Fair Housing Council v. roommates.com, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FAIR HOUSING COUNCIL OF SAN 
FERNANDO VALLEY; THE FAIR
HOUSING COUNCIL OF SAN DIEGO,
No. 04-56916
individually and on behalf of the
GENERAL PUBLIC,
Plaintiffs-Appellants,
 D.C. No.
CV-03-09386-PA
v.
ROOMMATES.COM, LLC,
Defendant-Appellee.


FAIR HOUSING COUNCIL OF SAN 
FERNANDO VALLEY; THE FAIR
HOUSING COUNCIL OF SAN DIEGO,
No. 04-57173
individually and on behalf of the
GENERAL PUBLIC,
Plaintiffs-Appellees,
 D.C. No.
CV-03-09386-PA
v. OPINION
ROOMMATE.COM, LLC,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
December 5, 2006—Pasadena, California
Filed May 15, 2007
Before: Stephen Reinhardt, Alex Kozinski and
Sandra S. Ikuta, Circuit Judges.
5709
5710 FAIR HOUSING COUNCIL v. ROOMMATE.COM
Opinion by Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Reinhardt;
Concurrence by Judge Ikuta
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5713
COUNSEL

Gary Rhoades, Rhoades & Al-Mansour, Los Angeles, Califor-
nia; Michael Evans, Costa Mesa, California; and Christopher
Brancart, Brancart & Brancart, Pescadero, California, for the
plaintiffs-appellants.

Timothy L. Alger, Lesley E. Williams and Steven B. Stiglitz,
Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Ange-
les, California, for the defendant-appellee.

Patrick J. Carome, Samir Jain and C. Colin Rushing, Wilmer
Cutler Pickering Hale & Dorr, LLP, Washington, D.C., as
amici curiae in support of the defendant-appellee.

OPINION

KOZINSKI, Circuit Judge:

We consider the scope of immunity accorded to an online
roommate matching service by the Communications Decency
Act (“CDA”), 47 U.S.C. § 230(c).

Facts

The Internet has opened new channels of communication
and self-expression. See Lev Grossman, Time’s Person of the
Year: You, TIME MAG., Dec. 13, 2006-Jan. 1, 2007, at 38, 40-
41. Countless individuals use message boards, date matching
sites, interactive social networks, blog hosting services and
video sharing websites to make themselves and their ideas
visible to the world.1 While such intermediaries enable the
user-driven digital age, they also create new legal problems.
1
Confirming perhaps Andy Warhol’s prediction that everyone would
eventually enjoy a trillion or so nanoseconds of fame.
5714 FAIR HOUSING COUNCIL v. ROOMMATE.COM
This case involves one such intermediary, Roommate.com,
LLC (“Roommate”), which operates an online roommate
matching website at www.roommates.com. This website
helps individuals find roommates based on their descriptions
of themselves and their roommate preferences. Room-
mates.com has approximately 150,000 active listings and
receives about a million page views per day.

To become members of Roommate, users respond to a
series of online questionnaires by choosing from answers in
drop-down and select-a-box menus. Users must disclose
information about themselves and their roommate preferences
based on such characteristics as age, sex and whether children
will live in the household. They can then provide “Additional
Comments” through an open-ended essay prompt.

Roommate’s free membership allows users to create per-
sonal profiles, search lists of compatible roommates and send
“roommail” messages to other members. Roommate also
sends email newsletters to members seeking housing, listing
compatible members who have places to rent out. Room-
mate’s fee-based membership allows users to read their
“roommail” and view the “Additional Comments” essays of
other members.

The Fair Housing Councils of San Fernando Valley and
San Diego (“the Councils”) filed suit in federal district court,
claiming that Roommate violated the Fair Housing Act
(“FHA”) and various state laws. The district court held that
the Communications Decency Act barred the Councils’ FHA
claim. As a result, the court granted, in part, Roommate’s
summary judgment motion and entered judgment in Room-
mate’s favor on the FHA claim. The district court then
declined to exercise supplemental jurisdiction over the state-
law claims and dismissed them. It also denied Roommate’s
motion for attorneys’ fees and costs. The Councils now appeal
the dismissal of their FHA claim and Roommate cross-
appeals the denial of fees and costs.
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5715
Analysis

[1] According to the CDA, “[n]o provider . . . of an interac-
tive computer service shall be treated as the publisher or
speaker of any information provided by another information
content provider.” 47 U.S.C. § 230(c). One of Congress’s
goals in adopting this provision was to encourage “the unfet-
tered and unregulated development of free speech on the
Internet.” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir.
2003) (citing 47 U.S.C. § 230(a)(3)-(4), (b)(1)-(2)).2

[2] The touchstone of section 230(c) is that providers of
interactive computer services are immune from liability for
content created by third parties.3 The immunity applies to a
defendant who is the “provider . . . of an interactive computer
service” and is being sued “as the publisher or speaker of any
information provided by” someone else. 47 U.S.C. § 230(c).
“[R]eviewing courts have treated § 230(c) immunity as quite
robust.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,
1123 (9th Cir. 2003).

[3] The Councils do not dispute that Roommate is a pro-
vider of an interactive computer service.4 As such, Roommate
is immune so long as it merely publishes information pro-
2
Congress also wanted to allow interactive computer services to regu-
late their own content without subjecting themselves to liability. Batzel,
333 F.3d at 1028 (citing 47 U.S.C. § 230(b)(4)); see also n.5 infra.
3
The CDA also provides immunity in such circumstances for users of
interactive services, but because our case does not involve a claim against
users, we have no occasion to consider the scope of this immunity. We
therefore omit all references to user immunity when quoting the statutory
text.
4
The CDA defines “interactive computer service” as “any information
service, system, or access software provider that provides or enables com-
puter access by multiple users to a computer server.” 47 U.S.C.
§ 230(f)(2); see also Carafano v. Metrosplash.com, Inc., 207 F. Supp. 2d
1055, 1065-66 (C.D. Cal. 2002) (date matching website is an “interactive
computer service”), aff’d, 339 F.3d 1119 (9th Cir. 2003).
5716 FAIR HOUSING COUNCIL v. ROOMMATE.COM
vided by its members. Batzel, 333 F.3d at 1031. However,
Roommate is not immune for publishing materials as to which
it is an “information content provider.” A content provider is
“any person or entity that is responsible, in whole or in part,
for the creation or development of information provided
through the Internet.” 47 U.S.C. § 230(f)(3) (emphasis
added). In other words, if Roommate passively publishes
information provided by others, the CDA protects it from lia-
bility that would otherwise attach under state or federal law
as a result of such publication.5 But if it is responsible, in
whole or in part, for creating or developing the information,
it becomes a content provider and is not entitled to CDA
immunity. As we explained in Carafano, “an ‘interactive
computer service’ qualifies for immunity so long as it does
not also function as an ‘information content provider’ for the
portion of the statement or publication at issue.” 339 F.3d at
1123.

The Councils claim Roommate violates the FHA in three
ways: (1) it posts the questionnaires on its website and
requires individuals who want to take advantage of its ser-
vices to complete them; (2) it posts and distributes by email
its members’ profiles; and (3) it posts the information its
members provide on the “Additional Comments” form. For
all three categories, the question is whether Roommate is “re-
sponsible, in whole or in part, for the creation or development
of [the] information.” 47 U.S.C. § 230(c), (f)(3); see also Bat-
zel, 333 F.3d at 1031.

1. As previously explained, in order to become members of
Roommate and take advantage of the services it offers, indi-
5
As we discuss below, a provider of an interactive computer service
does not lose its CDA immunity if it merely exercises some control over
the posting of information provided by others, such as enforcement of
rules as to appropriate content or minor editing. See n.6 infra. Nor does
it generally lose its immunity if it simply facilitates expression of informa-
tion by individuals. See pp. 5719-22 infra.
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5717
viduals must complete a series of questionnaires. Individuals
looking for a room must first complete a form about them-
selves. They must use a drop-down menu to identify them-
selves as either “Male” or “Female” and to disclose whether
“Children will be present” or “Children will not be present.”
Individuals looking to rent out a room must complete a simi-
lar form. They must use a check-box menu to indicate
whether “Straight male(s),” “Gay male(s),” “Straight female-
(s),” and/or “Lesbian(s)” now live in the household, and a
drop-down menu to disclose if there are “Children present” or
“Children not present.” If users fail to provide answers to any
of these questions, they cannot complete the membership reg-
istration process.

In addition to completing one of the two forms described
above, all prospective members must fill out the “My Room-
mate Preferences” form. They must use a drop-down menu to
indicate whether they are willing to live with “Straight or
gay” males, only “Straight” males, only “Gay” males, or “No
males,” or may choose to select a blank response. Users must
make comparable selections for females. They must also
declare “I will live with children,” “I will not live with chil-
dren” or change the field to a blank.6
6
When users select the option “I will not live with children,” Roommate
publishes this response as “no children please.” The Councils argue that
this alteration makes Roommate a content provider and therefore not
immune under the CDA for publishing this statement. However, minor
editing that does not affect meaning is protected under the CDA as the
“usual prerogative of publishers.” See Batzel, 333 F.3d at 1031 (publisher
of a newsletter protected under the CDA for making minor editing
changes to user-submitted content). Because “no children please” is mate-
rially the same as “I will not live with children,” Roommate does not lose
its CDA immunity because of the change in wording. On the other hand,
the Councils allege that Roommate takes members’ blank selection in the
children field and publishes it as “no children please.” We could not find
support for this proposition in the record, but if Councils’ allegation is
true, then Roommate significantly alters the meaning of the information
provided by its members and is not entitled to CDA immunity for posting
the resulting content.
5718 FAIR HOUSING COUNCIL v. ROOMMATE.COM
[4] As we previously explained, an entity cannot qualify for
CDA immunity when it is “responsible, in whole or in part,
for the creation or development of [the] information” at issue.
47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at 1031.
Roommate is “responsible” for these questionnaires because
it “creat[ed] or develop[ed]” the forms and answer choices.
As a result, Roommate is a content provider of these question-
naires and does not qualify for CDA immunity for their publi-
cation.

Roommate objects that simply asking questions cannot vio-
late the FHA. Yet the Councils advance two theories under
which publication of these forms arguably does violate the
FHA. First, the Councils argue that asking users to provide
information about themselves and their roommate preferences
is a “statement . . . with respect to the sale or rental of a dwell-
ing that indicates . . . an intention to make [a] preference, lim-
itation or discrimination.” See 42 U.S.C. § 3604(c) (emphasis
added); see, e.g., Jancik v. Dep’t of Hous. & Urban Dev., 44
F.3d 553, 557 (7th Cir. 1995); Soules v. Dep’t of Hous. &
Urban Dev., 967 F.2d 817, 824 (2d Cir. 1992).7 Second, the
Councils claim that requiring members to answer questions
that enable other members to discriminate for or against them
violates the FHA by “caus[ing]” users “to [make] . . . any . . .
statement . . . with respect to the sale or rental of a dwelling
that indicates any preference, limitation, or discrimination.”
42 U.S.C. § 3604(c) (emphasis added).

[5] At this stage, we are only concerned with whether
Roommate is immune from liability under the CDA, not
7
Although Amici Amazon.com, Inc., America Online, Inc., Ebay Inc.,
Google Inc., Tribune Company, Yahoo! Inc., Netchoice and United States
Internet Service Provider Association support Roommate in this appeal,
they acknowledge that “if there were a circumstance in which the content
of questions posed by an online intermediary—in isolation, and entirely
independent of any user’s answers or any third-party’s use of the questions
or users’ answers—was itself unlawful, then section 230 might not protect
the intermediary from a cause of action based solely on the questions.”
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5719
whether it actually violated the FHA. We describe the Coun-
cils’ FHA theories only to show that the mere asking of ques-
tions might, indeed, violate the FHA. It will be up to the
district court on remand to decide initially whether Roommate
violated the FHA by publishing its form questionnaires.8

2. We now turn to the more difficult question of whether
the CDA exempts Roommate from liability for publishing and
distributing its members’ profiles, which it generates from
their answers to the form questionnaires.

Roommate strongly urges that Carafano settles the issue. In
Carafano, an unidentified prankster placed a fraudulent per-
sonal ad on a date matching website. 339 F.3d at 1121. This
imposter created a profile for Carafano, an actress, listing her
real phone number and address. The ad claimed that Carafano
was looking for “a one-night stand” with a controlling man.
Id. We held that the CDA exempted the service from liability
for two reasons.

[6] First, the dating service was not an “information content
provider” for the profiles on its website. Although the website
required users to complete detailed questionnaires consisting
of both multiple choice and essay questions that provided
“structure and content” and a “menu of ‘pre-prepared
responses,’ ” these forms merely “facilitated the expression of
information by individual users.” Id. at 1124-25 (internal quo-
8
Roommate also argues that we should not consider the Councils’ FHA
liability theories based on the questionnaires because these arguments
were not properly raised below. However, we are reviewing only the dis-
trict court’s grant of summary judgment on CDA grounds and remanding
the FHA claim for resolution by the district court. In any event, the Coun-
cils, in their First Amended Complaint, cited to the FHA, 42 U.S.C.
§ 3604(c), and alleged that Roommate “encourages” users to state discrim-
inatory preferences. This is more than enough under our liberal notice
pleading rule. See Johnson v. Barker, 799 F.2d 1396, 1401 (9th Cir. 1986)
(“Under federal notice pleading, appellants are allowed to vary their the-
ory to conform to proof presented.”).
5720 FAIR HOUSING COUNCIL v. ROOMMATE.COM
tation marks omitted). We concluded that the service could
not “be considered an ‘information content provider’ under
the [CDA] because no profile ha[d] any content until a user
actively create[d] it.” Id. at 1124. Second, even if the dating
service could be considered a content provider for publishing
its customers’ profiles, it was exempt from liability because
it did not “create[ ] or develop[ ] the particular information at
issue.” Id. at 1125. The anonymous user entered Carafano’s
phone number, address and fabricated sexual proclivities, and
his entries were “transmitted unaltered to profile viewers.” Id.
The service was not a content provider of the offending infor-
mation because it “did not play a significant role in creating,
developing or ‘transforming’ ” it. Id.

Carafano differs from our case in at least one significant
respect: The prankster in Carafano provided information that
was not solicited by the operator of the website. The website
sought information about the individual posting the informa-
tion, not about unwitting third parties. Nothing in the ques-
tions the dating service asked suggested, encouraged or
solicited posting the profile of another person, and the web-
site’s policies prohibited altogether the posting of last names
and contact information. Id. at 1121. While Carafano is writ-
ten in broad terms, it must be read in light of its facts. Cara-
fano provided CDA immunity for information posted by a
third party that was not, in any sense, created or developed by
the website operator—indeed, that was provided despite the
website’s rules and policies. Id. We are not convinced that
Carafano would control in a situation where defamatory, pri-
vate or otherwise tortious or unlawful information was pro-
vided by users in direct response to questions and prompts
from the operator of the website.

Imagine, for example, www.harrassthem.com with the slo-
gan “Don’t Get Mad, Get Even.” A visitor to this website
would be encouraged to provide private, sensitive and/or
defamatory information about others—all to be posted online
for a fee. To post the information, the individual would be
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5721
invited to answer questions about the target’s name,
addresses, phone numbers, social security number, credit
cards, bank accounts, mother’s maiden name, sexual orienta-
tion, drinking habits and the like. In addition, the website
would encourage the poster to provide dirt on the victim, with
instructions that the information need not be confirmed, but
could be based on rumor, conjecture or fabrication.

It is not clear to us that the operator of this hypothetical
website would be protected by the logic of Carafano. The
date match website in Carafano had no involvement in the
creation and development of the defamatory and private infor-
mation; the hypothetical operator of harrassthem.com would.
By providing a forum designed to publish sensitive and
defamatory information, and suggesting the type of informa-
tion that might be disclosed to best harass and endanger the
targets, this website operator might well be held responsible
for creating and developing the tortious information. Cara-
fano did not consider whether the CDA protected such web-
sites, and we do not read that opinion as granting CDA
immunity to those who actively encourage, solicit and profit
from the tortious and unlawful communications of others.

[7] While mapping the outer limits of Carafano’s protec-
tion of websites that solicit and post users’ responses is an
interesting and difficult task, we need not undertake it today
because Roommate does more than merely publish informa-
tion it solicits from its members. Roommate also channels the
information based on members’ answers to various questions,
as well as the answers of other members. Thus, Roommate
allows members to search only the profiles of members with
compatible preferences. For example, a female room-seeker
who is living with a child can only search profiles of room-
providers who have indicated they are willing to live with
women and children. Roommate also sends room-seekers
email notifications that exclude listings incompatible with
their profiles. Thus, Roommate will not notify our female
5722 FAIR HOUSING COUNCIL v. ROOMMATE.COM
about room-providers who say they will not live with women
or children.

[8] While Roommate provides a useful service, its search
mechanism and email notifications mean that it is neither a
passive pass-through of information provided by others nor
merely a facilitator of expression by individuals. By catego-
rizing, channeling and limiting the distribution of users’ pro-
files, Roommate provides an additional layer of information
that it is “responsible” at least “in part” for creating or devel-
oping. 47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at
1031. Whether these actions ultimately violate the FHA is a
question the district court must decide in the first instance.9

3. Finally, we consider whether the CDA exempts Room-
mate from liability for publishing the content its members
provide in the “Additional Comments” portion of their pro-
files. Members provide this information by filling in a blank
text box. Next to this box, Roommate advises users that “[w]e
strongly recommend taking a moment to personalize your
profile by writing a paragraph or two describing yourself and
what you are looking for in a roommate.” The responses to
this query produce the most provocative and revealing infor-
mation in many users’ profiles. Some state that they “Pref[er]
white Male roommates,” while others declare that they are
“NOT looking for black muslims.” Some don’t want to deal
with annoyances such as “drugs, kids or animals” or “smok-
ers, kids or druggies,” while others want to stay away from
“psychos or anyone on mental medication.” More friendly
9
Roommate does not ask questions about race, nor does it categorize or
channel the information based on racial preferences. Yet, the logic of its
position—that it is protected by the CDA for its activities because they are
based on answers from its members—would protect it (or one of its com-
petitors), if it did. Thus, if a hypothetical website required members to
identify themselves by race, under Roommate’s logic, the CDA would
protect this site if it prevented members who listed themselves as
“African-American” or “Asian” from viewing any “Whites Only” listings.
We doubt this is what Congress had in mind when it passed the CDA.
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5723
folks are just looking for someone who will get along with
their significant other10 or their most significant Other.11

[9] We conclude that Roommate’s involvement is insuffi-
cient to make it a content provider of these comments. Room-
mate’s open-ended question suggests no particular
information that is to be provided by members; Roommate
certainly does not prompt, encourage or solicit any of the
inflammatory information provided by some of its members.
Nor does Roommate use the information in the “Additional
Comments” section to limit or channel access to listings.
Roommate is therefore not “responsible, in whole or in part,
for the creation or development of” its users’ answers to the
open-ended “Additional Comments” form, and is immune
from liability for publishing these responses. 47 U.S.C.
§ 230(c), (f)(3); see also Batzel, 333 F.3d at 1031.

* * *

Having determined that the CDA does not immunize
Roommate for all of the content on its website and in its email
newsletters, we remand for a determination of whether its
non-immune publication and distribution of information vio-
lates the FHA, 42 U.S.C. § 3604(c). We also vacate the dis-
missal of the state law claims so that the district court may
reconsider whether to exercise its supplemental jurisdiction in
light of our ruling on the federal claims. Fredenburg v. Con-
tra Costa County Dep’t of Health Servs., 172 F.3d 1176, 1183
(9th Cir. 1999). We deny Roommate’s cross-appeal for attor-
neys’ fees and costs; as the Councils prevail on some of their
arguments here, their case is perforce not frivolous.
10
“The female we are looking for hopefully wont [sic] mind having a
little sexual incounter [sic] with my boyfriend and I [very sic].”
11
“We are 3 Christian females who Love our Lord Jesus Christ . . . . We
have weekly bible studies and bi-weekly times of fellowship.”
5724 FAIR HOUSING COUNCIL v. ROOMMATE.COM
REVERSED in part and REMANDED.

REINHARDT, Circuit Judge, concurring in part and dissent-
ing in part:

I join Judge Kozinski’s opinion for the court, except for its
holding that the Communications Decency Act (the “Act”),
47 U.S.C. § 230(c), immunizes Roommate from liability with
respect to the statements contained in the “Additional Com-
ments” section of users’ profiles, some of which expressly
state the preferences of landlords for tenants based on race,1
religion,2 gender,3 sexual orientation,4 and national origin.5 I
would hold instead that none of the information that the Fair
Housing Councils of San Fernando Valley and San Diego
(“Councils”) challenge satisfies the test for § 230(c) immu-
nity.

Roommate cannot receive § 230(c) immunity for publish-
ing information in the “Additional Comments,” if it is “re-
sponsible . . . in part, for the . . . creation or development of
1
A member with the profile name “BLKMAIL4U” states that “The per-
son applying for the room MUST be a BLACK GAY MALE.” (emphasis
added).
2
A member with the profile name “sassy1lady” states that “This is a
Christian home and we are looking for a Christian female to rent a down-
stairs room.” (emphasis added).
3
A member with the profile name “mrtoy2001” states that “I am looking
for sex starved women who are wanting to get that funny familiar forgot-
ten feeling all over again. The better I can make you feel, the better I feel.
I don’t know about you but I am ready to feel real good. My goal is to
PLEASE YOU.” (emphasis added).
4
A member with the profile name “happyheart” states that “I am look-
ing for a neat freak, christian, non smoking, straight, friendly female to
share an apartment with. I am all of the above.” (emphasis added).
5
A member with the profile name “bala” states that “I am looking for
asian/spanish persons to share the apartment.” (emphasis added).
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5725
information.” § 230(c), (f)(3); see also Batzel v. Smith, 333
F.3d 1018, 1031 (9th Cir. 2003). The court’s opinion here sets
forth two independent tests to determine whether Roommate,
an interactive computer service, is responsible in part for cre-
ating or developing information under § 230(c): first, whether
Roommate categorizes, channels and limits the distribution of
information, thereby creating another layer of information,
Op. at 5721-22, 5723; and second, whether Roommate
actively prompts, encourages, or solicits the unlawful infor-
mation. Id. at 5720, 5723. Meeting either test results in a com-
puter service’s inability to obtain § 230(c) immunity. Unlike
Judge Kozinski, I would hold that Roommate’s conduct with
respect to statements in the “Additional Comments” satisfies
both tests, and, thus, that Roommate is not immune for pub-
lishing that information.

I. Because Roommate Categorizes, Channels, and Limits
Complete User Profiles, Which Include the Statements
in the “Additional Comments,” Roommate is Respon-
sible for Creating or Developing the Information

The court’s opinion draws a distinction between (1) the
statements in the “Household” and “Preferences” portions of
users’ profiles, which consist of users’ responses to specific
questions about their identities and preferences for tenants on
the basis of gender, familial status, and sexual orientation, and
(2) the statements in the “Additional Comments” portion of
the profiles, which consist of users’ free-form responses, and
which in many instances contain preferences based on race,
religion, and national origin, and in others expand upon the
answers with respect to the preferences listed in the preceding
portion of the profiles. It holds that Roommate is not immune
for statements in the earlier portions but it is for statements in
the “Additional Comments” portion. Op. at 5722-23.

While I agree with Judge Kozinski’s reasons for rejecting
immunity for statements in the “Household” and “Prefer-
ences” portions — that “[b]y categorizing, channeling and
5726 FAIR HOUSING COUNCIL v. ROOMMATE.COM
limiting the distribution of users’ profiles, Roommate pro-
vides an additional layer of information that it is ‘responsible’
at least ‘in part’ for creating or developing,” Op. at 5722 (cita-
tions omitted), — I would hold that this principle applies to
statements in the “Additional Comments” portion as well. I
would do so because the “Additional Comments” portion is
an integral part of the entire “users’ profiles,” which Room-
mate categoriz[es], channel[s] and limit[s] [in] distribution.”
Id.

Roommate does not display the different portions of a
user’s profile in distinct e-mails or web pages, but instead
aggregates an entire profile and presents it as a whole. Thus,
when Roommate “provides an additional layer of informa-
tion” by channeling the completed “user profiles,” id., that
additional layer of information includes the “Additional Com-
ments” section with the various responses. Accordingly,
Roommate should not be afforded immunity for any of the
statements contained in the profile. In other words, the infor-
mation that we should examine for the purpose of § 230(c)
immunity should be the entire profile presented in the single
e-mail or web page, including all of the statements therein.
There is no justification for slicing and dicing into separate
parts the material that Roommate elicits and then channels as
an integral part of one package of information to the particular
customers to whom it selectively distributes that package.

This view is supported by Batzel, in which we stated that
to “meet[ ] the definition of ‘information content provider’ [in
§ 230(f)(3)] with respect to the information in question,” the
“pertinent question” is whether the interactive computer ser-
vice “can also be considered to have ‘creat[ed]’ or
‘develop[ed]’ [the] e-mail message forwarded to the listserv.”
333 F.3d at 1031 (emphasis added). Critically, we considered
the “information in question” to be the entire “e-mail mes-
sage,” and not merely selected sentences in the e-mail which
the plaintiff had identified as defamatory. Similarly, here, the
“information in question” is the entire e-mail or web page,
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5727
i.e., the complete profile. By channeling, categorizing and
limiting distribution of the complete profile to the particular
members who qualify to receive it, Roommate is responsible
in part for creating and developing the entire profile.

Because I conclude that the first test for determining
whether Roommate is responsible in part for creating or
developing the information is satisfied with respect to the
entire user profile, including the statements in the “Additional
Comments,” I would hold that Roommate cannot receive
§ 230(c) immunity for those statements.6

II. Because Roommate Encourages, Solicits and Prompts
its Users to Make Discriminatory Statements in the
“Additional Comments” it is Responsible for Creat-
ing or Developing Those Statements

I would also hold that under the court’s second test Room-
mate similarly lacks § 230(c) immunity for the statements
contained in the “Additional Comments.” Contrary to the con-
clusion in Judge Kozinski’s opinion that Roommate “does not
prompt, encourage or solicit any of the inflammatory informa-
tion provided by some of its members” in the “Additional
Comments” portion of their profiles, the record amply demon-
strates that it does. Op. at 5723.

On the final page of the sign-up process in which prospec-
tive users create their profiles, Roommate’s site states, “We
strongly recommend taking a moment to personalize your
6
I disagree with the court’s conclusion that “Roommate’s involvement
is insufficient to make it a content provider” of the information in the “Ad-
ditional Comments” portion of the profiles because Roommate does not
“use the information in the ‘Additional Comments’ section to limit or
channel access to listings.” Op. at 5723. If Roommate is responsible even
in part for creating or developing the entire profile, as Judge Kozinski’s
opinion makes clear, it is irrelevant that Roommate uses only the state-
ments in the “Preferences” and “Household” portions to guide its categori-
zation decisions.
5728 FAIR HOUSING COUNCIL v. ROOMMATE.COM
profile by writing a paragraph or two describing yourself and
what you are looking for in a roommate” directly above a
blank box. This page immediately follows the “My Room-
mate Preferences” form, which explicitly asks members to
provide their preferences based on gender, sexual orientation
and familial status. Judge Kozinski concludes that the “open-
ended” recommendation on the “Additional Comments” page
“suggests no particular information that is to be provided by
members.” Op. at 5722. However, when viewed in the context
of the entire sign-up process that conveys the message to pro-
spective users that they should express their preferences for
tenants based on race, gender, sexual orientation, national ori-
gin and religion, ordinary users would understand the recom-
mendation to constitute a suggestion to expand upon the
discriminatory preferences that they have already listed and to
list their additional discriminatory preferences in that portion
of the profile.

This conclusion finds both subjective and objective support
in the record. From a subjective perspective, Roommate’s site
is designed so that users will express illicit preferences in
their “Additional Comments.” The executive who created the
site acknowledges that he intended that users would express
preferences in their profiles that can only be mentioned in the
“Additional Comments” portion, such as religion. See Decla-
ration of Bryan Peters (“Some Roommate.com users have
religious beliefs that impact their selection of roommates.
Many are Christians . . . . By referencing these beliefs in their
profiles, users avoid the need to contact and interview dozens
of incompatible people.”).

Turning to the objective evidence of Roommate’s solicita-
tion, the best evidence of how users perceive the web site gen-
erally and the “Additional Comments” section specifically, is
the myriad discriminatory statements that users have written
in that section. The statements in notes 1 through 5, such as
“The person applying for the room MUST be a BLACK GAY
MALE,” and the others relating to religious, racial, and gen-
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5729
der preferences, are representative of the numerous “Addi-
tional Comments” expressing such preferences. Additionally,
the web site displays testimonials that suggest to potential
users that they are free to obtain “suitable” tenants by listing
discriminatory preferences — preferences that can only be set
forth in the “Additional Comments.” The site also invites pro-
spective users to preview its search mechanism, thereby
exposing them to user profiles that prominently display “nick-
names” such as Christianldy, Chinesegirl, Whiteboy73, afri-
canboy, Latinagirl, gaycouple, blackbarbie. By having its
search mechanism display these nicknames to prospective
users, Roommate suggests that it is desirable, as well as per-
missible, to use the profiles to achieve discriminatory goals.
The site even displays a sample of a completed profile —
linked from the front page — that includes a discriminatory
preference in the first sentence of the “Additional Comments”
section, illustrating how users may express similar prefer-
ences in their own profiles. Finally, by placing the “Addi-
tional Comments” form directly after the forms in which users
must express their “identities,” and in which they are asked to
state their preferences with respect to gender, sexual orienta-
tion and familial status, the site strongly suggests that the
“strong recommend[ation]” to “describ[e] yourself and what
you are looking for in a roommate” is in essence an invitation
to elaborate on discriminatory preferences already listed and
to list others such as race, religion, or national origin.

In light of the objective and subjective evidence that Room-
mate solicits users to set forth discriminatory requirements in
their “Additional Comments,” I conclude that Roommate is
not immune under § 230(c), and, at the very least, there is a
genuine dispute of material fact as to this question. Accord-
ingly, in no event is partial summary judgment in favor of
Roommate appropriate.
5730 FAIR HOUSING COUNCIL v. ROOMMATE.COM
IKUTA, Circuit Judge, concurring in part:

I concur in sections one and three of the majority opinion
and its holding, but write separately to express my disagree-
ment with section two.

Section 230(f)(3) defines “information content provider” as
“any person or entity that is responsible, in whole or in part,
for the creation or development of information provided
through the Internet or any other interactive computer ser-
vice.” 47 U.S.C. § 230(f)(3). Although “[s]ection 230 does
not preclude joint liability for the joint development of con-
tent,” the present case does not require us to determine what
types of conduct would make a website operator a joint infor-
mation content provider. Blumenthal v. Drudge, 992 F. Supp.
44, 50 (D.D.C. 1998) (holding that AOL was immune from
suit under the CDA, despite contracting with, and promoting
the activities of, a gossip columnist and rumor monger, in the
absence of evidence that AOL “had some role in writing or
editing the material” in the gossip column). Therefore, there
is no need for the majority’s discussion of this issue. Indeed,
the majority agrees that its tentative considerations in section
two regarding “the outer limits of Carafano’s protection of
websites” represents a task that we “need not under-
take . . . today.” In light of this acknowledgment, the majori-
ty’s thoughts are unnecessary and not intended to bind future
courts.

Moreover, I disagree with the direction the majority is
heading in section two when it explores a possible interpreta-
tion of “information content provider.” We have previously
rejected expansive interpretations of this phrase and have
explicitly held that a website operator does not become an
information content provider by soliciting a particular type of
information or by selecting, editing, or republishing such
information.

For example, in Carafano v. Metrosplash.com, Inc., we
rejected a district court’s determination that Matchmaker’s
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5731
role in soliciting specific information made it an information
content provider and not entitled to CDA immunity under sec-
tion 230(c). 339 F.3d 1119, 1124 (9th Cir. 2003) aff’g on
other grounds 207 F. Supp. 2d 1055 (C.D. Cal. 2002). The
district court noted that Matchmaker had solicited responses
to a questionnaire with “sexually charged” multiple-choice
questions and answers such as “Finally, why did you
call?. . . Scouting out for swinging couples . . . Looking for a
one-night stand.” 207 F. Supp. 2d at 1060, 1066. The district
court reasoned that by providing such a tailored questionnaire,
“Matchmaker contribute[d] to the content of the profiles” and
thus was partly responsible “for the creation or development
of information contained in the profiles.” Id. at 1067 (internal
quotation marks omitted). We disagreed, indicating that a
website operator is not an “information content provider”
unless it provides the “essential published content.” 339 F.3d
at 1124. We stated:

Under § 230(c), therefore, so long as a third party
willingly provides the essential published content,
the interactive service provider receives full immu-
nity regardless of the specific editing or selection
process. The fact that some of the content was for-
mulated in response to Matchmaker’s questionnaire
does not alter this conclusion. Doubtless, the ques-
tionnaire facilitated the expression of information by
individual users. However, the selection of the con-
tent was left exclusively to the user.

Id.

We have also rejected the position that a website operator
becomes an “information content provider” if it intentionally
selects, edits, and publishes defamatory information. In Batzel
v. Smith, we upheld the immunity of a website operator dedi-
cated to “museum security and stolen art,” who had received
an allegedly defamatory email on this topic, and subsequently
edited and republished it on the website. 333 F.3d 1018, 1021
5732 FAIR HOUSING COUNCIL v. ROOMMATE.COM
(9th Cir. 2003). We disagreed with the analysis of the dissent
in that case, which would have held that the website operator
was an information content provider because

[a] person’s decision to select particular information
for distribution on the Internet changes that informa-
tion in a subtle but important way: it adds the per-
son’s imprimatur to it. . . . Information that bears
such an implicit endorsement is no longer merely the
“information provided by” the original sender. 47
U.S.C. § 230(c)(1). It is information transformed. It
is information bolstered, strengthened to do more
harm if it is wrongful. A defendant who has actively
selected libelous information for distribution thus
should not be entitled to CDA immunity for dis-
seminating “information provided by another.”

Id. at 1038-39 (Gould, J., concurring in part and dissenting in
part).

Avoiding this broad interpretation of “information content
provider,” we held that immunity from “ ‘publisher’ liability
necessarily precludes liability for exercising the usual prerog-
ative of publishers to choose among proffered material and to
edit the material published while retaining its basic form and
message.” Id. at 1031. We noted that “[o]ther courts have
agreed that the exercise of a publisher’s traditional editorial
functions—such as deciding whether to publish, withdraw,
postpone or alter content do not transform an individual into
a content provider within the meaning of § 230.” Id. at 1031
n.18 (internal quotation marks omitted); see also Barrett v.
Rosenthal, 146 P.3d 510, 528 (Cal. 2006) (relying on Batzel
in reaching its conclusion that “[a] user who actively selects
and posts material based on its content fits well within the tra-
ditional role of ‘publisher’ ” and that “Congress has exempted
that role from liability”). Although not expressly addressed by
our case law, a “publisher’s traditional editorial functions”
also include seeking out and specializing in a specific type of
 FAIR HOUSING COUNCIL v. ROOMMATE.COM 5733
publication, just as in Batzel, where the website operator oper-
ated a website dedicated to a specific topic (museum security
and stolen art). Batzel did not suggest that this fact made the
operator an information content provider.

In sum, our binding precedent has already addressed the
question when a website operator has jointly created and
developed content so as to become an “information content
provider.” Unless a website operator directly provides “the
essential published content,” Carafano, 339 F.3d at 1124, it
is not an “information content provider.” The result is robust
immunity under section 230(c).