Section 804(c) of the Fair Housing Act makes it illegal “to make, print, or publish, or to cause to be made, printed, or published, any notice or statement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination on the basis of race, color, religion, national origin, sex, disability or familial status.” The Fair Housing Act is not limited to a particular media. If an advertisement for housing contains language that indicates a discriminatory preference or limitation on the prohibited basis, both the person who posted the advertisement on the Website and the Website that publishes the advertisement may be in violation of section 804(c) of the Fair Housing Act.
Below is a list of FAQs drafted by the Lawyers' Committee for Civil Rights Under Law that explains the legal and practical reason for the litigation and the negative impact of these ads on the fight against discrimination.
Frequently Asked Questions
Why are these ads harmful?
Discriminatory ads stigmatize and discourage people in protected groups from seeking housing and from filing discrimination complaints. These ads also mislead readers into thinking that it is normal and acceptable to base housing decisions on such protected statuses as race, gender, national origin, religion, and family status (when in fact it is against the law to base housing decisions on any of these factors). In addition, when there are many discriminatory ads in certain neighborhoods, these ads can effectively remove entire neighborhoods from a home-seeker’s consideration. Publication of these ads on the internet amplifies the harm many times over, as it allows millions of people to see each discriminatory ad.
Some of the ads seem innocent–for example, isn’t it OK to describe the neighborhood an apartment is in?
The ads mentioned in the lawsuit range from the universally shocking-- like “no minorities,” and “African Americans clash with me”--to unequivocally illegal but less shocking ads like “no kids”-- to ads that may seem innocuous, like “kosher deli around corner.” Even the ads that seem innocuous convey the message that certain tenants will be preferred over others. We have learned as a fair housing organization that even subtle ads discourage people from applying for housing, as people do not want to live where they perceive that are not wanted.
Congress, when it wrote the Fair Housing Act, recognized the harm of even seemingly innocuous ads, and wrote the prohibition on discriminatory ads very broadly. Ads that indicate a preference or limitation based on any of the protected categories are illegal. The courts have held that, if an ordinary reader of a protected class would be discouraged from applying, the ad is illegal.
Can Craigslist afford to screen for discriminatory ads? Won’t it fundamentally change the internet if electronic defendants have to screen ads for content?
Craigslist likely already does this sort of screening in order to screen out ads that offer illegal substances for sale. We are simply asking Craigslist to also screen their housing ads.
We believe that screening housing ads for discriminatory content can be done with minimal cost and disruption. Current HUD guidelines specify a list of words which indicate the federally protected classes (e.g., race, national origin, gender, religion, family status), use of which would likely violate the Fair Housing Act. Because there are clear guidelines as to what words or phrases violate the Fair Housing Act, we believe that electronic defendants can use existing filtering technology to screen housing listings, with very little need for subsequent review by Craigslist staff.
Isn’t Craigslist a common carrier, like the phone company?
Unlike a telephone company, Craigslist does more than just provide the technology to access the internet. Craigslist creates a centralized marketplace in which housing providers and consumers can read and post housing ads. Craigslist specifically targets these services towards housing, as does the classified section of a print newspaper.
But what about the first amendment and freedom of speech?
Discriminatory housing ads are commercial speech. The courts have said that commercial speech is entitled to First Amendment protection only if the speech concerns lawful activity and is not misleading. Discriminatory advertisements do not concern lawful activity; these ads facilitate the unlawful denial of housing based on race, national origin, religion, gender, and family status. Housing discrimination is illegal under both federal law, state law, and local laws.
Discriminatory ads are misleading because they mistakenly inform readers that it is lawful to deny housing because of race, gender, religion, national origin, and family status, but the law requires that housing be available to these people without regard to their status.
Moreover, for over 30 years print media have screened their classified ads for discriminatory content. Just because Craigslist publishes these ads on a computer screen rather than on paper does not mean that Craigslist should be treated differently. Indeed, if the Fair Housing Act’s prohibition on discriminatory ads is to have any teeth, it must apply to electronic publishers, as housing ads are going on-line.
Isn't Craigslist a community-based website that performs a free service?
Craigslist is a for-profit business and is a profitable business. Fortune magazine recently reported that the privately held Craigslist had revenues in 2005 of 20 million dollars. E-Bay currently owns a 25% stake in the company. According to Investor’s Business Daily, Craigslist is the most popular Internet classified site in the country, with more than 87 million unique visitors a month. While some of the services that they offer are free, this should not exempt them from following the law.
Aren’t many of the ads cited in your lawsuit ads for shared housing? Aren’t these housing providers exempt from the Fair Housing Act?
Very few of the ads mentioned in the lawsuit are for shared housing. In any event, the federal Fair Housing Act prohibits all housing providers–even those who are looking for a roommate–from making discriminatory statements.
Why didn’t you flag the discriminatory ads?
The Fair Housing Act does not require the public to police ads and nicely ask violators to fix or delete their discriminatory ads. Also, many home seekers respond very quickly to internet housing ads, and a housing opportunity may pass before the public has a chance to flag a discriminatory ad.
The most effective and efficient way to clear the marketplace of these discriminatory ads is for publishers to accept their responsibility to screen for discriminatory ads and to effectively communicate to their users that they cannot post these discriminatory ads.
Are you going after the people who posted the ads?
Yes. In addition to filing against Craigslist, we have filed and will continue to file complaints against housing providers sellers who use Craigslist to post discriminatory housing ads. Unfortunately, because of the nature of Craigslist, many individuals who post discriminatory ads are anonymous, further frustrating our ability to promote fair and open housing.
Craigslist allows users to flag objectionable ads–why is not that sufficient?
We found over 200 ads since July 2005, while the Craigslist flagging system was in place. These ads include very overtly discriminatory ads, such as “no minorities,” “ladies only,” “christians only” and “no kids.” So the flagging system does not work.
Craigslist does not remove discriminatory ads until multiple users have flagged it down–which never happens with respect to many discriminatory ads. We have also found that, when one discriminatory ad is flagged down, another often pops up to take its place. Moreover, when an ad is flagged down, Craigslist tells the housing provider to feel free to re-post. In any event, Craigslist cannot shift their responsibility to publish only nondiscriminatory ads to its users.
Why should Craigslist be held liable when all they do is publish ads written by others?
The Fair Housing Act explicitly imposes liability on publishers of discriminatory ads created by third parties. Congress took this step in recognition that it is the publication of these notices which magnifies their harmful effect. Keep in mind that print newspapers have been held accountable for publication of discriminatory ads for many years–if internet publishers are not also held accountable, housing providers who wish to discriminate will simply shift their business to the internet.
Doesn’t the Communications Decency Act immunize electronic publishers from liability for content written by someone else?
Our position is that the Communication Decency Act (“CDA”) does not immunize electronic publishers from Fair Housing Act claims. As evidenced by the title of the CDA, "protection for Good Samaritan blocking and screening of offensive material," Congress intended to encourage websites and electronic media to screen and block offensive material. A blanket immunity for a website that does no screening would actually discourage websites from screening and blocking, since screening will result in fewer customers.
