Last December CDT and several other organizations submitted a friend-of-the-court (“amicus“) brief urging the Seventh Circuit Court of Appeals to uphold a lower court decision in favor of Craigslist.org. We are happy to report that on March 14 the federal appeals court did just that: it ruled that Craigslist can’t be held liable for discriminatory housing ads posted by the site’s users in violation of the Fair Housing Act. (Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist, No. 07-1101). The court held that Section 230 of the Communications Decency Act (47 U.S.C. § 230) granted Craigslist immunity from FHA claims. While the result of the case is precisely what we advocated- that Craigslist should not be held responsible for arguably illegal online content posted by others – the court’s opinion is a bit murky and has language that might prove to be unhelpful in future Section 230 cases. Section 230 has two key provisions. The first and most important provision aims to protect Internet service providers and other online intermediaries (such as websites like Craigslist) from a broad range of civil and criminal claims based on content posted by people other than the service providers. Thus, in Craiglist’s case, the website is protected from claims based on the illegal postings of its users.
The second provision of Section 230 aims to protect Internet intermediaries from claims based on the companies’ voluntary actions to filter or limit content they deem inappropriate for a site or service. The first provision was intended to create a legal environment that stimulates innovations in Internet services and thus online free speech. The second provision was intended to encourage service providers to self-police in order to make direct government regulation of the Internet unnecessary. The main problem with the Seventh Circuit’s Craigslist opinion is that is suggests that the application of Section 230 (its first provision at least) is limited. CDT and the other amici, citing extensive court precedent from across the country, argued that the Seventh Circuit should interpret Section 230 as having broad application. Unfortunately, the court of appeals failed to do so but, at the same time, failed to explicitly explain how Section 230 is limited in its eyes. Some statements by the authoring justice suggest that the first provision of section 230 might only bar claims against Internet intermediaries when the creation or dissemination of content – i.e., “publication” – is a specific element of the cause of action. Defamation is one such claim. Thus it seems that the court might find that other tort claims, like the biggie negligence, would not be barred by Section 230. This would be a much narrower application of the immunity and is – in our view – a completely wrong reading of the statute.
We interpret Section 230 as providing immunity to Internet intermediaries against any claim (other than those covered by express statutory exceptions) that seeks to hold the companies responsible for illegal content created and posted by someone else. More troubling, the Seventh Circuit’s opinion intimated that the second provision of Section 230 is really the operative section, and that perhaps the first provision really doesn’t provide any immunity at all. This would directly conflict with the holdings of many other courts, and would be a worst-case scenario for Section 230 interpretation. Both provisions of Section 230 are critical legal constructs to ensure that the Internet remains a medium full of innovation and free flowing speech. We are relieved that the court of appeals didn’t elaborate on this second point. And we are confident – given that the opinion was largely contrary to the body of existing case law – that it won’t get much traction as precedent in future Section 230 cases.