Chicago Lawyers’ Committee v Craigslist: Yet Another Reason Newspapers are Dying

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.)

Comments

[Eric Goldman]

Maybe we don't need to rewrite 230 to make it more restrictive but, as you suggest, we should seriously consider flipping the other way and provide broader safe harbors for newspapers. In that sense, 230's online exceptionalism does teach us how we can use legal favors to invigorate an industry. Eric.

[Roach]

Of course, if we got rid of these meddlesome, social engineering laws, newspapers and online publishers alike could enjoy a little something called freedom. And their readers could enjoy another thing that we once respected: property rights and freedom of association.

[Ruben Rodrigues]

I have about zero knowledge regarding the print-publication classifieds industry, but to me it seems like one distinction between the internet v. print applicability of CDA 230 and the FHA is the notion of editorial control. In print, someone at the intermediary presumably reviews, organizes, and reads the classified posts (it's not clear to me whether they do this BECAUSE of legal liability for posts, or whether they'd engage in screening anyway for quality control purposes). If the print intermediary is engaged in this sort of editorial control anyway, imposing the costs of further screening for the purposes of the FHA could be minimal. In the craigslist scenario, the intermediary simply allows direct posting by users, imposing screening costs could be prohibitive.

This distinction also helps explain the Ninth Circuit's original decision in Roommates.com (currently awaiting en banc review). In that case the internet intermediary provided categories which might have violated discrimination laws, which could be seen as an exercise of editorial control excepting the intermediary from liability under CDA 230.

As for the imbalance of laws regarding print and internet classifieds, if newspapers aren't going to exercise editorial control on classifieds, maybe they deserve the same protection as CDA 230.

[Hill]

A solution that couldn't happen overnight
- split the Internet with domain extension control. Certain domains, i.e. ".info", ".com" or ".biz", fall under the protection of the Communications Decency Act of 1996. These domains, by definition, would be known by the public to not 'necessarily' abide by FHA or other media stipulations or ratings (i.e., FCC).

Then on the other side of the coin, regulate the content of 'accredited' domains with their own domain extension - i.e., create a new extension like ".nws" or whatever. These domains that 'qualify' for this accredited domain extension would be restricted in content by a centralized body (i.e., FCC or otherwise). Therefore, when a web-surfer or researcher wants quality "News" then they go to domains with the ".nws" (or whatever it would be) extension.

Now some will not read all of this post and say I'm "regulating the free speech Internet" - to those of you I say, read the whole post. I'm only stating that if you want some credibility as a news source, then you would have to abide by the same restrictions that all public newspapers and TV stations already abide by.

This would also make headway in citing information - as citations from .nws domains would naturally carry more weight than citations from .com or .whateverelse domains - and maybe finally rid the world of the opinion that just because they saw it in somebody's blog, it must be true.

This is a side-track from the Craigslist issue, but is a plausible solution to the greater battles of print vs. post.

[Uzair Kayani]

Hi Professor Picker,

I am not sure this is a special problem for newspapers. It appears the precedents are widely dispersed, between the Ninth (Roommates.com) and Seventh (Craigslist)Circuits, for example.

The reason seems to be that Internet content providers are evolving much faster than newspapers, and are therefore less understood. Courts are investigating whether there are differences between providers in the way ads are formatted and filtered. In the case of newspapers, these matters may be better understood, and the law is accordingly better settled.

And maybe the newspaper/ Internet distinction is not the issue here: under Craigslist, a newspaper might be able to avoid the FHA by proving that its staff is very small and overworked.

As in any new field, judges appear to favor minimalism here. New industries are often subject to minimal regulations (consider mutual funds, hedge funds, and so forth), even when they are competing with more regulated competitors (investment companies). This does not typically wipe the competitors out. If something is killing newspapers, the FHA may be only a trivial abettor. Perhaps this is irreversible creative destruction, and we are focusing on the wrong symptoms. The Circuit disagreement should sort itself out without killing newspapers.