“Whites only” only in the past? Discriminatory Advertising in the Online Era

A Tale of Two Statutes: Discriminatory Advertising in the Online Era

If you have moved recently, you probably used the Internet to find available housing.  Websites such as Craigslist and ForRent.com are common housing search tools for prospective renters and buyers, just as newspaper ads were before the Internet age.  These days, while it is less common than it once was to open a paper and see a discriminatory housing advertisement, phrases such as “no kids” or “white neighborhood” abound in online classifieds.

The federal Fair Housing Act (“FHA”) prohibits discrimination in the rental, sale, or financing of housing due to a person’s race, color, national origin, religion, gender, familial status, or disability.  While the FHA contains some exemptions, notably for small landlords and religious groups, its ban on discriminatory housing advertisements applies to all housing providers. The FHA makes it unlawful for anyone to “make, print, or publish, or cause to be made, printed or published any notice, statement or advertisement . . . that indicates any preference” for or against any of the protected classes.

The rationale for the advertising prohibition should be obvious: discriminatory ads foster a culture of intolerance.  

The proliferation of discriminatory housing ads can deter some individuals and families from venturing into neighborhoods of opportunity.  Newspapers are typically liable for discriminatory ads placed by third parties due to the fact that widely-circulated periodicals can magnify the deleterious effect of these ads. Unfortunately, the digital age has turned the intent of the FHA’s prohibition of discriminatory housing ads on its head.  Recent court decisions have interpreted another federal law, the Communications Decency Act of 1996 (“CDA”), to exempt website operators such as Craigslist from liability for discriminatory housing advertisements posted on their websites.  Congress initially passed the CDA to reduce pornography and obscenity on the Internet.  The CDA’s so-called “Good Samaritan” section encourages website operators to actively screen for indecent content, stating 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.”

Prior to the CDA, website operators could be considered “publishers”– and therefore liable for obscene content on their sites—if they took any action to screen or filter content posted by third parties.  The provision was meant to correct a nonsensical situation in which it was safer for operators to refrain from any screening than to screen content and become “publishers” for purposes of liability.  Unfortunately, courts have interpreted the CDA to give a free pass to websites that host discriminatory housing advertisements posted by third parties. In a 2008 Seventh Circuit case, a federal court held that Craiglist was not liable under the Fair Housing Act for ads with language such as “no minorities.”

This interpretation frustrates the spirit of both the CDA and the FHA.  Allowing a website to escape liability for third party content (including discriminatory housing ads) without the website first doing its part to screen offensive material is contrary to the purposes of both laws.  Craigslist and other online classified services should not enjoy the benefits of the CDA when they are not acting as Good Samaritan screeners, and they should not escape liability from the FHA as a result of this ill-gotten benefit.

Discriminatory housing ads may not be pornographic, but they hurt the fabric of society by limiting opportunity.  As many American newspapers go bankrupt and finding an available apartment is as simple as a Craigslist search, Congress and the courts must now recognize that discriminatory internet ads have harmful effects on our communities.

Congress should amend the CDA to exclude immunity for websites that post or allow advertisements that violate the FHA.  Where you live makes all the difference, and ending discriminatory housing ads helps create more equal housing access for us all.

This is a guest post By Rachael Deane and Laura Maughan.  Rachael is a Virginia attorney and director of HOME’s Center for Housing Advocacy.  Laura is a first-year student at the University of Richmond School of Law and is involved with the Harry L. Carrico Center for Pro Bono Service.

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One thought on ““Whites only” only in the past? Discriminatory Advertising in the Online Era

  1. Insightful and daunting post. I’ve said this before, but I believe racism today is in some ways more dangerous than it was 50 years ago. Back then, it was an open enemy. Now, it hides in sheep’s clothing and can be a glass ceiling to anyone not actively looking to protect their fundamental civil liberties.

    Great arguments in this op ed. Thank you for writing this.

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