Judge Easterbrook Sums Up CDA Section 230 Jurisprudence: You Can't Sue the Messenger

(Well, this definitely is "47 USC 230 week.")

The messenger to which Judge Easterbrook refers is the online provider Craigslist, the case is Chicago Lawyers Committee v. Craigslist, where the plaintiff seeks to hold Craigslist liable for the discriminatory housing ads posted by its users, allegedly in violation of the federal Fair Housing Act.

Today the Seventh Circuit upheld the lower court ruling that Craigslist cannot be held liable for those discriminatory ads, under Section 230 of the Communications Decency Act. This should be no surprise to anyone who listened to the oral argument.

Judge Easterbrook authored the opinion, reiterating his prior view that Section 230 has been incorrectly interpreted by other federal courts as a broad grant of immunity, and referencing his prior opinion on that point in Doe v. GTE, 347 F.3d 655 (7th Cir. 2003).

Despite Judge Easterbrook's differences with other courts on issues of interpretation, the panel agreed that Craigslist is not liable in this case, because under any interpretation of Section 230, holding the provider liable for housing ads posted by its users would make it liable as a "speaker," a result precluded under the statute:

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).
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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 discrimination. 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.