The Internet is for discrimination: practical difficulties and theoretical hurdles facing the Fair Housing Act online.

• Author: Wholey, Matthew T.

Everyone's a little bit racist, it's true. But everyone is just about as racist as you! (1) The song Everyone's a Little Bit Racist from the popular Broadway musical Avenue Q proclaims, axiomatically, that "[e]veryone makes judgments ... based on race.... [n]ot big judgments, like who to hire or who to buy a newspaper from ... just little judgments like thinking that Mexican busboys should learn to speak ... English!" (2) It teaches a troubling lesson that, despite superficial equality of opportunity, structural racism remains embedded in our society. The show takes a farcical view of the dilemma, and it proposes a solution: "If we all could just admit that we are racist a little bit, and everyone stopped being so P.C., maybe we could live in--harmony!" (3)

The comedic song likely does not purport to make a serious policy statement addressing American racism; nonetheless, the message it sends is problematic. The song suggests that, instead of refraining from making racist jokes and using racial epithets, we should embrace such language. Racist speech, however, harms society both in a rhetorical sense, through discourse, and in economic terms by paralyzing--or at least stifling--a significant number of marketplace players. Hate speech in general, however, is not the focus of this Note. Rather, this Note specifically addresses the conflict between the Fair Housing Act (4) and the Communications Decency Act, (5) as well as other problems facing enforcement of the Fair Housing Act's advertising provision (6) in the context of online housing forums--an otherwise logical place to apply that provision.

In passing Title VIII of the Civil Rights Act of 1968, better known as the Fair Housing Act or the FHA, (7) Congress aimed to combat one facet of the rampant racial discrimination that characterized the post-World War II era. (8) Housing discrimination took the forms of racial steering, "blockbusting," racially motivated zoning laws, outfight refusals to rent, sell, or buy properties based on racial bias, as well as unfair financing practices, such as neighborhood and racial redlining. (9) Beyond the obvious aim of ending invidious discrimination, Congress hoped to further the goal of eliminating racial ghettos in favor of "truly integrated and balanced" communities. (10)

In light of Congress's integration goal, an especially important provision of the FHA is the prohibition against discriminatory advertising. (11) Discriminatory advertisements are problematic, both in housing and in other contexts, (12) because they engender dual injuries. First, using discriminatory advertising causes indignity similar to that resulting from a denial based on race. Second, and more importantly, expressing bias and intolerance in media outlets furthers the discrimination that the FHA is meant to prevent by creating an intolerant space. Moreover, because the media serves an important community-building function in addition to its function as an information disseminator, the FHA's advertising prohibition is integral to achieving Congress's goal of encouraging integrated communities. (13)

That important provision is in some danger of losing its teeth, and perhaps slowly being eviscerated, on account of an unexpected and seemingly unrelated statute--the Communications Decency Act of 1996 ("CDA"). (14) The CDA provides, among other things, that "no 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." (15) This provision has been interpreted to broadly immunize providers of interactive computer services--Internet/Online Service Providers ("ISPs" and "OSPs"), (16) Web hosts, and the like--against actions in which traditional media could be held liable. (17) State and federal courts have held ISPs immune from suit in cases involving state law tort actions (18) as well as state and federal statutory causes of action. (19) The sweeping immunity courts have interpreted the CDA to provide to most recoverable defendants, whose content and conduct would otherwise be actionable, coupled with the increasing use of online housing forums for purposes of locating roommates and potential renters of property, (20) may create an online "safe haven" for housing discrimination. (21) Such immunity for ISPs, combined with the fact that individual users are generally either anonymous or non-recoverable, is likely to result in real injury with no adequate means of redress. (22)

While the actual merits of FHA claims against interactive service providers based on online housing advertisements may be in doubt, (23) the broad immunity provided to ISPs by the CDA is still problematic. While it is not one of the FHA's explicit purposes, (24) the advertising provision has collateral importance as a prophylaxis against the use of communication tools for building racist and otherwise intolerant communities. (25) That forums calling themselves "classifieds" (26) exist that are untouchable using the FHA may allow for the construction of a semi-chaotic, racist and otherwise intolerant online community. Moreover, given the fact that Craigslist alone registers over twenty billion page views per month, (27) the same indignity injuries that would be actionable under the FHA if perpetrated by advertisers using the New York Times likely occur many times daily in the online forum. (28)

This Note argues that the Communications Decency Act's immunity provision for ISPs against claims under the FHA's advertising provision not only creates a "safe haven" (29) for discriminatory housing advertising and practices but also engenders an online community in which intolerant and destabilizing language has a palpable effect in furthering illegal activity and defeating the positive community-building aspects of the FHA's advertising provision. This Note further argues that the use of discursive analysis in this context would be helpful for redrafting the Fair Housing Act so that FHA claims against recoverable defendants, such as Craigslist, Roommates.com, and others, may be viable. (30)

Part I discusses the congressional purposes in enacting the Fair Housing Act and the Communications Decency Act, and examines whether the two Acts are at cross purposes. Part II analyzes the merits of an FHA claim based on discriminatory advertisements posted to Craigslist-like forums, and entertains the notion that, despite so much commentary about saving the FHA from obsolescence in an online world, a claim against a company operating as Craigslist does may substantively lack merit. Part HI will first apply community-building theories to communication over the Internet and will then address how application of these theories supports the need for the viability of FHA claims in the "Craigslist" context. Finally, Part IV addresses other proposals to save the FHA in cyberspace and concludes that, while amending the CDA may be the most obvious "quick-fix" to this problem, only an amendment to the FHA itself will assure that claims against Web hosts like Craigslist can survive a motion to dismiss.

1. THE COMMUNICATIONS DECENCY ACT IN CONFLICT WITH THE FAIR HOUSING ACT

   In the era of Craigslist and Roommates.com, a huge amount of communication in the form of "notice[s], statement[s].... [and] advertisement[s]" (31) regarding the sale or rental of housing passes over the Internet. (32) With the immunity provided under the Communications Decency Act, (33) unless the companies operating these Web sites affirmatively involve themselves in the production of the discriminatory content, (34) the companies will be free to create forums wherein the activity specifically proscribed by the Fair Housing Act may be done with relative impunity. (35)

   1. The Fair Housing Act

      1. Enactment, Purposes, and Provisions

         The Fair Housing Act had its genesis in a proposal by President Lyndon B. Johnson in 1966 that urged Congress to pass further expansions of civil fights legislation. (36) The House passed an amended version of the President's proposal in 1966. (37) In August 1967, debate began on Senator Walter Mondale's proposal, S. 1358, which would successfully become fair housing legislation (38) as the Fair Housing Act. (39) S. 1358 put forward an ambitious plan that would eventually cover all available housing in the United States. The law would have approached the problem of unfair housing "in three stages," applying those standards "first to all federally-assisted housing; then to all multi-unit housing, and finally to all single-family residences." (40) The bill faced strong opposition from southerners and conservatives, who presented several arguments against it: the tired one for the inalienability of property rights; a slightly more plausible argument that the bill amounted to "forced housing" legislation, coercing white individuals to live in proximity with minorities; and, of course, arguments that respect for states' rights precluded this form of federal legislation. (41) Of course, as Mondale's bill moved forward in the Senate, it took on amendments limiting its scope. (42) Although the FHA was ultimately more limited than supporters initially hoped, the organization and tenacity of Senate liberals, the release of the Kerner Commission Report, ("Kerner Report"), and likely the assassination of Martin Luther King, Jr. would push Senator Mondale's bill into law. (43)

         Supporters of the Fair Housing Act identified, not only the broad policy goals of integration and cross-racial understanding as factors favoring the Act, but also the practical concern that militants--both black separatists and white racists--might exploit racial misunderstandings to incite racially motivated violence. (44) The Kerner Report proved helpful because it demonstrated a practical need for the legislation beyond the "mere" rhetoric of substantive equality--that is, combating race riots and public outrage. (45) In order to...