Friday’s decision in the Craigslist case in the Seventh Circuit offers yet another reason why newspapers are losing ground—and quickly—to their online competitors: newspapers face tougher laws than the online firms. As (our) Judge Easterbrook’s opinion makes clear, publish a “No Minorities Welcome” ad in the Chicago Tribune and the Trib violates the Fair Housing Act. But put the same ad on Craigslist and, after Friday at least in the Seventh Circuit, Craigslist faces no liability under the FHA given the protection given to it under the Communications Decency Act of 1996. We often talk about media neutrality—the idea that a particular set of rules should apply independent of the medium via which the content is delivered. This is just the opposite—media bias—but not the usual version; this is bias against one medium—classified ads in newspapers—in favor of another—the Internet.
This is all reasonably straightforward. As Nicholas Carr emphasizes in The Big Switch—we are reading it next quarter in my Spring Tech Policy seminar—newspapers are unbundling. Content that had been lumped together is being dealt with separately. Sometimes that helps newspapers: they have largely dropped detailed stock tables, as who would get stock prices from a newspaper anymore, and that undoubtedly saves them money. But much more this has hurt newspapers: classified ads that would have been in newspapers have moved to eBay and Craigslist.
Section 230(c) says that it is intended to protect “Good Samaritan” online providers who jump in to screen offensive content, but it starts with a safe harbor: “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.” If a newspaper publishing a discriminatory ad is liable under the Fair Housing Act—the triggering language there is “[t]o make, print, or publish”—we should think that an online service provider would face the same liability. Media neutrality. Section 230(c) seems to say otherwise, and so the Seventh Circuit concludes. Section 230(c) seems to call off the usual rules that cause us to treat the Chicago Tribune as printing and publishing.
I read this case in preparation for a panel tomorrow morning that I am doing at the Internet Video Policy Symposium. One of the key issues there is the extent to which we think media platforms like YouTube should be in the business of filtering content: screen for copyright violations and yet allow user-generated content to flourish. The Craigslist case is another filtering situation. Newspapers typically run with a built-in choke point, but Craigslist doesn’t. But these designs aren’t necessary. Newspapers could just take all ads without filtering classifieds; indeed, they seem to be set up to do that if they can do so legally. I’m not sure that it is meaningful just to use labels like newspapers—filtering presumed—and common carriers—the telephone system—where we assume no filtering.
Instead, we need to focus on what is at stake. The situation in Chicago Lawyers’ offers two separate reasons for looking to push more liability on service providers like Craigslist. The first is to more fully implement the ideas of the Fair Housing Act: if discriminatory ads are offensive in newspapers, they should be offensive on Craigslist. Second, newspapers are in enough trouble without facing legal disabilities compared to the competitors who are leaving them in the dust. So either free the newspapers and further gut the Fair Housing Act or take the FHA seriously and apply it to Craigslist. Doing that would mean rewriting Section 230(c). (This isn’t a universally-held view; see, for example, this post by Eric Goldman.)