Craigslist suit raises red flags: a recent legal suit brought against Craigslist highlights the confusion regarding fair housing law and individual apartment listings in online public forums.

In the advertising world, no space is used more than the virtual billboard of the Internet. With a click of a mouse, a person can get a car insurance quote, find a date, find a roommate or sell anything. With regard to rental housing advertisements, individuals have found a forum to publish exactly what they are looking for in a potential resident or "roommie," despite the fact that such posts could run afoul of fair housing laws.

Determining liability regarding violations of fair housing laws that prohibit discriminatory housing ads is problematic. The problem is this: There are two sources of conflicting law that pertain to both fair housing and Internet liability. In the fair housing corner, section 804(c) of the federal Fair Housing Act (FHA) makes it unlawful "[t]o make, print or publish, or cause to be made, printed or published any notice, statement or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin."

Race, color, religion, sex, handicap, familial status and national origin are considered protected classes under the law. Thus, any ad that conveys a preference for one resident over another based on those categories is discriminatory. The FHA applies to everyone, from the largest commercial apartment owner to the retiree who rents out the

other side of his duplex.

On the other hand, the Communications Decency Act of 1996 (CDA), section 230 provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Thus, the CDA immunizes online service providers from suits that result from another person or third party's conduct while on its Web site. It seems this immunity would also extend to instances in which discriminatory housing advertisements are published on the service provider's Web site. However, the CDA does not provide protection to the party communicating the information and leaves the door open for liability to attach to the person who posts the ads.

Nonetheless, the identity of the person posting the ad is typically not known, posing a barrier to holding the individual liable and making it more likely that the service provider, rather than the individual, would be sued. Most people choose to make their postings anonymous and encode their information. Service providers, if they keep records of their users, are not likely to just hand over any information about the individual. This is an added hurdle, causing lawyers to bring suits against a fictional "John Doe" and subsequently requesting the court to issue a subpoena to the Web site to obtain identity information about an individual.

Testing for Liability

Now the legal issue begins to take shape. While discriminatory housing may be in practice by individuals advertising online on sites such as Craigslist (www.craigslist.com), the service provider is immune from suit under the CDA. However, service providers are still liable for violating fair housing laws. The service provider is a discernible target for liability under the FHA because it has caused the discriminatory ad to be published via its Internet site.

Though individuals remain liable under the FHA and have no protection under the CDA, they are not often sued personally for various reasons. The question of whether to sue the individual is often answered by balancing the cost of the lawsuit against the difficulty of pursuing legal action against the individual and the potential outcome. Practically speaking, even if a lawsuit is won, a judgment against a person is only as good as his or her ability to pay. This "deep pocket" strategy in litigation results in service providers, rather than individuals, being targeted as potential defendants. Most people do not have available assets equivalent to that of a corporation. So instead of filing suit for each violation separately, it is more efficient to sue the service providers for the discriminatory ads, therefore increasing the likelihood the judgment will be paid and potentially removing all discriminatory ads in a single legal action.

To test the liability for violation of the FHA, the Chicago Lawyers' Committee for Civil Rights Under Law Inc. has filed a suit against Craigslist Inc., purveyor of Craigslist.com, in the U.S. District Court for the Northern District of Illinois Eastern Division. Filed in early February 2006, the suit entertains at least 124 alleged violations to the FHA. Some claims look credible as though they meet the criteria of discriminatory advertising against a protected class; others do not.

Examples of advertisements cited by the complaint that convey a preference regarding any of the protected classes are discriminatory. For obvious reasons, postings for roommates, such as "Female only," "Requirements: Clean Godly Christian Male," "Only Muslims apply," or "African-Americans and Arabians tend to clash with me so that won't work out," violate the FHA.

The suit causes concern, however, because some of the alleged violations are not as clear as the previous examples. In an effort to describe the location of some apartments, phrases such as, "Near St. Gregory's Church," or "Walk to shopping, restaurants, coffee shops, synagogue," or even "Very quiet street opposite church," have been identified in the complaint as discriminatory.

The arguments exist that those seemingly innocuous statements further discrimination because they convey a message that some residents will be preferred over others. Thus, if an ordinary member of a protected class would feel discouraged about applying for housing based on the ad, then it is discriminatory. This highly subjective rule is an effort to prevent the humiliation and stigmatization of minority home seekers from encountering exclusionary statements and reduce the spread of misinformation about the law. But does mentioning a community landmark really discriminate?

The Chicago Lawyers' Committee thinks so, but the court may have a different opinion. The courts have interpreted the CDA to provide immunity for online service providers. Zeran v. America Online Inc. (AOL) has become the landmark case for courts around the country in determining liability of Internet publications. In Zeran, a customer who sued his service provider, AOL, for defamation, among other causes, found his claims barred because of the immunity extended under the CDA. The court noted that opening the online service providers to tort liability would have a "chilling" effect on free speech given the staggering amount of information communicated via the Internet. What is more, the court commented that the immunity under the CDA was an incentive for Web sites to self-regulate without being categorized as "publishers."

It is difficult to conclude that Craigslist will not successfully cite Zeran; the legal logic of Zeran would likely assist Craigslist in its defense. Craigslist, as an online service provider, offers a forum for third parties to communicate. It includes information about the FHA on every Web page and offers links directly to the U.S. Department of Housing and Urban Development (HUD) and the Department of Justice. Moreover, users are encouraged to "flag" discriminatory postings as "prohibiting" using a check-the-box feature at the top of the screen of every listing.

While ignorance is not an excuse, many people who patronize Craigslist and other sites don't know they are violating the law. To make matters worse, sometimes print advertising departments lack sophistication or are otherwise unsuccessful at filtering discriminatory ads, which exacerbates problems for the apartment industry both online and in print. If individuals see a discriminatory ad, they may wrongfully believe that it is acceptable. Just because a printed or online ad for a "female-only roommate" appeared doesn't mean that it was legal.

'Sluts' Not a Protected Class

Following is an excerpt taken from an online ad by two female roommates posted on Craigslist (www.craigslist.com), Feb. 27, 2006.

ABOUT THE HOUSE: 100 year old rowhouse ... TWO rooms (1 for $700, the other for $750) available for rent to females ONLY ... ALL UTILITIES INCLUDED.

ABOUT THE HOUSEMATES: We are 25/26 yrs old, met online 10 months ago, and we go together like peas and carrots ... We're very quiet, considerate and DRAMA FREE. Looking for a kindred spirit that will vibe with us--personality fit is a MUST, along with paying rent on time!

FYI, WE WILL NOT ACCEPT: sluts, late bill payers, smokers, people who throw house parties every night, nudists or excessively flatulent individuals (unless you just ate spicy food ... then it's understandable).

A week after first finding the "cool roomie" ad, the ad disappeared. Maybe the posters found the perfect roommate, or maybe their ad was flagged "prohibited" for discriminatory content. Either way, it is no longer on the site. However, if it was flagged, it was not for using the derogatory term "slut" because the term does not qualify as a protected class within the meaning of the FHA. "Slut" does not refer to race, color, religion, sex, handicap, familial status or national origin. This ad, however, does discriminate with regard to gender, as the posters listed "female only" as a requirement. The remaining preferences for a roommate did not discriminate against any other protected classes.

Devil in the Details

Take heed when publishing any apartment listing online and follow a few simple rules:

1. Above all, follow the requirements of the Fair Housing Act.

2. Don't try to circumvent the law by posting discriminatory content anonymously online--not only will the spirit of the law be insulted, but so will the people it is designed to protect.

3. If ever in doubt, check HUD's guidance to advertising online.

4. Report housing discrimination. It is a service to individuals and communities alike.

Rosmond Jones Dolen Esq. is Campaign Director for the National Apartment Association Education Institute (NAAEI). She can be reached at 703/518-6141 Ext. 142 or [e-mail].