorities for prosecution, without subpoena or warrant -- clearly a violation of privacy rights, this demand may actually run counter to federal law governing the handling of user information.
Perhaps in response to the Craigslist outcome, the lawsuit against roommates.com has shifted its focus away from the ads themselves and onto polls taken on the site, but the lines between editorial content and user generated content are blurry in this and other similar cases.
Things look good for roommates.com, but such attacks, in all likelihood motivated by legitimate concerns about discrimiation, could have dire effects in other parts of our lives. To make such ads illegal would require overturning parts of the Mrs, Murphy exception and the Communications Decency Act. The latter is especially disturbing since it puts a whole host of Web 2.0 sites at risk, including Wikipedia, MySpace, and blog engines. Any website with user-generated content (including the comments section of reason.com) could be legally on the hook for anything users post.
Federal laws governing discrimination in housing, publishing, Internet privacy, and freedom of speech have all landed in a big jumble at Judge Kozinski's feet. Here's hoping he lives up to the accolades he received in Reason's pages, as "one of the most libertarian judges in the country."
Katherine Mangu-Ward is an assocate editor of Reason.