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Fair Housing Council of San Fernando v.

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Citation Edit

Fair Housing Council of San Fernando Valley v., L.L.C., 489 F.3d 921 (9th Cir. 2007) (full-text), rev'd in part, vacated in part, aff'd in part, 521 F.3d 1157 (9th Cir. 2008) (full-text) (en banc).

Factual Background Edit

Defendant, LLC (“Roommate”) operates a website designed to match people renting out spare rooms with people looking for a place to live. At the time of the trial court's disposition,'s website featured approximately 150,000 active listings and received around a million page views a day. sought to profit by collecting revenue from advertisers and subscribers.

Before subscribers could search listings or post housing opportunities on the's website, they must create a profile, a process that requires them to answer a series of questions. In addition to requesting basic information — such as name, location and email address — requires each subscriber to disclose his sex, sexual orientation and whether he would bring children to a household. Each subscriber must also describe his preferences in roommates with respect to the same three criteria: sex, sexual orientation and whether they will bring children to the household. The site also encourages subscribers to provide “Additional Comments” describing themselves and their desired roommate in an open-ended essay. After a new subscriber completes the application, Roommate assembles his answers into a “profile page.” The profile page displays the subscriber's pseudonym, his description and his preferences, as divulged through answers to's questions.

Subscribers can choose between two levels of service: Those using the site's free service level can create their own personal profile page, search the profiles of others and send personal email messages. They can also receive periodic emails from, informing them of available housing opportunities matching their preferences. Subscribers who pay a monthly fee also gain the ability to read emails from other users, and to view other subscribers' “Additional Comments.”

The Fair Housing Councils of the San Fernando Valley and San Diego (“Councils”) sued in federal court, alleging that's business violates the federal Fair Housing Act (“FHA”), 42 U.S.C. §3601 et seq., and California housing discrimination laws. Councils claimed that is effectively a housing broker doing online what it may not lawfully do off-line.

Trial Court Proceedings Edit

The trial court held that the Communications Decency Act of 1996 (CDA) barred the FHA claim and granted in part's summary judgment motion, holding that Section 230(c) of the CDA made the website immune from FHA violations and declined to exercise supplemental jurisdiction over the state-law claims presented. The trial court reasoned that Section 230(c) immunity is quite expansive, and that in this case was an internet service provider, but was not an information content provider. Therefore, the court found that qualified for Section 230(c) immunity.

Appellate Court Proceedings Edit

The appellate court found to be an information content provider with respect to the information provided by users in answering the questionnaire but not with respect to the "Additional Comments" and remanded for a determination of whether the information in the questionnaire violated the FHA.

It was undisputed that is the provider of an interactive computer service and is therefore immune from suit for publishing information provided by its members but not for publishing information as an information content provider where they are responsible, in whole or in part, for the creation or development of the information. argued that Carafano v. already decided this issue and that a website would not be considered an information content provider when there was no publishing of any content until a user "actively create[d] it."

The Court distinguished that case because, while the website in Carafano v. prompted information from the user, the questions were not aimed at soliciting information about third parties (the misconduct at issue in the case). Here, potentially tortious information was provided as a direct response to's questionnaire. The Appellate Court also found to be more than a passive participant in publishing because they used the answers to their questionnaire to channel the information to other users and republish profiles through email notifications. This "additional layer of information" created a responsibility for "creating or developing" under the Communications Decency Act. The Court did, however, find protected by the CDA for publishing content provided in the "Additional Comments" form because this information was not used in any search features; their "involvement [was] insufficient to make it a content provider."

Rehearing En Banc Edit

The court affirmed the three judge panel’s decision. The court reasoned that was not immune under 230(c) for the questions it asked in its dropdown menus, because the website qualified as an information content provider. By requiring users to answer questions relating to gender and sexual orientation, provided content. Just because the users of are information content providers does not mean that is not also an information content provider.

The appellate court held that CDA immunity did not apply to acts of a website operator in posting the questionnaire and requiring answers to it allegedly in violation of FHA and state laws, and subscribers' status as information content providers regarding sex, family status, and sexual orientation, allegedly in violation of FHA and state housing discrimination laws, did not preclude the website operator from also having the status as an information content provider by helping develop information in profiles at least in part through pre-populated answers.

Further, the appellate court held that CDA immunity did not apply to a website that was designed to force subscribers to divulge protected characteristics and discriminatory preferences and to match those who had rooms with those who were looking for rooms based on criteria that appeared to be prohibited by FHA, CDA immunity applied to “Additional Comments” section of the website, and the website did not become developer of that information, but was not entitled to immunity under the CDA for encouraging subscribers to provide something in “Additional Comments” section in response to a prompt or by providing free-text search that enabled users to find keywords. Last, the appellate court found that the website did not encourage discriminatory preferences in violation of FHA by giving the opportunity for subscribers to describe themselves in the “Additional Comments” section.

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