housing discrimination on Craigslist
From a special bulletin on Craigslist:
But if anti-discrimination laws do apply to renting-out-a-room situations, do they then apply to actual "roommate" situations -- that is, people advertising to actually share a bedroom? Surely, they cannot! If you are offering to rent the bunk above your bunk, I think you can choose a bunkmate based on the "least likely to rape me" criterion.
A group of lawyers is suing craigslist over a handful of allegedly discriminatory housing ads posted by our users... While craigslist takes fair housing issues very seriously ... the 100 ads cited were a little surprising. Some were roommate ads involving constitutionally protected speech and the right to free association, such as "prefer christian roommate", or were ads containing incidental and harmless remarks such as "near St Gertrude's church," and "Buddhist temple nearby." Others simply celebrated the diversity and tolerance of the local community ("vibrant southwest Hispanic neighborhood offering great classical Mexican culture, restaurants, and businesses"), or sought to appeal to some groups without excluding anyone ("Great apartment for graduate students, married couple, or small family"). And for a few it is difficult to determine what protected classification is at issue ("wants one nice quiet person").You know, I really don't think housing anti-discrimination laws were meant to apply to, say, 20 year old college girls who would prefer to share their bathrooms with other 20 year old college girls. I mean, wouldn't you want your 20 year old daughter to be able to "discriminate" against 40 year old men as potential roommates?
But if anti-discrimination laws do apply to renting-out-a-room situations, do they then apply to actual "roommate" situations -- that is, people advertising to actually share a bedroom? Surely, they cannot! If you are offering to rent the bunk above your bunk, I think you can choose a bunkmate based on the "least likely to rape me" criterion.
posted by JenIsFamous at 5/16/2006 07:27:00 PM
14 Comments:
Good luck to the people suing! No doubt they have the best lawyers in the land, OJ Simpson's.
Are these the same people suing McDonalds for making them obese?
With all due respect, Jen, I will tell you that while I happen to agree with you philosophically, your usually outstanding reasoning and argumentative skills here have failed you in one important respect: You're arguing something that is completely irrelevant! It ISN'T the rights of the roommate seekers to engage in free speech that is at issue here at all. Rather, it is the right of protected classes to have injunctive relief against an entity alleged to be aiding and abetting those engaged themselves in unlawful COMMERCE!
Let me explain, please:
You are the adminstratrix of JenIsFamous, sure. But you don't really own JenIsFamous; you own its content as your intellectual property. You lease the right to publish your intellectual property, which you own, on a domain "hosted" by someone else. That host, in turn, is engaged in the commercial activity of leasing domains to the public-at-large in return for compensation. And while that host MAY discriminate against individual would-be lessees on the basis of their content (e.g., "no pornographic material"), it cannot discriminate against leasing you a domain because you are, say, a woman (or Jewish, gay, not born in this country, whatever). There's irony for you, huh? The host COULD tell Al Goldstein that it won't lease him a domain because it finds the content he intends to post objectionable, but it COULDN'T tell him that it wouldn't lease him a domain because he happens to be named Al Goldstein. Doesn't that seem somewhat at odds with the first amendment as most of us understand it?
It might. But if it does, it's because, frankly, most of us do not really understand the first amendment, and where it comes in to play! We only think we do.
Simply, if you tell Al Goldstein that you will not allow him to post pornography on your website, what are you really discriminating against? NOTHING! You are not discriminating, because the proscription against pornographic material, while admittedly content-based, applies equally to all individuals, regardless of whosoever they may be. A website is NOT a public forum like the steps of City Hall, or a state university, so the "content-based speech" argument falls apart. Additionally, you are not saying, after all, "I will allow pornography so long as it isn't JEWISH pornography!" So there's no discrimination against members of protected classes. Everyone is treated equally regardless of his or her various affiliations. That is, EVERYONE is subject to an admittedly arbitrary rule regarding content that is applied to all in accordance with a uniform standard (e.g., "no nudity").
Maybe Craigslist prevails and the plaintiffs are not granted the injunctive relief they seek here, for whatever reason, but the first amendment has nothing to do with this case, Jen. It just doesn't. The underlying issue here is COMMERCE, and whether Craigslist is aiding and abetting those seeking to engage in unlawful commercial activity. The first question to ask, then, is whether seeking a roommate is a commercial activity. It may amaze you to know that where a commercial component is involved--and that means not just a cash transaction, but also "sharing household expenses", the exchange of "gifts in kind", "lodging in return for service", other forms of barter, etc.--seeking a roommate has been held by the courts here in New York (among other jurisdictions) to be commercial activity.
Additionally, I will tell you that as a licensed real estate broker with a legal background myself, I question why one needs a license to be a "roommate finder" if Craigslist doesn't. The National Board of Realtors, for example, opposed eBay's right to allow individuals to auction their houses to the highest bidders, and sought injunctive relief to prevent eBay from holding such auctions. The NBR argued that while one certainly has a right to sell his or her own house without a realtor (a "fisbo", as it is known), to the extent that eBay charges its customers to hold the auction, it is receiving an illegal "commission" as an entity not duly authorized to collect such in a commercial real estate transaction. The case was more complicated than it sounds, because it really came down to what was being auctioned (i.e., the house itself, or the right to enter into exclusive negotiations to purchase it), but the eBay example is a good one in an important respect: ask yourself whether eBay could hold an auction where you advertised that, say, "[Offensive term used to describe African-Americans, or Jews, or anyone else] need not bid on my house. Our neighbors have been our good friends for over thirty-five years, and they don't want your kind living here!" Believe me, eBay cannot run such an auction; the first amendment be damned.
Hi Matt,
You mentioned that you have a legal background. ARE you a lawyer? Well, if so I wouldn't want to face off against you in court! I thought your explanation was right on and it completely changed my mind about how I see this issue. No offense to anyone, but my initial reaction was to agree with Jen 100%. But now I agree that the issue is not a first amendment one; it's a question of whether craigslist can promote a discriminatory commercial activity. (P.S. I admit that I hadn't realized that a roommate search would be considered a commercial activity, but it makes sense.)
I look forward to reading more of your posts. You are very smart and funny. Usually you make me laugh, but this time you made me think. I think guys who can make me do both rock.
; )
Matt,
I think you're right that the first amendment doesn't aplly here. Craigslist will figure that out soon enough. I think the argument is more that the adds cited contain only "incidental and harmless remarks" that don't warrant the label of discriminatory.
Jen is just taking it one step further; Is it ever fair to discriminate against a potential roomate in an adverstisement? In some cases I think it is. Like Jen said, a college girl should be allowed to discriminate against a forty year old man on the basis of his age. To not be able to specify such a preference in print is kind of bullshit in my oppinion.
There is some of grey area but mostly I think these lawyers are just trying to be cute. They should all be drowned like a sack of kittens.
Matt Penn said...
Let me explain, please:
Whoooahhh!! I think I just gained a law degree!!!
Hi, Julie -
Aw shucks! Now don't go sayin' that, or next thing I know my insanely talented (but equally sarcastic) friend Mrs. Dziura will post something like "Newsflash: Matt Penn Rocks!", and then the pressure will really be on me to step up with some haha or insight, as the case may be.
But seriously. . .
Thank you very much for the kind words, Julie.
To answer your question, I went to law school but am not an attorney. I just happen to know a bit more about applicable real estate law than other areas of American jurisprudence because I am also, as I wrote, a licensed real estate broker.
BTW, I really liked what you wrote on the other thread about "scheduling indignation". That was both funny and insightful, and it got me laughing and thinking simultaneously. So back atcha.
Newsflash: Jen's Readers Are a Quarry!
Best,
Matt
Hi, Anonymous -
As I wrote, I happen to agree with you and Jen philosophically. I wouldn't want my teenage daughter sharing an apartment with someone old enough to be, um, me, either. But I am offering my interpretation of the applicable laws; not a screed on how absurd, or how offensive to my libertarian values, they may be. Simply put, the first amendment doesn't have the applicability most Americans think it does, when it comes to commerce; particularly not when it comes to housing.
Best,
Matt
Hi, Zombie -
Aw shucks. Now don't go sayin' that, or next thing I know our insanely talented (but equally sarcastic) friend Mrs. Dziura will post something like: "Throw Rocks at Matt Penn! He's a LAWYER!" And we can't have that, can we? In the first place, having rocks thrown at you is never a pleasant experience. (Trust me.) And as I said, I am not a lawyer.
But seriously. . .
Thanks for your kind words, Zombie. I invite you to join the quarry. You also rock!
Best,
Matt
Matt,
It's just that you come out, guns blazing, with:
"You're arguing something that is completely irrelevant!"
"the first amendment has nothing to do with this case, Jen. It just doesn't."
While Jen's point may not be relevant to the case in strictly legal terms it still raises ethical questions that would have been would have been fun to discuss.
Sometimes because of time constraints and other things, people can write blogs that misstep. For instance:
There's irony for you, huh? The host COULD tell Al Goldstein that it won't lease him a domain because it finds the content he intends to post objectionable, but it COULDN'T tell him that it wouldn't lease him a domain because he happens to be named Al Goldstein. Doesn't that seem somewhat at odds with the first amendment as most of us understand it?
No, that's not irony and no it doesn't seem at odds with the first amendment as I understand it. For it to be ironic a tenant living in new york state would have to be able to discriminate against a potential-tenant based on race, sex or creed in her ad for a roommate.
First off, let me say that if you know anything about me at all, you know that I have nothing but enormous respect for Jen Dziura. And so if I came out "guns blazing", as you put it, I did so only to point out that EVEN a person so unbelievably brilliant and right all the time about everything as Jen, nevertheless can begin arguing the irrelevant where alleged violations of first amendment rights are concerned. If Jen felt that I was being condescending or even gratuitously nasty, she has not let on either here or privately. That does not surprise me. As noted, Jen's a pretty smart cookie. I know she got it.
As for my not being able to distinguish irony from the proverbial hole in the ground. . .well, you'll have to forgive me if I'm running on fumes here. All the twenty-something hipsters out there soaked up America's natural resource of irony, leaving none for old farts like me. Maybe we can drill for more in the arctic. Or perhaps I can hire Keith Olbermann to give me some from his private stash.
With all due respect, I used the word correctly. Let's review, shall we: Irony refers to an incongruity between what might be expected and what actually occurs. Given the prevalent misunderstanding of the first amendment that I noted, one (though perhaps not you) might expect that Al Goldstein has a first amendment right to publish all the smut he wants on a website, 'cause this is America, damnit. In fact, he has no such right.
I think I made my point.
While Jen's point may not be relevant to the case in strictly legal terms it still raises ethical questions that would have been would have been fun to discuss.
Yes, I agree entirely. And as I wrote, I happen to agree with Jen 100%, philosophically. If I came off to any of you as being overly pedantic, or overly harsh on Jen, I apologize to one and all, and hopefully will preempt your excercising your first amendment rights to call me all sorts of names.
(Just an aside: Don't you worry about our Jen. When you guys weren't checking out her heinie on another thread, and you gals weren't envying her Lord Carret. . .um. . .have you taken a good look at the GUNS on that delicate flower recently? She used to be a BOXER, folks! As in, punched people. For FUN, if not only for exercise! As in, Jen Dziura could kick my ass; not that it would be any accomplishment. So not to worry here. I am not Simon LeGree and she ain't chained to any railroad tracks. If I get outta line, I'm gonna learn what it means to be bitch slapped. And not necessarily verbally, although Jen could whip me there, too, with her left brain tied behind her medullah oblongata.)
Actually, I would like to take this in another direction by asking, perhaps rhetorically, if America isn't ALL ABOUT discrimination. I mean, marketing is all about ENCOURAGING consumers to discriminate, in an effort to build what is known as brand loyalty, right? Believe me, the executives in Atlanta don't want anything other than Coca-Cola to be the choice of ANY generation; new OR old. And similarly, the guys in Armonk are not beating the "can't we all just get along". . .sorry, bad metaphor. . .aren't suggesting that they want to buy the world a Coke, either.
Americans may be obese, but the message behind advertising is that there IS someone who doesn't like Sara Lee. His name is Duncan Hines, okay? Buy him! Buy ONLY him!
Given that irony involves the difference between the expected and the actual Olberman is a bad example. KO is not ironic because there's no difference between what you expect him to say and what he actually says. Irony would be admitting that you like him better since he left ESPN.
There's a simple way around the whole discrimination thing: Say who you are and then write "ISO"! It means I seek other. But it's kosher for some reason.
I agree that Olberman was a terrible example for the reason you gave.
My bad.
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