Download Information Memo (Unit Three)

HOUSING DISCRIMINATION SPRING 2008
INFORMATION MEMO ON UNIT THREE
TABLE OF CONTENTS
(A) Unit Three: Covered Topics & List of Relevant Exam Questions
(B) Additional Information on Online Advertising
(C) Write-Up of Advertising Discussion Groups (2/29) (Gemstones)
(A) Unit Three: Covered Topics & List of Relevant
Old Exam Questions
(1) Agency Interpretation of Statutes
(a) Should be familiar with basic Chevron analysis used in Cisneros.
(b) Might think about application to any FHA regulation we discussed at length
(i) Steering and Advertising
(ii) Handicap: Definitions, Reasonable Accommodations & Modifications
(c) Most likely relevant to Question I
(2) Broker’s Offenses
(a) Insurance Redlining
(b) Steering and Blockbusting
(c) Old Exam Questions: 2D 3D 3H 3Q
(3) Advertising
(a) Old Exam Questions: 1C 1J 2G 3A 3J 3N 3P
(b) Comments & Model Answers for Assignment III
(4) First Amendment Freedom of Speech/Press as Defense
(a) You will not be tested on Constitutional Doctrine.
(b) You can argue that a statute should be interpreted a particular way or that a
proposed amendment should or shouldn’t be adopted …:
(i) to further the policies underlying the First Amendment; OR
(ii) to avoid potential conflicts with the First Amendment.
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(B) Additional Information on Online Advertising
In class, we briefly discussed whether an online listing service would be liable
under §3604(c) for discriminatory advertisements posted on its website by third
parties. I suggested that the difficult statutory question was whether it made sense
to treat the online service as analogous to a newspaper and describe its role as
“publishing” the ad. Two very recent federal Court of Appeals cases have
addressed the liability of online listing services for discriminatory housing ads,
although the crucial statute has turned out to be Communications Decency Act.
Here are brief descriptions of the statute and the two cases:
1. The Communications Decency Act of 1996 (CDA) is a complex federal statute
containing a wide range of measures largely aimed at finding ways to control access to
pornography and other adult content on the internet. One goal of the statute was to
ensure that internet service providers like AOL and Netscape would not be held liable for
obscene or indecent material on websites accessed by their customers via their service.
The relevant provision is 47 U.S.C. §230(c)(1):
(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.
An “information content provider,” is defined as someone who is “responsible, in whole
or in part, for the creation or development of” the offending content. §230(f)(3).
2. Chicago Lawyers' Committee for Civil Rights Under Law v. Craigslist, 519 F.3d 666
[“the citation of the beast”] (7th Cir. 2008) (Easterbrook, C.J.)
a. The defendant “provides an electronic meeting place for those who want to buy,
sell, or rent housing (and many other goods and services)” on the internet. Some of
the advertisements for housing posted on the defendant’s website “proclaim ‘NO
MINORITIES’ and ‘No children’, along with multiple variations, bald or subtle.”
b. The plaintiff argued that the defendant should be liable under §3604(c) for
discriminatory ads posted on its website. The court said that the only plausible way
to fit the defendant into the language of §3604(c) would be to find that Craigslist
“published” the ads others posted on its website. However, the court did not find it
necessary to rule on this issue.
c. Instead, the court held that the plain language of the CDA meant that Craigslist
could not be liable under the FHA as publisher of the ads: “No provider … of an
interactive computer service [Craigslist] shall be treated as the publisher … of any
information [the offending ads] provided by another information content provider [the
person who created or developed the ad].
d. Two interesting asides:
i) The court noted that it would be nearly impossible for Craigslist to monitor
online posting to screen out discriminatory ads. “Every month more than 30
million notices are posted to the Craigslist system. Fewer than 30 people[!!], all
based in California, operate the system, which offers classifieds and forums for
450 cities.”
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ii) Judge Easterbrook noted the existence of an issue I have worried about for
some time (see DQ62), which is the constitutionality of forbidding advertisements
truthfully describing legal transactions:
“Many who offer housing for sale or rent [on Craigslist] satisfy 42 U.S.C.
§3603(b)(1), which exempts ‘any single-family house sold or rented by an owner
... [who] does not own more than three such single-family houses.’ Although this
exemption does not take single-family homes outside the scope of §3604(c), any
rule that forbids truthful advertising of a transaction that would be substantively
lawful encounters serious problems under the first amendment.”
3. Fair Housing Council of San Fernando Valley v. Roommates.com, 2008 WL
879293 (9th Cir. April 3, 2008) (en banc) (Kozinski, C.J.)
a. This case again involved an online listing service alleged to have violated
§3604(c) as well as California’s state fair housing laws. This defendant also relied on
the CDA §230(c)(1) as a defense, but here was unsuccessful.
b. The defendant “operates a website designed to match people renting out spare
rooms with people looking for a place to live. At the time of the district court's
disposition, [the] website featured approximately 150,000 active listings and received
around a million page views a day. … Before subscribers can search listings or post
housing opportunities on [the] website, they must create profiles, a process that
requires them to answer a series of questions. … [The defendant] requires each
subscriber to disclose his sex, sexual orientation and whether he would bring children
to a household. Each subscriber must also describe his preferences in roommates with
respect to the same three criteria: sex, sexual orientation and whether they will bring
children to the household.”
c. The court held that §230(c)(1) did not protect the defendant because, unlike
Craigslist, it was not the passive transmitter of content created by others. Instead, it
was itself an “information content provider,” because it was “responsible, in whole or
in part, for the creation or development of” the offending content. §230(f)(3).
Indeed, the defendant’s website would not allow a subscriber to search or post listings
until the subscriber had filled out entries in a drop-down screen listing the
subscriber’s preferences with regard to protected characteristics and this process
created the content in question.
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(C) Write-Up of Advertising Discussion Groups (2/29)
(Gemstones)
DQ68. Saunders holds that discriminatory advertising does not violate
§1982. Assuming plaintiffs appealed that decision, what arguments would
you make for each side based on the statutory language and
Congressional intent?
A. Does §1982 Prohibit Discriminatory Advertising?
1) Arguments that §1982 does not prohibit discriminatory advertising:
a) Language: §1982 explicitly protects the rights “to inherit, purchase, lease, sell,
hold, and convey real and personal property.”
i) Advertising. is not one of the verbs explicitly listed. (Amethyst; Garnet;
Sapphire)
ii) Expressing a preference in a discriminatory ad does not prevent someone
from, e.g., purchasing or leasing the housing described in the advertisement.
See Saunders. (Amethyst; Emerald; Opal; Sapphire).
iii) Unlike the examples on this list, advertising is not a property transaction.
(Garnet)
iv) Expressio unius est exclusio alterius: Congress agreed on this list of verbs,
advertising isn’t there, so it’s not included in the statute. (Opal)
b) Precedent:
i) Supreme Court dicta in Jones says it does not.
ii) Jones also says §1982 “must encompass every racially motivated refusal to
sell or rent.” Advertising is not a refusal. Saunders. One former group argued,
based on the same passage, “If they are motivated to discriminate in
advertising for the property, they are most likely going to discriminate in
practice.” While I agree about the likelihood of future discrimination, that
doesn’t mean that §1982 needs to apply until there has been an actual “refusal
to sell or rent.”
c) Congressional Intent:
i) In 1866, advertising for housing might have been much less common (fewer
avenues to advertise), less widespread or less sophisticated. If so, Congress
may not have thought it important enough to address or may not have thought
of it at all. (Ruby) (This is a nice argument if you can substantiate it).
ii) Congress using specific language to encompass advertising in the FHA
may show an understanding that §1982 did not cover advertising. (Amethyst;
Garnet; Opal). It is unlikely Congress intended to provide double damages.
(Amethyst) It also shows that Congress can easily regulate advertising
explicitly if it chooses. (Amethyst; Sapphire)
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2) Arguments that §1982 does prohibit discriminatory advertising:
a) Language: “the same rights”
i) Advertising often is an important part of the process of selling or renting
property. (Amethyst; Emerald) It can make targeted readers feel inferior and
excluded. (Ruby). Thus, people of color arguably do not have “the same
right as … white citizens” to purchase or lease housing where the process is
infected with discrimination or where they are not protected from a significant
means of discrimination. (Diamond; Garnet; Opal, Ruby)
ii) Advertising that discourages people of color from even applying for
housing is an effective way of denying them of their rights under §1982.
(sapphire) As the courts have held in the context of the “futile gesture”
doctrine, people of color seeing a discriminatory ad should not have to face
the humiliation of likely rejection in order to invoke their rights under §1982.
(Emerald) (I think this is very clever).
b) Congressional Intent/Statutory Purpose
i) Very broad language of §1982 shows Congress intended to ban all types of
housing discrimination on the basis of race (Garnet; Sapphire), particularly
given that this was an enactment of the Republican reconstruction Congress.
(Garnet)
ii) Statute should be read broadly to fulfill its purpose. Legislature can’t think
of everything in advance. (Miller in Speluncean Explorers). One of the
purposes of the statute is to eliminate “badges and incidents” of slavery.
Jones. Discrimination in advertising erects barriers to fair access to housing
that can be seen as “badges and incidents” (Emerald).
iii) It is possible that discriminatory ads were well-known and would have
been considered by Congress. (Opal). (Again, you’d need evidence of this).
B. Circumstances Where the FHA Would Not Ban Discriminatory Advertising, But
§1982 Might
1. Advertising re Transactions Not Addressed by the FHA
a) Ads re non-residential real property (commercial, agricultural, or industrial)
b) Ads re personal property: For example: a high end car dealership puts out ads
featuring only white people, or even just white males. This wouldn’t violate the
FHA because it does not relate to housing, but it does influence the purchase of
personal property. In this instance it give the inference that only white males are
welcome to inquire about purchasing a vehicle at that dealership.
c) Advertising that does not fit into the FHA’s specific list of verbs: As the
Miami Beach Code shows, there are forms of advertising that do not literally fit
into the FHA’s literal language: “make, print, or publish or cause to be made,
printed, or published….” These might include posting ads on bulletin boards or
online. The more general language of §1982 might cover some of these. (Opal)
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2. Procedural Differences
a) §1982 has a longer statute of limitations. A §1982 claim might be available
even when time has expired on the FHA claim. See Pinchback.
b) Differences in allowable remedies. (Garnet). We didn’t study any of these, but
this might be particularly true with regard to attorneys fees.
3. Problematic Responses
a) Smallholder’s Exceptions to the FHA: (Emerald; Garnet). The exceptions
listed in §3603 apply to §3604 (a), (b) & (d), but not to §3604(c). Thus, §3604(c)
prohibits you from advertising that you will discriminate, even if you are allowed
to actually discriminate in, e.g., choosing roommates. As a result, §1982 would
not expand coverage in these situations.
b) “If the people were buying a condo rather than renting one.” (Sapphire) This is
completely irrelevant. Both the FHA and §1982 address both sale and lease
transactions.
c) “In situations where the discrimination is so blatant in the advertising.”
(Emerald). Again irrelevant. Blatant discrimination presumably would make the
FHA case stronger, so §1982 would not add anything.
d) “The statutory question might be relevant in a situation where, along with the
human model violation, a defendant had denied an individual/petitioner housing,
violating a constitutional right. In that situation, a court could likely find a
separate damage award appropriate.” (Diamond). Two problems:
i) The question asked for situations in which it would be relevant to decide if
§1982 addressed advertising. Adding a claim for denial of housing would not
require you to decide this; we already know §1982 covers denials of housing.
ii) A private defendant denying someone housing cannot violate a
constitutional right. Except for the ban on slavery, constitutional rights
generally can only be violated by the government or its agents.
DQ69. Suppose a developer wishes to advertise a new set of houses
(“Fungible Estates”) built on the outskirts of a major city. She runs ads on
billboards across the city which say: “We At The New Fungible Estates
Development (Located at 17000 175th Ave) Believe That The Fair Housing
Act is a Violation of Your Constitutional Rights to Property and
Association.” Does this violate the FHA?
A. General Comments:
1. Ordinary Reader Test: The bottom line question is whether an ordinary reader
would take the sign to indicate a preference involving one or more protected
characteristic. Some unspecified facts about context that could affect how a reader
viewed the sign and whether it triggered thoughts of particular groups.:
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a. Location
(i) Location of the billboards may suggest what groups are likely to be targets
of discrimination (Sapphire) The billboards may not appear to be neutral if
they were placed primarily in areas of heightened racial tension.
(ii) The further away the signs are from the development, the less likely the
ad would affect buyers and the more it looks like a purely political statement.
(iii) placement at the outskirts of a major city is consistent with the common
pattern of developers trying to create primarily white neighborhoods far from
the inner city. (Opal)
b. Other Context
(i) Has there been any related controversy in the area that would make it more
likely that a developer would be engaged in political activity (e.g., crackdown
by HUD on sellers & landlords) or that would make an ordinary reader
understand the ad as specific code for a protected characteristic (e.g., lots of
publicity about the changing racial character of the area). (Amethyst)
(ii) What else is on the sign? A stronger argument (either way) could be made
if the ad included human models, additional words, presence/absence of an
equal housing symbol. (Opal) “If the advertisement included [pictures of] a
homogenous group of people, for example a group of upper- and middle-class
white people, along with the statement, it may … suggest a preference for
white people.” (Opal)
(iii) If in fact people with particular protected characteristics are having
trouble getting housing, then the sign could be evidence of discriminatory
intent.
2. Relation to First Amendment Issues
a. Whether the ad violates the FHA is a completely separate question from
whether it would violate the First Amendment for the government to punish the
developer for putting up the sign. When you have the juxtaposition of statutory and
constitutional issues, you usually should first decide whether the activity in question
violates the statute. If it does, you then ask if punishing the activity raises First
Amendment issues. (thus, discussion of whether the billboard is political or commercial
speech is not responsive to the question I asked).
b. To analyze the free speech issues here, you’d need to decide whether this is
commercial or political speech (a hard call). You then would apply the appropriate test to
the situation to decide if the government can regulate even though the speech is at least
protected to some extent. Remember that simply determining that something is “protected
speech” doesn’t answer the question of whether the government can regulate. Even
political speech can be regulated if the regulation is narrowly tailored to a compelling
state interest.
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B. Arguments that ad violates §3604(c)
1. An ordinary reader is likely to believe that the sign indicates an open
demonstration of discriminatory mindset or a desire to discriminate against a group
that the FHA normally protects. (Sapphire) [Note that it helps to be specific here;
precisely what groups might be disfavored by the ad?] An ordinary reader of a
traditionally disfavored group might believe that his or her own group is unwanted
and be discouraged from applying. (Ruby; Sapphire)
2. An ordinary reader would construe the billboard to mean that the organization
doesn’t believe or adhere to FHA or its provisions. (Emerald) That might suggest
that it prefers not to do business with people with disfavored protected characteristics
(Opal; Ruby) and even that it would be futile for those people to apply. (Diamond) It
might also suggest a desire to return to pre-FHA segregation. (Amethyst; Ruby).
3. There is no reason to include the address and to mention that they are a “new”
development unless they are trying to sell houses based on their beliefs about the
FHA (Diamond; Opal) (a good point), which probably means they don’t want groups
of people who normally rely heavily on the FHA. .
4. Less Convincing Argument: “‘Associations’ [means] different than you; almost
obviously discriminatory.” (Amethyst) In this context, “Association” means the right
to associate with whoever you want (as opposed to being forced to live with
neighbors you don’t want). In the context of the FHA, it almost certainly refers to the
freedom to associate with people like yourself, not the freedom to associate with
people who are different.”
C. Arguments that ad doesn’t violate §3604(c)
1. The ordinary reader may not know exactly what the FHA does and so may not see this
as related to discrimination.
2. No explicit preferences are indicated; it simply states the developers’ political opinion:
that they don’t agree with the FHA (Amethyst; Sapphire). Thus, an ordinary reader
might simply view it as a political statement in favor of individual rights or against
government regulation. (Diamond).
3. The ad does not refer to any protected characteristic and so an ordinary reader would
have a difficult time identifying any specific preference. (Amethyst; Diamond; Emerald;
Ruby) Relatedly, Emerald asked, “Does this discriminate every protected class in the
FHA? If you are potentially offending everyone, is that really discriminating against a
protected group?” Clearly, a plaintiff would have to argue that an ordinary reader would
see a message regarding one or more particular groups. The key point really isn’t who
you would offend, but rather whether context would make apparent to a reader who you
wanted to exclude.
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DQ70. How do the Wisconsin and Miami Beach provisions on advertising
differ from those in §34604(c)? Can you identify situations where the
differences in language would yield different results?
A) General Points
1. The three jurisdictions obviously protect different characteristics and have different
exemptions, but I wanted you to focus on the language and operation of the
provisions explicitly discussing advertising.
2. You need to keep in mind that the organization of two statutes might be quite
different without significantly affecting the substance. For example
(a) Wisconsin’s advertising provision appears much simpler than the others at
first. (Ruby; Sapphire) However, Wisconsin puts much of the key language in a
separate subsection defining “advertise.” (Opal; Ruby) When you read the
provision together with the definition, Wisconsin’s regulation of advertising looks
much more like the others.
(b) Similarly, although §3604(c) lists the protected characteristics in the same
subsection as the language about advertising (Ruby) doesn’t mean that it will
operate differently than other advertising provisions that cross-reference lists of
characteristics found elsewhere in the statute.
3. References to “Intent”: The word “intention” appears toward the end of §3604(c).
I think the correct way to read the statute is as follows:
To make, print, or publish … any notice, statement, or advertisement ... that indicates
(1) any preference, limitation, or discrimination based on [the list of characteristics] …
OR (2) an intention to make any such preference, limitation, or discrimination.
(a) This language has nothing to do with the question of whether a plaintiff must
prove that the defendant had discriminatory intent (it is clear from the structure of
the sentence that this “intention” is not required). Instead, I think the language
describes ads that indicate preferences that might be exercised in the future (“We
will select people without children if possible.” “We will have strict quotas as to
the number of Jews who will be allowed in the community.”).
(b) There is substantially similar language in Miami Beach but not in Wisconsin.
Students regularly suggest that this distinction means that no proof of
discriminatory intent is required for an advertising claim in Wisconsin
(Diamond), but of course we know from the cases that is true of §3604(c) as well.
4. The Sapphires claimed that, “The language in the statutes show the differences
between lifestyles in Miami and Wisconsin.” This is a fascinating claim, but it needs
to be explained because I sure don’t see it.
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B) FHA v. Wisconsin
1. The Relevant Language
42 U.S.C. §3604. Discrimination in the sale or rental of housing and other
prohibited practices. ... [I]t shall be unlawful–
(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.
Wisconsin Statute §106.50
(1m) Definitions. In this section:
(ad) "Advertise" means to publish, circulate, issue or display, or cause to be
published, circulated, issued or displayed, any communication, notice, advertisement
or sign in connection with the sale, financing or rental of housing. …
(2) Discrimination prohibited. It is unlawful for any person to discriminate: …
(d) By advertising in a manner that indicates discrimination by a preference or
limitation.
2. Difference in Coverage
a. Advertising with Respect to What Transactions? Wisconsin adds “financing.”
(Opal) It also adds the phrase “in connection with,” which might cover
advertising related to homeowner’s or renter’s insurance. (Opal)
b. What Type of Activities Are Covered?
(i) FHA but not Wisconsin:: “make” “print”
(ii) Wisconsin only
(A) “circulate” “issue” “display” (By covering “display,” this statute
would permit a stronger argument for regulating the ads posted on bulletin
boards, both physical and virtual ones.
(B) “in a manner that indicates” (v. “indicates”) Because of this, the
statute could encompass a full spectrum of the processes that lead up to
the publication of an advertisement. (Good idea)
(C) “any communication … or sign” (probably substantial overlap with
“statement” and “notice” in the FHA
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B) FHA v. Miami Beach
1. The Relevant Language
42 U.S.C. §3604. Discrimination in the sale or rental of housing and other
prohibited practices. ... [I]t shall be unlawful–
(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.
Miami Beach Code: Sec. 62-88. Discrimination in housing.
(a) Because of classification category. In connection with any of the transactions set
forth in this section affecting a housing accommodation, it shall be unlawful for any
person, owner, financial institution, real estate broker or any representative of the
above to engage in any of the following acts because of the classification category of
a prospective buyer, renter, lessee or any person associated therewith: …
(6) To make, publish, print, circulate, post, mail or cause to be made, published,
printed, circulated, posted or mailed any notice, statement or advertisement, or to
announce a policy, or to sign or to use a form of application for the sale,
purchase, rental, lease or financing of any housing accommodation, or to make a
record of inquiry in connection with the prospective sale, purchase, rental, lease
or financing of any housing accommodation that indicates any discrimination or
any intent to discriminate; …
2. Generally: Miami Beach includes more specifics than the others.
a. On the one hand, this means many more specific combinations of activities are
prohibited. (Ruby; Sapphire). For this reason, Opal described the Miami Beach
provision as “very broad,” although lawyers more commonly use “broad” to
describe very general widely-inclusive language (as opposed to a long list of
specifics).
b. On the other hand, the large number of specifics makes it easier to argue that
the legislature did not intend to prohibit any conduct not specifically listed.
(Emerald; Sapphire).
c. Emerald suggested that the “Miami Beach [provision] can be read broadly or
narrowly depending on” how a court reads “indicating discrimination.” This is an
interesting idea, but both the FHA and Wisconsin contain the same language.
3. Differences in Coverage
a. Who Can Violate these Provisions? Miami Beach provides a specific list.
§3604(c) does not address this question directly, and so arguably could reach
types of defendants not listed in Miami Beach. For example, I would argue that
Miami Beach doesn’t reach newspapers unless you view them as becoming
“representatives” of landlords or sellers when they run their ads.
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b. Advertising with Respect to What Transactions? Like Wisconsin, Miami
Beach adds “financing” (Emerald) and adds the phrase “in connection with,”
which might cover ads related to homeowner’s or renter’s insurance. (Opal)
c. What Type of Activities Are Covered?
(i) Miami Beach adds the additional verbs: “circulate, post, mail” (Diamond;
Ruby), which sound like they cover the distribution of the ads (e.g., mailing
out flyers) (Ruby) and not just production and publication (as in §3604(c)).
“Posting” also might reach putting ads up on bulletin boards or on online
services. (Emerald)
(ii) “announce a policy”; a couple of prior groups noted that this would
include verbal statements and phone recordings, but those probably are
covered simply as “statements” under 3604(c).
(iii) Miami Beach adds “use a form of application” and “make a record of
inquiry”
(iv) One group suggested that Miami Beach’s reference to “statements” was
significant and might provide a basis for attacking the sign in DQ69.
(Diamond) However, both Miami Beach and §3604(c) use the same list of key
nouns: “notice, statement or advertisement.”
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