Seventh Circuit Hears Argument in Craigslist Section 230 CDA Case: There WILL Be an Opinion By Judge Easterbrook

Or at least it seems highly likely that Judge Frank Easterbrook of the Seventh Circuit will take the opportunity presented by the appeal in Chicago Lawyers v. Craigslist [opinion below] to advance his interpretation of Section 230 of the Communications Decency Act.

The Craigslist case involves an action brought under the Fair Housing Act, seeking to hold Craigslist liable for discriminatory housing ads posted by users. The issues are similar to those in Fair Housing Council of San Fernando Valley v. Roommates.com, presently pending in the Ninth Circuit following an en banc rehearing conducted in December, as we have previously blogged.

Judge Easterbrook's view, laid out in dicta in his opinion in Doe v. GTE, is that Zeran v. America Online, the seminal opinion in Section 230 jurisprudence, and the opinions that have followed it, are wrong. Wrong, in that Zeran and its numerous progeny read Section 230 as providing interactive service providers with extremely broad immunity from any liability for material provided by third parties. Judge Easterbrook would limit Section 230 immunity to publisher liability, but leave open the door to imposing other kinds of liability on interactive service providers. Exactly what kind of liability is unclear, however, although Judge Easterbrook suggests that states could enact laws that would require providers to "protect the interests of third parties" and not run afoul of the prohibition in subsection (d)(3) of Section 230 against a cause of action or liability "under any State or local law that is inconsistent with this section."

And it appears, from listening to the audio of the oral argument, that Judge Easterbrook has another vote on the panel (Judge Diane Wood) for his contrarian interpretation. No surprise there, perhaps, as Judge Wood was also on the panel in Doe v. GTE.

Here's Judge Easterbrook's view, taken from the dicta in Doe v. GTE:

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 under §230(c)(2)—as long as the information came from someone else; but it would become a "publisher 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 interests of third parties, such as the spied-on plaintiffs, 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.

It was unnecessary to reach the issue of Section 230 interpretation in Doe v. GTE, because the panel concluded that there was no applicable legal principle, other than publisher liability, under which the ISP in that case could be held responsible. That may happen in the Craigslist case as well. The district court judge, who also has embraced Judge Easterbrook's take on Section 230, concluded that there was no basis to find Craigslist responsible under the federal Fair Housing Act for discriminatory posts by users, other than publisher liability, and granted the provider's motion to dismiss.

Steven Libowsky, arguing on behalf of the Chicago Lawyers' Committee for Civil Rights Under the Law, embraced Judge Easterbrook's restrictive construction of Section 230. He advanced the idea that Craigslist could be liable under the FHA as one of the "causers" of the discriminatory postings, relying on the FHA language that makes it unlawful to "make, print, or publish, or cause to be made, printed, or published" any discriminatory housing notice. The judges did not seem warm to this argument.

Patrick Carome, arguing on behalf of Craigslist, made a number of arguments contesting the Easterbrook interpretation of Section 230. First, he referenced the 2002 enactment of the the "Dot Kids Implementation and Efficiency Act," which expressly extended the protection of Section 230 to the newly established "kids.us" subdomain. He pointed out that the committee report accompanying the legislation referenced the judicial interpretations of Section 230, and stated that those opinions "have correctly interpreted" the statute. That argument got a sharp negative response from Judge Easterbrook, who commented to the effect that if Congress wants to adopt a rule, it enacts a statute, not a committee report.

The second point made by Carome is one that Judge Easterbrook does not address in the Doe v. GTE case analysis. Section 230 does not in fact give unlimited immunity to service providers; it contains a number of express exceptions, including intellectual property law, the Electronic Communications Privacy Act and similar state laws, and federal criminal laws. Neither the FHA, nor indeed, any general category of laws imposing non-publisher liability, is among those express exceptions. Thus, the argument goes, if Congress had intended to leave the door open for non-publisher liability, it could have done so in this section, and it did not.

Although it is problematic to predict a result based upon listening to the oral argument, it did appear that the judges had difficulty in identifying a basis for imposing liability on Craigslist other than liability as a publisher. And that, it was conceded, is barred by Section 230 under any interpretation of its provisions.