Scholar argues that a platform liability shield limits protection from housing discrimination.
Section 230 of the Communications Decency Act protects companies, such as Twitter, that publish third-party content on their platforms from liability for unlawful or defamatory content. But one legal scholar argues in a recent article that Section 230’s expansive protection goes too far.
According to G.S. Hans of Cornell Law School, Section 230’s expansive liability protections shield platforms from accountability under the Fair Housing Act (FHA) for discriminatory housing content hosted on their sites. Hans favors carving out a Section 230 exception to combat housing inequities.
Hans explains that the U.S. Congress intended Section 230 to provide platforms broad protection from liability for unlawful user content. Online platforms’ mass scale would otherwise create an immense risk of liability and high content-screening costs for platforms.
Hans notes that many judicial decisions have solidified Section 230’s breadth, as courts have historically ruled in favor of defendants who claim that Section 230 bars claims against them. Courts have also expressed that Section 230’s breadth protects internet users’ freedom of speech from platforms that over-censor content to avoid liability.
Despite its broad protections, Section 230 contains exceptions that allow individuals or authorities to hold platforms liable as publishers of unlawful third-party content. Hans states that these exceptions, for example, allow law enforcement to pursue charges against platforms that host child sexual abuse material.
Section 230 does not contain an exception, though, for civil rights violations, such as violations of the FHA. Hans explains that the FHA is one of the last major 1960s civil rights laws enacted to promote racial equality by combatting housing discrimination.
Section 230 would usually immunize a platform from FHA claims about its user content. But Hans argues that a 2012 case decided by a federal court in California opened the door for FHA violations to break through the statute’s immunity.
In Fair Housing Council of San Fernando Valley v. Roommates.com, a nonprofit sued over violations of FHA’s Section 804(c), which prohibits individuals from publishing discriminatory housing advertisements that indicate preferences against protected categories such as race, sex, or familial status. The nonprofit pointed to a questionnaire that Roommates.com mandated users fill out, which requested preferences about these protected categories, Hans explains. Roommates.com responded that Section 230’s protections barred the FHA claim.
The court ultimately held that Section 230 did not bar an FHA claim because Roommates.com had induced users to provide discriminatory content.
Hans argues against this interpretation of Section 230. He notes that it should not matter whether a website induced discriminatory housing material or just allowed it to be distributed. An FHA claim would apply, after all, to printed material regardless of whether a publisher induced it.
Hans contends that, since Section 230 protects only online content, a newspaper publishing a printed discriminatory advertisement would be liable under FHA, whereas a website posting of the same content would not. By making the internet an area of the housing market that the FHA cannot regulate, Hans argues, Section 230 creates a digital safe harbor for housing inequity.
Hans acknowledges that Section 230’s broad protections are necessary to encourage companies to create new platforms without the fear of litigation. He argues, however, that there are ways to protect FHA’s values while maintaining Section 230.
One of Hans’s proposed solutions is to codify the Roommates.com holding into Section 230 itself, thus explicitly making platform design decisions that violate FHA unprotected by Section 230. He notes that this solution is in line with Section 230’s policy goals, but he identifies a problem: If a platform did not contribute to creating discriminatory advertisements, Section 804(c) would still be unenforceable. Hans suggests that platforms would likely avoid this liability by not contributing to the creation of any advertisements. As a result, discriminatory advertisements would continue to exist on their platforms, unregulated.
For Hans, the best solution would be for Congress to amend Section 230’s list of exempted statues by adding Section 804(c) of the FHA to the existing exemptions for federal crimes. This amendment would eliminate the issue of Section 804(c) creating publisher liability while Section 230 immunizes platforms from publisher liability.
Hans acknowledges that it may be costly to implement this solution because it would likely require platforms to prescreen content for FHA violations or create an automated review process. But the cost, he argues, is worthwhile to advance civil rights.
Ultimately, Hans expresses the importance of considering the civil rights laws that Section 230 overrides and how Section 230 consequently adversely affects racial justice. He suggests that it will only be possible to reach housing equity by taking housing discrimination out of Section 230’s protective orbit.