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CASE NOS. 09-55272, 09-55875, 09-55969 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROOMMATE.COM, LLC, Defendant-Appellant and Cross-Appellee, vs. FAIR HOUSING COUNCIL OF SAN FERNANDO VALLEY; FAIR HOUSING COUNCIL OF SAN DIEGO; each individually and on behalf of the general public, Plaintiffs-Appellees and Cross-Appellants.

APPELLANT ROOMMATE.COM, LLCS FIRST BRIEF ON CROSS-APPEAL

On Appeal from the United States District Court for the Central District of California District Court Case CV03-9386 PA (RZx)

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Susan B. Estrich (Bar No. 124009) Scott B. Kidman (Bar No. 119856) Christopher E. Price (Bar No. 200796) 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100

TIMOTHY L. ALGER (Bar No. 160303) P.O. Box 60537 Palo Alto, California 94306 Telephone: (714) 470-5042

Attorneys for Defendant-Appellant Roommate.com, LLC

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CORPORATE DISCLOSURE STATEMENT Defendant-Appellant Roommate.com, LLC is wholly owned by Vianet Internet Services, LLC, which has no parent. Neither entity is publicly held.

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TABLE OF CONTENTS Page OPENING BRIEF AS TO THE JUDGMENT .....................................................1 PRELIMINARY STATEMENT ..........................................................................1 STATEMENT OF JURISDICTION.....................................................................3 STATEMENT OF ISSUES ..................................................................................4 STATEMENT OF RELATED CASES ................................................................4 STATEMENT OF THE CASE .............................................................................5 A. B. Nature of the Case ............................................................................5 Proceedings Below ...........................................................................6

STATEMENT OF FACTS ................................................................................ 10 SUMMARY OF ARGUMENT ......................................................................... 12 ARGUMENT ..................................................................................................... 13 I. II. III. STANDARD OF REVIEW ..................................................................... 13 GENERALIZED CLAIMS OF DIVERTED RESOURCES DO NOT CONFER ORGANIZATIONAL STANDING ....................................... 13 THE FHA DOES NOT APPLY TO POSTINGS FOR ROOMMATES IN SHARED HOMES ............................................................................. 18 A. B. C. The District Court Erred in Concluding that the FHA by Its Terms Applies to the Sharing of Homes ....................................... 19 The Legislative History Establishes that the FHA Was Aimed at Commercial Sales and Rentals ...................................................... 20 The District Courts Interpretation of the FHA Is Contrary to Common Sense and Public Policy ................................................ 22

-i-

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D. E. F.

HUD Has Construed the FHA as Not Reaching Shared Living Arrangements ................................................................................ 26 No Court or Agency that Considered the Question Has Applied the FHA to Shared Living ............................................................. 28 If the FHA Does Extend to Shared Housing, the Court Should Recognize a BFOQ for Roommate Selection Based on Gender, Sexual Orientation, and Familial Status .......................... 30

IV.

THE DISTRICT COURTS RULING CREATES A STATUTORY CONFLICT WITH FUNDAMENTAL CONSTITUTIONAL RIGHTS ................................................................................................... 33 A. B. C. The Associational Rights at Stake Deserve Heightened Protection....................................................................................... 34 Application of the FHA to Roommates Cannot Satisfy Strict Scrutiny.......................................................................................... 39 The District Courts Ruling Runs Afoul of the Right to Receive and Convey Information................................................................ 42

V.

THE DISTRICT COURT ERRED BY ENJOINING ROOMMATE FROM MAKING ANY REFERENCE TO GENDER, ORIENTATION AND CHILDREN ....................................................... 44 A. B. Roommate Cannot Be Enjoined With Respect to Content and Searches for Which It Is Immune .................................................. 46 Any Injunction Must Be Narrowly Tailored ................................. 52

CONCLUSION .................................................................................................. 53 OPENING BRIEF AS TO ATTORNEYS FEES AND COSTS ..................... 54 STATEMENT OF JURISDICTION.................................................................. 54 STATEMENT OF THE ISSUE ......................................................................... 54 STANDARD OF REVIEW ............................................................................... 54 SUMMARY OF ARGUMENT ......................................................................... 55

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ARGUMENT ..................................................................................................... 55 I. PLAINTIFFS ARE ENTITLED TO NO MORE THAN 50 PERCENT OF THEIR REASONABLE FEES BECAUSE OF THEIR LIMITED SUCCESS ................................................................................................ 55 A. B. C. D. E. Plaintiffs Failed in Half Their Case When this Court Determined the CDA Applies to Additional Comments ........... 59 In Addition to Losing Much of Their Case Under the FHA and FEHA, Plaintiffs Failed With Three Other Claims ....................... 62 Plaintiffs Obtained a Mere Fraction of their Requested Relief..... 63 The Trial Court Should Have Awarded Only a Comparative Portion.......................................................................................... 65 Claims of Public Benefit Also Fail to Justify the Fees Award ..... 66

CONCLUSION .................................................................................................. 68

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TABLE OF AUTHORITIES Page Cases ACORN v. Fowler, 178 F.3d 350 (5th Cir. 1999) ........................................................................ 16 Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998) ...................................................................................... 42 Ark. ACORN Fair Housing v. Greystone Dev., Ltd., 160 F.3d 433 (8th Cir. 1998) ........................................................................ 16 Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009) .......................................................... 48 Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995) ...................................................................... 31 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ................................................................ 52, 61 Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987) .................................................................... 35, 36, 37, 38 Britt v. Superior Court, 20 Cal. 3d 844 (1978) ................................................................................... 34 Brock v. Local 375, Plumbers Int'l Union of Am., 860 F.2d 346 (9th Cir. 1988) ........................................................................ 39 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) ............................................................... passim Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) ...................................................................................... 39 Chi. Lawyers Comm. v. Craigslist, 519 F.3d 666 (7th Cir. 2008) ........................................................................ 59 Cmty. House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) .......................................................... 18, 30, 31 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ........................................................................ 42 Corder v. Brown, 25 F.3d 833 (9th Cir. 1994) .................................................................... 56, 66 Edenfield v. Fane, 507 U.S. 761 (U.S. 1993).............................................................................. 43

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Everson v. Mich. Dep't of Corr., 391 F.3d 737 (6th Cir. 2004) ........................................................................ 31 Fair Housing Council v. Main Line Times, 141 F.3d 439 (3d Cir. 1998) ................................................................... 14, 17 Fair Housing Council v. Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998) ..................................................................... 14, 16 Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) ............................................................... passim Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002) ........................................................................ 15 Flaskamp v. Dearborn Public Schools, 385 F.3d 935 (6th Cir. 2004) ........................................................................ 41 GW Equity LLC v. Xcentric Ventures LLC, 2009 U.S. Dist. LEXIS 1445 (N.D. Tex. 2009) ........................................... 50 Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997) ........................................................................ 32 Goddard v. Google Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009) .................................................. 48, 50 Greater L.A. Council on Deafness v. Cmty. Television of S. Cal., 813 F.2d 217 (9th Cir. 1987) .................................................................. 57, 66 Harris v. Marhoefer, 24 F.3d 15 (9th Cir. 1994) ................................................................ 57, 62, 66 Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993) ............................................................. 37, 38, 39 Havens Realty v. Coleman, 455 U.S. 363 (1982) ...................................................................................... 13 Hensley v. Eckerhart, 461 U.S. 424 (1983) ...................................................................................... 56 Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644 (6th Cir. 1991) ........................................................................ 41 Jane Doe IX v. MySpace, Inc., 629 F. Supp. 2d 663 (E.D. Tex. 2009).......................................................... 48 Jones v. Hinds Gen. Hosp., 666 F. Supp. 933 (S.D. Miss. 1987) ............................................................. 25 Julie Doe II v. MySpace, Inc., 175 Cal. App. 4th 561 (2009) ....................................................................... 48

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Labotest, Inc. v. Bonta, 297 F.3d 892 (9th Cir. 2002) ........................................................................ 54 Larkin v. Mich. Dep't Soc. Servs., 89 F.3d 285 (6th Cir. 1996) .......................................................................... 31 La. ACORN Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000) ........................................................................ 16 La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995) .................................................................. 35, 36 Lyng v. Automobile Workers, 485 U.S. 360 (1988) ...................................................................................... 41 McCown v. City of Fontana, 565 F.3d 1097 (9th Cir. 2009) ...................................................................... 65 McGinnis v. Kentucky Fried Chicken, 51 F.3d 805 (9th Cir. 1994) .............................................................. 57, 64, 66 Martin v. City of Struthers, 319 U.S. 141 (1943) ...................................................................................... 42 Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972) ...................................................................... 21 NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................................ 34, 39 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., __ F.3d __, 2009 U.S. App. LEXIS 28539 (4th Cir. Dec. 29, 2009) ........... 48 Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9th Cir. 2004) ...................................................................... 13 N.D. Fair Housing Council v. Allen, 319 F. Supp. 2d 972 (D.N.D. 2004).............................................................. 16 Norwood v. Dale Maint. Sys., Inc., 590 F. Supp. 1410 (N.D. Ill. 1984) ............................................................... 25 Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002) ........................................................................ 13 Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996) .......................................................................... 31 Pacific-Union Club v. Superior Court, 232 Cal. App. 3d 60 (1991) ............................................................... 36, 37,40 Pime v. Loyola Univ. of Chi., 803 F.2d 351 (7th Cir. 1986) ........................................................................ 26

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Pittsburgh Press Co. v. Pittsburgh Commn on Human Rights, 413 U.S. 376 (1973) ...................................................................................... 42 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ...................................................................... 52 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................................................................... passim Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998) ...................................................................... 31 Sanford v. GMRI, Inc., 2005 WL 4782697 (E.D. Cal. Nov. 14, 2005).............................................. 62 Senior Civil Liberties Ass'n v. Kemp, 965 F.2d 1030 (11th Cir. 1992) .................................................................... 29 Shelton v. Tucker, 364 U.S. 479 (1960) ................................................................................ 39, 40 Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006) ........................................................................ 33 Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990) ........................................................................ 15 Stanley v. Georgia, 394 U.S. 557 (1969) ................................................................................ 42, 43 Tahara v. Matson Terminals, Inc., 511 F.3d 950 (9th Cir. 2007) ........................................................................ 54 Texas v. Lawrence, 539 U.S. 558 (2003) ...................................................................................... 30 Thorne v. City of El Segundo, 802 F.2d 1131 (9th Cir. 1986) ...................................................................... 56 United States v. Booker, 543 U.S. 220 (2005) ...................................................................................... 33 United States v. Hughes Mem'l Home, 396 F. Supp. 544 (D. Va. 1975) .................................................................... 18 United States v. Old Kent Fin. Corp., 2004 WL 1157779 (E.D. Mich. May 19, 2004) ........................................... 27 Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ...................................................................................... 42 Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001) ................................................................ 13, 15

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Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...................................................................................... 52 Webb v. Sloan, 330 F.3d 1158 (9th Cir. 2003) ...................................................................... 56 Wilson v. Glenwood Intermountain Props., 876 F. Supp. 1231 (D. Utah 1995).................................................... 26, 28, 29 Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) ........................................................................ 52 Statutes 24 C.F.R. 109.20 ................................................................................................ 27 45 C.F.R. 86.32(a)-(c) (1993) ......................................................................... 29 28 U.S.C. 1291 ............................................................................................ 3, 54 28 U.S.C. 1331 ............................................................................................ 3, 54 28 U.S.C. 1367 ............................................................................................ 3, 54 42 U.S.C. 2000e-2(e)(2).................................................................................. 26 42 U.S.C. 3602 ................................................................................................ 19 42 U.S.C. 3604(c) ............................................................................. 3, 6, 20, 58 42 U.S.C. 3613(c) ........................................................................................... 54 47 U.S.C. 230 .....................................................................................................5 47 U.S.C. 230(b)(1)......................................................................................... 52 Cal. Civ. Code 52(a) ....................................................................................... 63 Cal. Gov't Code 12955 .......................................................................................6 Cal. Gov't Code 12955(c) ..................................................................................6 Fed. R. App. Proc. 6(c) ..................................................................................... 71 Fed. R. App. Proc. 28.1(e), 32(a)(5) .................................................................. 69 Other Authorities STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS (Bernard Schwartz ed., 1970) ...................................................... 21 1976 Op. Wash. A.G. 17, 1976 WL 168501 ..................................................... 30

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OPENING BRIEF AS TO THE JUDGMENT

PRELIMINARY STATEMENT The district court in this case decided for the first time in the Acts 42year history that the Fair Housing Act (FHA) prohibits discrimination in the choice of a roommate in shared living quarters. The court also concluded that no person may make any preferential statement while seeking and choosing a roommate. It is difficult to believe and wholly unsupported by the legislative history that Congress intended to enact a law that controlled the selection of cohabitants and speech relating to the exercise of that choice. Congress intended to improve housing opportunities for people who otherwise might be excluded from available houses and apartments. Its goal was not to interfere with the privacy and safety interests of individuals and families. Its goal was not to impede personal choice or engage in social engineering inside homes shared by unrelated adults. Its goal was not to punish publishers who assist those who engage in lawful activities, including finding roommates with whom they feel comfortable and safe. The court below viewed its ruling on summary judgment as logically following from this Courts decision not to extend the Communications

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Decency Act (CDA) to defendant Roommate.com, LLCs formatted questions about users gender, sexual orientation, and whether they would live with children. But this Court made clear that it was not deciding whether the FHA even applied to the website. Rather, the Court rejected defendants contention that the CDA immunized all user postings, even if those postings violated the FHA. Instead of carefully examining the FHA in light of its legislative history, case law and administrative interpretations of the governmental agency implementing the Act, the district court simply looked at the Act, found no express exception for shared living, and concluded that preferential roommate advertising must be forbidden. But there is simply no reason to believe that Congress or anyone prior to plaintiffs believed the FHA controlled roommate selection. The district courts decision also tosses the FHA into a constitutional thicket. It is difficult to imagine anything more private, sensitive, and subjective than the selection of a person with whom one will live sharing a kitchen, a bathroom, and perhaps even a bedroom and prohibiting advertising calculated to effectuate that choice runs afoul of the First Amendments speech and associational guarantees. The court below should have construed the FHA in a manner that avoids constitutional questions, and should have concluded

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that the Act did not reach statements relating to choice of roommates in shared living situations. The district court went on to misread this Courts en banc decision, and broadly enjoined defendant from redesigning its site to make user selfdescriptions voluntary. Optional, neutral choices on the website are protected by the CDA. The Judgment in favor of plaintiffs, and enjoining defendant from making any inquiry regarding users gender, sexual orientation, and familial status, should be reversed. Plaintiffs lack standing, the FHA does not reach the conduct at issue here, and the injunction is overbroad in forbidding publication of user statements for which defendant is immune from liability.

STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. 1331, in that plaintiffs claims relevant to this appeal arise under the Fair Housing Act, 42 U.S.C. 3604(c), and the supplemental jurisdiction statute, 28 U.S.C. 1367. This Court has jurisdiction under 28 U.S.C. 1291, in that defendant appeals from a final Judgment entered on January 27, 2009, and an order granting attorneys fees and costs to plaintiffs on May 11, 2009.

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STATEMENT OF ISSUES 1. Whether the district court erred in partially granting plaintiffs

Motion for Partial Summary Judgment and partially denying defendants Motion for Summary Judgment, including: (a) Whether plaintiffs failed to establish they sustained any

injury as a result of defendants conduct, and therefore lack standing; and, (b) Whether the federal Fair Housing Act (FHA) and the

California Fair Housing and Employment Act (FEHA) prohibit the publication of statements indicating a preference in the selection of roommates. 2. Whether the district court erred by enjoining defendant from

publishing any information solicited from or voluntarily provided by users regarding gender, sexual orientation, and familial status of potential roommates.1 STATEMENT OF RELATED CASES Pursuant to Circuit Rule 28-2.6, Defendant-Appellant states that it is not aware of any related cases pending in this Court, or any other court or agency.

The following constitutional and statutory provisions are included in an addendum bound with this brief: U.S. CONST. amend. I; 42 U.S.C. 3602, 3604; 47 U.S.C. 230; Cal. Govt Code 12955; and 24 C.F.R. 109.20.

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STATEMENT OF THE CASE A. Nature of the Case

Roommate.com, LLC (Roommate) operates an automated website where individuals who desire to share a residence can exchange information about themselves and homes they are interested in sharing. Plaintiffs contend that Roommate violates fair housing laws by permitting users to state roommate preferences involving protected classifications, and to search the websites database based on those preferences. Profiles are created when users answer multiple-choice questions and provide unstructured comments in a final dialog box called Additional Comments. The website matches potential roommates based on the answers to the multiple-choice questions. In Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 117475 (9th Cir. 2008) (en banc) (Fair Housing I), the Court held that Roommate was not liable for preferential user statements in Additional Comments, pursuant to the immunity for interactive websites created by the Communications Decency Act of 1996, 47 U.S.C. 230 (CDA). The Court found, however, that the formatted questions and matching function involving gender, sexual orientation, and children were not covered by the CDA.

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After remand, what remained of the case whether the FHA and FEHA proscribe preferential statements and matching for shared living arrangements became the subject of cross-motions for summary judgment. The district court concluded that the FHA was unambiguous and roommate selection fell within the scope of 42 U.S.C. 3604(c)s prohibition on any statement . . . with respect to the sale or rental of a dwelling that indicates . . . an intention to make [a] preference, limitation, or discrimination on the basis of a protected category.2 The district court also found in favor of plaintiffs under FEHA, which prohibits the distribution of any notice, statement, or advertisement regarding housing accommodations that indicates a preference. Cal. Govt Code 12955(c).3 B. Proceedings Below

Plaintiffs Demands. Plaintiffs sent Roommate a letter in November 2003, asserting that user statements in the Additional Comments, and such other user-generated content as nicknames, were discriminatory.4 Although the letter mentioned formatted questions in the About Me feature, it

Appellants Excerpts of Record (ER) at ER-I:77-80. Citations employ the format ER-[Volume]:[Page Range]. 3 ER-I:82-83. 4 ER-XII:2469-57.

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focused on Additional Comments. Plaintiffs demanded money and the following equitable relief: 1. [A] policy prohibiting advertisements that indicate any preference . . . and display this with the equal housing opportunity symbol. . . . 2. [A] hyper-link . . . [to] the [local] fair housing organization. . . . .... 6. [F]air housing education ad campaigns . . . that result[] in the publication of three display ads . . . in each city about housing discrimination. 7. Provide free advertising promoting fair housing . . . on first page of the website. . . . 8. Fair Housing Training for all key Roommates.com staff. . . . Complaints. Plaintiffs filed a Complaint in December 20035 and a First Amended Complaint in April 2004.6 Both Complaints alleged five claims for relief: FHA, FEHA, state unfair competition, Unruh Civil Rights, and negligence. Roommate was alleged to have published housing advertisements

5 6

ER-II:129-43. ER-II:144-59.

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indicating preferences regarding source of income, religion, age, disability, race, national origin, marital status, gender, sexual orientation and familial status. Plaintiffs sought punitive damages, statutory damages, disgorgement of all profits, mandatory training for Roommates staff, and a fair housing notice on the website. As with the demand letter, the focus of the Complaints was inflammatory free-form user statements in Additional Comments.7 Plaintiffs allegations of discrimination on the basis of religion, race, national origin, ethnicity, source of income, and marital status were premised entirely on what this Court ultimately confirmed were CDA-protected postings. First Summary Judgment Ruling. In September 2004, the district court granted Roommates motion for summary judgment in part, denied plaintiffs cross-motion, and dismissed the action.8 The court found that Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003), compels the conclusion that Roommate cannot be liable for violating the FHA arising out of nicknames chosen by its users, the free-form comments provided by the

7 8

ER-II:147, 148-50, 13, 15-35. ER-I:113-22.

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users, or the users responses to the multiple-choice questionnaire.9 Plaintiffs appealed. The Courts CDA Decision. This Court affirmed summary judgment as to user statements in Additional Comments, holding that this is precisely the kind of situation for which section 230 was designed to provide immunity. Fair Housing I, 521 F.3d at 1174. The Court found, however, that the formatted questions and matching function involving gender, sexual orientation and children were not covered by the CDA. Id. at 1165-70. The Court expressly reserved for consideration by the district court whether any of Roommates questions actually violate the Fair Housing Act or California law, or whether they are protected by the First Amendment or other constitutional guarantees. Id. at 1164; see also id. at 1171 n.30, 1175. Second Summary Judgment Ruling. In November 2008, on crossmotions for summary judgment, the district court found in favor of plaintiffs for violation of the FHA and FEHA, and denied Roommates motion.10 Plaintiffs other claims Unruh Act, unfair competition, and negligence were dismissed.11

9 10 11

ER-I:120. ER-I:74-83. ER-I:64-66; ER-XII:2845-45.

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In mediation, the parties settled plaintiffs diversion of resources damages claim for $175,000, payable only if plaintiffs prevail on appeal.12 The district court granted a permanent injunction relating to the formatted questions and matching function of the website, but stayed the injunction pending appeal.13 Fees Award. In March 2009, plaintiffs moved for an award of fees and costs. Although the district court reduced the hourly rate sought by plaintiffs counsel, it accepted virtually all of the hours claimed by plaintiffs, and imposed only a token discount of 10 percent for plaintiffs partial success. The court awarded $499,205 to plaintiffs.14 Appeals. Roommate timely appealed from the Judgment on February 23, 2009, and from the Fees Order on June 9, 2009. Plaintiffs crossappealed from the Fees Order on June 19, 2009.

STATEMENT OF FACTS The roommates.com Website. Roommate operates roommates.com, a matching service that is accessed through the Internet at

12 13 14

ER-X:2369, 1. ER-I:67-73; ER-XII:2717-20. ER-I:1-63.

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http://www.roommates.com.15 The website is designed to help individuals looking to share a residence find compatible roommates.16 A user who wishes to find potential roommates must respond to a series of multiple-choice questions, including questions about gender, sexual orientation, and whether children will be living with them.17 A user may (but is not required to) state preferences with respect to the gender and sexual orientation of a potential roommate, and whether the user is willing to live with children.18 The default settings as to each question reflect no preference, and the user must alter these settings to indicate any preference.19 Users may also include additional information about themselves, and the residence they are offering to share or would like to find to share, as Additional Comments.20 Users of the website are then matched with potential roommates based on the self-descriptions and preferences (if any) stated in response to the multiplechoice questions. The site does not match based on users Additional Comments.21

15 16 17 18 19 20 21

ER-V:793, 1. ER-V:793 2-3. ER-V:794, 7. ER-V:794, 8. ER-V:794, 9. ER-V:794-95, 10. ER-IX:1805-06, 11.

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SUMMARY OF ARGUMENT The district court erred in granting summary judgment to plaintiffs in two respects. First, plaintiffs lack standing, having sustained no concrete injury at the hands of Roommate. Second, the FHAs legislative history, the case law and the administrative interpretations of the implementing agency establish that the Act does not prohibit preferential solicitations for roommates for shared living. Legislation also must be construed to avoid constitutional questions, and this requires the Court to reject any interpretation of the FHA that impedes the exercise of First Amendment associational and free speech rights. The FHA therefore cannot be extended to control the choice of roommates and speech that vindicates that choice. The district court also erred by enjoining Roommate from redesigning its site so users may voluntarily provide information about their gender, sexual orientation, and familial status. The district court broadly prohibited Roommate from asking, inquiring, soliciting, prompting, or eliciting any such information, even though people looking for roommates often consider this information important, and they are indisputably entitled to obtain and use it to effectuate their interests in privacy and safety. By barring the collection of this information, even if the answers are voluntarily provided, the district court

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misread and misapplied this Courts en banc decision, which held that Roommate could not claim immunity to the extent that it required such disclosures. At minimum, the Court should reverse and remand for reconsideration of the injunction.

ARGUMENT I. STANDARD OF REVIEW A grant of summary judgment is reviewed de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002). A permanent injunction that implicates free speech is reviewed de novo. Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1016 (9th Cir. 2004).

II.

GENERALIZED CLAIMS OF DIVERTED RESOURCES DO NOT CONFER ORGANIZATIONAL STANDING To have standing under the FHA, a housing organization must prove it

sustained a concrete and demonstrable injury to [its] activities, not simply a setback to the organizations abstract social interests. Havens Realty v. Coleman, 455 U.S. 363, 379 (1982). At summary judgment, organizational plaintiffs must support their injury allegations with specific facts. Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001); accord Fair Housing

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Council v. Main Line Times, 141 F.3d 439, 443 (3d Cir. 1998) (requiring evidence of a necessary causal connection between the organizations injury and preferential advertisements). The district court found standing based on plaintiffs testimony that they devoted dozens of hours to investigating Roommates alleged violations of the FHA prior to commencing this litigation, dedicated training and educational resources to countering the effects of Roommates policies, and suffered injury to their ability to carry out their purpose.22 The actual facts do not support this finding, however. Plaintiffs investigation consisted of reviewing the roommates.com website, reading and collecting statements in Additional Comments.23 Roommate is immune from liability for Additional Comments, however, so any efforts spent in relation to that user-generated content cannot support standing. At the same time, the websites matching of users based on multiplechoice questions about gender, orientation, and children is obvious and does not require the expenditure of significant time. Further, mere review of advertising cannot create standing. In Fair Housing Council v. Montgomery Newspapers, 141 F.3d 71, 78 (3d Cir. 1998),

22 23

ER-I:76. ER-V:798-801, 19.

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the court rejected a similar argument that an organizations staff members review[ed] classified advertisements placed in . . . newspapers on an ongoing basis for evidence of discrimination. Monitoring ads is part of the normal day-to-day operations of a housing organization, the court said, so the investigation did not confer standing.24 Moreover, there was no diversion of resources by plaintiffs in response to alleged wrongdoing by Roommate. Standing can arise where an organizations efforts specifically counteract the defendants wrongdoing. That distinguishes this case from Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002). There, the plaintiffs undertook efforts calculated to address the defendants discrimination: The record supports the district courts finding that Fair Housings resources were diverted to investigating and other efforts to counteract Combs discrimination above and beyond litigation. . . .With respect to frustration of mission, the district court

To the extent plaintiffs efforts involved review of the site related to this litigation, those costs cannot confer standing. Were the rule otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation. Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990). The Ninth Circuit adopted the same rule in Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001).

24

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found that Fair Housing suffered $10,160 in frustration of mission damages, namely for design, printing, and dissemination of literature aimed at redressing the impact of Combs discrimination . . . . Id. at 905 (emphasis added). Courts consistently require proof of organizational injury directly attributable to the defendants wrongdoing. See La. ACORN Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000) (no specific redeployment of programs or resources); ACORN v. Fowler, 178 F.3d 350, 360 (5th Cir. 1999) (no activities in response to defendants actions); Ark. ACORN Fair Housing v. Greystone Dev., Ltd., 160 F.3d 433, 434 (8th Cir. 1998) (plaintiff must present facts specifically quantifying the resources expended); Montgomery Newspapers, 141 F.3d at 76 (plaintiff could not prove discriminatory ads caused any perceptible diversion of resources). An alleged injury is not traceable to the defendant if the plaintiffs actions were not targeted solely at the Defendants, but are designed to benefit the community as a whole. N.D. Fair Housing Council v. Allen, 319 F.Supp.2d 972, 979 (D.N.D. 2004). Plaintiffs commendable education programs and assistance of discrimination victims do not confer standing to sue Roommate. No resources were diverted to remedy the actions that are the basis for what remains of this

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case the use of formatted questions regarding preferences on the roommates.com website. No one complained to plaintiffs about roommates.com, nor did plaintiffs provide help to any person relating to the website or postings by its users. Rather, plaintiffs alleged injuries are routine efforts at community outreach and professional conferences plaintiffs regularly attended long before the creation of roommates.com. See Main Line Times, 141 F. 3d at 443 (no standing where organization was not required to modify its operations in any way as a result of the defendants conduct). Plaintiffs would have this Court hold that all their expenditures on the general subject of Internet advertising are traceable to a single roommate website, even though there are many. None of plaintiffs claimed expenditures or efforts directly addressed advertisements on roommates.com. Similarly, the discriminatory advertising plaintiffs say they sought to redress was general rather than arising from defendants website. As plaintiffs have admitted, their shift to discussing Internet housing ads was merely the result of general trends in advertising activities.25 Indeed, none of plaintiffs outreach efforts addressed the actions of any company involved in roommate advertising.26

25 26

ER-VII:1437-38. ER-VII:1465.

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Thus, plaintiffs actions and expenditures were normal day-to-day operations, and do not qualify as injuries conferring standing. Summary judgment should have been entered in defendants favor on this basis alone.

III.

THE FHA DOES NOT APPLY TO POSTINGS FOR ROOMMATES IN SHARED HOMES The district court erred by finding that advertising for shared living

arrangements is prohibited by the FHA. The words and history of the Act, the regulations and memoranda issued by the federal Department of Housing and Urban Development (HUD), the exemptions specifically provided in other federal acts to allow same-sex roommates, and the opinions of every court and agency to address the question, clearly establish that the FHA applies to commercial sales and rentals of housing stock, and advertisements for such property not to roommate situations,27 or to postings by individuals aimed at finding suitable roommates.

Although courts have applied the FHA to organizations operating group homes, such holdings have been limited to situations where an array of residents are housed in a group situation. See, e.g., Cmty. House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) (possible FHA violation for conversion of mixed facility to men-only); United States v. Hughes Meml Home, 396 F.Supp. 544, 548-50 (D. Va. 1975) (FHA applies to childrens home as a whole). These cases do not involve the assignment of individuals to share a room. See Community House, 490 F.3d at 1051 n.6 (The City does not proffer a privacy justification because Community House provides separate rooms for men, women, and families.).

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A.

The District Court Erred in Concluding that the FHA by Its Terms Applies to the Sharing of Homes

The district court concluded that the FHA unambiguously applies to situations involving shared living arrangements such as those sought by Roommates users.28 If this is true, no person who makes their house, apartment, or even bedroom, available to share can reject any individual or family in consideration of any of the FHAs protected classifications something that will come as a shock to most Americans. Moreover, the district court discerned plain language with a convoluted reading of the Act. While it is true that a dwelling can be a portion of a building or structure, nowhere does the statute claim to control the sale or rental of a portion of a dwelling. See 42 U.S.C. 3602. That a dwelling can be intended for occupancy by one or more families does not mean that the act of including more than one family or individual in a home constitutes sale or rental of a dwelling, as contemplated by the statute. While the district court concluded that a roommate living situation involves the rental of a portion of a building or structure which is occupied as, or designed or intended for occupancy as, a residence for one or more families, the FHA does not control

28

ER-I:79.

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transactions involving portions of buildings. Rather, the Act establishes rules for advertising the sale or rental of a dwelling. 42 U.S.C. 3604(c). The statute is more reasonably read as governing commercial transactions involving available dwellings transferrable living quarters, such as apartments and houses. In a roommate situation, the parties are not merely entering into a real estate transaction. They are agreeing to live together, in a shared space, and nothing in the language of the FHA suggests that Congress intended to intrude into those situations.29 B. The Legislative History Establishes that the FHA Was Aimed at Commercial Sales and Rentals The ban on preferential advertising furthers the FHAs prohibition on actual discrimination. Nothing could be clearer than that Congress aimed to prohibit discrimination in the commercial sale and rental of houses and apartments by brokers, landlords, and owners.

Although plaintiffs contended at summary judgment that roommates.com helps people rent rooms and relied on inapposite authorities involving boarding houses defendants website is designed expressly and exclusively to help people share homes as roommates. ER-V:793, 795-96. The district court disregarded the distinction and determined that the FHA applies to shared housing. ER-I:77-79. In any event, Roommate cannot be held liable for misuse of its site for unlawful purposes, Carafano, 339 F.3d at 1171, such as by commercial landlords who might make false statements in response to the roommates.com questionnaire. Thus, the question of whether the FHA proscribes preferential advertising for roommates in shared housing is squarely presented to this Court as a legal question.

29

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It is undeniable that the fair housing provisions were aimed primarily toward actual sales and rentals of real estate. Mayers v. Ridley, 465 F.2d 630, 652 (D.C. Cir. 1972) (en banc) (emphasis added). As Senator Walter Mondale, the prime sponsor of the Act, explained, The bill permits an owner to do everything that he could do anyhow with his property insist upon the highest price, give it to his brother or to his wife, sell it to his best friend, do everything he could ever do with property, except refuse to sell it to a person based solely on the basis of color or religion. 2 STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 1751 (Bernard Schwartz ed., 1970) (Schwartz) (emphasis added). The explanatory memorandum from the Department of Justice was to the same effect: What is prohibited is the use of sales and rental services and facilities, i.e., the use of a professional real estate dealer or other person in the business of selling or renting dwellings to help in accomplishing the individuals discriminatory purpose. Id. at 1692 (original emphasis). Co-sponsoring Congressman Emanuel Cellars said, What is needed to end housing discrimination is a universal Federal law with uniform coverage so there will be a single set of rules everywhere for everyone buyers, sellers, and real estate brokers. Id. at 1778. Congress excluded from the Acts prohibitions the sale or rental of owner-occupied dwellings of less than four units, the so-called Mrs. Murphy

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exception. This exception clearly evinced Congress intent not to regulate commercial relationships involving separate dwellings, where doing so might infringe on privacy interests. As Senator Hubert Humphrey explained, the Mrs. Murphy exemption was based on a similar exemption from Title II of the Civil Rights Act of 1964, which prohibited discrimination in public accommodations. Senator Humphrey described Title II as carefully drafted and moderate in nature. There is no desire to regulate truly personal or private relationships. Id. at 1194. While the Mrs. Murphy exception does not apply here, the concerns that caused Congress to craft the exception are, if anything, even more applicable to a roommate situation. The selection of a person to share ones own living quarters must be one of the most intimate, personal decisions one can make, and is more deserving of protection than the selection of ones neighbors. C. The District Courts Interpretation of the FHA Is Contrary to Common Sense and Public Policy The district court found no express exception in the FHA for shared living situations. But the law does not exist in a vacuum, and courts interpret statutes in a manner that respects social norms. Here, 42 years after its enactment, plaintiffs seek an interpretation of the FHA that makes illegal all expressions relating to the sharing of a home notwithstanding the prevalence

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and acceptance throughout society of solicitations in local newspapers, in church and synagogue newsletters, on college bulletin boards, and in on-line forums and classified ad sites indicating preferences for roommates who are, variously, female, gay, transgender, kosher, Christian, Muslim, 65+, or Chinese-speaking. In the real world, we readily accept and respect the right of individuals to find and live with those with whom they feel safe and comfortable. One could certainly argue that it makes more sense to allow preferences based on sex than those based on race or religion. As for family status, perhaps it makes more sense to allow a single mother with children to seek another mother with children as roommates, than it does to allow single people to avoid living with children, although many single people might well disagree with that perspective. Certainly, one can imagine very good reasons why a mother of teenage girls might not choose a young man as their roommate, and why two gay men or two lesbians might prefer to live together, rather than share a home with someone who might be uncomfortable with their sexual activities. The basic point is simply this: if Congress were going to apply antidiscrimination laws to shared living, the only sensible way to do that would be to make distinctions among the protected categories listed in the FHA. Congress did not do this, however, because it never contemplated the Act

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would be extended to roommate choice where selectivity is driven by personality, lifestyle, and interests of privacy and safety, and does not involve a purely commercial transaction that becomes unlawful when driven by discriminatory animus. Preferring someone like yourself in such circumstances does not carry with it any inherently negative stereotypes about the other; it does not mean that women think less of men because they are uncomfortable sharing a bathroom with them; or that parents harbor unfair and negative stereotypes about people without children because they prefer other parents with children as roommates. Plaintiffs cannot establish that roommate preferences are anything other than the common and legitimate desire of individuals to share private living space with someone of the same gender or lifestyle. Nor is there any basis to conclude that any person was excluded by roommate.com from a housing opportunity for which there was no equivalent substitute, or that they suffered any specific injury that would allow them to justly claim to be a victim of discrimination. Perhaps this is why, over the course of more than six years of litigation, plaintiffs have failed to identify a single person who complained to them about the roommates.com website. In light of this, any legislature that desires to apply anti-discrimination laws to shared living would have to draw lines that respect social norms, or

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delegate that authority to an agency with sufficient guidelines. It would have to provide exceptions, not only for women who prefer women as roommates and men who prefer to room with other men, but also for those who observe dietary laws, or do not turn on the stove on the Jewish Sabbath. A law forcing observant Jews to share a kitchen with those who eat bacon for breakfast daily would be subject to challenge, and should be. To prohibit everyone from ever taking account of sex or religion or family status or national origin when it comes to shared living is to enact a prohibition that cannot be explained on policy grounds, and would certainly invite challenge on constitutional ones. These are precisely the sorts of lines that Congress in fact drew with respect to Title VII of the Civil Rights Act of 1964, in recognizing that gender but not race could be a bona fide occupational qualification (BFOQ), thus allowing ladies rooms to be staffed by female matrons, and womens dorms to be supervised by female housemothers, while prohibiting discrimination on the basis of race or religion. See, e.g., Jones v. Hinds Gen. Hosp., 666 F.Supp. 933 (S.D. Miss. 1987) (gender preference was a BFOQ for hospital orderlies to preserve privacy interests of male patients); Norwood v. Dale Maint. Sys., Inc., 590 F.Supp. 1410 (N.D. Ill. 1984) (sex was a BFOQ for washroom attendants). The Roman Catholic Church may limit the priesthood and professorships in Catholic universities to Catholics, but it cannot discriminate in the hiring of

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janitors. See 42 U.S.C. 2000e-2(e)(2); Pime v. Loyola Univ. of Chi., 803 F.2d 351 (7th Cir. 1986). Similarly, while Title IX requires colleges to equalize their spending on sports for girls and for boys, they can field separate teams and house them in single-sex dorms. See, e.g., Wilson v. Glenwood Intermountain Props., 876 F.Supp. 1231, 1243 (D. Utah 1995), vacated on other grounds, 98 F.3d 590 (10th Cir. 1996). That no such lines are drawn in the FHA, and no authorization granted to HUD to draw them, is perhaps the most persuasive proof that Congress did not intend that the Act apply to shared living. D. HUD Has Construed the FHA as Not Reaching Shared Living Arrangements After the passage of the FHA, HUD issued regulations aimed at clarifying the kinds of advertising the Act prohibited and the types of complaints HUD would pursue. The applicable regulation stated that genderbased advertisements for shared living quarters were not prohibited by the Act: The following words, phrases, symbols, and forms typify those most often used in residential real estate advertising to convey either overt or tacit discriminatory preferences or limitations. . . .

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(b) Words indicative of race, color, religion, sex, handicap, familial status, or national origin. . . . 5) Sex -- the exclusive use of words in advertisements, including those involving the rental of separate units in a single or multifamily dwelling, stating or tending to imply that the housing being advertised is available to persons of only one sex and not the other, except where the sharing of living areas is involved. Nothing in this part restricts advertisements of dwellings used exclusively for dormitory facilities by educational institutions. 24 C.F.R. 109.20 (emphasis added).30 In 1995, Assistant Secretary for Fair Housing and Equal Opportunity Roberta Achtenberg issued a memorandum intended to clarify the regulation.

While part 109 was withdrawn from the Code of Federal Regulations by Directive No. FR-4029-F-01, effective May 1, 1996, it continues to represent the positions of HUD on advertising issues, except as they were superseded by the Achtenberg Memorandum. See, e.g., United States v. Old Kent Fin. Corp., 2004 WL 1157779 at *1 (E.D. Mich. May 19, 2004) (relying on 24 C.F.R. part 109 as the operative fair housing advertising guidelines for HUD).

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Achtenberg instructed HUD officials not to accept complaints against newspapers for ads seeking female roommates, and she advised that the person placing the advertisement, not the newspaper that publishes it, is responsible for assuring that the advertisement is for shared living: Publishers can rely on the representations of the individual placing the ad that shared living arrangements apply to the property in question.31 HUDs recognition that the prohibitions of the FHA do not apply to shared living, and its directive that the individual placing the advertisement not the publisher of it must ensure it is for shared living, should control here. No amendments by Congress or new regulations by HUD have been enacted since 1995 that have altered its interpretation. E. No Court or Agency that Considered the Question Has Applied the FHA to Shared Living The position taken by HUD is precisely the same as that taken by every court to consider the application of the FHA to shared-living situations. In Wilson, the court addressed whether Brigham Young University violated the FHA when it segregated students by gender in both on- and off-campus

31

ER-V:941-46

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housing, and whether landlords providing this off-campus housing violated the Act by advertising this housing as male or female only. The court recognized that Title IX expressly allows a university to segregate students by gender in housing and advertise such segregation. Wilson, 876 F.Supp. at 1243 (citing 45 C.F.R. 86.32(a)-(c) (1993)). For a court to apply the FHA to universities in this context, it would be forced to disagree with the interpretation given to both the Fair Housing Act and Title IX by the very same federal agencies who are charged with enforcing those statutes interpretations that the court held were entitled to substantial deference. Id. at 1244-45. The Eleventh Circuit reached a similar conclusion as to the reach of the FHA. In Senior Civil Liberties Assn v. Kemp, 965 F.2d 1030 (11th Cir. 1992), persons living in a condominium complex that forbade children challenged the application of the FHA to their complex, on the ground that the Act violated their First Amendment right of intimate association. The court rejected their claim because the Act did not control who lived within particular units, but only whether individuals with children could be excluded from purchasing units. If the Act were trying to force plaintiffs to take children into their home, this

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argument might have some merit. But the Act violates no privacy rights because it stops at the [plaintiffs] front door. Id. at 1036 (emphasis added).32 The Washington State Attorney General, faced with questions about a state law version of the FHA, reached the same conclusion. It is lawful for a person to specify in an advertisement for a roommate that the roommate must be of a particular sex, age or religion, or for a newspaper to publish an advertisement for a roommate when the advertisement contains such a specification. 1976 Op. Wash. A.G. 17, 1976 WL 168501, at *1. The opinion found that [o]ne of the societal values which is deserving of recognition, in our view, is the basic freedom to control ones life by choosing the sex of persons with whom one lives. Id. at *3 (quoting a July 15, 1976, declaratory ruling of the state human rights commission). F. If the FHA Does Extend to Shared Housing, the Court Should Recognize a BFOQ for Roommate Selection Based on Gender, Sexual Orientation, and Familial Status That roommate selection implicates the privacy and safety interests of individuals is beyond dispute. Where such interests clearly outweigh any governmental interest in nondiscrimination, a court may properly recognize an

See also Texas v. Lawrence, 539 U.S. 558, 562 (2003) (Liberty protects the person from unwarranted government intrusion into a dwelling or other private places. In our tradition the State is not omnipresent in the home.).

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exception to the FHAs facially absolute terms. Community House, 490 F.3d at 1050. In Bangerter v. Orem City Corp., 46 F.3d 1491, 1504-05 (10th Cir. 1995), the court warned that the FHA should not be interpreted in a way that actually harms those it is intended to help, such as the handicapped. Citing previous cases, the Tenth Circuit observed, [t]hese courts all recognize the importance of leaving room for flexible solutions to address the complex problem of discrimination and to realize the goals established by Congress in the Fair Housing Act. Id. at 1505; accord Larkin v. Mich. Dept Soc. Servs., 89 F.3d 285, 290-91 (6th Cir. 1996) ([I]n order for facially discriminatory statutes to survive a challenge under the FHAA, the defendant must demonstrate that they are warranted by the unique and specific needs and abilities of those handicapped persons to whom the regulations apply.); see also Oxford House-C v. City of St. Louis, 77 F.3d 249, 252 (8th Cir. 1996) (approving zoning limits on number of handicapped residents in group homes because it was rationally related to community interests). As discussed in Section III(C), privacy interests have been found to justify a finding that gender is a BFOQ under Title VII of the Civil Rights Act of 1964. See Robino v. Iranon, 145 F.3d 1109, 1110 (9th Cir. 1998); Everson v. Mich. Dept of Corr., 391 F.3d 737, 758 & n.28 (6th Cir. 2004). Title VII

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discrimination standards are often applied to claims under the FHA. Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997). In Community House, this Court acknowledged that gender-segregated homeless shelters might be permitted, notwithstanding the FHAs absolute language, because of legitimate privacy and safety concerns. 490 F.3d at 1051 & n.6. The majority determined that the defendant city had not offered enough evidence on this point, particularly since the segregated shelter in question already had separate housing units for men, women, and families. Judge Callahan, in dissent, concluded that the citys men-only policy was, indeed, a BFOQ because it was intended to result in additional and better shelters for women and children. Id. at 1062 & n.3 (Callahan, J., dissenting in part and concurring in part). Likewise here, the legitimate privacy and safety interests of those who want to share homes as roommates clearly outweigh any governmental interest in proscribing roommate choice and speech that facilitates that choice based on preferences. On the roommates.com website, these privacy and safety interests are individually expressed by the users; Roommate does not match only men with men, women with women, and so forth. All users can choose to seek possible roommates of the same and/or opposite gender, the same and/or different orientation, and with or without children, and they do this not with

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discriminatory animus, but because they want to be comfortable and safe in their homes. Accordingly, even if the FHA facially applies to defendants website, the Court should find that there is no violation of the Act here, where users are advancing their privacy and safety interests in the selection of roommates for shared residences.

IV.

THE DISTRICT COURTS RULING CREATES A STATUTORY CONFLICT WITH FUNDAMENTAL CONSTITUTIONAL RIGHTS The canon of constitutional avoidance requires a statute to be construed

so as to avoid serious doubts as to the constitutionality of an alternate construction. Sosa v. DIRECTV, Inc., 437 F.3d 923, 931 n.5 (9th Cir. 2006). This principle of constitutional avoidance, which has for so long been applied by [the Supreme Court] that it is beyond debate, is intended to show respect for Congress by presuming it legislates in the light of constitutional limitations. United States v. Booker, 543 U.S. 220, 286 (2005). Barring individuals from obtaining information that they believe is necessary to guide their choice of roommates raises serious constitutional

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concerns.33 This Court should, under the doctrine of constitutional avoidance, adopt a construction that does not raise such questions. The district courts construction of the statute impairs individuals efforts to locate roommates based on certain legitimate preferences, thereby infringing their rights to intimate association and privacy. A. The Associational Rights at Stake Deserve Heightened Protection The Supreme Court has recognized the right of intimate association as a protected liberty interest under the First and Fourteenth Amendments. NAACP v. Alabama, 357 U.S. 449, 460-61 (1958); Britt v. Superior Court, 20 Cal.3d 844, 852-53 (1978); Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). The right of private association protects the choice of individuals and

In its summary judgment ruling, the district court became hopelessly tangled in the thicket created by plaintiffs extension of the FHA to speech relating to roommate selection. In Section II(C), the court expressly found that the Act applied to roommates living in shared homes. ER-I:79 (The Court therefore concludes that the language of the FHA unambiguously applies to situations involving shared living arrangements such as those sought by Roommates users.). But then, in Section II(D), the district court assume[d] that the right to intimate association includes the right of an individual to discriminate in the selection of a roommate. ER-I:80. In switching gears, the court apparently sought to avoid addressing the First Amendment associational and speech rights of the people using the roommates.com website. The confusion and the erroneous reasoning of the district court did not stop there, however. The court went on to conclude that defendant (despite its userss rights) is not entitled to any constitutional protection for publishing roommate advertising because such speech might communicat[e] the message that housing discrimination is permissible. ER-I:81. The illogic of this is driven home by an examination of the website which is expressly designed for roommate-matching and, throughout its questionnaire, focuses on the sharing of living quarters. ER-V:794-95.

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organizations to enter into and maintain certain intimate human relationships . . . against undue intrusion by the State, La. Debating & Literary Assn v. City of New Orleans, 42 F.3d 1483, 1493 (5th Cir. 1995) (quoting Roberts, 468 U.S. at 617-18), and reflects the realization that individuals draw much of their emotional enrichment from close ties with others, Roberts, 468 U.S. at 19. Protecting these relationships from unwarranted state interference . . . safeguards the ability independently to define ones identity that is central to any concept of liberty. Id. The right of association also plainly presupposes a freedom not to associate. Id. at 623 (emphasis added). While the highest level of constitutional protection applies to the creation and sustenance of family, id. at 619, the right of intimate association has not been restricted to the family context. See Bd. of Dirs. of Rotary Intl v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (We have not held that constitutional protection is restricted to relationships among family members.). Instead of adopting a categorical approach, the Supreme Court conducts a careful assessment of where that relationships objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. Roberts, 468 U.S. at 620.

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As part of that inquiry, courts have examined whether a relationship involves deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of ones life. Id. at 620. Courts have considered such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. Id. In contrast, relationships which lack such attributes, such as those found in the impersonal hierarchy of a large corporation or other business organization are remote from the privacy concerns giving rise to constitutional protection. PacificUnion Club v. Superior Court, 232 Cal.App.3d 60, 72 (1991). Between these two poles lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Roberts, 468 U.S. at 620. In Roberts and Rotary Club, the Supreme Court denied associational protection to groups that lacked the requisite smallness, selectivity, focus and exclusion to warrant constitutional protection. In contrast, denial of membership access, even on discriminatory grounds, has been upheld in cases where organizations are tight-knit, selective, exclusionary and focused on a particular social purpose. For instance, in Louisiana Debating, the court refused to apply to four social clubs an ordinance

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prohibiting discrimination in places of public accommodation. 42 F.3d at 1498. The clubs had a purely social purpose and selected members based on character, relationships and acquaintances, congeniality and compatibility. Id. at 1496. Likewise, in Pacific-Union Club, the court upheld the associational rights of a private club in rejecting state tax authorities efforts to obtain its membership lists. 232 Cal.App.3d at 78. In contrast to Roberts and Rotary Club, the club was much farther toward the intimate pole of the associational spectrum, due to its smaller membership, organizational structure, geographic focus, highly restrictive membership practices and focus on congeniality. Id. at 73. Similarly, in Hart v. Cult Awareness Network, 13 Cal.App.4th 777 (1993), the court upheld the right of intimate association of a well-defined subgroup, whose membership is highly restricted and selective, based on shared opinions, thoughts and concerns with respect to destructive cults, id. at 788-89. The associational interests at stake here have many of the attributes of a family relationship. Roommates typically share kitchen and living spaces, and, in some circumstances, bathrooms or bedrooms. Much like families, their lives will become closely intertwined as they share meals and expenses, work out compromises and resolve interpersonal conflicts, entertain guests, overhear conversations, and see each other at their best and worst. These relationships

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have the requisite selectivity, smallness and seclusion from others to fall within the heightened zone of constitutional protection. Individuals seeking shared living arrangements are understandably concerned about both compatibility and personal security; it is not unreasonable, for instance, for women to want to room with other women out of concern for their physical safety, to reduce the likelihood of unwanted sexual advances, to enhance their ability to move freely clad or unclad throughout their living space, and to form bonds enhanced by common interests and shared attributes. Likewise, singles who are not accustomed to the demands of children may reasonably wish to live with other singles to accommodate their lifestyles. In making information about such personal characteristics available to its users, roommates.com facilitates associational ties that involve distinctively personal aspects of ones life. Hart, 13 Cal.App.4th at 788 (quoting Rotary Club, 481 U.S. at 545). Plaintiffs assumption that the communication of such information necessarily reveals an intent to discriminate misapprehends the lawful and practical reasons, entirely unrelated to any prohibited bias or animus, that individuals seeking shared living arrangements may have in knowing the characteristics of potential

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roommates.34 In short, on the broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State, Roberts, 468 U.S. at 620, the roommate relationship, objectively assessed, primarily involves the intimate personal concerns and activities deserving of a high level of constitutional protection, Hart, 13 Cal.App.4th at 789. B. Application of the FHA to Roommates Cannot Satisfy Strict Scrutiny Because roommates.com users have associational rights protected by the highest level of constitutional scrutiny, any attempted regulation of postings for shared living arrangements must satisfy strict scrutiny. See Shelton v. Tucker, 364 U.S. 479, 488 (1960); NAACP v. Alabama, 357 U.S. at 463; Brock v. Local 375, Plumbers Intl Union of Am., 860 F.2d 346, 350 (9th Cir. 1988).35 The burden the state must satisfy to establish a compelling state interest is

Indeed, defendants members often undergo a rigorous process before entering into a shared living arrangement, including e-mail communications, phone conversation, and inspection of the residence. ER-V:797-98. Only when both parties are satisfied that the shared living relationship is viable does the shared arrangement occur. 35 Even under intermediate scrutiny, plaintiffs claims fails because preventing the exchange of information necessary to ensure safe and compatible living arrangements does not serve any substantial governmental interest. See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Commn, 447 U.S. 557, 566 (1980). The only plausible justification prevention of discrimination is not implicated because the preference for individuals with similar characteristics in a roommate setting produces no pattern of exclusion of any protected group. Moreover, plaintiffs interpretation would clearly suppress free expression since (footnote continued)

34

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particularly heavy. Pacific-Union Club, 232 Cal.App.3d at 78 (internal quotation marks omitted). In this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation. Id. (quoting Sherbert v. Verner, 374 U.S. 398, 406 (1963)). Moreover, [e]ven if such a compelling interest is present, it cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Id. (quoting Shelton, 364 U.S. at 488). There is a compelling interest in preventing discrimination in the sale and rental of dwellings, and in ensuring that those who have been traditional targets of discrimination get an opportunity to secure housing. But there is absolutely no evidence that this interest is being negatively impacted by respecting individual freedom of association in the choice of roommates. Plaintiffs own examples belie the notion of any systemic preferences for or against any vulnerable group and demonstrate as many instances of individuals seeking homosexual roommates as heterosexual ones, and women as men.36 This case does not implicate the civil rights that Congress sought to protect when it passed the FHA.

plaintiff seeks to ban the solicitation and conveyance of information at the heart of First Amendment expression. 36 ER-II:148-50, 15-32.

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The relief sought by plaintiffs would require individuals seeking shared living arrangements either to entirely suppress their desire for roommates with similar characteristics (and take their chances, for instance, in mixed-gender roommate situations) or, more likely, go to cumbersome lengths to ascertain the characteristics of potential roommates (e.g., through numerous face-to-face meetings). As the Supreme Court has recognized, associational rights are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference. Lyng v. Automobile Workers, 485 U.S. 360, 367 n.5 (1988). However laudable plaintiffs abstract goals, it is simply not governments role to regulate private rooming choices. See Flaskamp v. Dearborn Public Schools, 385 F.3d 935, 942 (6th Cir. 2004) (Whether called a right to intimate association, or a right to privacy, the point is similar: choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. (quoting Roberts, 468 U.S. at 617-18)).37

It follows, of course, that if the underlying activity preferring to live with individuals of a certain gender, sexual orientation, or family composition is lawful, then both the individual users and defendant have a right to advertise such preferences to effectuate a lawful intent. There is no basis to argue that while particular preferences in roommate selection are lawful, advertisements designed to effectuate such preferences are not. See, e.g., Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, (footnote continued)

37

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C.

The District Courts Ruling Runs Afoul of the Right to Receive and Convey Information

If the district court is correct, the FHA also conflicts with the bedrock First Amendment right to receive and convey information, by precluding individuals from obtaining or sharing information related to central aspects of their personhood. See Stanley v. Georgia, 394 U.S. 557, 564 (1969) (the Constitution protects the right to receive information and ideas); Martin v. City of Struthers, 319 U.S. 141, 146-47 (1943) (Freedom to distribute information to every citizen . . . is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.); Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 386-387 (1998) (Rehnquist, J., concurring in part, dissenting in part) (Our decisions have concluded that First Amendment protection extends equally to the right to receive information, and to the right to solicit information or responses.); see also Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (rejecting paternalistic government control of commercial speech); Conant v. Walters, 309 F.3d 629,

651-53 (6th Cir. 1991). In contrast, the constitutionality of the ban on sexspecific employment advertising at issue in Pittsburgh Press Co. v. Pittsburgh Commn on Human Rights, 413 U.S. 376 (1973), turned on the underlying illegality of engaging in sex discrimination in employment.

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643 (9th Cir. 2002) (It is well established that the right to hear the right to receive information is no less protected by the First Amendment than the right to speak. Indeed, the right to hear and the right to speak are flip sides of the same coin.). If these protections apply to purely commercial speech, see Edenfield v. Fane, 507 U.S. 761, 766-67 (U.S. 1993), they must apply with even greater force to speech that is tied to the fundamental rights of privacy and personhood. Indeed, even information that is deemed to lack social worth is entitled to protection. See Stanley, 394 U.S. at 564 (the right to receive information and ideas regardless of their social worth, is fundamental to our free society). Accordingly, no matter how plaintiffs view the desire of individuals to live with persons with shared characteristics, and to obtain the information necessary to effectuate such preferences, defendants questions regarding gender, sexual orientation and children, designed to permit informed decision-making about roommate selection, fall squarely within the First Amendment.

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V.

THE DISTRICT COURT ERRED BY ENJOINING ROOMMATE FROM MAKING ANY REFERENCE TO GENDER, ORIENTATION AND CHILDREN The district court entered a broad permanent injunction that forbids

Roommate from (1) [a]sking, inquiring, soliciting, prompting, or eliciting information from its users concerning their sex, sexual orientation, or familial status, or its users preferences concerning those characteristics, (2) sorting, steering, or matching based on those characteristics, or (3) printing, publishing, or displaying information concerning those characteristics, if they were obtained in response to any question or prompt posed by Roommate concerning those characteristics or preferences.38 The injunction is fatally overbroad because it restricts activities on defendants website that fall within the CDA, as confirmed by this Court. The Court determined that Roommates collection and use of information regarding gender, sexual orientation, and children was not protected by the CDA because users were required to provide the information to use the website. Fair Housing I, 521 F.3d at 1164-66, 1169, 1172, 1175. Under that decision, Roommate cannot be enjoined from collecting even with the use of formatting

38

ER-I:65.

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information about gender, sexual preference and children if the information is presented in a neutral manner and voluntarily provided. As this Court stated: The message to website operators is clear: If you dont encourage illegal content, or design your website to require users to input illegal content, you will be immune. Id. at 1175. The injunction forbids Roommate from redesigning its site to enable users to voluntarily disclose and efficiently search the site using characteristics that are indisputably important to many people when they select roommates. Visitors to the website will be unable to post information about gender, sexual orientation or familial status except in an unstructured location, such as Additional Comments, which is not searchable by users and is not used by the website for automated roommate matches. The district courts cramped view of the CDAs protection was rejected by the en banc panel and in the Carafano decision. Any injunction cannot forbid activities that this Court already has held are immune from liability. Even if the Court affirms the grant of summary judgment to plaintiffs, it must reverse and remand for reconsideration of the permanent injunction.

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A.

Roommate Cannot Be Enjoined With Respect to Content and Searches for Which It Is Immune

Any injunctive relief must be narrowly tailored to address only the underlying wrongdoing. That is particularly so where, as here, what is being enjoined directly impacts First Amendment rights of free speech and intimate association. Consistent with these principles, and with the limits imposed by the CDA and already applied by this Court in this very case, Roommate can, at most, be enjoined from: (1) requiring subscribers to answer questions about their gender, familial status or sexual orientation as a condition of using the service; and (2) using compelled answers to these questions to limit access to information about housing. Roommate can be enjoined only from continuing to commit practices found to violate federal or state law. Plaintiffs conceded below that none of the relief sought by the plaintiffs applies to the Additional Comments portion of the roommates.com website.39 But the label, Additional Comments, is

39

ER-X:2107.

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not what divides immunized content from non-immunized content. It is not enough to say that the injunction does not apply to Additional Comments, and then to impose an injunction that drastically limits the ability of defendant to redesign its website to allow users the flexibility to provide whatever information they choose and search on whatever bases they choose. Nothing in the en banc opinion, or in the CDA itself, supports elevation of form (formatted questions versus Additional Comments) over substance (this Courts distinction between developing content and providing neutral tools that facilitate the collection and use of user-generated content). But that is precisely what the district court has done. In Fair Housing I, the Court identified two specific activities that took portions of the site outside the scope of the CDA. First, the Court held that Roommate could not use the CDA to avoid possible liability for posting the questionnaire (asking about gender and familial status) and requiring answers to it as part of the registration process. While the information itself is provided by users, the Court emphasized that it is provided by subscribers in response to Roommates questions, which they cannot refuse to answer if they want to use the defendants services. Id. at 1166 (emphasis added). By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-

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populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. Id. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. Id. (emphasis added).40 Second, the Court held that Roommate is not immune for the operation of the search system based on mandatory questions and answers implicating protected classifications. If Roommate has no immunity for asking the discriminatory questions, as we concluded above, it can certainly have no

That Roommate lost its immunity because it required responses to questions alleged to violate the FHA has also been the conclusion of other courts. Just two weeks ago, the Fourth Circuit interpreted Fair Housing I as rejecting CDA immunity for Roommate [b]ecause the website operator had designed its website to develop unlawful content as a condition precedent of use. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., __ F.3d. __, 2009 U.S. App. Lexis 28539, *15 (4th Cir. Dec. 29, 2009). See also Goddard v. Google Inc., 640 F.Supp.2d 1193, 1198 (N.D. Cal. 2009) (The Ninth Circuits partial denial of immunity to the website turned entirely on the websites decision to force subscribers to divulge the protected characteristics and discriminatory preferences as a condition of using its services.); Atlantic Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 701 (S.D.N.Y. 2009) ([K]ey to the Ninth Circuits decision was the fact that Roommates.com was actively participating in creating the objectionable content, by providing the questions and by requiring users to answer them.); accord Jane Doe IX v. MySpace, Inc., 629 F.Supp.2d 663, 665 (E.D. Tex. 2009) (prompts soliciting personal information do not make website developer of the content under the holding of Fair Housing I because users are not required to provide the information); Julie Doe II v. MySpace, Inc., 175 Cal.App.4th 561, 574-75 (2009) (same; Roommates.com forced subscribers to answer these questions as a condition of using its services.).

40

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immunity for using the answers to the unlawful questions to limit who has access to housing. Id. at 1167. The Court made clear that a neutral data collection and search tool would not expose defendant to liability. Roommates search engine thus differs materially from generic search engines such as Google, Yahoo! and MSN Live Search, in that Roommate designed its system to use allegedly unlawful criteria so as to limit the results of each search, and to force users to participate in its discriminatory process. Id. The Court went on to offer a few examples to elucidate what does and does not amount to development under section 230 of the Communications Decency Act: If an individual uses an ordinary search engine to query for a white roommate, the search engine has not contributed to any alleged unlawfulness in the individuals conduct; providing neutral tools to carry out what may be unlawful or illicit searches does not amount to development for purposes of the immunity exception. Id. at 1169 (emphasis in original). The Court made this critical distinction in discussing Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003). Carafano could be read as holding that a website that depended on the user to generate challenged content was automatically immune under the CDA. In Fair Housing I, the Court found the Carafano language to be unduly broad, but confirmed that

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the defendants dating site which used a combination of mandatory multiplechoice and essay questions provided neutral tools which were used to publish the libel. 521 F.3d at 1171. Multiple-choice questions did not make the dating website a developer of the challenged content.41 The Court explained: The mere fact that an interactive computer service classifies user characteristics . . . does not transform [it] into a developer of the underlying misinformation. . . . The site [in Carafano] provided neutral tools specifically designed to match romantic partners depending on their voluntary inputs. Id. at 1172. In contrast, the Court said, Roommate is currently designed to force subscribers to divulge protected characteristics. Id. Thus, the en banc Court recognized that the law does not require a website to force-feed its users information they do not want, or make them dig through massive quantities of undifferentiated data. Websites are not prohibited from making their services easy to use so long as any formatting and functionality is neutral and does not materially contribute to illegality. Id. at 1169. Offering users a broad range of self-descriptive terms that can be

See also Goddard, 640 F.Supp.2d at 1198-99 (holding Google immune under CDA for automated tool suggesting advertising keywords); GW Equity LLC v. Xcentric Ventures LLC, 2009 U.S. Dist. Lexis 1445, *16-*17 (N.D. Tex. 2009) (no loss of CDA immunity where website gave users a broad choice of categories from which to chose when submitting postings about companies).

41

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selected, or not selected, is consistent with the en banc Courts interpretation of the Carafano decision. With user-defined criteria,42 users of a housing website can exclude email from other users of a particular race or sex. However, that website would be immune, so long as it does not require the use of discriminatory criteria. Id. (emphasis added). This makes clear that any injunction must permit Roommate to make available to users neutral formatted questions and an array of possible answers, and allow users to efficiently search based on that information provided that users respond voluntarily, and they are not excluded from the service if they decline to disclose protected characteristics such as gender, sexual orientation, or familial status.43

The Court did not define user-defined criteria, but when considered in context (discussion of Carafanos application of the CDA to multiple-choice questions), it obviously was speaking of voluntary self-description, which could include selection from a wide variety of provided terms. Nowhere did the en banc panel forbid users from describing themselves as male or female; rather, it concluded that Roommate could not be immune if it required people to disclose this information. Similarly, the en banc panel did not require users to manually type the words, male or female to self-describe. Thus, the district courts injunction, forbidding any inquiry or prompt about gender, even if the answer is voluntary, is overbroad and misreads this Courts holding in Fair Housing I. For example, Roommate might wish to offer each user, when he or she creates their profile, a neutral menu of descriptive terms from which the user can chose, including messy, neat, smoker, dog-owner, cat-owner, night owl, early riser, male, female, straight, gay, divorced, separated, never married, single parent, live with children, dislike children, Republican, Democrat, student, professional, government worker. So long as the selection of any (or (footnote continued)
43

42

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B.

Any Injunction Must Be Narrowly Tailored

General equitable principles require that injunctive relief be carefully crafted to address the underlying harm, and no more. Price v. City of Stockton, 390 F.3d 1105, 1116 (9th Cir. 2004) (an injunction must be narrowly tailored . . . to remedy only the specific harms shown by the plaintiffs). This rule is reinforced by the constitutional command that restrictions on speech must be tailored narrowly and reach no further than necessary to achieve the governments legitimate goal. Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). First Amendment standards dovetail with those of the CDA. This makes sense because section 230 was enacted, in part, to encourage commerce and free discourse on the Internet. 47 U.S.C. 230(b)(1); see Batzel v. Smith, 333 F.3d 1018, 1026-29 (9th Cir. 2003) (discussing origin and goals of section 230); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.), cited with approval in Carafano, 339 F.3d at 1123-24. Courts, the en

none) of these descriptive terms is voluntary, the publication by Roommate of such user-generated content is protected by the CDA. In Carafano, the Court acknowledged that formatted answers allow for efficient database searches, and it explicitly rejected the notion that the CDA protected only content created solely by user keystrokes on an empty page. 339 F.3d at 1124.

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banc panel said, should be reluctant to find that a site encourages illegality and thereby loses its protection. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged or at least tacitly assented to the illegality of third parties. Fair Housing I, 521 F.3d at 1174. Thus, so long as Roommate does not require users to answer questions about their protected status, or their preferences on this basis, and does not itself limit housing information based on compelled disclosures, Roommate is immune from liability. No injunction prohibiting neutral and voluntary collection from users of self-descriptive information, or prohibiting searches of this information, is consistent with this Courts ruling. CONCLUSION The Court should reverse the Judgment. The FHA does not prohibit statements of preference for roommates. Further, even if the FHA reaches that far, the district court erred in enjoining defendant from making any inquiry regarding users gender, sexual orientation, or familial status, even if the response would be purely voluntary.

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OPENING BRIEF AS TO ATTORNEYS FEES AND COSTS

STATEMENT OF JURISDICTION This Court has jurisdiction over an appeal from the district courts award of attorneys fees and costs under 28 U.S.C. 1291. Labotest, Inc. v. Bonta, 297 F.3d 892, 894 (9th Cir. 2002). The district court had jurisdiction under 28 U.S.C. 1331, 1367, and 42 U.S.C. 3613(c).

STATEMENT OF THE ISSUE Whether the district court erred by awarding plaintiffs their attorneys fees and costs for virtually all time expended on the case, notwithstanding their limited success, including their failure to prevail on a central claim in the litigation.

STANDARD OF REVIEW A district courts award of attorneys fees is reviewed for abuse of discretion. Tahara v. Matson Terminals, Inc., 511 F.3d 950, 952 (9th Cir. 2007). However, [a]ny elements of legal analysis that figure into the fee determination are subject to de novo review, while the underlying factual determinations are reviewed for clear error. Id.

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SUMMARY OF ARGUMENT Plaintiffs succeeded in the district court on only a narrow slice of their case, which was designed to punish Roommate for all preferential statements posted on its website. This Court found to the contrary, and affirmed the dismissal of all claims arising from the Additional Comments in user profiles the speech that was central to plaintiffs lawsuit. The district court therefore erred in compensating plaintiffs for virtually all attorney time expended on this litigation, and imposing only a nominal 10percent discount for limited success. Even if the Judgment is affirmed, the award of fees and costs should be reversed and remanded for entry of a new order that allows fees not to exceed 50 percent of the amount already approved by the district court.

ARGUMENT I. PLAINTIFFS ARE ENTITLED TO NO MORE THAN 50 PERCENT OF THEIR REASONABLE FEES BECAUSE OF THEIR LIMITED SUCCESS The district court correctly determined that plaintiffs obtained far narrower relief than they first demanded. But the court abused its discretion by reducing plaintiffs award by only 10 percent. Plaintiffs argued that the

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result is what matters and that they obtained excellent results.44 The former is true; the latter is clearly not. The district court awarded $494,714.70 in fees, even though plaintiffs recovered just $87,500 each and obtained only a limited injunction. The award disregarded the settled rule that attorneys fees must be calibrated to the actual outcome of the case. As the Supreme Court held in Hensley v. Eckerhart, 461 U.S. 424, 440 (1983), [t]he extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorneys fees. Similarly, this Court has held that the most critical factor in determining the reasonableness of an attorneys fee award is the degree of success the plaintiff achieved. Corder v. Brown, 25 F.3d 833, 836 (9th Cir. 1994) (emphasis added). Even where the relief obtained is significant, a fee award must be adjusted to reflect partial or limited success. A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. Hensley, 461 U.S. at 439-40; see also Webb v. Sloan, 330 F.3d 1158, 1169-70 (9th Cir. 2003) (fees reduced based on plaintiffs limited success); Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986) (holding that full compensation for partial or limited success would be excessive).
44

ER-XII:2182-83.

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A courts calculation of fees must compare the significance of the overall relief obtained to all the claims and remedies plaintiffs pursued in the litigation. Greater L.A. Council on Deafness v. Cmty. Television of S. Cal., 813 F.2d 217, 222 (9th Cir. 1987). The linchpin of the limited success analysis is a comparison of the amount of damages recovered versus the amount sought, and the number of claims prevailed upon versus the number of claims dismissed or decided in defendants favor. Harris v. Marhoefer, 24 F.3d 15, 18 (9th Cir. 1994); see also McGinnis v. Kentucky Fried Chicken, 51 F.3d 805, 810 (9th Cir. 1994) (It is an abuse of discretion for the district court to award attorneys fees without considering the relationship between the extent of success and the amount of the fee award.). Here, the district court acknowledged that plaintiffs failed to obtain anything close to what they originally sought from Roommate. Yet, the court did not enter a fees award consistent with that finding. There can be no dispute that plaintiffs goal was to hold Roommate liable for all user-generated content implicating fair housing laws, and to impose a requirement on Roommate that it restrict, monitor and remove all preferential statements, solicited or not. It was those aggressive demands that sparked six years of litigation. The district court observed:

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It is clear that the results Plaintiffs have achieved do confer a public benefit, but the results are also significantly below those they desired when they commenced the action. The injunctive relief, for instance, is far narrower than Plaintiffs initially sought. This action has been litigated rather fiercely by both sides, in part because of the breadth of the relief Plaintiffs initially sought but did not obtain. Plaintiffs share responsibility for this.45 Instead of an order silencing free-form user comments on Roommates website, and a finding of liability and damages for such allegations as race and religious discrimination all of which were sought in this lawsuit plaintiffs obtained a small monetary settlement (dwarfed by their attorneys fees demand) and a limited injunction. And this Court used the case to re-confirm the sweeping protections of the CDA for interactive computer services including those that publish preferential statements about housing. At best, plaintiffs succeeded on only half their case: the contention that Roommate violated 42 U.S.C. 3604(c) by requiring users to answer three questions, and by allowing users to search based on the answers to those
45

ER-I:5-6 (emphasis added).

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questions. As a consequence, the fee award was thus grossly disproportionate to the relief obtained. The lodestar for any award should have been reduced by at least 50 percent, rather than the nominal 10-percent reduction applied by the district court. A. Plaintiffs Failed in Half Their Case When this Court Determined the CDA Applies to Additional Comments Plaintiffs biggest failure in this litigation was the en banc Courts holding that user statements in Additional Comments could not provide the basis for any claim against Roommate. Defendants refusal to restrict and edit user comments in the open-ended Additional Comments section of user profiles was the central claim in this litigation, and it provided the basis for plaintiffs heated allegations of race, religion, and other discrimination. The websites formatted questions about gender, sexual orientation, and children received only the slightest consideration in their demand letter and Complaints. For virtually all of this lengthy litigation, plaintiffs contended unsuccessfully that the FHA trumped the CDA. This was wrong, as both this Court and the Seventh Circuit have confirmed. Fair Housing I, 521 F.3d at 1172-74 & n.33; Chi. Lawyers Comm. v. Craigslist, 519 F.3d 666, 672 (7th Cir. 2008).

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Plaintiffs demand letter leads off with quotes from users Additional Comments and interposes numerous additional quotes throughout.46 Plaintiffs Complaints devoted over half of their factual allegations to user-generated statements in the Additional Comments feature of the website.47 For this, plaintiffs contended that Roommate should be held liable under the FHA, FEHA, and other state laws, forced to pay millions in damages, and enjoined from publishing such postings.48 Plaintiffs filed a motion for preliminary injunction broadly forbidding Roommate from publishing or at least continu[ing] to allow to be published any discriminatory housing statements and requiring Roommate to monitor its website for discriminatory housing statements.49 Plaintiffs contended all the way through the first appeal that the FHA trumped the CDA, and that made Roommate responsible even for pure user-generated content.50 The focus of plaintiffs lawsuit was shown in their Separate Statement in support of their 2004 Summary Judgment Motion, where at least 28 of plaintiffs 51

46 47 48 49 50

ER-XII:2651 (Demand Letter, at 7). ER-II:132-35, 147-50. ER-II:138-43, 153-58. ER-XII:2660. ER-X:2201-368.

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purportedly Undisputed Facts related solely to user-generated comments in the Additional Comments section.51 All of these contentions failed. The CDAs protection of such postings as Additional Comments was well-settled at the outset of this litigation and it was not a close call in this case. The district court and all 11 members of this Courts en banc panel confirmed that unsolicited preferential user statements fall within section 230, notwithstanding the FHA. The Court reaffirmed its broad reading of the CDA in such cases as Carafano and Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), and rejected the notion that the CDA does not immunize interactive computer services for possibly unlawful housing advertisements. Fair Housing I, 521 F.3d at 1172 n.33 (citing Chicago Lawyers). The Court also rejected plaintiffs contention that the roommates.com prompt for Additional Comments impliedly suggested that users express discriminatory preferences. Id. at 1174. Losing these issues on appeal was a heavy blow to plaintiffs and precluded them from obtaining an injunction regarding any preferential content on the website that was not required by Roommate as a condition of using the site. The en banc panel knocked out the plaintiffs primary goal in this litigation to carve a housing exception into the CDA and to obtain a ruling
51

ER-XII:2670-78.

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that would require all interactive computer services to monitor their sites for preferential statements. The decision also dramatically limited this lawsuit in another sense: plaintiffs claims of discrimination on the basis of disability, race, national origin, religion, marital status, and source of income were all eliminated because they were premised exclusively on content solely generated by users. Plaintiffs claims were reduced by this Court to three formatted questions just one portion of the websites questionnaire and matching function. B. In Addition to Losing Much of Their Case Under the FHA and FEHA, Plaintiffs Failed With Three Other Claims Plaintiffs lost on three of their five claims for relief: Unruh Act, unfair competition, and negligence. These claims needlessly complicated the lawsuit and drove up fees on both sides. Harris, 24 F.3d at 18 (noting the importance of considering the number of claims prevailed upon versus the number of claims dismissed or decided in defendants favor in determining the fee award). The Courts dismissal of the Unruh claim at summary judgment for lack of standing is especially significant, because [t]he inclusion of claims for which a plaintiff has no standing needlessly complicates the litigation and inflicts unnecessary costs on defendant. Such over-charging should be discouraged. Sanford v. GMRI, Inc., 2005 WL 4782697, *2 (E.D. Cal. Nov.

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14, 2005). Plaintiffs ultimately recognized that the unfair competition and negligence claims were meritless or duplicative, and dismissed them, but only after the district court forced the issue by ordering the parties to file briefs addressing them at the end of the litigation. C. Plaintiffs Obtained a Mere Fraction of their Requested Relief

Plaintiffs sought a host of remedies that they failed to obtain, including demands for damages in the millions of dollars. Disgorgement. Even before they initiated this lawsuit, plaintiffs demanded that Roommate disgorge its profits from the operation of its website. Plaintiffs repeated their disgorgement demand in their Complaints and at the October 28, 2008 summary judgment hearing.52 The abandonment of their unfair competition claim ended any possibility that plaintiffs would obtain this relief.53 Statutory Damages. The Unruh Act establishes a statutory minimum damages award of no less than four thousand dollars for each and every instance of discrimination. Cal. Civ. Code 52(a). The district courts entry of judgment dismissing plaintiffs Unruh claim foreclosed any such recovery.

52 53

ER-IX:2089. ER-X:2369, 1.

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Treble Damages. Plaintiffs originally sought treble damages for their Unruh claim.54 That multiplier also fell by the wayside when the district court entered judgment against them on that claim.55 Punitive Damages. Plaintiffs demanded punitive damages. Recognizing that they would never get them from a jury, plaintiffs waived punitive damages in the Settlement Agreement. Failure to obtain such damages is a factor in determining limited success. McGinnis, 51 F.3d at 807-10. Mandatory Training. Plaintiffs originally sought an order requiring that defendant engage in fair housing training for its employees. Indeed, a central premise of their negligence claim was the supposed failure of defendant to properly train and screen its employees.56 Plaintiffs subsequently dropped this request in their motion for injunctive relief at the conclusion of the case. Display of Fair Housing Symbols and Links. Plaintiffs also demanded that Roommate display on its website a fair housing symbol and a link to local housing organizations.57 During the meet-and-confer process regarding pretrial motions, counsel for Roommate provided plaintiffs counsel with authority

54 55 56 57

ER-II:158. ER-I:83. ER-II:156. ER-XII:2656.

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showing that there was no basis for such relief,58 and plaintiffs ultimately abandoned it. Other Abandoned Relief. Also abandoned were plaintiffs demands for: (a) a written policy prohibiting discriminatory postings, (b) Roommate to mail this policy to all roommates.com users, (c) development of a form response to users who made preferential comments, (d) sponsorship of fair housing ad campaigns, and (e) free advertising promoting fair housing on the first page of the website.59 Plaintiffs got none of this. After all that expense and effort, and six years of litigation, plaintiffs achieved the very limited victory of an injunction against three formatted questions and a small monetary settlement. D. The Trial Court Should Have Awarded Only a Comparative Portion In light of such limited success, the 10-percent reduction from the lodestar was an abuse of discretion. This Court recently stressed that, where a plaintiff obtains only partial success, it would be improper to award attorneys fees in an amount more than a comparable portion of the level of success. McCown v. City of Fontana, 565 F.3d 1097, 1104-05 (9th Cir. 2009) (emphasis

58 59

ER-XII:2647. ER-XII:2656.

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added); see Harris, 24 F.3d at 18 (affirming 50-percent reduction of award because of limited success); Greater L.A. Council, 813 F.2d at 222 (imposing 60-percent reduction in fees to partially successful party). In Corder, the Court reversed an award because the district court failed to reduce the fees in light of the prevailing partys limited success. 25 F.3d at 833. The plaintiff had requested $1 million, obtained $24,006, and the trial court erred in awarding $240,695 in attorneys fees. Id. at 836-37. Similarly, in McGinnis, a $148,000 fee award was reversed because of the plaintiffs limited success prevailing on a discrimination claim but losing on related state law claims, recovering $34,000 in damages but no punitive damages. 51 F.3d at 810. In light of these authorities, an award of nearly a half million dollars in fees and costs, for a settlement of $87,500 for each plaintiff and a limited injunction that fell far short of plaintiffs goal, was an abuse of discretion. E. Claims of Public Benefit Also Fail to Justify the Fees Award

Any contention by plaintiffs that their fees are deserved because of a public benefit does not withstand scrutiny. An injunction forbidding three formatted questions on one website regarding which not a single person complained to plaintiffs does not confer the kind of benefit deserving of substantial fees. In contrast, Roommate fought vigorously, and at great cost, for

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a broad interpretation of section 230, and prevailed on the central issue in this case whether the CDA applies to preferential statements created by users regarding housing. The injunction entered by the Court does not reach any pure user-generated content, including user nicknames. Nor does it address alleged discrimination on the basis of age, religion, disability, race, national origin, and marital status. Even if they are correct on the merits of their housing claims, plaintiffs are only entitled to an injunction forbidding Roommate from requiring users to answer those questions.60 This is a mere sliver of the case brought by plaintiffs in 2003. In conclusion, by any measurement, plaintiffs achieved very limited success: losing on three of five claims, losing on the central contention in the housing law claims, obtaining only a small fraction of demanded damages, and failing to obtain most of the requested injunctive relief. These failures should be reflected in a comparable fee award, not to exceed 50 percent of the lodestar.

60

ER-I:67-73.

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CONCLUSION The Court should reverse the district courts order granting attorneys fees and costs to plaintiffs, and remand for a recalculation consistent with plaintiffs partial success.

DATED: January 11, 2010

TIMOTHY L. ALGER

By /s Timothy L. Alger Timothy L. Alger QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Attorneys for Defendant-Appellant Roommate.com, LLC

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(C) & CIRCUIT RULE 32-1 Pursuant to Fed. R. App. P. 28.1(e), 32(a)(5), 32(a)(7)(B), and 32(a)(7)(C), the attached opening brief is proportionately spaced, has a typeface of 14 points, and contains 13,919 words. s/ Christopher E. Price Attorney for Defendant-Appellant January 11, 2010 Date

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on January 11, 2010. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Christopher E. Price Attorney for Defendant-Appellant

January 11, 2010 Date

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_______________________________________ (Pursuant to Fed. R. App. Proc. 28(f) and Circuit Rule 28-2.7)

ADDENDUM

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ADDENDUM TABLE OF CONTENTS U.S. CONSTITUTION, FIRST AMENDMENT ........................................................... A1 42 U.S.C. 3602 ........................................................................................A2 - A3 42 U.S.C. 3604 ........................................................................................A4 - A6 47 U.S.C. 203 ..........................................................................................A7 - A9 CAL. GOVT CODE 12955 ................................................................... A10 - A11 24 C.F.R. 109.20 ................................................................................... A12 - A13

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U.S.C.A. Const. Amend. I-Full Text

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United States Code Annotated Currentness Constitution of the United States Annotated Amendment I. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Grievances (Refs & Annos) Amendment I. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Grievances Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. <This amendment is further displayed in three separate documents according to subject matter> <see USCA Const Amend. I, Religion> <see USCA Const Amend. I, Speech> <see USCA Const Amend. I, Assemblage> Current through P.L. 111-125 (excluding P.L. 111-117 and P.L. 111-118) approved 12-28-09 Westlaw. 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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42 U.S.C.A. 3602

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Effective:[See Text Amendments] United States Code Annotated Currentness Title 42. The Public Health and Welfare Chapter 45. Fair Housing (Refs & Annos) Subchapter I. Generally (Refs & Annos) 3602. Definitions As used in this subchapter-(a) Secretary means the Secretary of Housing and Urban Development. (b) Dwelling means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof. (c) Family includes a single individual. (d) Person includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, receivers, and fiduciaries. (e) To rent includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant. (f) Discriminatory housing practice means an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title. (g) State means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or any of the territories and possessions of the United States. (h) Handicap means, with respect to a person-(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 802 of Title 21). (i) Aggrieved person includes any person who-(1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur.

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(j) Complainant means the person (including the Secretary) who files a complaint under section 3610 of this title. (k) Familial status means one or more individuals (who have not attained the age of 18 years) being domiciled with-(1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years. (l) Conciliation means the attempted resolution of issues raised by a complaint, or by the investigation of such complaint, through informal negotiations involving the aggrieved person, the respondent, and the Secretary. (m) Conciliation agreement means a written agreement setting forth the resolution of the issues in conciliation. (n) Respondent means-(1) the person or other entity accused in a complaint of an unfair housing practice; and (2) any other person or entity identified in the course of investigation and notified as required with respect to respondents so identified under section 3610(a) of this title. (o) Prevailing party has the same meaning as such term has in section 1988 of this title. CREDIT(S) (Pub.L. 90-284, Title VIII, 802, Apr. 11, 1968, 82 Stat. 81; Pub.L. 95-598, Title III, 331, Nov. 6, 1978, 92 Stat. 2679; Pub.L. 100-430, 5, Sept. 13, 1988, 102 Stat. 1619.) Current through P.L. 111-125 (excluding P.L. 111-117 and P.L. 111-118) approved 12-28-09 Westlaw. 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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42 U.S.C.A. 3604

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Effective:[See Text Amendments] United States Code Annotated Currentness Title 42. The Public Health and Welfare Chapter 45. Fair Housing (Refs & Annos) Subchapter I. Generally (Refs & Annos) 3604. Discrimination in the sale or rental of housing and other prohibited practices As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful-(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin. (b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin. (c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. (d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. (e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin. (f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of-(A) that buyer or renter, [FN1] (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that buyer or renter. (2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of-(A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person.

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42 U.S.C.A. 3604

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(3) For purposes of this subsection, discrimination includes-(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. [FN2] (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or (C) in connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is 30 months after September 13, 1988, a failure to design and construct those dwellings in such a manner that-(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. (4) Compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people (commonly cited as ANSI A117.1) suffices to satisfy the requirements of paragraph (3)(C)(iii). (5)(A) If a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C), compliance with such laws shall be deemed to satisfy the requirements of that paragraph. (B) A State or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of paragraph (3)(C) are met. (C) The Secretary shall encourage, but may not require, States and units of local government to include in their existing procedures for the review and approval of newly constructed covered multifamily dwellings, determinations as to whether the design and construction of such dwellings are consistent with paragraph (3)(C), and shall provide technical assistance to States and units of local government and other persons to implement the requirements of paragraph (3)(C).

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42 U.S.C.A. 3604

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(D) Nothing in this subchapter shall be construed to require the Secretary to review or approve the plans, designs or construction of all covered multifamily dwellings, to determine whether the design and construction of such dwellings are consistent with the requirements of paragraph 3(C). (6)(A) Nothing in paragraph (5) shall be construed to affect the authority and responsibility of the Secretary or a State or local public agency certified pursuant to section 3610(f)(3) of this title to receive and process complaints or otherwise engage in enforcement activities under this subchapter. (B) Determinations by a State or a unit of general local government under paragraphs (5)(A) and (B) shall not be conclusive in enforcement proceedings under this subchapter. (7) As used in this subsection, the term covered multifamily dwellings means-(A) buildings consisting of 4 or more units if such buildings have one or more elevators; and (B) ground floor units in other buildings consisting of 4 or more units. (8) Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State, or other jurisdiction in which this subchapter shall be effective, that requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by this subchapter. (9) Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. CREDIT(S) (Pub.L. 90-284, Title VIII, 804, Apr. 11, 1968, 82 Stat. 83; Pub.L. 93-383, Title VIII, 808(b)(1), Aug. 22, 1974, 88 Stat. 729; Pub.L. 100-430, 6(a)-(b)(2), (e), 15, Sept. 13, 1988, 102 Stat. 1620, 1622, 1623, 1636.) [FN1] So in original. The comma probably should be a semicolon. [FN2] So in original. The period probably should be a semicolon. Current through P.L. 111-125 (excluding P.L. 111-117 and P.L. 111-118) approved 12-28-09 Westlaw. 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Effective: October 21, 1998 United States Code Annotated Currentness Title 47. Telegraphs, Telephones, and Radiotelegraphs Chapter 5. Wire or Radio Communication (Refs & Annos) Subchapter II. Common Carriers (Refs & Annos) Part I. Common Carrier Regulation 230. Protection for private blocking and screening of offensive material (a) Findings The Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. (b) Policy It is the policy of the United States-(1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer. (c) Protection for good samaritan blocking and screening of offensive material

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(1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of-(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[FN1] (d) Obligations of interactive computer service A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections. (e) Effect on other laws (1) No effect on criminal law Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute. (2) No effect on intellectual property law Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property. (3) State law 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. (4) No effect on Communications Privacy law Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law. (f) Definitions

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As used in this section: (1) Internet The term Internet means the international computer network of both Federal and non-Federal interoperable packet switched data networks. (2) Interactive computer service The term interactive computer service means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. (3) Information content provider The term information content provider means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. (4) Access software provider The term access software provider means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. CREDIT(S) (June 19, 1934, c. 652, Title II, 230, as added Feb. 8, 1996, Pub.L. 104-104, Title I, 509, 110 Stat. 137; Oct. 21, 1998, Pub.L. 105-277, Div. C, Title XIV, 1404(a), 112 Stat. 2681-739.) [FN1] So in original. Probably should be subparagraph (A). Current through P.L. 111-125 (excluding P.L. 111-117 and P.L. 111-118) approved 12-28-09 Westlaw. 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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West's Ann.Cal.Gov.Code 12955

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Effective: January 1, 2005 West's Annotated California Codes Currentness Government Code (Refs & Annos) Title 2. Government of the State of California Division 3. Executive Department (Refs & Annos) Part 2.8. Department of Fair Employment and Housing (Refs & Annos) Chapter 6. Discrimination Prohibited (Refs & Annos) Article 2. Housing Discrimination (Refs & Annos) 12955. Unlawful practices It shall be unlawful: (a) For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability of that person. (b) For the owner of any housing accommodation to make or to cause to be made any written or oral inquiry concerning the race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, or disability of any person seeking to purchase, rent or lease any housing accommodation. (c) For any person to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability or an intention to make that preference, limitation, or discrimination. (d) For any person subject to the provisions of Section 51 of the Civil Code, as that section applies to housing accommodations, to discriminate against any person on the basis of sex, sexual orientation, color, race, religion, ancestry, national origin, familial status, marital status, disability, source of income, or on any other basis prohibited by that section. (e) For any person, bank, mortgage company or other financial institution that provides financial assistance for the purchase, organization, or construction of any housing accommodation to discriminate against any person or group of persons because of the race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability in the terms, conditions, or privileges relating to the obtaining or use of that financial assistance. (f) For any owner of housing accommodations to harass, evict, or otherwise discriminate against any person in the sale or rental of housing accommodations when the owner's dominant purpose is retaliation against a person who has opposed practices unlawful under this section, informed law enforcement agencies of practices believed unlawful under this section, has testified or assisted in any proceeding under this part, or has aided or encouraged a person to exercise or enjoy the rights secured by this part. Nothing herein is intended to cause or permit the delay of an unlawful detainer action. (g) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts or practices declared unlawful in this section, or to attempt to do so. (h) For any person, for profit, to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, sexual orientation, marital status, ancestry, disability, source of income, familial status, or national origin.

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West's Ann.Cal.Gov.Code 12955

(i) For any person or other organization or entity whose business involves real estate-related transactions to discriminate against any person in making available a transaction, or in the terms and conditions of a transaction, because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, source of income, familial status, or disability. (j) To deny a person access to, or membership or participation in, a multiple listing service, real estate brokerage organization, or other service because of race, color, religion, sex, sexual orientation, marital status, ancestry, disability, familial status, source of income, or national origin. (k) To otherwise make unavailable or deny a dwelling based on discrimination because of race, color, religion, sex, sexual orientation, familial status, source of income, disability, or national origin. (l) To discriminate through public or private land use practices, decisions, and authorizations because of race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, source of income, or ancestry. Discrimination includes, but is not limited to, restrictive covenants, zoning laws, denials of use permits, and other actions authorized under the Planning and Zoning Law (Title 7 (commencing with Section 65000)), that make housing opportunities unavailable. Discrimination under this subdivision also includes the existence of a restrictive covenant, regardless of whether accompanied by a statement that the restrictive covenant is repealed or void. This paragraph shall become operative on January 1, 2001. (m) As used in this section, race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. (n) To use a financial or income standard in the rental of housing that fails to account for the aggregate income of persons residing together or proposing to reside together on the same basis as the aggregate income of married persons residing together or proposing to reside together. (o) In instances where there is a government rent subsidy, to use a financial or income standard in assessing eligibility for the rental of housing that is not based on the portion of the rent to be paid by the tenant. (p)(1) For the purposes of this section, source of income means lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant. For the purposes of this section, a landlord is not considered a representative of a tenant. (2) For the purposes of this section, it shall not constitute discrimination based on source of income to make a written or oral inquiry concerning the level or source of income. CREDIT(S) (Added by Stats.1980, c. 992, 4. Amended by Stats.1992, c. 182 (S.B.1234), 7; Stats.1993, c. 1277 (A.B.2244), 4; Stats.1999, c. 589 (S.B.1148), 2; Stats.1999, c. 590 (S.B.1098), 4; Stats.1999, c. 591 (A.B.1670), 11.4; Stats.1999, c; 592 (A.B.1001), 9.7; Stats.2004, c. 568 (S.B.1145), 8.) Current with all 2009 Regular and Extraordinary Session laws, Gov.'s Reorg. Plan No. 1 of 2009, Prop. 1F, approved at the 5/19/2009 election, and propositions on the 6/8/2010 ballot received as of 1/1/2010 (C) 2010 Thomson Reuters END OF DOCUMENT

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24 CFR 109.20 24 C.F.R. s 109.20 CODE OF FEDERAL REGULATIONS TITLE 24--HOUSING AND URBAN DEVELOPMENT SUBTITLE B--REGULATIONS RELATING TO HOUSING AND URBAN DEVELOPMENT CHAPTER I--OFFICE OF ASSISTANT SECRETARY FOR EQUAL OPPORTUNITY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT SUBCHAPTER A--FAIR HOUSING PART 109--FAIR HOUSING ADVERTISING s 109.20 Use of words, phrases, symbols, and visual aids.

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The following words, phrases, symbols, and forms typify those most often used in residential real estate advertising to convey either overt or tacit discriminatory preferences or limitations. In considering a complaint under the Fair Housing Act, the Department will normally consider the use of these and comparable words, phrases, symbols, and forms to indicate a possible violation of the act and to establish a need for further proceedings on the complaint, if it is apparent from the context of the usage that discrimination within the meaning of the act is likely to result. (a) Words descriptive of dwelling, landlord, and tenants. White private home, Colored home, Jewish home, Hispanic residence, adult building. (b) Words indicative of race, color, religion, sex, handicap, familial status, or national origin-(1) Race--Negro, Black, Caucasian, Oriental, American Indian. (2) Color--White, Black, Colored. (3) Religion--Protestant, Christian, Catholic, Jew. (4) National origin--Mexican American, Puerto Rican, Philippine, Polish, Hungarian, Irish, Italian, Chicano, African, Hispanic, Chinese, Indian, Latino. (5) Sex--the exclusive use of words in advertisements, including those involving the rental of separate units in a single or multi-family dwelling, stating or tending to imply that the housing being advertised is available to persons of only one sex and not the other, except where the sharing of living areas is involved. Nothing in this part restricts advertisements of dwellings used exclusively for dormitory facilities by educational institutions. (6) Handicap--crippled, blind, deaf, mentally ill, retarded, impaired, handicapped, physically fit. Nothing in this part restricts the inclusion of information about the availability of accessible housing in advertising of dwellings. (7) Familial status--adults, children, singles, mature persons. Nothing in this part restricts advertisements of dwellings which are intended and operated for occupancy by older persons and which constitute "housing for older persons" as defined in Part 100 of this title. (8) Catch words--Words and phrases used in a discriminatory context should be avoided, e.g., "restricted", "exclusive", "private", "integrated", "traditional", "board approval" or "membership approval". (c) Symbols or logotypes. Symbols or logotypes which imply or suggest race, color, religion, sex, handicap, familial status, or national origin. (d) Colloquialisms. Words or phrases used regionally or locally which imply or suggest race, color, religion, sex, handicap, familial status, or national origin.

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(e) Directions to real estate for sale or rent (use of maps or written instructions). Directions can imply a discriminatory preference, limitation, or exclusion. For example, references to real estate location made in terms of racial or national origin significant landmarks, such as an existing black development (signal to blacks) or an existing development known for its exclusion of minorities (signal to whites). Specific directions which make reference to a racial or national origin significant area may indicate a preference. References to a synagogue, congregation or parish may also indicate a religious preference. (f) Area (location) description. Names of facilities which cater to a particular racial, national origin or religious group, such as country club or private school designations, or names of facilities which are used exclusively by one sex may indicate a preference. TITLE 24--HOUSING AND URBAN DEVELOPMENT Note: Nomenclature changes to Title 24 appear at 59 FR 14092, March 25, 1994. Source: 59 FR 14092, March 25, 1994, (nomenclature changes). PART 109--FAIR HOUSING ADVERTISING Authority: Title VIII, Civil Rights Act of 1968, 42 U.S.C. 3600-3620; section 7(d), Department of HUD Act, 42 U.S.C. 3535(d). Source: 54 FR 3308, Jan. 23, 1989; 55 FR 53294, Dec. 28, 1990, unless otherwise noted. 24 C. F. R. s 109.20 24 CFR s 109.20 END OF DOCUMENT

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