We know it is against the law to discriminate in housing. You can't run newspaper ads stating preferences or indicating rejection on the basis of race, religion, gender, age, etc. You can say "no smokers," but you can't say "no Presbyterians."

At least you can't run discriminatory ads in the physical world of newsprint and magazines. But what about cyberspace? Can housing discrimination be practiced on websites? It's not quite as clear. A recent decision by the United States Court of Appeals for the Ninth Circuit (Fair Housing Council of San Fernando Valley and The Fair Housing Council of San Diego v. Roommates.com) purports to make the rules more clear, but whether it did so remains to be seen.

When we say "you can't run discriminatory ads" what we mean is that the publisher of the ad will have liability. So, naturally, publishers seek to avoid such ads. Many real estate agents have had experience with this. Indeed, as publishers have worked together with various fair housing groups, some pretty astounding measures have resulted. Lists of acceptable and unacceptable words and phrases have been developed. Don't call a unit a "bachelor pad" or describe a home as perfect for "empty nesters." The ad will be rejected; the publisher doesn't want to get into trouble.

But different rules have evolved for ads on websites. And with good reason. When an agent or a landlord sends an ad to a newspaper or magazine, someone sees it before it is set for type. There is an opportunity to screen the content. It's not the same on the web. Everyday on a myriad of websites hundreds of thousands of people are posting ads, messages, claims, and accusations.

A person sits down at a keyboard, types in whatever they like, and the next thing you know there it is for viewing. (I acknowledge, some sites can and do filter for certain types of language, words, and expressions; but on the whole, it's pretty hard to block all the objectionable things that can be phrased in so many ways.)

In 1996 Congress enacted the Communications Decency Act (CDA). A part of that act, specifically section 230, was intended to provide safe harbor for website operators who were simply passing through information or content created by others. An important application of section 230 occurred in the March, 2008, decision from the Seventh Circuit Court of Appeals (Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. craigslist, Inc.) Craigslist, a huge internet classified ads directory, had been sued for Fair Housing violations because of discriminatory ads that had been posted by users of craigslist.

Some argued that, because craigslist did do some screening (it solicits notification from readers) and did remove some ads, that it should be held accountable for the content of ads appearing on its site. The court noted, though, that section 230 does provide protection for 'good samaritan' blocking and screening of offensive material. As long as the website operator has not been the creator or developer of offensive content, it will not be held liable for failing to find all the offensive material that had been submitted to it.

The Roommates.com case posed a slightly different scenario, with a somewhat different result. According to the court record, "Roommate the website operator name is singular 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 … ." Also, the site "encourages subscribers to provide 'Additional Comments' describing themselves and their desired roommate … ."

The Fair Housing Councils sued Roommate in federal court alleging violation of the Fair Housing Act, but the district court dismissed the suit on the grounds that Roommate was immune under section 230 of the CDA. However, the Ninth Circuit court reversed the dismissal and sent the case back for trial.

The appellate court noted that Roommate "created the questions and choices of answers by dropdown menus and designed its registration process around them." By doing so, and by incorporating the answers into the operation of its search system, the court reasoned that Roommate became a developer of content, not simply a pass-through. (Interestingly, it said that Roommate would not itself be considered a developer of content simply by providing the "Additional Contents" section.) And it noted that the content developed by Roommate, as well as the mere act of asking the questions, could be violations of the FHA. Hence, it sent the case back for trial on those issues.

The court made it quite clear that it would be completely legal to ask questions about age, race, religion, and a variety of other things if one were operating an internet dating registry. That's because there is no Fair Dating Act that prohibits such things. Whether similar questioning and sorting can be done when landlords and tenants are being matched is another issue.