NEAL CONAN, host:
Looking for an apartment or room with three or less, cool, straight, laid-back people. Looking for Christian female roommate. Those are just a couple of classified ads taken from the housing section of Craig's List, ads you would not see in a printed newspaper. That's because newspapers subscribe to laws that forbid excluding possible tenants on the basis of race, gender, religion, or other protected categories.
The Chicago lawyers committee for several rights, under the law, thinks the same rules should apply to the internet. This week they filed a lawsuit against Craig's list, claiming violations of the federal fair housing act.
Do you agree? Should online advertising abide by the same laws that govern print? Give us a call, 800-989-8255, or email us, email@example.com.
Joining us now by phone from Pasadena is Michael Overing, an adjunct professor at the University of Southern California who specializes in internet law. Thanks very much for being with us today.
Professor MICHAEL OVERING (Law, University of Southern California): Thanks, nice to be here.
CONAN: Tell us a little bit about this case.
Professor OVERING: Well, basically what they are alleging is that Craig's List is allowing these advertisements which then become an opportunity to advertise for particular racial groups, or religious groups, not to apply to housing. And, under the federal Fair Housing Act, from 1968, discrimination in housing is prohibited, and it's one of those things that's pernicious and we don't want to see people's civil rights being abridged in housing.
CONAN: And I think, in their argument, the Chicago lawyers Committee for Civil Rights under the law said, basically, you can now evade the law by just advertising on the internet.
Professor OVERING: Well, it's an interesting issue because what they're saying is that Craig's List knows that this is occurring on their classified advertising, and that, as a consequence of them knowing about it, they should have some responsibility in making sure this doesn't happen. It would be more like a regular print newspaper then, say, an internet service provider.
CONAN: Well, at this point, I don't really know the internal operations of newspapers either, but I can't imagine that the electronic transfer of a classified ad is given a great deal more scrutiny in a newspaper than it is in Craig's List.
Professor OVERING: Well there's a big issue here about whether or not this is something that is part of their editorial policy and whether or not Craig's List is actually policing the advertisements that it accepts. If you go down to your normal newspaper and you fill out the form, they're going to read through it and they're going to make a decision about whether or not to accept your ad.
CONAN: And also going to count the letters to know how much to charge you.
Professor OVERING: Yeah, exactly. And the difference here is that on Craig's List the user is off-site, and just fills out the form and it goes up and there is very little editorial control. And the courts have taken the position that the more editorial control you exert, the more they are going to hold you responsible for what's in the advertising.
CONAN: We're talking about classified ads, Fair Housing Act, and the internet. You're listening to TALK OF THE NATION, from NPR News.
Is there any precedent to cover this?
Professor OVERING: Well, there's a considerable amount of precedent of the Fair Housing Act, applying to prevent discrimination, and we read that Act very expansively. The courts do everything they can to safeguard individuals' rights.
In the case of an online communication, if you're an internet service provider, and it's merely transitory distribution of someone else's content, there's immunity under the Communications Decency Act. And, as a consequence of that, ordinarily, you would expect that there would be no liability.
CONAN: Mm-hmm. Has that been tested in court?
Professor OVERING: That has been tested in court, you've probably heard a couple of these cases: there was the Zaren case, which came out of Oklahoma against America Online, where a man's telephone number was being broadcast and he wasn't part of the political issue, which was the Oklahoma bombings, but he received a lot of hate phone calls, and so he sued AOL. They found there that AOL was not responsible under the CDA. And, similarly, in the Drudge vs. Bloomenthal, an AOL case, they also found that...
CONAN: That would be Matt Drudge and Sydney Bloomenthal?
Professor OVERING: Exactly. And, there as well, they found that the exemption provisions from, based on the Communications Decency Act, it's transitory in nature, it's somebody else's content, you're not responsible for it if it's just merely being distributed by you. The question is editorial control, and if Craig's List is spending time going through these online classifieds and making decisions about what can and cannot be posted, chances are they're going to be held responsible.
CONAN: Let's get a caller on the line. Todd, Todd calling from San Francisco.
TODD (Caller): Yes, my biggest question is, I use Craig's List often, and it's an online bulletin board. I mean, there are aspects of it that charge for advertising, I know, but if I need a roommate and to make a posting they don't charge me anything. It's part of our community. And I don't really see the difference between this and the board that's down on the town square.
CONAN: Well, we'll ask the Professor in jut a minute. But Todd, should you be allowed to ask for a roommate and say, No blacks need apply?
TODD: I'm not advertising. I'm posting something in my community. I'm not paying anybody, I'm not engaging in any form of commerce whatsoever. I have a home that I want to find a roommate to live with me with. That's just my own personal preference.
CONAN: Michael Overing?
Professor OVERING: Well, the answer to your question is a little bit different if you're looking for a roommate, because the Fair Housing Act is pretty clear that if you're talking about bringing someone into to your home, to share your living space, you can discriminate as much as you want to, because you're exempted. And that's the way that the Fair Housing Act works, it works by exemption.
Everybody is covered. You can't discriminate unless you fall within an exempted category. In the case of bringing someone into your personal house, you're probably right. You can make decisions about who you decide to live there and who you decide should not. But as soon as you get into a situation where you have, like, three rental properties, or you've got a quad-plex, you can't do that. The federal law is very clear about this, and no, you don't get to make the decisions based upon race, or religion, or sexual preference.
CONAN: And does the commercial aspect of it, not paying for an ad, it's not an ad, it's a listing, does that make any difference?
Professor OVERING: The commercial aspect of accepting money for the advertisement is not very much of a concern here. What is a concern is whether or not Craig's List is exercising editorial control. Are they policing these advertisements? And if they are, they're probably going to be held to what's required in the FHA.
Now, there's a question about whether or not the individual advertisers on Craig's List fall within one of the exempted categories. So, if I were advertising somebody to be my roommate, am I only doing that within the size of my apartment, and that's the only area? In which case I might be exempted, and Craig's List would have no responsibility? Or do I own a dozen apartment buildings, and therefore it's an obligation to stay within the law?
CONAN: Todd, thanks for the call.
TODD: Thank you.
CONAN: And, let me ask another question, which is not about how the law applies now, but about the possibility of future laws. If this is used as a way to evade the Fair Housing Act, it's entirely possible that, even if Craig's List and the courts say they're not responsible, Congress will draft a law to say, yes you are responsible, as of now.
Professor OVERING: Well that's a very real possibility, although I think that Congress recognizes that there's a lot of transitory communication and we do not want to get too close to the First Amendment on this one with the respect to the internet.
Starting in 1996 with the Commerce Department survey on the internet, and the decision to recommend to Congress that there be a hands-off position, that was adopted wholeheartedly by the Clinton Administration, and so far through the Bush Administration. They have kind of taken that, although there's some eroding of that with respect to the obscenity issues coming out of the Pennsylvania case on...
CONAN: But wouldn't racial segregation or discrimination be, you know, an opened case for vulnerability, if you would?
Professor OVERING: I think it absolutely is. And I think the thing that's real interesting about this particular case is that, if there is a pattern here, and a pattern of a website going through and allowing this sort of hate message to be out there, I think Congress has a pretty easy case in front of it to make to the American public that we shouldn't allow that type of racial hatred.
The problem is going to come...
CONAN: And, very quickly.
Professor OVERING: The problem is going to come though with respect to the number of units that you're offering.
CONAN: All right. Michael Overing, thanks very much. We appreciate your time and we appreciate your wrapping it up that quickly.
Professor OVERING: All right. Thank you.
CONAN: Michael Overing, an adjunct professor at the University of Southern California joined us from his office in Pasadena, California. This is TALK OF THE NATION from NPR News. I'm Neal Conan, in Washington.
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