FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOMEAWAY.COM, INC.; AIRBNB 

INC.,

Plaintiffs-Appellants,

v.

CITY OF SANTA MONICA,

Defendant-Appellee.

No. 18-55367

D.C. Nos.

2:16-cv-06641-

ODW-AFM

2:16-cv-06645-

ODW-AFM

HOMEAWAY.COM, INC.,

Plaintiff-Appellant,

and

AIRBNB INC.,

Plaintiff,

v.

CITY OF SANTA MONICA,

Defendant-Appellee.

No. 18-55805

D.C. Nos.

2:16-cv-06641-

ODW-AFM

2:16-cv-06645-

ODW-AFM
2 HOMEAWAY.COM V. CITY OF SANTA MONICA

AIRBNB INC.,

Plaintiff-Appellant,

v.

CITY OF SANTA MONICA,

Defendant-Appellee.

No. 18-55806

D.C. No.

2:16-cv-06645-

ODW-AFM

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright II, District Judge, Presiding

Argued and Submitted October 12, 2018

Pasadena, California

Filed March 13, 2019

Before: Mary M. Schroeder and Jacqueline H. Nguyen, 

Circuit Judges, and Michael H. Simon,* District Judge.

Opinion by Judge Nguyen

 * The Honorable Michael H. Simon, United States District Judge for 

the District of Oregon, sitting by designation.
HOMEAWAY.COM V. CITY OF SANTA MONICA 3

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal, for 

failure to state a claim, of a complaint brought by 

HomeAway.com and Airbnb Inc. challenging the City of 

Santa Monica’s Ordinance 2535, which imposes various 

obligations on companies that host online platforms for 

short-term vacation rentals. 

The Ordinance, as amended in 2017, imposes four 

obligations on hosting platforms: (1) collecting and 

remitting Transient Occupancy Taxes; (2) regularly 

disclosing listings and booking information to the City; (3) 

refraining from booking properties not licensed and listed on 

the City’s registry; (4) and refraining from collecting a fee 

for ancillary services.

The panel rejected plaintiffs’ assertion that the 

Ordinance violated the Communications Decency Act of 

1996, 47 U.S.C. § 230 because it required them to monitor 

and remove third-party content, and therefore interfered with 

federal policy protecting internet companies from liability 

for posting third-party content. The panel stated that the 

Ordinance prohibits processing transactions for unregistered 

properties. It does not require the Platforms to review the 

content provided by the hosts of listings on their websites. 

Rather, the panel noted that the only monitoring that 

appeared necessary in order to comply with the Ordinance 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 HOMEAWAY.COM V. CITY OF SANTA MONICA

related to incoming requests to complete a booking 

transaction—content that, while resulting from the thirdparty listings, was distinct, internal, and nonpublic. The 

panel concluded that the Ordinance was not inconsistent 

with the Communications Decency Act, and therefore was 

not expressly preempted by its terms. The panel further 

concluded that the Ordinance would not pose an obstacle to 

Congress’s aim to encourage self-monitoring of third-party 

content, and therefore obstacle preemption did not preclude 

Santa Monica from enforcing the Ordinance.

The panel held that the Ordinance did not implicate 

speech protected by the First Amendment, concluding that

the Ordinance’s prohibitions regulate nonexpressive 

conduct, specifically booking transactions, and do not single 

out those engaged in expressive activity. 

COUNSEL

Donald B. Verrilli, Jr. (argued) and Chad Golder, Munger, 

Tolles & Olson LLP, Washington, D.C.; Joseph W. Cotchett

and Alexandra P. Summer, Cotchett, Pitre & McCarthy, 

LLP, Santa Monica, California; Jonathan H. Blavin and 

Joshua Patashnik, Munger, Tolles & Olson LLP, San 

Francisco, California; John B. Major, Munger, Tolles & 

Olson, Los Angeles, California; for Plaintiff-Appellant 

Airbnb, Inc.

Stephen M. Rummage and Ambika K. Doran, Davis Wright 

Tremaine LLP, Seattle, Washington, for Plaintiff-Appellant 

HomeAway.com, Inc.

George S. Cardona (argued), Deputy City Attorney; Lane 

Dilg, City Attorney; Yibin Shen, Chief Deputy City 
HOMEAWAY.COM V. CITY OF SANTA MONICA 5

Attorney; Heidi Von Tongeln and Michael R. Cobden, 

Deputy City Attorneys; Santa Monica City Attorney’s 

Office, Santa Monica, California, for Defendant-Appellee.

David Salmons, Bryan Killian, and James Nelson, Morgan, 

Lewis & Bockius LLP, Washington, D.C., for Amici Curiae 

Chris Cox and NetChoice.

Catherine R. Gellis, Esq., Sausalito, California, for Amicus 

Curiae Floor64, Inc. d/b/a The Copia Institute.

Ian C. Ballon and Lori Chang, Greenberg Traurig, LLP, Los 

Angeles, California, for Amici Curiae Ebay Inc., Glassdoor, 

Inc., Lyft, Inc., Offerup, Inc., Taskrabbit, Inc., Thumbtack, 

Inc., Uber Technologies, Inc., and Upwork, Inc.

Christi Hogin, Best Best & Krieger LLP, Manhattan Beach,

California, for Amici Curiae League of California Cities, 

International Municipal Lawyers Association, and 

California State Association of Counties.

Jeremy B. Rosen, Eric S. Boorstin, and Ryan C. Chapman, 

Horvitz & Levy LLP, Burbank, California; Michael T. 

Williams and Allison R. Mclaughlin, Wheeler Trigg 

O’Donnell LLP, Denver, Colorado; David C. Frederick, 

Brendan J. Crimmins, and Rachel P. May, Kellogg, Hansen, 

Todd, Figel & Frederick, P.L.L.C., Washington, D.C., for 

Amicus Curiae Apartment Investment and Management 

Company.

Heidi Palutke, Sacramento, California, for Amicus Curiae 

California Apartment Association. 

Edward M. Schulman, Ballston Tower, Arlington, Virginia, 

for Amicus Curiae AvalonBay Communities, Inc.
6 HOMEAWAY.COM V. CITY OF SANTA MONICA

Gary S. Kessler, Kulik Gottesman Siegel & Ware LLP, 

Sherman Oaks, California, for Amicus Curiae Community 

Associations Institute.

Abbey R. Stemler and Matthew C. Turk, Indiana University 

Kelley School of Business, Bloomington, Indiana; Jahan C. 

Sagafi and Relic Sun, Outten & Golden LLP, San Francisco, 

California; Peter Romer-Friedman, Outten & Golden LLP, 

Washington, D.C., for Amici Curiae Internet, Business, and 

Local Government Law Professors.

Richard G. McCracken and Paul L. More, McCracken, 

Stemerman & Holsberry, LLP, San Francisco, California, 

for Amicus Curiae UNITE HERE International Union.

Dennis J. Herrera, San Francisco City Attorney; Christine 

Van Aken, Chief of Appellate Litigation; Yvonne R. Meré, 

Chief of Complex and Affirmative Litigation; Sara J. 

Eisenberg, Deputy City Attorney; San Francisco, California

for Amicus Curiae City and County of San Francisco.

Karl A. Racine, Attorney General for the District of 

Columbia, Washington, D.C., for Amicus Curiae District of 

Columbia.

Andre M. Davis, City Solicitor, City of Baltimore, 

Baltimore, Maryland, for Amicus Curiae Mayor and City 

Council of Baltimore.

Zach Klein, Columbus City Attorney, Columbus, Ohio, for 

Amicus Curiae City of Columbus.

Barbara J. Parker, Oakland City Attorney; Maria Bee, 

Special Counsel; Erin Bernstein, Supervising Deputy City 
HOMEAWAY.COM V. CITY OF SANTA MONICA 7

Attorney; Oakland, California; for Amicus Curiae City of 

Oakland.

Peter S. Holmes, Seattle City Attorney, Seattle, Washington, 

for Amicus Curiae City of Seattle.

Jill E. Habig, Founder & President; Joanna Pearl, Legal 

Director; Oakland, California; for Amicus Curiae Public 

Rights Project, A Project of Tides Center.

OPINION

NGUYEN, Circuit Judge:

Located on the coast of Southern California, the city of 

Santa Monica consists of only about eight square miles but 

serves 90,000 residents and as many as 500,000 visitors on 

weekends and holidays. Similar to other popular tourist 

destinations, Santa Monica is struggling to manage the 

disruptions brought about by the rise of short-term rentals 

facilitated by innovative startups such as Appellants 

HomeAway.com, Inc. and Airbnb Inc. (the “Platforms”). 

Websites like those operated by the Platforms are essentially 

online marketplaces that allow “guests” seeking 

accommodations and “hosts” offering accommodations to 

connect and enter into rental agreements with one another.1 

As of February 2018, Airbnb had approximately 1,400 

listings in Santa Monica, of which about 30 percent are in 

 1 The Platforms do not own, lease, or manage any of the properties 

listed on their websites, nor are they parties to the rental agreements. 

Instead, the content provided alongside the listings—such as description, 

price, and availability—are provided by the hosts. For their services, the 

Platforms collect a fee from each successful booking. 
8 HOMEAWAY.COM V. CITY OF SANTA MONICA

the “coastal zone” covered by the California Coastal Act, 

while HomeAway.com had approximately 300 live listings 

in Santa Monica, of which approximately 40 percent are in 

the coastal zone.

Santa Monica’s council reported that the proliferation of 

short-term rentals had negatively impacted the quality and 

character of its neighborhoods by “bringing commercial 

activity and removing residential housing stock from the 

market” at a time when California is already suffering from 

severe housing shortages. In response, the city passed an 

ordinance regulating the short-term vacation rental market 

by authorizing licensed “home-sharing” (rentals where 

residents remain on-site with guests) but prohibiting all other 

short-term home rentals of 30 consecutive days or less.

]The Platforms filed suit, alleging that the city ordinance 

is preempted by the Communications Decency Act and 

impermissibly infringes upon their First Amendment rights. 

The district court denied preliminary injunctive relief, and 

dismissed the Platforms’ complaints for failure to state a 

claim under the Communications Decency Act and the First 

Amendment. We affirm.

BACKGROUND

In May 2015, Santa Monica passed its initial ordinance 

regulating the short-term vacation rental market by 

authorizing licensed “home-sharing” (rentals where 

residents remain on-site with guests) but prohibiting all other 

forms of short-term rentals for 30 consecutive days or less.

Santa Monica Ordinance 2484 (May 12, 2015), codified as 

amended, Santa Monica Mun. Code §§ 6.20.010–6.20.100. 

The ordinance reflected the city’s housing goals of 

“preserving its housing stock and preserving the quality and 

character of its existing single and multi-family residential 
HOMEAWAY.COM V. CITY OF SANTA MONICA 9

neighborhoods.” Id. As originally enacted, the ordinance 

prohibited hosting platforms from acting to “undertake, 

maintain, authorize, aid, facilitate or advertise any HomeSharing activity” that was not authorized by the city. 

Hosting platforms also were required to collect and remit 

taxes, and to regularly disclose listings and booking 

information to the city.

The Platforms each filed a complaint in the Central 

District of California challenging the initial ordinance, and 

the district court consolidated the cases for discovery and 

pretrial matters. On September 21, 2016, the parties 

stipulated to stay the case while the city considered 

amendments to the local ordinance. During the stay period, 

the district court for the Northern District of California 

denied a preliminary injunction requested by the plaintiffs in 

a separate case challenging a similar ordinance in San 

Francisco. See Airbnb Inc. v. City & County of San 

Francisco, 217 F. Supp. 3d 1066 (N.D. Cal. 2016). That 

case ended in a settlement in which the Platforms agreed to 

comply with an amended version of San Francisco’s 

ordinance that prohibited booking unlawful transactions but 

provided a safe harbor wherein any platform that complies 

with the responsibilities set out in the Ordinance will be 

presumed to be in compliance with the law.

In January 2017, Santa Monica likewise amended its 

own ordinance. The version challenged here, Ordinance 

2535 (the “Ordinance”), retains its prohibitions on most 

types of short-term rentals, with the exception of licensed 

home-shares. In addition, the Ordinance imposes four 

obligations on hosting platforms directly: (1) collecting and 

remitting “Transient Occupancy Taxes,” (2) disclosing 

certain listing and booking information regularly, 

(3) refraining from completing any booking transaction for 
10 HOMEAWAY.COM V. CITY OF SANTA MONICA

properties not licensed and listed on the City’s registry, and 

(4) refraining from collecting or receiving a fee for 

“facilitating or providing services ancillary to a vacation 

rental or unregistered home-share.” If a housing platform 

operates in compliance with these obligations, the Ordinance 

provides a safe harbor by presuming the platform to be in 

compliance with the law. Otherwise, violations are 

punishable by a fine of up to $500 and/or imprisonment for 

up to six months.

After the district court lifted the stay, the Platforms 

amended their complaint to challenge the revised ordinance 

and moved for a preliminary injunction. Santa Monica 

moved to dismiss the amended complaint. The court denied 

the Platforms’ motion for preliminary injunctive relief and 

subsequently granted Santa Monica’s motion to dismiss on 

the ground that the Platforms failed to state a claim under 

federal law, including the Communications Decency Act of 

1996 and the First Amendment. The district court also 

declined to exercise supplemental jurisdiction over their 

remaining state-law claims.2 The Platforms timely appealed 

these decisions, and we consolidated the appeals.

 2 The Platforms do not appeal the district court’s dismissal of other 

federal claims brought under the Fourth Amendment and the Stored 

Communications Act. Similarly, they do not challenge the court’s 

decision not to exercise supplemental jurisdiction over the state-law 

claims under the California Coastal Act if we affirm the dismissal of their 

federal claims. Because we affirm the district court’s dismissal, we need 

not consider the state-law claims. We deny Santa Monica’s motion for

judicial notice of its prior enforcement actions because the dispute as to 

its prior actions relates only to the state-law claims.
HOMEAWAY.COM V. CITY OF SANTA MONICA 11

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We 

review the district court’s order of dismissal de novo, 

“accepting all factual allegations in the complaint as true and 

construing them in the light most favorable to the 

nonmoving party.” Yagman v. Garcetti, 852 F.3d 859, 863 

(2017) (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th 

Cir. 2016)).

DISCUSSION

I. Communications Decency Act

The Communications Decency Act of 1996 (“CDA” or 

the “Act”), 47 U.S.C. § 230, provides internet companies 

with immunity from certain claims in furtherance of its 

stated policy “to promote the continued development of the 

Internet and other interactive computer services.” Id.

§ 230(b)(1). Construing this immunity broadly, the 

Platforms argue that the Ordinance requires them to monitor 

and remove third-party content, and therefore violates the 

CDA by interfering with federal policy protecting internet 

companies from liability for posting third-party content. 

Santa Monica, on the other hand, argues that the Ordinance 

does not implicate the CDA because it imposes no obligation 

on the Platforms to monitor or edit any listings provided by 

hosts. Santa Monica contends that the Ordinance is simply 

an exercise of its right to enact regulations to preserve 

housing by curtailing “incentives for landlords to evade rent 

control laws, evict tenants, and convert residential units into 

de facto hotels.”

We begin our analysis with the text of the CDA. See BP 

America Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). 

Section 230(c)(1) states that “[n]o provider or user of an 
12 HOMEAWAY.COM V. CITY OF SANTA MONICA

interactive computer service shall be treated as the publisher 

or speaker of any information provided by another 

information content provider.” Id. § 230(c)(1). The CDA 

explicitly preempts inconsistent state laws: “Nothing in this 

section shall be construed to prevent any State from 

enforcing any State law that is consistent with this section. 

No cause of action may be brought and no liability may be 

imposed under any State or local law that is inconsistent with 

this section.” Id. § 230(e)(3).

We have construed these provisions to extend immunity 

to “(1) a provider or user of an interactive computer service 

(2) whom a plaintiff seeks to treat, under a state law cause of 

action, as a publisher or speaker (3) of information provided 

by another information content provider.” Barnes v. Yahoo!, 

Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009). Only the 

second element is at issue here: whether the Ordinance treats 

the Platforms as a “publisher or speaker” in a manner that is 

barred by the CDA. Although the CDA does not define 

“publisher,” we have defined “publication” in this context to 

“involve[] reviewing, editing, and deciding whether to 

publish or to withdraw from publication third-party 

content.” Id. at 1102 (citing Fair Hous. Council v. 

Roommates.com, LLC, 521 F.3d 1157, 1170–71 (9th Cir. 

2008) (en banc)).

The Platforms offer two different theories as to how the 

Ordinance in fact reaches “publication” activities. First, the 

Platforms claim that the Ordinance is expressly preempted 

by the CDA because, as they argue, it implicitly requires 

them “to monitor the content of a third-party listing and 

compare it against the City’s short-term rental registry 

before allowing any booking to proceed.” Relying on Doe 

v. Internet Brands, 824 F.3d 846, 851 (9th Cir. 2016), the 

Platforms take the view that CDA immunity follows 
HOMEAWAY.COM V. CITY OF SANTA MONICA 13

whenever a legal duty “affects” how an internet company 

“monitors” a website.

However, the Platforms read Internet Brands too 

broadly. In that case, two individuals used the defendant’s 

website to message and lure the plaintiff to sham auditions 

where she was drugged and raped. Id. at 848. We held that, 

where the website provider was alleged to have known 

independently of the ongoing scheme beforehand, the CDA 

did not bar an action under state law for failure to warn. Id. 

at 854. We observed that a duty to warn would not 

“otherwise affect how [the defendant] publishes or 

monitors” user content. Id. at 851. Though the defendant 

did, in its business, act as a publisher of third-party content, 

the underlying legal duty at issue did not seek to hold the 

defendant liable as a “publisher or speaker” of third-party 

content. Id. at 853; see 47 U.S.C. § 230(c)(1). We therefore 

declined to extend CDA immunity to the defendant for the 

plaintiff’s failure-to-warn claim. Internet Brands, 824 F.3d 

at 854.

We do not read Internet Brands to suggest that CDA 

immunity attaches any time a legal duty might lead a 

company to respond with monitoring or other publication 

activities. It is not enough that third-party content is 

involved; Internet Brands rejected use of a “but-for” test that 

would provide immunity under the CDA solely because a 

cause of action would not otherwise have accrued but for the 

third-party content. Id. at 853. We look instead to what the 

duty at issue actually requires: specifically, whether the duty 

would necessarily require an internet company to monitor 

third-party content. See id. at 851, 853.

Here, the Ordinance does not require the Platforms to 

monitor third-party content and thus falls outside of the 

CDA’s immunity. The Ordinance prohibits processing 
14 HOMEAWAY.COM V. CITY OF SANTA MONICA

transactions for unregistered properties. It does not require 

the Platforms to review the content provided by the hosts of 

listings on their websites. Rather, the only monitoring that 

appears necessary in order to comply with the Ordinance 

relates to incoming requests to complete a booking 

transaction—content that, while resulting from the thirdparty listings, is distinct, internal, and nonpublic. As in 

Internet Brands, it is not enough that the third-party listings 

are a “but-for” cause of such internal monitoring. See 

824 F.3d at 853. The text of the CDA is “clear that neither 

this subsection nor any other declares a general immunity 

from liability deriving from third-party content.” Barnes, 

570 F.3d at 1100. To provide broad immunity “every time a 

website uses data initially obtained from third parties would 

eviscerate [the CDA].” Barnes, 570 F.3d at 1100 (quoting 

Roommates.com, 521 F.3d at 1171 (9th Cir. 2008) (en 

banc)). That is not the result that Congress intended.

Nor could a duty to cross-reference bookings against 

Santa Monica’s property registry give rise to CDA 

immunity. While keeping track of the city’s registry is 

“monitoring” third-party content in the most basic sense, 

such conduct cannot be fairly classified as “publication” of 

third-party content. The Platforms have no editorial control 

over the registry whatsoever. As with tax regulations or 

criminal statutes, the Ordinance can fairly charge parties 

with keeping abreast of the law without running afoul of the 

CDA.

Second, the Platforms argue that the Ordinance “in 

operation and effect . . . forces [them] to remove third-party 

content.” Although it is clear that the Ordinance does not 

expressly mandate that they do so, the Platforms claim that 

“common sense explains” that they cannot “leave in place a 

website chock-full of un-bookable listings.” For purposes of 
HOMEAWAY.COM V. CITY OF SANTA MONICA 15

our review, we accept at face value the Platforms’ assertion 

that they will choose to remove noncompliant third-party 

listings on their website as a consequence of the Ordinance.3 

Nonetheless, their choice to remove listings is insufficient to 

implicate the CDA.

On its face, the Ordinance does not proscribe, mandate, 

or even discuss the content of the listings that the Platforms 

display on their websites. See Santa Monica Mun. Code 

§§ 6.20.010–6.20.100. It requires only that transactions 

involve licensed properties. We acknowledge that, as the 

Platforms explain in Airbnb’s complaint and in the briefing 

on appeal, removal of these listings would be the best option 

“from a business standpoint.” But, as in Internet Brands, the 

underlying duty “could have been satisfied without changes 

to content posted by the website’s users.” See 824 F.3d 

at 851. Even assuming that removing certain listings may be 

the Platforms’ most practical compliance option, allowing 

internet companies to claim CDA immunity under these 

circumstances would risk exempting them from most local 

regulations and would, as this court feared in 

Roommates.com, 521 F.3d at 1164, “create a lawless noman’s-land on the Internet.” We hold that the Ordinance is 

not “inconsistent” with the CDA, and is therefore not 

expressly preempted by its terms. See 47 U.S.C. § 230(e)(3).

Finally, the Platforms argue that, even if the Ordinance 

is not expressly preempted by the CDA, the Ordinance 

imposes “an obstacle to the accomplishment and execution 

 3 The Platforms argued below that the district court must accept as 

true their allegation that they would “have to” monitor and screen 

listings. As a matter of law, the Ordinance does not require them to do 

so. Courts are “not bound to accept as true a legal conclusion couched 

as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
16 HOMEAWAY.COM V. CITY OF SANTA MONICA

of the full purposes and objectives of Congress.” See Crosby 

v. Nat’l Foreign Trade Council, 530 U.S. 363, 372–73 

(2000). Reading the CDA expansively, they argue that the 

Ordinance conflicts with the CDA’s goal “to preserve the 

vibrant and competitive free market that presently exists for 

the Internet . . . unfettered by Federal or State regulation.” 

See § 230(b)(2). We have consistently eschewed an 

expansive reading of the statute that would render unlawful 

conduct “magically . . . lawful when [conducted] online,” 

and therefore “giv[ing] online businesses an unfair 

advantage over their real-world counterparts.” See 

Roommates.com, 521 F.3d at 1164, 1164–65 n.15. For the 

same reasons, while we acknowledge the Platforms’ 

concerns about the difficulties of complying with numerous 

state and local regulations, the CDA does not provide 

internet companies with a one-size-fits-all body of law. Like 

their brick-and-mortar counterparts, internet companies 

must also comply with any number of local regulations 

concerning, for example, employment, tax, or zoning. 

Because the Ordinance would not pose an obstacle to 

Congress’s aim to encourage self-monitoring of third-party 

content, we hold that obstacle preemption does not preclude 

Santa Monica from enforcing the Ordinance.

Fundamentally, the parties dispute how broadly to 

construe the CDA so as to continue serving the purposes 

Congress envisioned while allowing state and local 

governments breathing room to address the pressing issues 

faced by their communities. We have previously 

acknowledged that the CDA’s immunity reaches beyond the 

initial state court decision that sparked its enactment. See 

Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 

1163 (9th Cir. 2008) (en banc) (discussing Stratton 

Oakmont, Inc. v. Prodigy Servs. Co., which held an internet 

company liable for defamation when it removed some, but 
HOMEAWAY.COM V. CITY OF SANTA MONICA 17

not all, harmful content from its public message boards, 

1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) 

(unpublished)). As the Platforms correctly note, the Act’s 

policy statements broadly promote “the vibrant and 

competitive free market that presently exists for the Internet

. . . unfettered by Federal or State regulation.” See 47 U.S.C. 

§ 230(b)(2). “[A] law’s scope often differs from its genesis,” 

and we have repeatedly held the scope of immunity to reach 

beyond defamation cases. Barnes, 570 F.3d at 1101 (quoting 

Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. 

v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008), as 

amended (May 2, 2008)) (citing cases applying immunity for 

causes of action including discrimination, fraud, and 

negligence).

At the same time, our cases have hewn closely to the 

statutory language of the CDA and have limited the 

expansion of its immunity beyond the protection Congress 

envisioned. As we have observed, “the [relevant] section is 

titled ‘Protection for “good Samaritan” blocking and 

screening of offensive material.’” Roommates.com,

521 F.3d at 1163–64 (quoting 47 U.S.C. § 230(c)); see also 

Internet Brands, 824 F.3d at 852. Congress intended to 

“spare interactive computer services [the] grim choice” 

between voluntarily filtering content and being subject to 

liability on the one hand, and “ignoring all problematic posts 

altogether [to] escape liability.” Roommates.com, 521 F.3d 

at 1163–64. In contrast, the Platforms face no liability for 

the content of the bookings; rather, any liability arises only 

from unlicensed bookings. We do not discount the 

Platforms’ concerns about the administrative burdens of 

state and local regulations, but we nonetheless disagree that 

§ 230(c)(1) of the CDA may be read as broadly as they 

advocate, or that we may ourselves expand its provisions 

beyond what Congress initially intended.
18 HOMEAWAY.COM V. CITY OF SANTA MONICA

In sum, neither express preemption nor obstacle 

preemption apply to the Ordinance. We therefore affirm the 

district court’s dismissal for failure to state a claim under the 

CDA.

II. First Amendment

The Platforms also contend that the district court erred in 

dismissing their First Amendment claims. They argue that, 

even if the plain language of the Ordinance only reaches 

“conduct,” i.e., booking unlicensed properties, the law 

effectively imposes a “content-based financial burden” on 

commercial speech and is thus subject to First Amendment 

scrutiny. The district court concluded that the Ordinance 

“regulates conduct, not speech, and that the conduct banned 

. . . does not have such a ‘significant expressive element’ as 

to draw First Amendment protection.” We agree.

That the Ordinance regulates “conduct” is not alone 

dispositive. The Supreme Court has previously applied First 

Amendment scrutiny when “‘speech’ and ‘nonspeech’ 

elements are combined in the same course of conduct.” See 

United States v. O’Brien, 391 U.S. 367, 376 (1968). But 

“restrictions on protected expression are distinct from 

restrictions on economic activity or, more generally, on 

nonexpressive conduct.” Sorrell v. IMS Health Inc., 

564 U.S. 552, 567 (2011). While the former is entitled to 

protection, “the First Amendment does not prevent 

restrictions directed at commerce or conduct from imposing 

incidental burdens on speech.” Id.

To determine whether the First Amendment applies, we 

must first ask the “threshold question [of] whether conduct 

with a ‘significant expressive element’ drew the legal 

remedy or the ordinance has the inevitable effect of ‘singling 

out those engaged in expressive activity.’” Int’l Franchise 
HOMEAWAY.COM V. CITY OF SANTA MONICA 19

Ass’n v. City of Seattle, 803 F.3d 389, 408 (9th Cir. 2015) 

(quoting Arcara v. Cloud Books, Inc., 478 U.S. 697, 706–07 

(1986)). A court may consider the “inevitable effect of a 

statute on its face,” as well as a statute’s “stated purpose.” 

Sorrell, 564 U.S. at 565. However, absent narrow 

circumstances, a court may not conduct an inquiry into 

legislative purpose or motive beyond what is stated within 

the statute itself. See O’Brien, 391 U.S. at 383 n.30. 

Because the conduct at issue—completing booking 

transactions for unlawful rentals—consists only of 

nonspeech, nonexpressive conduct, we hold that the 

Ordinance does not implicate the First Amendment.

First, the prohibitions here did not target conduct with “a 

significant expressive element.” See Arcara, 478 U.S. 

at 706. Our decision in International Franchise Ass’n is 

analogous. There, the plaintiff challenged a minimum wage 

ordinance that would have accelerated the raising of the 

minimum wage to $15 per hour for franchise owners and

other large employers. 803 F.3d at 389. In denying a 

preliminary injunction, the district court held that the 

plaintiffs were not likely to succeed on their First 

Amendment argument that the ordinance treated them 

differently based on their “speech and association” decisions 

to operate within a franchise relationship framework. Id. at 

408–09. We agreed, concluding that the “business 

agreement or business dealings” were not conduct with a 

“significant expressive element.” Id. at 408. Instead, 

“Seattle’s minimum wage ordinance [was] plainly an 

economic regulation that [did] not target speech or 

expressive conduct.” Id.

Similarly, here, the Ordinance is plainly a housing and 

rental regulation. The “inevitable effect of the [Ordinance] 

on its face” is to regulate nonexpressive conduct—namely, 
20 HOMEAWAY.COM V. CITY OF SANTA MONICA

booking transactions—not speech. See Sorrell, 564 U.S. 

at 565. As in International Franchise Ass’n, the “business 

agreement or business dealings” associated with processing 

a booking is not conduct with a “significant expressive 

element.” See 803 F.3d at 408 (citation and quotation marks 

omitted). Contrary to the Platforms’ claim, the Ordinance 

does not “require” that they monitor or screen 

advertisements. It instead leaves them to decide how best to 

comply with the prohibition on booking unlawful 

transactions.

Nor can the Platforms rely on the Ordinance’s “stated 

purpose” to argue that it intends to regulate speech. The 

Ordinance itself makes clear that the City’s “central and 

significant goal . . . is preservation of its housing stock and 

preserving the quality and nature of residential 

neighborhoods.” As such, with respect to the Platforms, the 

only inevitable effect, and the stated purpose, of the 

Ordinance is to prohibit them from completing booking 

transactions for unlawful rentals.

As for the second prong of our inquiry, whether the 

Ordinance has the effect of “singling out those engaged in 

expressive activity,” Arcara, 478 U.S. at 706–07, we 

conclude that it does not. As the Platforms point out, 

websites like Craigslist “advertise the very same properties,” 

but do not process transactions. Unlike the Platforms, those 

websites would not be subject to the Ordinance, 

underscoring that the Ordinance does not target websites that 

post listings, but rather companies that engage in unlawful 

booking transactions.

Moreover, the incidental impacts on speech cited by the 

Platforms raise minimal concerns. The Platforms argue that 

the Ordinance chills commercial speech, namely, 

advertisements for third-party rentals. But even accepting 
HOMEAWAY.COM V. CITY OF SANTA MONICA 21

that the Platforms will need to engage in efforts to validate 

transactions before completing them, incidental burdens like 

these are not always sufficient to trigger First Amendment 

scrutiny. See Int’l Franchise Ass’n, 803 F.3d at 408 

(“[S]ubjecting every incidental impact on speech to First 

Amendment scrutiny ‘would lead to the absurd result that 

any government action that had some conceivable speech 

inhibiting consequences . . . would require analysis under 

the First Amendment.’” (quoting Arcara, 478 U.S. at 708 

(O’Connor, J., concurring))). Furthermore, to the extent that 

the speech chilled advertises unlawful rentals, “[a]ny First 

Amendment interest . . . is altogether absent when the 

commercial activity itself is illegal and the restriction on 

advertising is incidental to a valid limitation on economic 

activity.” See Pittsburgh Press Co. v. Pittsburgh Comm’n 

on Human Relations, 413 U.S. 376, 389 (1973).

Finally, because the Ordinance does not implicate speech 

protected by the First Amendment, we similarly reject the 

Platforms’ argument that the Ordinance is unconstitutional 

without a scienter requirement. In most cases, there is no 

“closed definition” on when a criminal statute must contain 

a scienter requirement. See Morissette v. United States, 

342 U.S. 246, 260 (1952). However, the Supreme Court has 

drawn a bright line in certain contexts, such as holding that 

the First Amendment requires statutes imposing criminal 

liability for obscenity or child pornography to contain a 

scienter requirement. See New York v. Ferber, 458 U.S. 747, 

765 (1982). Such a requirement prevents “a severe 

limitation on the public’s access to constitutionally protected 

matter” as would result from inflexible laws criminalizing 

“bookshops and periodical stands.” Smith v. California, 

361 U.S. 147, 153 (1959).
22 HOMEAWAY.COM V. CITY OF SANTA MONICA

Here, even assuming that the Ordinance would lead the 

Platforms to voluntarily remove some advertisements for 

lawful rentals, there would not be a “severe limitation on the 

public’s access” to lawful advertisements, especially 

considering the existence of alternative channels like 

Craigslist. Id. Such an incidental burden is far from “a 

substantial restriction on the freedom of speech” that would 

necessitate a scienter requirement. Id. at 150. Otherwise, 

“[t]here is no specific constitutional inhibition against 

making the distributors of good[s] the strictest censors of 

their merchandise.” Id. at 152.

III. Remaining Claims

On appeal, the Platforms do not challenge dismissal of 

their other federal law claims “in light of the district court’s 

interpretation of the Ordinance as only requiring disclosure 

of information pursuant to requests that comply with the 

Fourth Amendment and Stored Communications Act.” 

Similarly, the parties specified that they would “not 

challenge the district court’s decision to decline 

supplemental jurisdiction if all the Platforms’ federal claims 

were properly dismissed.” Accordingly, we need not 

consider the remaining claims.

* * *

Because the district court properly dismissed the 

Platforms’ complaints for failure to state a claim, we dismiss 

as moot the appeals from the denial of preliminary injunctive 

relief.

AFFIRMED in part, DISMISSED in part.