How the decision is good for Section 230

Earlier today the Ninth Circuit, en banc, issued its opinion in the case of Fair Housing Council of San Fernando Valley, et al v., LLC. It is a long and detailed opinion, authored by Judge Kozinski, and as characterized by my friend Michael Erdman, leaves largely unprotected by immunity under 47 U.S.C. 230. To learn everything you need to know about the majority opinion without actually reading the case, read Michael’s post here. There’s no need for me to duplicate efforts in summarizing the case, as there’s little I could add in that regard.

This case is pretty big news in Internet law circles, and more than one person has asked me today what my take on it is. I actually don’t have much to say about whether the Ninth Circuit got the legal analysis right. They probably did. Judge Kozinski and his colleagues in the majority are brighter hungover than I am at full stride, so I’m in no real position to critique their analysis. Instead, my take on the case is a pragmatic, and I shudder to say, a political one.

I hope you’ve taken my suggestion and read Erdman’s summary of the case before getting to this point in this post, because you need to know what the facts are. The subject matter dealt allegations of violation of the fair housing laws. That’s a touchy issue, involving race, religion, sexual orientation, family status, etc. Smart people don’t touch those kinds of issues with a ten foot pole.

Had the Ninth Circuit ruled in’s favor, think about the ways that outcome could have been spun. Imagine, shall we say, a “progressive” Congressman standing up in Washington and saying, hey, with this Section 230 scheme, we give a license to Web site operators to run hate mills, build up bastions of bigotry, and sanctuaries for racism. In short, a victory could have given a battalion’s worth of ammunition — in the form of emotional, irrational rhetoric — to Section 230’s critics. Some in Congress would have called for its head.

This didn’t dawn on me until the other day when I was talking with a very liberal colleague. He knew nothing of Section 230 other than what I had explained to him in the previous five minutes (including a mention of the 3-judge panel decision), and he said something to the effect of, “wow, when it starts touching on issues like fair housing, Congress is bound to step in and not give the Web sites a free ride.”

So maybe you see where I’m going with this. Whether it’s right or wrong from a legal analysis standpoint, today’s decision stands for the proposition that online systems alleged to facilitate the violation of some touchy rights don’t always get a free ride.

The real irony, and for me the “take” on the case, is that although Section 230 immunity appears to be diminished a bit by the decision (look at how few circuit court opinions there are where the defendant lost), the defense loss is really a bullet dodged. By declining to hold that Section 230 provided immunity, the Court kept Section 230’s neck off the political chopping block. What a tragedy it would be, indeed, for political issues to cause our Congress to roll back a provision that has been so integral to the development of the Internets.


  1. The decision in Roommates calls into question the two previous 9th Circuit cases interpreting s. 230: Carafano and Batzel. The Roommates opinion mentions the conflict with Carafano (the court retreats from that holding as overly broad). Batzel involved a guy who received a defamatory email from a handyman, edited it, and sent it out on his email listserv. In that case, the 9th Circuit held the guy was not an “original content provider” under 230. What is not clear is how the court distinguishes creating a drop-down box for users to select from (in Roommates) makes a service provider an “original content provider” but selecting, editing, and retransmitting an email (in Batzel) does not. It is also interesting the Roommates court reaches to the 7th Circuit for support. The 7th Circuit is the only jurisdiction to have disapproved of the Zeran opinion, which got the ball started on service provider immunity in the first place (the 7th has questioned whether 230 provides any immunity at all). Roommates is a bizarre opinion and there will be fallout.

  2. But maybe there will eventually be a public backlash against the sort of political correctness that insists on applying anti-discrimination laws to people seeking roommates in their private houses. What's next; discrimination lawsuits over whom people choose to date, marry, or become friends with?

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