Rethinking the Communications Decency Act: Eliminating Statutory Protections of Discriminatory Housing Advertisements on the Internet

I. INTRODUCTION II. THE COMMUNICATIONS DECENCY ACT A. Pre-CDA B. CDA as Congressional Response C. The CDA and the Internet III. THE FAIR HOUSING ACT IV. CRAIGSLIST A. Decision B. Life After Craigslist V. SUGGESTED CONGRESSIONAL RESPONSE VI. CONCLUSION I. INTRODUCTION Congress passed the Communications Decency Act ("CDA") with the intention of supporting and encouraging the proliferation of information on the Internet. (1) The CDA gives Internet service providers immunity to any cause of action in which they might be treated as publishers of content originating from third parties. A significant goal of this legislation was to remove such operators' disincentives to voluntarily provide mechanisms to police the content on their Web sites. The 1968 Fair [lousing Act ("FHA") protects the supply of housing for those who may otherwise be discriminated against and functions to reduce overall discrimination in the housing market. (2) The plain language of the statute indicates that it is intended to prevent newspapers and other publishing media from publishing classified advertisements that mention statutorily proscribed preferences in the sale or rental of a dwelling. The FHA holds publishers of discriminatory advertisements legally responsible for content provided by third parties. The recent ruling in Chicago Lawyers' Commission for Civil Rights Under the Law, Inc., v. Craigslist, Inc. renews past criticisms of the CDA and foreshadows the unexpected yet nebulous marginalization of the FHA. (3) As individuals seeking to advertise continue to migrate exponentially from traditional print media to Internet bulletin boards and online classified sections, the protections from discriminatory advertisements provided by the FHA will be completely eroded. This Note argues that Congress should add the FHA to the list of exceptions to CDA immunity and is organized as follows: Section II is a review of the history of the CDA and the application of [section] 230 immunity during the rapid growth of Internet services; Section III discusses relevant sections of the FHA dealing with housing advertisements; Section IV provides a review and commentary on the recent decision in Craigslist; Section V recommends congressional action; and Section VI concludes the Note. II. THE COMMUNICATIONS DECENCY ACT A. Pre-CDA In 1995, Stratton Oakmont, inc., a securities investment firm, brought a defamation suit against Prodigy Services, an Internet company that operated an online bulletin board. (4) An unidentified user of the online bulletin board accused Stratton of criminal and fraudulent acts in connection with an Initial Public Offering ("IPO"). The major issue facing the court was whether Prodigy was the "publisher" of the third party information. (5) Stratton argued that Prodigy qualified as the publisher of the defamatory statements found on the online posting because the company exercised editorial control over the forum. They further advocated that Prodigy was liable for the damages resulting from the defamatory statements under common law. (6) In contrast, Prodigy relied on the language from an earlier defamation case where an analogous defendant was treated as "a public library, book store, or newsstand," and not as the publisher of defamatory statements posted by a third party. (7) The language on which Prodigy relies is found in an earlier case, Cubby, Inc. v. CompuServe, Inc. In that case, the defendant, CompuServe, operated an online general information service and provided access to a variety of forums for its subscribers. (8) Subscribers had access through a journalism forum to Rumorville USA, a daily newsletter covering developments in the world of journalism. (9) Cubby developed a similar newsletter intended to compete with Rumorville. After the new service was launched, false and defamatory statements regarding the Cubby newsletter were published in Rumorville. …