In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1101
CHICAGO LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
UNDER LAW, INC.,
Plaintiff-Appellant,
v.
CRAIGSLIST, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 657—Amy J. St. Eve, Judge.
____________
ARGUED FEBRUARY 15, 2008—DECIDED MARCH 14, 2008
____________
Before EASTERBROOK, Chief Judge, and WOOD and EVANS,
Circuit Judges.
EASTERBROOK, Chief Judge. Section 804(a) of the Fair
Housing Act forbids discrimination on account of race,
religion, sex, or family status when selling or renting
housing. 42 U.S.C. §3604(a). This prohibition is accompa-
nied by a ban on ads that state a preference with respect
to any of the protected classes. It is illegal
[t]o make, print, or publish, or cause to be made,
printed, or published any notice, statement, or
2 No. 07-1101
advertisement, with respect to the sale or rental of
a dwelling that indicates any preference, limitation,
or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin, or
an intention to make any such preference, limita-
tion, or discrimination.
42 U.S.C. §3604(c). The Chicago Lawyers’ Committee for
Civil Rights Under Law, on behalf of its members, con-
tends in this suit that craigslist, which provides an elec-
tronic meeting place for those who want to buy, sell, or
rent housing (and many other goods and services), is
violating this statute.
Some notices on craigslist proclaim “NO MINORITIES”
and “No children”, along with multiple variations, bald
or subtle. Many who offer housing for sale or rent satisfy
42 U.S.C. §3603(b)(1), which exempts “any single-family
house sold or rented by an owner . . . [who] does not own
more than three such single-family houses”. Although
this exemption does not take single-family homes out-
side the scope of §3604(c), any rule that forbids truthful
advertising of a transaction that would be substantively
lawful encounters serious problems under the first amend-
ment. See, e.g., Greater New Orleans Broadcasting Ass’n, Inc.
v. United States, 527 U.S. 173 (1999); Rubin v. Coors Brewing
Co., 514 U.S. 476 (1995); Bolger v. Youngs Drug Products
Corp., 463 U.S. 60 (1983); Virginia Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
But lots of notices posted on craigslist concern apartment
buildings, condominiums, and single-family homes
owned by someone who has a portfolio of four or more
rental properties. Section 3604(c) applies to these ads
without constitutional cavil. Courts regularly enforce the
statute against newspapers and other publishers. See, e.g.,
No. 07-1101 3
United States v. Hunter, 459 F.2d 205, 211–12 (4th Cir. 1972);
Mayers v. Ridley, 465 F.2d 630, 633 (D.C. Cir. 1972); cf. Ragin
v. New York Times Co., 923 F.2d 995 (2d Cir. 1991).
Online services are in some respects like the classified
pages of newspapers, but in others they operate like
common carriers such as telephone services, which are
unaffected by §3604(c) because they neither make nor
publish any discriminatory advertisement, text message,
or conversation that may pass over their networks. Ditto
courier services such as FedEx and UPS, which do not
read the documents inside packages and do not make or
publish any of the customers’ material. Web sites are not
common carriers, but screening, though lawful, is hard.
Simple filters along the lines of “postings may not contain
the words ‘white’ ” can’t work. Statements such as “red
brick house with white trim” do not violate any law,
and prospective buyers and renters would be worse off
if craigslist blocked descriptive statements.
An online service could hire a staff to vet the postings,
but that would be expensive and may well be futile: if
postings had to be reviewed before being put online,
long delay could make the service much less useful, and
if the vetting came only after the material was online the
buyers and sellers might already have made their deals.
Every month more than 30 million notices are posted to the
craigslist system. Fewer than 30 people, all based in
California, operate the system, which offers classifieds
and forums for 450 cities. It would be necessary to increase
that staff (and the expense that users must bear) sub-
stantially to conduct the sort of editorial review that the
Lawyers’ Committee demands—and even then errors
would be frequent.
One of the ads to which the Lawyers’ Committee objects
contains the phrase “Catholic Church and beautiful
4 No. 07-1101
Buddhist Temple within one block”. The Committee sees
this as a signal of religious preference; craigslist sees it as
a description of the neighborhood, helping people zero
in on properties most attractive to their preferences and
no more implying exclusion than “elementary school
within five minutes’ walk” implies that the landlord
won’t rent to childless couples. Automated filters and
human reviewers may be equally poor at sifting good
from bad postings unless the discrimination is blatant;
both false positives and false negatives are inevitable.
According to craigslist, the effort is unnecessary. It relies
on 47 U.S.C. §230(c), a part of the Communications De-
cency Act of 1996. This subsection provides:
Protection for “Good Samaritan” blocking and
screening of offensive material.
(1) Treatment of publisher or speaker. No pro-
vider or user of an interactive computer service
shall be treated as the publisher or speaker of any
information provided by another information
content provider.
(2) Civil liability. No provider or user of an inter-
active computer service shall be held liable on
account of—(A) any action voluntarily taken in
good faith to restrict access to or availability of
material that the provider or user considers to
be obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally
protected; or (B) any action taken to enable or make
available to information content providers or
others the technical means to restrict access to
material described in paragraph (1).
No. 07-1101 5
As craigslist understands this statute, §230(c)(1) provides
“broad immunity from liability for unlawful third-party
content.” That view has support in other circuits. See Zeran
v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Ben Ezra,
Weinstein & Co. v. America Online, Inc., 206 F.3d 980 (10th
Cir. 2000); Green v. America Online, 318 F.3d 465 (3d Cir.
2003); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Univer-
sal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413
(1st Cir. 2007). We have questioned whether §230(a)(1)
creates any form of “immunity,” see Doe v. GTE Corp., 347
F.3d 655 (7th Cir. 2003), and the Lawyers’ Committee takes
Doe as its cue. The caption of subsection (c) as a whole
refers to “blocking and screening”; the Lawyers’ Commit-
tee insists that unless an information content provider uses
some form of filtering (a brief way to refer to “blocking and
screening”), all of §230(c) is irrelevant.
Neither side’s argument finds much support in the
statutory text. Subsection (c)(1) does not mention “immu-
nity” or any synonym. Our opinion in Doe explains
why §230(c) as a whole cannot be understood as a gen-
eral prohibition of civil liability for web-site operators
and other online content hosts:
Section 230(c)(2) tackles this problem [of potential
liability for hosting pornographic pictures] not
with a sword but with a safety net. A web host that
does filter out offensive material is not liable to the
censored customer. Removing the risk of civil
liability may induce web hosts and other infor-
mational intermediaries to take more care to pro-
tect the privacy and sensibilities of third parties.
The district court held that subsection (c)(1),
though phrased as a definition rather than as an
immunity, also blocks civil liability when web
6 No. 07-1101
hosts and other Internet service providers (ISPs)
refrain from filtering or censoring the information
on their sites. . . .
If this reading is sound, then §230(c) as a whole
makes ISPs indifferent to the content of informa-
tion they host or transmit: whether they do (sub-
section (c)(2)) or do not (subsection (c)(1)) take
precautions, there is no liability under either
state or federal law. As precautions are costly,
not only in direct outlay but also in lost revenue
from the filtered customers, ISPs may be expected
to take the do-nothing option and enjoy immunity
under §230(c)(1). Yet §230(c)—which is, recall,
part of the “Communications Decency Act”—bears
the title “Protection for ‘Good Samaritan’ blocking
and screening of offensive material”, hardly an
apt description if its principal effect is to induce
ISPs to do nothing about the distribution of inde-
cent and offensive materials via their services.
Why should a law designed to eliminate ISPs’
liability to the creators of offensive material end up
defeating claims by the victims of tortious or
criminal conduct?
True, a statute’s caption must yield to its text when
the two conflict, see Trainmen v. Baltimore &
Ohio R.R., 331 U.S. 519, 528–29 (1947), but whether
there is a conflict is the question on the table. Why
not read §230(c)(1) as a definitional clause rather
than as an immunity from liability, and thus
harmonize the text with the caption? See Carlisle v.
United States, 517 U.S. 416, 421 (1996). On this
reading, an entity would remain a “provider or
user”—and thus be eligible for the immunity
No. 07-1101 7
under §230(c)(2)—as long as the information came
from someone else; but it would become a “pub-
lisher or speaker” and lose the benefit of §230(c)(2)
if it created the objectionable information. The
difference between this reading and the district
court’s is that §230(c)(2) never requires ISPs to
filter offensive content, and thus §230(e)(3) would
not preempt state laws or common-law doctrines
that induce or require ISPs to protect the inter-
ests of third parties, . . . for such laws would
not be “inconsistent with” this understanding of
§230(c)(1). There is yet another possibility: perhaps
§230(c)(1) forecloses any liability that depends on
deeming the ISP a “publisher”—defamation law
would be a good example of such liability—while
permitting the states to regulate ISPs in their
capacity as intermediaries.
347 F.3d at 659–60 (emphasis in original). To appreciate
the limited role of §230(c)(1), remember that “informa-
tion content providers” may be liable for contributory
infringement if their system is designed to help people
steal music or other material in copyright. See Metro-
Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913
(2005); In re Aimster Copyright Litigation, 334 F.3d 643
(7th Cir. 2003). Grokster is incompatible with treating
§230(c)(1) as a grant of comprehensive immunity from
civil liability for content provided by a third party.
While craigslist wants to expand §230(c)(1) beyond its
language, the Lawyers’ Committee proposes to limit its
scope to screening under subsection (c)(2). Yet subsec-
tion (c)(2) does not deal with the liability of speakers
and publishers, the subject of subsection (c)(1). We read
each to do exactly what it says. So did the district court. A
8 No. 07-1101
natural reading of §230(a)(1) in conjunction with §3604(c)
led that court to grant summary judgment for craigslist.
461 F. Supp. 2d 681 (N.D. Ill. 2006).
What §230(c)(1) says is that an online information
system must not “be treated as the publisher or speaker
of any information provided by” someone else. Yet only
in a capacity as publisher could craigslist be liable under
§3604(c). It is not the author of the ads and could not be
treated as the “speaker” of the posters’ words, given
§230(a)(1). The Lawyers’ Committee responds that “noth-
ing in §230’s text or history suggests that Congress
meant to immunize an ISP from liability under the Fair
Housing Act. In fact, Congress did not even remotely
contemplate discriminatory housing advertisements
when it passed §230.” That’s true enough, but the reason
a legislature writes a general statute is to avoid any need
to traipse through the United States Code and consider
all potential sources of liability, one at a time. The question
is not whether Congress gave any thought to the Fair
Housing Act, but whether it excluded §3604(c) from the
reach of §230(c)(1). Cf. Regional Rail Reorganization Act
Cases, 419 U.S. 102, 126–27 (1974) (Congress need not
think about a subject for a law to affect it; effect of general
rules continues unless limited by superseding enactments).
Section 230(c)(1) is general. Although the impetus for
the enactment of §230(c) as a whole was a court’s opinion
holding an information content provider liable, as a
publisher, because it had exercised some selectivity
with respect to the sexually oriented material it would
host for customers, a law’s scope often differs from its
genesis. Once the legislative process gets rolling, interest
groups seek (and often obtain) other provisions.
Congress could have written something like: “No
provider or user of an interactive computer service shall
No. 07-1101 9
be treated as the publisher or speaker of any sexually
oriented material provided by another information con-
tent provider.” That is not, however, what it enacted.
Where the phrase “sexually oriented material” appears
in our rephrasing, the actual statute has the word “infor-
mation.” That covers ads for housing, auctions of paint-
ings that may have been stolen by Nazis, biting comments
about steroids in baseball, efforts to verify the truth of
politicians’ promises, and everything else that third
parties may post on a web site; “information” is the stock
in trade of online service providers.
Almost in passing, the Lawyers’ Committee insists that
craigslist can be liable as one who “cause[d] to be made,
printed, or published any [discriminatory] notice, state-
ment, or advertisement”. Doubtless craigslist plays a
causal role in the sense that no one could post a discrim-
inatory ad if craigslist did not offer a forum. That is not,
however, a useful definition of cause. One might as
well say that people who save money “cause” bank rob-
bery, because if there were no banks there could be no bank
robberies. An interactive computer service “causes”
postings only in the sense of providing a place where
people can post. Causation in a statute such as §3604(c)
must refer to causing a particular statement to be made, or
perhaps the discriminatory content of a statement. That’s
the sense in which a non-publisher can cause a discrimina-
tory ad, while one who causes the forbidden content may
not be a publisher. Nothing in the service craigslist offers
induces anyone to post any particular listing or express a
preference for discrimination; for example, craigslist does
not offer a lower price to people who include discrimina-
tory statements in their postings. If craigslist “causes” the
discriminatory notices, then so do phone companies and
courier services (and, for that matter, the firms that make
10 No. 07-1101
the computers and software that owners use to post their
notices online), yet no one could think that Microsoft and
Dell are liable for “causing” discriminatory advertisements.
Using the remarkably candid postings on craigslist,
the Lawyers’ Committee can identify many targets to
investigate. It can dispatch testers and collect damages
from any landlord or owner who engages in discrimina-
tion. See Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982); Gladstone, Realtors v. Bellwood, 441 U.S. 91 (1979).
It can assemble a list of names to send to the Attorney
General for prosecution. But given §230(c)(1) it cannot
sue the messenger just because the message reveals a
third party’s plan to engage in unlawful discrimination.
AFFIRMED
USCA-02-C-0072—3-14-08