Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.

Filing 36

Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.

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Case 1:06-cv-00657

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

CHICAGO LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, INC., Plaintiff, v. CRAIGSLIST, INC., Defendant.

) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 06 C 0657 Judge Amy J. St. Eve Magistrate Judge Jeffrey Cole

SURREPLY BRIEF IN OPPOSITION TO CRAIGSLIST'S MOTION FOR JUDGMENT ON THE PLEADINGS

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INTRODUCTION This Court is compelled to take a critical look at the statutory language and legislative history and determine what Congress meant in Section 230. In doing so, the Court cannot do as Amici and craigslist have opted to do: virtually ignore the actual wording of Section 230 and the only Seventh Circuit case discussing it. Rather, guided by what the Seventh Circuit has already said, we believe that this Court must recognize that Congress--through text, context and its own legislative explanation--intended Section 230 to provide a limited immunity to ISPs and websites who block and screen offensive materials.
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The statutory text and legislative history make one thing clear: Congress was not focused on and did not even remotely contemplate discriminatory housing advertisements (let alone immunizing ISPs or websites from the Fair Housing Act) when it passed Section 230. Instead, Congress focused exclusively on obscenity and the perverse incentives created by common law defamation principles. More specifically, Congress understandably found it troubling that the courts had decided to find liable under state defamation law an online publisher (Prodigy) who screened for offensive third-party content, but had allowed an online publisher (CompuServe) who did no screening whatsoever to escape liability. Section 230's text and legislative history make plain that Congress intended to immunize only efforts to block and screen offensive material. If Congress meant, as argued by Amici and craigslist, that Section 230 "bars any claim based on the dissemination of third-party content that would `treat' a service provider as a `publisher or speaker' of that content" (Br. of Amici in Supp. of Def.'s Mot. 4), Congress would have stated so, and the "good faith" and "blocking and
Doe v. GTE Corp., 347 F.3d 655, 660 ("Yet 230(c), which is, recall, part of the `Communications Decency Act,' bears the title `Protection for `Good Samaritan' blocking and screening of offensive material,' hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services.")
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screening" language never would have appeared. What Congress actually did in Section 230 was set forth a comprehensive statutory scheme that must be read as a whole. Amici and craigslist pretend that Section 230 consists of only Section 230(c)(1) and ignore the structure and other words and sentences in Section 230. Congress certainly knew how to grant the broad and absolute immunity argued for by Amici and craigslist. The reason no such language appears is that Congress chose not to do so. The only discussion of protection from liability is located, not in Section 230(c)(1) which preoccupies the attention of Amici and craigslist, but rather in Section 230(c)(2) for blocking and screening offensive material. ARGUMENT 1. Section 230 Provides Two Types of Protection: Immunity for Good Samaritan Screening Efforts and Preemption of State Law Liability for Publication of Third-Party Content. Amici and craigslist argue that one of Congress' essential objectives in passing Section 230 was to give absolute protection from liability to online publishers for any and all third-party content. In fact, the statute does not set forth any such blanket immunity and to read it into the statute would mean that most of the other words in the statute have no meaning. Plaintiff's analysis of Section 230 gives full effect to all of the words used by Congress and respects both Congress' concern about liability for third-party content and the statutory purpose of encouraging online publishers to screen out offensive content.
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Amici and craigslist deride Plaintiff's position as "radical" and "incoherent," insults which might make for lively reading but which cannot substitute for actual and sound statutory analysis. Plaintiff's position on Section 230 is shared by the Seventh Circuit, as found in the Doe opinion, HUD (which has decided to accept jurisdiction and investigate a number of complaints against Internet publishers) (see Group Ex. 2 attached to Pl.'s Mem. in Opp'n to Def.'s Mot.), the Department of Justice (which sued a website for publishing a discriminatory advertisement and resolved the case by requiring the website employees to screen for discriminatory advertisements) (see Ex. 3 attached to Pl.'s Mem. in Opp'n to Def.'s Mot.), and Judge Norgle (who enjoined a website from publishing--despite a vigorous Section 230 defense) (see attached Ex. 1, Def.'s Resp. to Mot. For a Temp. Restr. Order, an Order to Show Cause Regarding Prel. Inj., dated Oct. 5, 2004; see also Ex. 10 attached to Pl.'s Mem. in Opp'n to Def.'s Mot.).

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In Section 230, Congress created two types of protection for online publishers: (1) an immunity for "Good Samaritan" efforts to block and screen offensive third-party content; and (2) preemption of any state law claim that is inconsistent with the screening immunity. The first protection, set forth in Section 230(c)(1) and (2), protects "Good Samaritan efforts to block and screen." Like any Good Samaritan law, the immunity derives from efforts to help third parties-- in this case, efforts to screen out offensive material that would harm children and others. The second source of protection is found in Section 230(e)(3), which preempts any state law that is inconsistent with the above quoted Good Samaritan protections. Section 230(e)(3) states "no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this Section." Section 230(e) thus explicitly preempts any contrary state law claim, such as a defamation claim, which at the time of Section 230's enactment, imposed liability on an online publisher that undertook to screen third-party content--and thus would discourage screening and would be contrary to Section 230(c)'s stated purpose. By explicitly preempting inconsistent state law, Congress took steps to protect online publishers from defamatory third-party content while still encouraging them to screen for other types of offensive material posted by third-party users.
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craigslist misreads a House report on the subsequently enacted Dot Kids Implementation and Efficiency Act. That report states that Section 230 was intended to protect online publishers from incurring defamation or negligence liability simply because they screen for third-party content. "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) (Ex. 9 attached to Pl.'s Mem. in Opp'n to Def.'s Mot.).

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The Interpretation Advanced by Amici and craigslist Would Make Section 230 a Self Defeating Nullity. Amici and craigslist, by contrast, argue for a self-contradictory interpretation of the

statute. They argue that Congress immunized those who block and screen in Section 230(c)(2) and at the same time immunized those who fail to block screen Section 230(c)(1). It is frankly hard to imagine that Congress would create an incentive to block and screen offensive material in Section 230(c)(2) and then remove that incentive in Section 230(c)(1) by granting immunity for doing nothing. In this case, it is equally incomprehensible to imagine that Congress meant to grant total and absolute immunity to ISPs and websites who allow others to post discriminatory housing advertisements on their sites in a statute Congress titled "Protection for private blocking and screening of offensive material," and in a subsection Congress titled "Protection for `Good Samaritan' blocking and screening of offensive material." The "Civil liability" subsection of the statute does not suggest an absolute immunity, but rather states there is no liability for "action voluntarily taken in good faith to restrict access" to offensive material. See 47 U.S.C.A. 230(c)(2)(A) (2001). If Congress meant something different, as argued by Amici and craigslist, one would expect to find it in the statute. 3. A Blanket Immunity for Posting Third-Party Content is Not Necessary to Encourage Screening and in Fact Would Discourage Screening. Amici and craigslist do not dispute that Congress wished to encourage screening, but they argue that a blanket immunity for publishing third-party content actually provides such encouragement to online publishers. More remarkably, they claim that, absent a broad immunity, ISPs and websites will not screen for third-party content for fear of becoming liable for that content. Of course, Amici and craigslist do not explain how a broad grant of immunity for doing nothing whatsoever to block and screen offensive content does anything other than

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remove the incentive to block and screen and encourage no action. It is nonsense to argue that a broad immunity requiring no action would encourage ISPs and websites to block and screen offensive content. In Section 230, Congress explicitly rewards the acts of blocking and screening by offering immunity for such good-faith efforts. As Judge Easterbrook forcefully pointed out, the broad immunity that Amici and craigslist advance would defeat the purpose of encouraging screening. Doe, 347 F.3d at 660. 4. The Legislative History Clearly Supports Plaintiff's Interpretation. Not surprisingly, neither Amici nor craigslist mention the official Congressional Conference Reports on Section 230, which is the authoritative legislative history. Garcia v. U.S., 469 U.S. 70, 76 (1984) ("[W]e have repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill . . . . We have eschewed reliance on the passing comments of One Member . . . , and casual statements from the floor debates.") (citations omitted). The Conference Reports clearly support Plaintiff's interpretation of Section 230 and describe the original House bill as a bill that "protects from civil liability those providers or users of interactive computer services for actions to restrict or to enable restriction of access to objectionable on-line material." H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep.) (Ex. 5 attached to Pl.'s Mem. in Opp'n to Def.'s Mot.); S. Rep. No. 104-230, at 194 (1996) (Conf. Rep.) (Ex. 6 attached to Pl.'s Mem. in Opp'n to Def.'s Mot.). The Reports continue, "The conference agreement adopts the House provision with minor modifications as a new Section 230 of the Communications Decency Act. This Section provides `Good Samaritan' protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable material." H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep); S. Rep. No. 104-230, at 194 (1996) (Conf. Rep.) (emphasis added).

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Notably, there is nary a whisper anywhere in the Conference Report of the type of immunity advocated by Amici and craigslist: a blanket immunity for publishing any third-party content and immunity from the Fair Housing Act. As plain as the Conference Reports are, the title of Section 230--"Protection for private blocking and screening of offensive material"--is even plainer.4 While ignoring the official Conference Reports, as well as the title and text of Section 230, craigslist and Amici selectively quote an excerpt from a single House representative-- Representative Goodlatte--to argue that Congress believed that online publishers should not be liable for third-party content. But Amici and craigslist fail to accurately quote Rep. Goodlatte's testimony. Goodlatte repeatedly used the words "obscene" and "indecent" material, "pornography," and "smut," showing his concern for online pornography. Rep. Goodlatte nowhere argued for total and absolute immunity. In fact, his attention was directed at arguing against giving the federal government control over online obscenity. Congress rejected his position and passed the Exon amendment, which gave the FCC power to regulate online obscenity. (See Pl.'s Mem. in Opp'n to Def.'s Mot. at 12-14.) His comments do not reflect the intent of Congress as a whole.

4 As discussed above, there is no reasoned basis to argue that Congress intended to repeal or limit the Fair Housing Act when it passed Section 230(c). There is simply no mention of discriminatory housing advertisements, or of any other civil rights issue, in the text or legislative history of Section 230. Where two federal statutes appear to conflict, courts should harmonize the statutes, unless Congress has clearly indicated that it intended to abrogate or repeal one of those statutes. Branch v. Smith, 538 U.S. 254, 273 (2003) (citing Posadas v. Nat'l City Bank, 296 U.S. 497, 503 (1936) (courts find an implied repeal only where two statutes are in irreconcilable conflict or where the latter statute covers entire subject of and was clearly intended as a substitute for the former)); Morton v. Mancari, 417 U.S. 535, 549-5 (1974) (court must give effect to both federal statutes absent clearly expressed intent to abrogate or repeal).

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5.

The Seventh Circuit's Reading of Section 230 is Correct and Belies the Interpretation Advocated by Amici and craigslist. As argued in Plaintiff's response brief, Congress used the terms "protection for blocking

and screening" seven times in Section 230. Here, Congress meant what it said and said what it meant. To interpret Section 230(c), this Court need only take Congress at its word. craigslist disputes the Seventh Circuit's reading of the statute and maintains that 230(c)(1) reads more like a "prohibition" than a "definition" because Section 230(c)(1) falls outside 230(f), the definition subsection, and because the text of (c)(1) has an imperative, rather than a definitional, ring. As discussed in Plaintiff's response brief in detail, Section 230(c)(1) is best understood as a definitional clause in the sense that Section 230(c)(1) describes who may claim (c)(2) protection from liability (as is made clear by its placement under the overall 230(c) title "Protection for `Good Samaritan' blocking and screening of offensive material"). Thus, if as Section 230(c)(1) makes clear, it is the service provider who creates the content at issue, that provider cannot claim the (c)(2) screening immunity for his own offensive material. To be sure, the Section 230(c)(1) text does not appear in Section 230(f), the definition subsection, but that is obviously because Section 230(f) is reserved for terms such as "Interactive computer service" and "Access software provider," which are used throughout Section 230. "Publisher" and "speaker" do not appear throughout Section 230 and are found only in 230(c)(1). But even assuming that the isolated, single sentence of 230(c)(1) is open to interpretation, any ambiguity quickly evaporates when that sentence is folded into the context of the rest of the statutory text. There is no way Section 230(c)(1) can be read to be a broad, total and unconditional immunity from civil liability for all third-party content. Section 230(c)(1) appears entirely outside the "Civil liability" subsection and under the "Protection for `Good Samaritan'

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blocking and screening of offensive material" title. In short, Judge Easterbrook's "definitional" reading of 230(c)(1) best squares with the statute, as a whole, harmonizing its text with its caption and with its structure, legislative history and purpose. 6.
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The Fact That the Fair Housing Act is a Federal Rather Than a State Law is Important. Amici and craigslist argue that this Court should apply precedents from other judicial

circuits that do not involve the Fair Housing Act and that it is irrelevant that this case arises under the federal Fair Housing Act rather than under state law. But Section 230 treats federal and state law very differently. Section 230(e) does not contain any language abrogating any federal law claim. Judge Easterbrook acknowledges this critical difference in Doe when he repeatedly notes that Section 230 preempts only state law. Doe, 347 F. 3d at 658­60. In short, the only judge to consider the issue before this Court is the judge in the Roommates.com, who clearly felt constrained by prior Ninth Circuit precedent.
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craigslist rejects Judge Easterbrook's definitional reading of 230(c)(1) on another ground: that 230(c)(1) was intended to preclude only lawsuits by a censored customer. (Def.'s Reply Mem. in Supp. of Mot. 7.) Section 230(c) does not limit the screening immunity to suits brought by censored customers. craigslist's own position is belied later in the same brief (Id. at 12) when it points out that Congress must have intended to preclude parties other than censored customers from suing, as Congress wished to reverse the decision in the Stratton Oakmont case, in which Prodigy screened and was sued, not by a censored customer, but by someone harmed by the display of thirdparty content. Congress could have abrogated contrary federal law but did not do so. Even if Congress had abrogated contrary federal law, Section 3604(c) of the Fair Housing Act would not be abrogated as it is consistent with Section 230(c). Liability under Section 3604(c) does not depend upon whether the printer of the discriminatory advertisement exercised editorial control, and thus liability for third-party content would not discourage on-line printers and publishers from screening. See, e.g., Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972) (Recorder of Deeds could be liable under 3604(c) for recording restrictive covenants); ROBERT G. SCHWEMM, "DISCRIMINATORY HOUSING STATEMENTS AND § 3604(C): A NEW LOOK AT THE FAIR HOUSING ACT'S MOST INTRIGUING PROVISION," 29 Fordham Urban LJ 187 (October 2001). Or, as Judge Easterbrook put it, Section 230 would not preempt a law that requires an ISP to protect third parties, because that law would not be inconsistent with Section 230(c). Doe, 347 F.3d at 660 (". . . 230(e)(3) would not preempt state laws or common law doctrines that induce or require ISPs to protect the interests of third parties, such as the spied on plaintiffs, for such laws would not be `inconsistent with' this understanding of 230(c)(1)."). Section 3604(c) of the Fair Housing Act requires printers and publishers of housing advertisements to protect the interest of third parties, i.e. their readers, who would be stigmatized and dissuaded from seeking housing by discriminatory advertisements. See 42 U.S.C.A. 3604(c) (2001). The FHA is not inconsistent with Section 230(c).
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A Ruling From This Court That Section 230 Immunizes Only Efforts to Screen Offensive Third-Party Content Will Not Discourage the Internet's Growth. Finally, Amici insist that a blanket immunity for third-party content is necessary to

promote robust development of the Internet. That is simply not so. Because Section 230(c) does not limit the effect of criminal law, other online publishers already either screen or face liability for third-party content in advertisements or other text involving prostitution, or the sale of guns and drugs. This choice has not shut down their business or hampered the ferocious development of the Internet. Other websites that advertise housing, such as that owned by the National Association of Realtors, have long ago accepted responsibility for screening discriminatory housing advertisements without adverse effects. (See Ex. 2.) The Fair Housing Act also is distinct from the other theories of publisher liability in the cases cited by Amici and craigslist. The Fair Housing Act is a federal statute, coequal to Section 230. By creating liability for the mere printing or publication of discriminatory housing advertisements, Section 3604(c) of the Fair Housing Act by its terms makes publishers of every type liable for content written by third parties. Or, to use Judge Easterbrook's phraseology, Section 3604(c) of the Fair Housing Act imposes on every publisher the responsibility to look out for third parties. Amici and craigslist also lump together a wide range of very different electronic entities and claim that they will all be affected by this case. An Internet access provider such as Comcast provides a customer with the technology to access the Internet. A web host like GTE (mentioned in the Doe case) provides its customers host services such as storage space on a server. In contrast, craigslist is a website that does something very different. Like a newspaper's classified sections, craigslist is in the business of creating a centralized marketplace for housing providers and consumers to read and post housing advertisements for the purchase, sale and rental of

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housing units. A decision that an entity allowing one to post housing advertisements on its website must comply with the Fair Housing Act will have no impact whatsoever on a company that merely provides the technology to access the Internet.
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On the other hand, a blanket immunity under all federal and state law, whether statutory or common law, for all electronic entities (websites, Internet service providers, web hosts), for all content provided by all third parties, would have very serious consequences. Plaintiff, a nonprofit civil rights organization, has worked for 35 years to educate the public as to the various civil rights laws and to protect women, disabled people, people with children, and people of color from arbitrary discrimination in housing, employment, and public accommodations. A blanket immunity would seriously undercut all of that work and would roll back many important and hard fought federal civil rights protection. Employers who wished to hand pick workers based on gender or race could use craigslist to post anonymous advertisements to do so. The employers would escape liability because they could not be identified; the publisher would also escape liability. Hotels who wish to rent only to white people or only to English speakers could use Internet services to do so, by using an anonymous email address. And, as the advertisements

Even though the Fair Housing Act applies regardless of the cost of compliance, there are cost-effective ways for an entity that allows online housing advertisements to avoid Fair Housing Act liability. For example, craigslist could use a computer program or other "spam filter" to screen for the words or phrases, such as "no kids" and "minority," which HUD has found to be presumptively discriminatory. craigslist could interrupt when a housing provider attempts to use those trigger words and inform the provider with a notice that says: "Your ad may violate the FHA. The FHA prohibits advertisements that indicate a preference or limitation based on race, gender, family status, religion and national origin. Courts have found that advertisements that state `no kids' or `no minorities' violate the FHA. Please rewrite your ad to make it clear that you will accept tenants without regard to race, gender, family status, religion and national origin. Also be informed that this site is monitored by HUD and by fair housing organizations, and if you persist in using these words, you may be sued by these agencies." This computer programmed notice would likely eliminate many, if not nearly all of the illegal advertisements, without any need for manual review. If, however, a housing provider persisted in using the trigger words in an advertisement, craigslist could respond in one of several ways: first, craigslist could manually screen these advertisements and refuse to publish the remaining advertisements (as do other online advertisers). Second, craigslist could refuse to provide the poster with an anonymous email account. The suggestion that craigslist and Amici--some of the most technologically sophisticated and well-heeled companies in the world--are not capable of taking these steps is curious and not believable.

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cited in our Complaint demonstrate--advertisements that blatantly say "no minorities," "African Americans clash with me," and "no kids"--housing providers could base housing decisions on factors long ago made illegal, with no fear of detection or liability.
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Print publishers have effectively screened for discriminatory housing advertisements for nearly 40 years. If craigslist is not willing to accept the same responsibility for screening out blatantly discriminatory advertisements, it should not be in the business of advertising housing. That is the message Congress sent when it passed Section 3604(c) of the Fair Housing Act, which by its terms makes publishers liable for housing notices prepared by third parties. CONCLUSION Amici and craigslist extol Internet freedom as if mention of that value should end all discussion and trump any competing value. Congress long ago decided that our freedom to choose our customers, employees, and tenants on the basis of historically suspect grounds is

Lest this Court think this only a fantasy, Plaintiff attaches discriminatory employment advertisements found from a cursory three-week-long search of craigslist's Chicago site. These advertisements specify gender for positions for which gender is not a bona fide occupational qualification or other legal qualification. (See attached Ex. 3.) The harm caused is immediate because these advertisements mislead readers into thinking that it is acceptable to base housing decisions on illegal criteria. craigslist argues that a law enforcement subpoena would compel it to turn over a landlord's identity. While a website might be compelled to comply with a law enforcement subpoena, it need only produce the information it has, which might not include the name of the person who posted the discriminatory advertisement and which does nothing to make certain that illegal advertisements do not appear in the first place.

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tempered by our fundamental interest in fairness and equality. Based on the careful wording of Section 230, Congress has determined that the Internet should be no different. Respectfully submitted,

/s/ Stephen D. Libowsky Stephen D. Libowsky Wm. Bradford Reynolds Louis A. Crisostomo Howrey LLP 321 North Clark Street, Suite 3400 Chicago, Illinois 60610 [phone] Laurie Wardell Elyssa Balingit Winslow Chicago Lawyers' Committee for Civil Rights Under Law, Inc. 100 North LaSalle Street, Suite 600 Chicago, Illinois 60602 [phone] Attorneys for Plaintiff Chicago Lawyers' Committee for Civil Rights Under Law, Inc. Dated: June 29, 2006

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