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Roomates.com Case and its interpretation of the Communications Decency Act -Was this a victory against Internet defamation and other online misconduct?

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

FAIR HOUSING COUNCIL OF SAN ü 
FERNANDO VALLEY; THE FAIR 
HOUSING COUNCIL OF SAN DIEGO, 
individually and on behalf of the 

No. 04-56916 
GENERAL PUBLIC, 

Plaintiffs-Appellants, 

CV-03-09386-PA 

v. 
ROOMMATES.COM, LLC, 

Defendant-Appellee. 

FAIR HOUSING COUNCIL OF SAN ü 
FERNANDO VALLEY; THE FAIR 
HOUSING COUNCIL OF SAN DIEGO, 

No. 04-57173

individually and on behalf of the 
GENERAL PUBLIC, D.C. No. 

CV-03-09386-PA

Plaintiffs-Appellees, 

OPINION

v. 
ROOMMATE.COM, LLC, 

Defendant-Appellant. þ 

Appeal from the United States District Court 
for the Central District of California 
Percy Anderson, District Judge, Presiding 

Argued and Submitted 
December 12, 2007—Pasadena, California 

Filed April 3, 2008 

3445 


3446 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt, 
Pamela Ann Rymer, Barry G. Silverman, 
M. Margaret McKeown, William A. Fletcher, 
Raymond C. Fisher, Richard A. Paez, Carlos T. Bea, 
Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges. 

Opinion by Chief Judge Kozinski; 
Partial Concurrence and Partial Dissent by Judge McKeown 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3449 

OPINION 

KOZINSKI, Chief Judge: 

We plumb the depths of the immunity provided by section 
230 of the Communications Decency Act of 1996 (“CDA”). 

Facts1 

Defendant Roommate.com, LLC (“Roommate”) operates a 
website designed to match people renting out spare rooms 
with people looking for a place to live.2 At the time of the district 
court’s disposition, Roommate’s website featured 
approximately 150,000 active listings and received around a 

1This appeal is taken from the district court’s order granting defendant’s 
motion for summary judgment, so we view contested facts in the light 
most favorable to plaintiffs. See Winterrowd v. Nelson, 480 F.3d 1181, 
1183 n.3 (9th Cir. 2007). 

2For unknown reasons, the company goes by the singular name “Roommate.
com, LLC” but pluralizes its website’s URL, www.roommates.com. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3451 

million page views a day. Roommate seeks to profit by collecting 
revenue from advertisers and subscribers. 

Before subscribers can search listings or post3 housing 
opportunities on Roommate’s website, they must create profiles, 
a process that requires them to answer a series of questions. 
In addition to requesting basic information—such as 
name, location and email address—Roommate 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. The site also encourages 
subscribers to provide “Additional Comments” describing 
themselves and their desired roommate in an open-ended 
essay. After a new subscriber completes the application, 
Roommate assembles his answers into a “profile page.” The 
profile page displays the subscriber’s pseudonym, his description 
and his preferences, as divulged through answers to 
Roommate’s questions. 

Subscribers can choose between two levels of service: 
Those using the site’s free service level can create their own 
personal profile page, search the profiles of others and send 
personal email messages. They can also receive periodic 
emails from Roommate, informing them of available housing 
opportunities matching their preferences. Subscribers who 
pay a monthly fee also gain the ability to read emails from 
other users, and to view other subscribers’ “Additional Comments.” 

The Fair Housing Councils of the San Fernando Valley and 
San Diego (“Councils”) sued Roommate in federal court, 
alleging that Roommate’s business violates the federal Fair 

3In the online context, “posting” refers to providing material that can be 
viewed by other users, much as one “posts” notices on a physical bulletin 
board. 


3452 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., and California 
housing discrimination laws.4 Councils claim that Roommate 
is effectively a housing broker doing online what it may 
not lawfully do off-line. The district court held that Roommate 
is immune under section 230 of the CDA, 47 U.S.C. 
§ 230(c), and dismissed the federal claims without considering 
whether Roommate’s actions violated the FHA. The court 
then declined to exercise supplemental jurisdiction over the 
state law claims. Councils appeal the dismissal of the FHA 
claim and Roommate cross-appeals the denial of attorneys’ 
fees. 

Analysis 

[1] Section 230 of the CDA5 immunizes providers of interactive 
computer services6 against liability arising from content 
created by third parties: “No provider . . . of an interactive 
computer service shall be treated as the publisher or speaker 
of any information provided by another information content 
provider.” 47 U.S.C. § 230(c).7 This grant of immunity 
4The Fair Housing Act prohibits certain forms of discrimination on the 
basis of “race, color, religion, sex, familial status, or national origin.” 42 

U.S.C. § 3604(c). The California fair housing law prohibits discrimination 
on the basis of “sexual orientation, marital status, . . . ancestry, . . . source 
of income, or disability,” in addition to reiterating the federally protected 
classifications. Cal. Gov. Code § 12955. 
5The Supreme Court held some portions of the CDA to be unconstitutional. 
See Reno v. ACLU, 521 U.S. 844 (1997). The portions relevant to 
this case are still in force. 

6Section 230 defines an “interactive computer service” as “any information 
service, system, or access software provider that provides or enables 
computer access by multiple users to a computer server.” 47 U.S.C. 
§ 230(f)(2); see Carafano v. Metrosplash.com, Inc., 207 F. Supp. 2d 1055, 
1065-66 (C.D. Cal. 2002) (an online dating website is an “interactive computer 
service” under the CDA), aff’d, 339 F.3d 1119 (9th Cir. 2003). 
Today, the most common interactive computer services are websites. 
Councils do not dispute that Roommate’s website is an interactive computer 
service. 

7The Act also gives immunity to users of third-party content. This case 
does not involve any claims against users so we omit all references to user 
immunity when quoting and analyzing the statutory text. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3453 

applies only if the interactive computer service provider is not 
also an “information content provider,” which is defined as 
someone who is “responsible, in whole or in part, for the creation 
or development of” the offending content. Id. 
§ 230(f)(3). 

[2] A website operator can be both a service provider and 
a content provider: If it passively displays content that is created 
entirely by third parties, then it is only a service provider 
with respect to that content. But as to content that it creates 
itself, or is “responsible, in whole or in part” for creating or 
developing, the website is also a content provider. Thus, a 
website may be immune from liability for some of the content 
it displays to the public but be subject to liability for other content.
8 
Section 230 was prompted by a state court case holding Prodigy9 
responsible for a libelous message posted on one of its 
financial message boards.10 See Stratton Oakmont, Inc. v. 
Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 
1995) (unpublished). The court there found that Prodigy had 
become a “publisher” under state law because it voluntarily 
deleted some messages from its message boards “on the basis 
of offensiveness and ‘bad taste,’ ” and was therefore legally 
responsible for the content of defamatory messages that it 
failed to delete. Id. at *4. The Stratton Oakmont court reasoned 
that Prodigy’s decision to perform some voluntary self-
policing made it akin to a newspaper publisher, and thus 

8See, e.g., Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. 
Cal. 2006) (Yahoo! is not immune under the CDA for allegedly creating 
fake profiles on its own dating website). 

9Prodigy was an online service provider with 2 million users, which 
seemed like a lot at the time. 

10A “message board” is a system of online discussion allowing users to 
“post” messages. Messages are organized by topic—such as the “finance” 
message board at issue in Stratton Oakmont—and the system generally 
allows users to read and reply to messages posted by others. 


3454 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

responsible for messages on its bulletin board that defamed 
third parties. The court distinguished Prodigy from CompuServe,
11 which had been released from liability in a similar 
defamation case because CompuServe “had no opportunity to 
review the contents of the publication at issue before it was 
uploaded into CompuServe’s computer banks.” Id.; see 
Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140 

(S.D.N.Y. 1991). Under the reasoning of Stratton Oakmont, 
online service providers that voluntarily filter some messages 
become liable for all messages transmitted, whereas providers 
that bury their heads in the sand and ignore problematic posts 
altogether escape liability. Prodigy claimed that the “sheer 
volume” of message board postings it received—at the time, 
over 60,000 a day—made manual review of every message 
impossible; thus, if it were forced to choose between taking 
responsibility for all messages and deleting no messages at 
all, it would have to choose the latter course. Stratton Oakmont, 
1995 WL 323710 at *3. 
[3] In passing section 230, Congress sought to spare interactive 
computer services this grim choice by allowing them to 
perform some editing on user-generated content without 
thereby becoming liable for all defamatory or otherwise 
unlawful messages that they didn’t edit or delete. In other 
words, Congress sought to immunize the removal of user-
generated content, not the creation of content: “[S]ection 
[230] provides ‘Good Samaritan’ protections from civil liability 
for providers . . . of an interactive computer service for 
actions to restrict . . . access to objectionable online material. 
One of the specific purposes of this section is to overrule 
Stratton-Oakmont [sic] v. Prodigy and any other similar decisions 
which have treated such providers . . . as publishers or 
speakers of content that is not their own because they have 
restricted access to objectionable material.” H.R. Rep. No. 
104-458 (1996) (Conf. Rep.), as reprinted in 1996 
11CompuServe was a competing online service provider of the day. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3455 

U.S.C.C.A.N. 10 (emphasis added).12 Indeed, the section is 
titled “Protection for ‘good samaritan’ blocking and screening 
of offensive material” and, as the Seventh Circuit recently 
held, the substance of section 230(c) can and should be interpreted 
consistent with its caption. Chicago Lawyers’ Committee 
for Civil Rights Under Law, Inc. v. craigslist, Inc., No. 071101, 
slip op. at 6 (7th Cir. Mar. 14, 2008) (quoting Doe v. 
GTE Corp., 347 F.3d 655, 659-60 (7th Cir. 2003)). 
With this backdrop in mind, we examine three specific 
functions performed by Roommate that are alleged to violate 
the Fair Housing Act and California law. 

1. Councils first argue that the questions Roommate poses 
to prospective subscribers during the registration process violate 
the Fair Housing Act and the analogous California law. 
Councils allege that requiring subscribers to disclose their 
sex, family status and sexual orientation “indicates” an intent 
to discriminate against them, and thus runs afoul of both the 
FHA and state law.13 
[4] Roommate created the questions and choice of answers, 
and designed its website registration process around them. 
Therefore, Roommate is undoubtedly the “information content 
provider” as to the questions and can claim no immunity 
12While the Conference Report refers to this as “[o]ne of the specific 
purposes” of section 230, it seems to be the principal or perhaps the only 
purpose. The report doesn’t describe any other purposes, beyond supporting 
“the important federal policy of empowering parents to determine the 
content of communications their children receive through interactive computer 
services.” H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep.), as 
reprinted in 1996 U.S.C.C.A.N. 10, 207-08. 

13The Fair Housing Act prohibits any “statement . . . with respect to the 
sale or rental of a dwelling that indicates . . . an intention to make [a] preference, 
limitation, or discrimination” on the basis of a protected category. 
42 U.S.C. § 3604(c) (emphasis added). California law prohibits “any written 
or oral inquiry concerning the” protected status of a housing seeker. 
Cal. Gov. Code § 12955(b). 


3456 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

for posting them on its website, or for forcing subscribers to 
answer them as a condition of using its services. 

Here, we must determine whether Roommate has immunity 
under the CDA because Councils have at least a plausible 
claim that Roommate violated state and federal law by merely 
posing the questions. We need not decide whether any of 
Roommate’s questions actually violate the Fair Housing Act 
or California law, or whether they are protected by the First 
Amendment or other constitutional guarantees, see craigslist, 
slip op. at 2; we leave those issues for the district court on 
remand. Rather, we examine the scope of plaintiffs’ substantive 
claims only insofar as necessary to determine whether 
section 230 immunity applies. However, we note that asking 
questions certainly can violate the Fair Housing Act and analogous 
laws in the physical world.14 For example, a real estate 
broker may not inquire as to the race of a prospective buyer, 
and an employer may not inquire as to the religion of a prospective 
employee. If such questions are unlawful when posed 
face-to-face or by telephone, they don’t magically become 
lawful when asked electronically online. The Communications 
Decency Act was not meant to create a lawless no-
man’s-land on the Internet.15 

[5] Councils also claim that requiring subscribers to answer 
14The Seventh Circuit has expressly held that inquiring into the race and 
family status of housing applicants is unlawful. See, e.g., Jancik v. HUD, 
44 F.3d 553, 557 (7th Cir. 1995). 

15The dissent stresses the importance of the Internet to modern life and 
commerce, Dissent at 3476, and we, of course, agree: The Internet is no 
longer a fragile new means of communication that could easily be smothered 
in the cradle by overzealous enforcement of laws and regulations 
applicable to brick-and-mortar businesses. Rather, it has become a 
dominant—perhaps the preeminent—means through which commerce is 
conducted. And its vast reach into the lives of millions is exactly why we 
must be careful not to exceed the scope of the immunity provided by Congress 
and thus give online businesses an unfair advantage over their real-
world counterparts, which must comply with laws of general applicability. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3457 

the questions as a condition of using Roommate’s services 
unlawfully “cause[s]” subscribers to make a “statement . . . 
with respect to the sale or rental of a dwelling that indicates 

[a] preference, limitation, or discrimination,” in violation of 
42 U.S.C. § 3604(c). The CDA does not grant immunity for 
inducing third parties to express illegal preferences. Roommate’s 
own acts—posting the questionnaire and requiring 
answers to it—are entirely its doing and thus section 230 of 
the CDA does not apply to them. Roommate is entitled to no 
immunity.16 
[6] 2. Councils also charge that Roommate’s development 
and display of subscribers’ discriminatory preferences is 
unlawful. Roommate publishes a “profile page” for each subscriber 
on its website. The page describes the client’s personal 
information—such as his sex, sexual orientation and whether 
he has children—as well as the attributes of the housing situation 
he seeks. The content of these pages is drawn directly 
from the registration process: For example, Roommate 
requires subscribers to specify, using a drop-down menu17 
provided by Roommate, whether they are “Male” or “Female” 
and then displays that information on the profile page. Roommate 
also requires subscribers who are listing available housing 
to disclose whether there are currently “Straight male(s),” 
“Gay male(s),” “Straight female(s)” or “Lesbian(s)” living in 
the dwelling. Subscribers who are seeking housing must make 
a selection from a drop-down menu, again provided by Roommate, 
to indicate whether they are willing to live with 
“Straight or gay” males, only with “Straight” males, only with 
“Gay” males or with “No males.” Similarly, Roommate 
16Roommate argues that Councils waived the argument that the questionnaire 
violated the FHA by failing to properly raise it in the district 
court. But, under our liberal pleading standard, it was sufficient for Councils 
in their First Amended Complaint to allege that Roommate “encourages” 
subscribers to state discriminatory preferences. See Johnson v. 
Barker, 799 F.2d 1396, 1401 (9th Cir. 1986). 

17A drop-down menu allows a subscriber to select answers only from 
among options provided by the website. 


3458 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

requires subscribers listing housing to disclose whether there 
are “Children present” or “Children not present” and requires 
housing seekers to say “I will live with children” or “I will not 
live with children.” Roommate then displays these answers, 
along with other information, on the subscriber’s profile page. 
This information is obviously included to help subscribers 
decide which housing opportunities to pursue and which to 
bypass. In addition, Roommate itself uses this information to 
channel subscribers away from listings where the individual 
offering housing has expressed preferences that aren’t compatible 
with the subscriber’s answers. 

[7] The dissent tilts at windmills when it shows, quite convincingly, 
that Roommate’s subscribers are information content 
providers who create the profiles by picking among 
options and providing their own answers. Dissent at 3485-88. 
There is no disagreement on this point. But, the fact that users 
are information content providers does not preclude Roommate 
from also being an information content provider by 
helping “develop” at least “in part” the information in the profiles. 
As we explained in Batzel, the party responsible for putting 
information online may be subject to liability, even if the 
information originated with a user. See Batzel v. Smith, 333 
F.3d 1018, 1033 (9th Cir. 2003).18 
[8] Here, the part of the profile that is alleged to offend the 
Fair Housing Act and state housing discrimination laws—the 
information about sex, family status and sexual orientation— 
is provided by subscribers in response to Roommate’s questions, 
which they cannot refuse to answer if they want to use 
defendant’s services. By requiring subscribers to provide the 
information as a condition of accessing its service, and by 
providing a limited set of pre-populated answers, Roommate 
becomes much more than a passive transmitter of information 
provided by others; it becomes the developer, at least in part, 
of that information. And section 230 provides immunity only 
18See also discussion of Batzel pp. 3466-67 infra. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3459 

if the interactive computer service does not “creat[e] or develop[ 
]” the information “in whole or in part.” See 47 U.S.C. 
§ 230(f)(3). 

Our dissenting colleague takes a much narrower view of 
what it means to “develop” information online, and concludes 
that Roommate does not develop the information because 
“[a]ll Roommate does is to provide a form with options for 
standardized answers.” Dissent at 3487. But Roommate does 
much more than provide options. To begin with, it asks discriminatory 
questions that even the dissent grudgingly admits 
are not entitled to CDA immunity. Dissent at 3480 n.5. The 
FHA makes it unlawful to ask certain discriminatory questions 
for a very good reason: Unlawful questions solicit (a.k.a. 
“develop”) unlawful answers. Not only does Roommate ask 
these questions, Roommate makes answering the discriminatory 
questions a condition of doing business. This is no different 
from a real estate broker in real life saying, “Tell me 
whether you’re Jewish or you can find yourself another broker.” 
When a business enterprise extracts such information 
from potential customers as a condition of accepting them as 
clients, it is no stretch to say that the enterprise is responsible, 
at least in part, for developing that information. For the dissent 
to claim that the information in such circumstances is 
“created solely by” the customer, and that the business has not 
helped in the least to develop it, Dissent at 3487-88, strains 
both credulity and English.19 

19The dissent may be laboring under a misapprehension as to how the 
Roommate website is alleged to operate. For example, the dissent spends 
some time explaining that certain portions of the user profile application 
are voluntary. Dissent at 3485-87. We do not discuss these because plaintiffs 
do not base their claims on the voluntary portions of the application, 
except the “Additional Comments” portion, discussed below, see pp. 
3471-75 infra. The dissent also soft-pedals Roommate’s influence on the 
mandatory portions of the applications by referring to it with such words 
as “encourage” or “encouragement” or “solicitation.” Dissent at 3493; see 
id. at 3499. Roommate, of course, does much more than encourage or 
solicit; it forces users to answer certain questions and thereby provide 
information that other clients can use to discriminate unlawfully. 


3460 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

Roommate also argues that it is not responsible for the 
information on the profile page because it is each subscriber’s 
action that leads to publication of his particular profile—in 
other words, the user pushes the last button or takes the last 
act before publication. We are not convinced that this is even 
true,20 but don’t see why it matters anyway. The projectionist 
in the theater may push the last button before a film is displayed 
on the screen, but surely this doesn’t make him the 
sole producer of the movie. By any reasonable use of the 
English language, Roommate is “responsible” at least “in 
part” for each subscriber’s profile page, because every such 
page is a collaborative effort between Roommate and the subscriber. 

[9] Similarly, Roommate is not entitled to CDA immunity 
for the operation of its search system, which filters listings, or 
of its email notification system, which directs emails to subscribers 
according to discriminatory criteria.21 Roommate 
designed its search system so it would steer users based on the 
preferences and personal characteristics that Roommate itself 
forces subscribers to disclose. If Roommate has no immunity 
for asking the discriminatory questions, as we concluded 
above, see pp. 3455-57 supra, it can certainly have no immunity 
for using the answers to the unlawful questions to limit 
who has access to housing. 
For example, a subscriber who self-identifies as a “Gay 
male” will not receive email notifications of new housing 

20When a prospective subscriber submits his application, Roommate’s 
server presumably checks it to ensure that all required fields are complete, 
and that any credit card information is not fraudulent or erroneous. Moreover, 
some algorithm developed by Roommate then decodes the input, 
transforms it into a profile page and notifies other subscribers of a new 
applicant or individual offering housing matching their preferences. 

21Other circuits have held that it is unlawful for housing intermediaries 
to “screen” prospective housing applicants on the basis of race, even if the 
preferences arise with landlords. See Jeanty v. McKey & Poague, Inc., 496 
F.2d 1119, 1120-21 (7th Cir. 1974). 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3461 

opportunities supplied by owners who limit the universe of 
acceptable tenants to “Straight male(s),” “Straight female(s)” 
and “Lesbian(s).” Similarly, subscribers with children will not 
be notified of new listings where the owner specifies “no children.” 
Councils charge that limiting the information a subscriber 
can access based on that subscriber’s protected status 
violates the Fair Housing Act and state housing discrimination 
laws. It is, Councils allege, no different from a real estate broker 
saying to a client: “Sorry, sir, but I can’t show you any 
listings on this block because you are [gay/female/black/a parent].” 
If such screening is prohibited when practiced in person 
or by telephone, we see no reason why Congress would have 
wanted to make it lawful to profit from it online. 

Roommate’s search function is similarly designed to steer 
users based on discriminatory criteria. Roommate’s search 
engine thus differs materially from generic search engines 
such as Google, Yahoo! and MSN Live Search, in that Roommate 
designed its system to use allegedly unlawful criteria so 
as to limit the results of each search, and to force users to participate 
in its discriminatory process. In other words, Councils 
allege that Roommate’s search is designed to make it more 
difficult or impossible for individuals with certain protected 
characteristics to find housing—something the law prohibits. 
By contrast, ordinary search engines do not use unlawful 
criteria to limit the scope of searches conducted on them, nor 
are they designed to achieve illegal ends—as Roommate’s 
search function is alleged to do here. Therefore, such search 
engines play no part in the “development” of any unlawful 
searches. See 47 U.S.C. § 230(f)(3). 

[10] It’s true that the broadest sense of the term “develop” 
could include the functions of an ordinary search engine— 
indeed, just about any function performed by a website. But 
to read the term so broadly would defeat the purposes of section 
230 by swallowing up every bit of the immunity that the 
section otherwise provides. At the same time, reading the 
exception for co-developers as applying only to content that 


3462 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

originates entirely with the website—as the dissent would 
seem to suggest—ignores the words “development . . . in 
part” in the statutory passage “creation or development in 
whole or in part.” 47 U.S.C. § 230(f)(3) (emphasis added). 
We believe that both the immunity for passive conduits and 
the exception for co-developers must be given their proper 
scope and, to that end, we interpret the term “development” 
as referring not merely to augmenting the content generally, 
but to materially contributing to its alleged unlawfulness. In 
other words, a website helps to develop unlawful content, and 
thus falls within the exception to section 230, if it contributes 
materially to the alleged illegality of the conduct. 

The dissent accuses us of “rac[ing] past the plain language 
of the statute,” dissent at 3493, but we clearly do pay close 
attention to the statutory language, particularly the word “develop,” 
which we spend many pages exploring. The dissent 
may disagree with our definition of the term, which is entirely 
fair, but surely our dissenting colleague is mistaken in suggesting 
we ignore the term. Nor is the statutory language quite 
as plain as the dissent would have it. Dissent at 3491-93. 
Quoting selectively from the dictionary, the dissent comes up 
with an exceedingly narrow definition of this rather complex 
and multi faceted term.22 Dissent at 3491 (defining development 
as “gradual advance or growth through progressive 
changes”) (quoting Webster’s Third New International Dictionary 
618 (2002)). The dissent does not pause to consider how 
such a definition could apply to website content at all, as it 
excludes the kinds of swift and disorderly changes that are the 
hallmark of growth on the Internet. Had our dissenting colleague 
looked just a few lines lower on the same page of the 

22Development, it will be recalled, has many meanings, which differ 
materially depending on context. Thus, “development” when used as part 
of the phrase “research and development” means something quite different 
than when referring to “mental development,” and something else again 
when referring to “real estate development,” “musical development” or 
“economic development.” 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3463 

same edition of the same dictionary, she would have found 
another definition of “development” that is far more suitable 
to the context in which we operate: “making usable or available.” 
Id. The dissent does not explain why the definition it 
has chosen reflects the statute’s “plain meaning,” while the 
ones it bypasses do not. 

More fundamentally, the dissent does nothing at all to grapple 
with the difficult statutory problem posed by the fact that 
section 230(c) uses both “create” and “develop” as separate 
bases for loss of immunity. Everything that the dissent 
includes within its cramped definition of “development” fits 
just as easily within the definition of “creation”—which renders 
the term “development” superfluous. The dissent makes 
no attempt to explain or offer examples as to how its interpretation 
of the statute leaves room for “development” as a separate 
basis for a website to lose its immunity, yet we are 
advised by the Supreme Court that we must give meaning to 
all statutory terms, avoiding redundancy or duplication wherever 
possible. See Park ‘N Fly, Inc. v. Dollar Park & Fly, 
Inc., 469 U.S. 189, 197 (1985). 

While content to pluck the “plain meaning” of the statute 
from a dictionary definition that predates the Internet by decades, 
compare Webster’s Third New International Dictionary 
618 (1963) with Webster’s Third New International Dictionary 
618 (2002) (both containing “gradual advance or growth 
through progressive changes”), the dissent overlooks the far 
more relevant definition of “[web] content development” in 
Wikipedia: “the process of researching, writing, gathering, 
organizing and editing information for publication on web 
sites.” Wikipedia, Content Development (Web), http:// 
en.wikipedia.org/w/index.php?title=Content_development_ 
%28web%29&oldid=188219503 (last visited Mar. 19, 2008). 
Our interpretation of “development” is entirely in line with 
the context-appropriate meaning of the term, and easily fits 
the activities Roommate engages in. 


3464 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

In an abundance of caution, and to avoid the kind of misunderstanding 
the dissent seems to encourage, we offer a few 
examples to elucidate what does and does not amount to “development” 
under section 230 of the Communications 
Decency Act: If an individual uses an ordinary search engine 
to query for a “white roommate,” the search engine has not 
contributed to any alleged unlawfulness in the individual’s 
conduct; providing neutral tools to carry out what may be 
unlawful or illicit searches does not amount to “development” 
for purposes of the immunity exception. A dating website that 
requires users to enter their sex, race, religion and marital status 
through drop-down menus, and that provides means for 
users to search along the same lines, retains its CDA immunity 
insofar as it does not contribute to any alleged illegality;23 
this immunity is retained even if the website is sued for libel 
based on these characteristics because the website would not 
have contributed materially to any alleged defamation. Similarly, 
a housing website that allows users to specify whether 
they will or will not receive emails by means of user-defined 
criteria might help some users exclude email from other users 
of a particular race or sex. However, that website would be 
immune, so long as it does not require the use of discriminatory 
criteria. A website operator who edits user-created 
content—such as by correcting spelling, removing obscenity 
or trimming for length—retains his immunity for any illegality 
in the user-created content, provided that the edits are 
unrelated to the illegality. However, a website operator who 
edits in a manner that contributes to the alleged illegality— 
such as by removing the word “not” from a user’s message 
reading “[Name] did not steal the artwork” in order to transform 
an innocent message into a libelous one—is directly 
involved in the alleged illegality and thus not immune.24 

23It is perfectly legal to discriminate along those lines in dating, and 
thus there can be no claim based solely on the content of these questions. 

24Requiring website owners to refrain from taking affirmative acts that 
are unlawful does not strike us as an undue burden. These are, after all, 
businesses that are being held responsible only for their own conduct; 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3465 

[11] Here, Roommate’s connection to the discriminatory 
filtering process is direct and palpable: Roommate designed 
its search and email systems to limit the listings available to 
subscribers based on sex, sexual orientation and presence of 
children.25 Roommate selected the criteria used to hide listings, 
and Councils allege that the act of hiding certain listings 
is itself unlawful under the Fair Housing Act, which prohibits 
brokers from steering clients in accordance with discriminatory 
preferences.26 We need not decide the merits of Councils’ 
claim to hold that Roommate is sufficiently involved with the 
design and operation of the search and email systems—which 
are engineered to limit access to housing on the basis of the 
protected characteristics elicited by the registration process— 
so as to forfeit any immunity to which it was otherwise entitled 
under section 230. 
there is no vicarious liability for the misconduct of their customers. Compliance 
with laws of general applicability seems like an entirely justified 
burden for all businesses, whether they operate online or through quaint 
brick-and-mortar facilities. Insofar, however, as a plaintiff would bring a 
claim under state or federal law based on a website operator’s passive 
acquiescence in the misconduct of its users, the website operator would 
likely be entitled to CDA immunity. This is true even if the users committed 
their misconduct using electronic tools of general applicability provided 
by the website operator. 

25Of course, the logic of Roommate’s argument is not limited to discrimination 
based on these particular criteria. If Roommate were free to 
discriminate in providing housing services based on sex, there is no reason 
another website could not discriminate based on race, religion or national 
origin. Nor is its logic limited to housing; it would apply equally to web-
sites providing employment or educational opportunities—or anything 
else, for that matter. 

26The dissent argues that Roommate is not liable because the decision 
to discriminate on these grounds does not originate with Roommate; 
instead, “users have chosen to select characteristics that they find desirable.” 
Dissent at 3493. But, it is Roommate that forces users to express a 
preference and Roommate that forces users to disclose the information that 
can form the basis of discrimination by others. Thus, Roommate makes 
discrimination both possible and respectable. 


3466 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

Roommate’s situation stands in stark contrast to Stratton 
Oakmont, the case Congress sought to reverse through passage 
of section 230. There, defendant Prodigy was held liable 
for a user’s unsolicited message because it attempted to 
remove some problematic content from its website, but didn’t 
remove enough. Here, Roommate is not being sued for 
removing some harmful messages while failing to remove 
others; instead, it is being sued for the predictable consequences 
of creating a website designed to solicit and enforce 
housing preferences that are alleged to be illegal. 

We take this opportunity to clarify two of our previous rulings 
regarding the scope of section 230 immunity. Today’s 
holding sheds additional light on Batzel v. Smith, 333 F.3d 
1018 (9th Cir. 2003). There, the editor of an email newsletter 
received a tip about some artwork, which the tipster falsely 
alleged to be stolen. The newsletter editor incorporated the 
tipster’s email into the next issue of his newsletter and added 
a short headnote, which he then emailed to his subscribers.27 
The art owner sued for libel and a split panel held the newsletter 
editor to be immune under section 230 of the CDA.28 

Our opinion is entirely consistent with that part of Batzel 
which holds that an editor’s minor changes to the spelling, 
grammar and length of third-party content do not strip him of 
section 230 immunity. None of those changes contributed to 
the libelousness of the message, so they do not add up to “development” 
as we interpret the term. See pp. 3461-64 supra. 
Batzel went on to hold that the editor could be liable for 

27Apparently, it was common practice for this editor to receive and forward 
tips from his subscribers. In effect, the newsletter served as a heavily 
moderated discussion list. 

28As an initial matter, the Batzel panel held that the defendant newsletter 
editor was a “user” of an interactive computer service within the definition 
provided by section 230. While we have our doubts, we express no view 
on this issue because it is not presented to us. See p. 3452 n.7 supra. Thus, 
we assume that the editor fell within the scope of section 230’s coverage 
without endorsing Batzel’s analysis on this point. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3467 

selecting the tipster’s email for inclusion in the newsletter, 
depending on whether or not the tipster had tendered the piece 
to the editor for posting online, and remanded for a determination 
of that issue. Batzel, 333 F.3d at 1035. 

[12] The distinction drawn by Batzel anticipated the 
approach we take today. As Batzel explained, if the tipster 
tendered the material for posting online, then the editor’s job 
was, essentially, to determine whether or not to prevent its 
posting—precisely the kind of activity for which section 230 
was meant to provide immunity.29 And any activity that can 
be boiled down to deciding whether to exclude material that 
third parties seek to post online is perforce immune under section 
230. See p. 3468-69 & n.32 infra. But if the editor publishes 
material that he does not believe was tendered to him 
for posting online, then he is the one making the affirmative 
decision to publish, and so he contributes materially to its 
allegedly unlawful dissemination. He is thus properly deemed 
a developer and not entitled to CDA immunity. See Batzel, 
333 F.3d at 1033.30 
29As Batzel pointed out, there can be no meaningful difference between 
an editor starting with a default rule of publishing all submissions and then 
manually selecting material to be removed from publication, and a default 
rule of publishing no submissions and manually selecting material to be 
published—they are flip sides of precisely the same coin. Batzel, 333 F.3d 
at 1032 (“The scope of [section 230] immunity cannot turn on whether the 
publisher approaches the selection process as one of inclusion or removal, 
as the difference is one of method or degree, not substance.”). 

30The dissent scores a debater’s point by noting that the same activity 
might amount to “development” or not, depending on whether it contributes 
materially to the illegality of the content. Dissent at 3489. But we are 
not defining “development” for all purposes; we are defining the term only 
for purposes of determining whether the defendant is entitled to immunity 
for a particular act. This definition does not depend on finding substantive 
liability, but merely requires analyzing the context in which a claim is 
brought. A finding that a defendant is not immune is quite distinct from 
finding liability: On remand, Roommate may still assert other defenses to 
liability under the Fair Housing Act, or argue that its actions do not violate 
the Fair Housing Act at all. Our holding is limited to a determination that 
the CDA provides no immunity to Roommate’s actions in soliciting and 
developing the content of its website; whether that content is in fact illegal 
is a question we leave to the district court. 


3468 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

We must also clarify the reasoning undergirding our holding 
in Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th 
Cir. 2003), as we used language there that was unduly broad. 
In Carafano, an unknown prankster impersonating actress 
Christianne Carafano created a profile for her on an online 
dating site. The profile included Carafano’s home address and 
suggested that she was looking for an unconventional liaison. 
When Carafano received threatening phone calls, she sued the 
dating site for publishing the unauthorized profile. The site 
asserted immunity under section 230. We correctly held that 
the website was immune, but incorrectly suggested that it 
could never be liable because “no [dating] profile has any 
content until a user actively creates it.” Id. at 1124. As we 
explain above, see pp. 3458-64 supra, even if the data are 
supplied by third parties, a website operator may still contribute 
to the content’s illegality and thus be liable as a developer.31 
Providing immunity every time a website uses data initially 
obtained from third parties would eviscerate the exception to 
section 230 for “develop[ing]” unlawful content “in whole or 
in part.” 47 U.S.C. § 230(f)(3). 

We believe a more plausible rationale for the unquestionably 
correct result in Carafano is this: The allegedly libelous 
content there—the false implication that Carafano was 
unchaste—was created and developed entirely by the malevolent 
user, without prompting or help from the website operator. 
To be sure, the website provided neutral tools, which the 
anonymous dastard used to publish the libel, but the website 
did absolutely nothing to encourage the posting of defamatory 
content—indeed, the defamatory posting was contrary to the 
website’s express policies. The claim against the website was, 
in effect, that it failed to review each user-created profile to 
ensure that it wasn’t defamatory. That is precisely the kind of 
activity for which Congress intended to grant absolution with 

31We disavow any suggestion that Carafano holds an information content 
provider automatically immune so long as the content originated with 
another information content provider. 339 F.3d at 1125. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3469 

the passage of section 230. With respect to the defamatory 
content, the website operator was merely a passive conduit 
and thus could not be held liable for failing to detect and 
remove it.32 

By contrast, Roommate both elicits the allegedly illegal 
content and makes aggressive use of it in conducting its business. 
Roommate does not merely provide a framework that 
could be utilized for proper or improper purposes; rather, 
Roommate’s work in developing the discriminatory questions, 
discriminatory answers and discriminatory search mechanism 
is directly related to the alleged illegality of the site. Unlike 
Carafano, where the website operator had nothing to do with 
the user’s decision to enter a celebrity’s name and personal 
information in an otherwise licit dating service, here, Roommate 
is directly involved with developing and enforcing a system 
that subjects subscribers to allegedly discriminatory 
housing practices. 

Our ruling today also dovetails with another facet of Carafano: 
The mere fact that an interactive computer service “classifies 
user characteristics . . . does not transform [it] into a 
‘developer’ of the ‘underlying misinformation.’ ” Carafano, 
339 F.3d at 1124. Carafano, like Batzel, correctly anticipated 
our common-sense interpretation of the term “develop[ ]” in 
section 230. Of course, any classification of information, like 
the sorting of dating profiles by the type of relationship 
sought in Carafano, could be construed as “develop[ment]” 
under an unduly broad reading of the term. But, once again, 
such a broad reading would sap section 230 of all meaning. 

The salient fact in Carafano was that the website’s classifi

32Section 230 requires us to scrutinize particularly closely any claim 
that can be boiled down to the failure of an interactive computer service 
to edit or block user-generated content that it believes was tendered for 
posting online, see pp. 3466-67 supra, as that is the very activity Congress 
sought to immunize by passing the section. See pp. 3453-55 supra. 


3470 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

cations of user characteristics did absolutely nothing to 
enhance the defamatory sting of the message, to encourage 
defamation or to make defamation easier: The site provided 
neutral tools specifically designed to match romantic partners 
depending on their voluntary inputs. By sharp contrast, 
Roommate’s website is designed to force subscribers to 
divulge protected characteristics and discriminatory preferences, 
and to match those who have rooms with those who are 
looking for rooms based on criteria that appear to be prohibited 
by the FHA.33 

33The dissent coyly suggests that our opinion “sets us apart from” other 
circuits, Dissent at 3479, 3483-84, carefully avoiding the phrase “intercircuit 
conflict.” And with good reason: No other circuit has considered 
a case like ours and none has a case that even arguably conflicts with our 
holding today. No case cited by the dissent involves active participation 
by the defendant in the creation or development of the allegedly unlawful 
content; in each, the interactive computer service provider passively 
relayed content generated by third parties, just as in Stratton Oakmont, and 
did not design its system around the dissemination of unlawful content. 

In Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. 
craigslist, Inc., No. 07-1101 (7th Cir. Mar. 14, 2008), the Seventh Circuit 
held the online classified website craigslist immune from liability for discriminatory 
housing advertisements submitted by users. Craigslist’s service 
works very much like the “Additional Comments” section of 
Roommate’s website, in that users are given an open text prompt in which 
to enter any description of the rental property without any structure 
imposed on their content or any requirement to enter discriminatory information: 
Nothing in the service craigslist offers induces anyone to post any 
particular listing or express a preference for discrimination . . . .” Slip op. 
at 9. We similarly hold the “Additional Comments” section of Roommate’s 
site immune, see pp. 3471-75 infra. Consistent with our opinion, 
the Seventh Circuit explained the limited scope of section 230(c) immunity. 
Craigslist, slip op. at 5-7. More directly, the Seventh Circuit noted 
in dicta that “causing a particular statement to be made, or perhaps [causing] 
the discriminatory content of a statement” might be sufficient to 
create liability for a website. Slip op. at 9 (emphasis added). Despite the 
dissent’s attempt to imply the contrary, the Seventh Circuit’s opinion is 
actually in line with our own. 

In Universal Communications Systems v. Lycos, Inc., the First Circuit 
held a message board owner immune under the CDA for defamatory comments 
posted on a message board. 478 F.3d 413 (1st Cir. 2007). The alleg


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3471 

3. Councils finally argue that Roommate should be held liable 
for the discriminatory statements displayed in the “Additional 
Comments” section of profile pages. At the end of the 
registration process, on a separate page from the other registration 
steps, Roommate prompts subscribers to “tak[e] a 
moment to personalize your profile by writing a paragraph or 
two describing yourself and what you are looking for in a 
roommate.” The subscriber is presented with a blank text box, 
in which he can type as much or as little about himself as he 
wishes. Such essays are visible only to paying subscribers. 
Subscribers provide a variety of provocative, and often 

edly defamatory comments were made without any prompting or 
encouragement by defendant: “[T]here is not even a colorable argument 
that any misinformation was prompted by Lycos’s registration process or 
its link structure.” Id. at 420. 

Green v. America Online, 318 F.3d 465 (3d Cir. 2003), falls yet farther 
from the mark. There, AOL was held immune for derogatory comments 
and malicious software transmitted by other defendants through AOL’s 
“Romance over 30” “chat room.” There was no allegation that AOL solicited 
the content, encouraged users to post harmful content or otherwise 
had any involvement whatsoever with the harmful content, other than 
through providing “chat rooms” for general use. 

In Ben Ezra, Weinstein, and Co. v. America Online Inc., 206 F.3d 980 
(10th Cir. 2000), the Tenth Circuit held AOL immune for relaying inaccurate 
stock price information it received from other vendors. While AOL 
undoubtedly participated in the decision to make stock quotations available 
to members, it did not cause the errors in the stock data, nor did it 
encourage or solicit others to provide inaccurate data. AOL was immune 
because “Plaintiff could not identify any evidence indicating Defendant 
[AOL] developed or created the stock quotation information.” Id. at 985 

n.5. 
And, finally, in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 
1997), the Fourth Circuit held AOL immune for yet another set of defamatory 
and harassing message board postings. Again, AOL did not solicit the 
harassing content, did not encourage others to post it, and had nothing to 
do with its creation other than through AOL’s role as the provider of a 
generic message board for general discussions. 


3472 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

very revealing, answers. The contents range from subscribers 
who “[p]ref[er] white Male roommates” or require that “[t]he 
person applying for the room MUST be a BLACK GAY 
MALE” to those who are “NOT looking for black muslims.” 
Some common themes are a desire to live without “drugs, 
kids or animals” or “smokers, kids or druggies,” while a few 
subscribers express more particular preferences, such as preferring 
to live in a home free of “psychos or anyone on mental 
medication.” Some subscribers are just looking for someone 
who will get along with their significant other34 or with their 
most significant Other.35 

[13] Roommate publishes these comments as written.36 It 
does not provide any specific guidance as to what the essay 
should contain, nor does it urge subscribers to input discriminatory 
preferences. Roommate is not responsible, in whole or 
in part, for the development of this content, which comes 
entirely from subscribers and is passively displayed by Roommate. 
Without reviewing every essay, Roommate would have 
no way to distinguish unlawful discriminatory preferences 
from perfectly legitimate statements. Nor can there be any 
doubt that this information was tendered to Roommate for 
publication online. See pp. 3466-67 supra. This is precisely 
the kind of situation for which section 230 was designed to 
provide immunity. See pp. 3453-3455 supra. 
[14] The fact that Roommate encourages subscribers to 
provide something in response to the prompt is not enough to 
make it a “develop[er]” of the information under the 
common-sense interpretation of the term we adopt today. It is 
34“The female we are looking for hopefully wont [sic] mind having a 
little sexual incounter [sic] with my boyfriend and I [very sic].” 

35“We are 3 Christian females who Love our Lord Jesus Christ . . . . We 
have weekly bible studies and bi-weekly times of fellowship.” 

36It is unclear whether Roommate performs any filtering for obscenity 
or “spam,” but even if it were to perform this kind of minor editing and 
selection, the outcome would not change. See Batzel, 333 F.3d at 1031. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3473 

entirely consistent with Roommate’s business model to have 
subscribers disclose as much about themselves and their preferences 
as they are willing to provide. But Roommate does 
not tell subscribers what kind of information they should or 
must include as “Additional Comments,” and certainly does 
not encourage or enhance any discriminatory content created 
by users. Its simple, generic prompt does not make it a developer 
of the information posted.37 

Councils argue that—given the context of the discriminatory 
questions presented earlier in the registration process— 
the “Additional Comments” prompt impliedly suggests that 
subscribers should make statements expressing a desire to discriminate 
on the basis of protected classifications; in other 
words, Councils allege that, by encouraging some discriminatory 
preferences, Roommate encourages other discriminatory 
preferences when it gives subscribers a chance to describe 
themselves. But the encouragement that bleeds over from one 
part of the registration process to another is extremely weak, 
if it exists at all. Such weak encouragement cannot strip a 
website of its section 230 immunity, lest that immunity be 
rendered meaningless as a practical matter.38 

We must keep firmly in mind that this is an immunity statute 
we are expounding, a provision enacted to protect web-
sites against the evil of liability for failure to remove 

37Nor would Roommate be the developer of discriminatory content if it 
provided a free-text search that enabled users to find keywords in the “Additional 
Comments” of others, even if users utilized it to search for discriminatory 
keywords. Providing neutral tools for navigating websites is 
fully protected by CDA immunity, absent substantial affirmative conduct 
on the part of the website creator promoting the use of such tools for 
unlawful purposes. 

38It’s true that, under a pedantic interpretation of the term “develop,” 
any action by the website—including the mere act of making a text box 
available to write in—could be seen as “develop[ing]” content. However, 
we have already rejected such a broad reading of the term “develop” 
because it would defeat the purpose of section 230. See pp. 3461-64 supra. 


3474 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

offensive content. See pp. 3453-3455 supra. Websites are 
complicated enterprises, and there will always be close cases 
where a clever lawyer could argue that something the website 
operator did encouraged the illegality. Such close cases, we 
believe, must be resolved in favor of immunity, lest we cut 
the heart out of section 230 by forcing websites to face death 
by ten thousand duck-bites, fighting off claims that they promoted 
or encouraged—or at least tacitly assented to—the illegality 
of third parties. Where it is very clear that the website 
directly participates in developing the alleged illegality—as it 
is clear here with respect to Roommate’s questions, answers 
and the resulting profile pages—immunity will be lost. But in 
cases of enhancement by implication or development by 
inference—such as with respect to the “Additional Comments” 
here—section 230 must be interpreted to protect web-
sites not merely from ultimate liability, but from having to 
fight costly and protracted legal battles. 

[15] The dissent prophesies doom and gloom for countless 
Internet services, Dissent at 3490-91, but fails to recognize 
that we hold part of Roommate’s service entirely immune 
from liability. The search engines the dissent worries about, 
id., closely resemble the “Additional Comments” section of 
Roommate’s website. Both involve a generic text prompt with 
no direct encouragement to perform illegal searches or to publish 
illegal content. We hold Roommate immune and there is 
no reason to believe that future courts will have any difficulty 
applying this principle.39 The message to website operators is 
39The dissent also accuses us of creating uncertainty that will chill the 
continued growth of commerce on the Internet. Dissent at 3496. Even 
looking beyond the fact that the Internet has outgrown its swaddling 
clothes and no longer needs to be so gently coddled, see p. 3456 n.15 
supra, some degree of uncertainty is inevitable at the edge of any rule of 
law. Any immunity provision, including section 230, has its limits and 
there will always be close cases. Our opinion extensively clarifies where 
that edge lies, and gives far more guidance than our previous cases. While 
the dissent disagrees about the scope of the immunity, there can be little 
doubt that website operators today know more about how to conform their 
conduct to the law than they did yesterday. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3475 

clear: If you don’t encourage illegal content, or design your 
website to require users to input illegal content, you will be 
immune. 

We believe that this distinction is consistent with the intent 
of Congress to preserve the free-flowing nature of Internet 
speech and commerce without unduly prejudicing the 
enforcement of other important state and federal laws. When 
Congress passed section 230 it didn’t intend to prevent the 
enforcement of all laws online; rather, it sought to encourage 
interactive computer services that provide users neutral tools 
to post content online to police that content without fear that 
through their “good samaritan . . . screening of offensive 
material,” 47 U.S.C. § 230(c), they would become liable for 
every single message posted by third parties on their website. 

*** 

[16] In light of our determination that the CDA does not 
provide immunity to Roommate for all of the content of its 
website and email newsletters, we remand for the district 
court to determine in the first instance whether the alleged 
actions for which Roommate is not immune violate the Fair 
Housing Act, 42 U.S.C. § 3604(c).40 We vacate the dismissal 
However, a larger point remains about the scope of immunity provisions. 
It’s no surprise that defendants want to extend immunity as broadly 
as possible. We have long dealt with immunity in different, and arguably 
far more important, contexts—such as qualified immunity for police officers 
in the line of duty, see Clement v. J&E Service Inc., No. 05-56692, 
slip op. at 2347 (9th Cir. Mar. 11, 2008)—and observed many defendants 
argue that the risk of getting a close case wrong is a justification for 
broader immunity. Accepting such an argument would inevitably lead to 
an endless broadening of immunity, as every new holding creates its own 
borderline cases. 

40We do not address Roommate’s claim that its activities are protected 
by the First Amendment. The district court based its decision entirely on 
the CDA and we refrain from deciding an issue that the district court has 
not had the opportunity to evaluate. See Mukherjee v. INS, 793 F.2d 1006, 
1010 (9th Cir. 1986). 


3476 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

of the state law claims so that the district court may reconsider 
whether to exercise its supplemental jurisdiction in light 
of our ruling on the federal claims. Fredenburg v. Contra 
Costa County Dep’t of Health Servs., 172 F.3d 1176, 1183 
(9th Cir. 1999). We deny Roommate’s cross-appeal of the 
denial of attorneys’ fees and costs; Councils prevail on some 
of their arguments before us so their case is perforce not frivolous. 

REVERSED in part, VACATED in part, AFFIRMED 
in part and REMANDED. NO COSTS. 

McKEOWN, Circuit Judge, with whom RYMER and BEA, 
Circuit Judges, join, concurring in part and dissenting in part: 

The ubiquity of the Internet is undisputed. With more than 

1.3 billion Internet users and over 158 million websites in existence,
1 a vast number of them interactive like Google, Yahoo!, 
Craigslist, MySpace, YouTube, and Facebook, the question of 
webhost liability is a significant one. On a daily basis, we rely 
on the tools of cyberspace to help us make, maintain, and 
rekindle friendships; find places to live, work, eat, and travel; 
exchange views on topics ranging from terrorism to patriotism; 
and enlighten ourselves on subjects from “aardvarks to 
Zoroastrianism.”2 
The majority’s unprecedented expansion of liability for 
Internet service providers threatens to chill the robust development 
of the Internet that Congress envisioned. The majority 
condemns Roommate’s “search system,” a function that is the 

1Internet World Stats, World Internet Users: December 2007, http:// 
www.internetworldstats.com/stats.htm (last visited Mar. 14, 2008); 
Netcraft, February 2008 Web Server Survey, http://news.netcraft.com/ 
archives/web_server_survey.html (last visited Mar. 14, 2008). 

2Ashcroft v. ACLU, 535 U.S. 564, 566 (2002). 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3477 

heart of interactive service providers. My concern is not an 
empty Chicken Little “sky is falling” alert. By exposing every 
interactive service provider to liability for sorting, searching, 
and utilizing the all too familiar drop-down menus, the majority 
has dramatically altered the landscape of Internet liability. 
Instead of the “robust”3 immunity envisioned by Congress, 
interactive service providers are left scratching their heads 
and wondering where immunity ends and liability begins. 

To promote the unfettered development of the Internet, 
Congress adopted the Communications Decency Act of 1996 
(“CDA”), which provides that interactive computer service 
providers will not be held legally responsible for publishing 
information provided by third parties. 47 U.S.C. § 230(c)(1). 
Even though traditional publishers retain liability for performing 
essentially equivalent acts in the “non-virtual world,” 
Congress chose to treat interactive service providers differently 
by immunizing them from liability stemming from sorting, 
searching, and publishing third-party information. As we 
explained in Batzel v. Smith: 

[Section] 230(c)(1)[ ] overrides the traditional treatment 
of publishers, distributors, and speakers under 
statutory and common law. As a matter of policy, 
“Congress decided not to treat providers of interactive 
computer services like other information providers 
such as newspapers, magazines or television and 
radio stations . . . .” Congress . . . has chosen to treat 
cyberspace differently. 

333 F.3d 1018, 1026-1027 (9th Cir. 2003) (quoting Blumenthal 
v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998) (footnote 
omitted)). 

3Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 
2003). 


3478 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

Now, with the stroke of a pen or, more accurately, a few 
strokes of the keyboard, the majority upends the settled view 
that interactive service providers enjoy broad immunity when 
publishing information provided by third parties. Instead, 
interactive service providers are now joined at the hip with 
third-party users, and they rise and fall together in liability for 
Internet sortings and postings. 

To be sure, the statute, which was adopted just as the Internet 
was beginning a surge of popular currency,4 is not a perfect 
match against today’s technology. The Web 2.0 version 
is a far cry from web technology in the mid-1990s. Nonetheless, 
the basic message from Congress has retained its traction, 
and there should be a high bar to liability for organizing 
and searching third-party information. The bipartisan view in 
Congress was that the Internet, as a new form of communication, 
should not be impeded by the transference of regulations 
and principles developed from traditional modes of communication. 
The majority repeatedly harps that if something is prohibited 
in the physical world, Congress could not have 
intended it to be legal in cyberspace. Yet that is precisely the 
path Congress took with the CDA: the anomaly that a web-
host may be immunized for conducting activities in cyberspace 
that would traditionally be cause for liability is exactly 
what Congress intended by enacting the CDA. 

In the end, the majority offers interactive computer service 
providers no bright lines and little comfort in finding a home 
within § 230(c)(1). The result in this case is driven by the distaste 
for housing discrimination, a laudable endgame were 
housing the real focus of this appeal. But it is not. I share the 
majority’s view that housing discrimination is a troubling 
issue. Nevertheless, we should be looking at the housing issue 

4According to one commentator, in 1985, there were approximately 
1,000 host computers connected to the Internet; by 1995, that number had 
exploded to 4,000,000. Paul H. Arne, New Wine in Old Bottles: The 
Developing Law of the Internet, 416 PLI/Pat 9, 15 (Sept. 1995). 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3479 

through the lens of the Internet, not from the perspective of 
traditional publisher liability. Whether § 230(c)(1) trumps the 
Fair Housing Act (“FHA”) is a policy decision for Congress, 
not us. Congress has spoken: third-party content on the Internet 
should not be burdened with the traditional legal framework. 

I respectfully part company with the majority as to Part 25 
of the opinion because the majority has misconstrued the statutory 
protection under the CDA for Roommate’s publishing 
and sorting of user profiles. The plain language and structure 
of the CDA unambiguously demonstrate that Congress 
intended these activities—the collection, organizing, analyzing, 
searching, and transmitting of third-party content—to be 
beyond the scope of traditional publisher liability. The majority’s 
decision, which sets us apart from five circuits, contravenes 
congressional intent and violates the spirit and 
serendipity of the Internet. 

Specifically, the majority’s analysis is flawed for three reasons: 
(1) the opinion conflates the questions of liability under 
the FHA and immunity under the CDA; (2) the majority 
rewrites the statute with its definition of “information content 
provider,” labels the search function “information development,” 
and strips interactive service providers of immunity; 
and (3) the majority’s approach undermines the purpose of 
§ 230(c)(1) and has far-reaching practical consequences in the 
Internet world. 

5The complaint centers on the responses and profiles generated by the 
users. To the extent that the inquiry in isolation is part of the claims, then 
I agree with Part 1 of the majority’s opinion that § 230(c)(1) would not 
protect Roommate. However, I cannot join the majority insofar as it eviscerates 
the distinction between traditional publishers and webhosts. See, 
e.g., Maj. Op. at 3456 (ignoring the Congressional carveout for interactive 
service providers and concluding that if a face-to-face transaction were 
illegal, it could not be legal in cyberspace). 


3480 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

To begin, it is important to recognize what this appeal is 
not about. At this stage, there has been no determination of 
liability under the FHA, nor has there been any determination 
that the questions, answers or even the existence of Roommate’s 
website violate the FHA. The FHA is a complicated 
statute and there may well be room for potential roommates 
to select who they want to live with, e.g., a tidy accountant 
wanting a tidy professional roommate, a collegiate male 
requesting a male roommate, an observant Jew needing a 
house with a kosher kitchen, or a devout, single, religious 
female preferring not to have a male housemate. It also bears 
noting that even if Roommate is immune under the CDA, the 
issue of user liability for allegedly discriminatory preferences 
is a separate question. See Zeran v. Am. Online, Inc., 129 F.3d 
327, 330 (4th Cir. 1997) (stating that “the original culpable 
party” does not “escape accountability”). 

By offering up inflammatory examples, the majority’s 
opinion screams “discrimination.” The hazard is, of course, 
that the question of discrimination has not yet been litigated. 
In dissenting, I do not condone housing discrimination or 
endorse unlawful discriminatory roommate selection practices; 
I simply underscore that the merits of the FHA claim 
are not before us. However, one would not divine this posture 
from the majority’s opinion, which is infused with condemnation 
of Roommate’s users’ practices. To mix and match, as 
does the majority, the alleged unlawfulness of the information 
with the question of webhost immunity is to rewrite the statute. 

Examples from the opinion highlight that the majority’s 
conclusion rests on the premise that Roommate’s questions 
and matching function violate the FHA: 

• 
“Unlawful questions solicit (a.k.a. ‘develop’) 
unlawful answers.” Maj. Op. at 3459. 
• 
“If such questions are unlawful when posed faceto-
face or by telephone, they don’t magically 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3481 

become lawful when asked electronically 
online.” Id. at 3456. 

• 
“If such screening is prohibited when practiced in 
person or by telephone, we see no reason why 
Congress would have wanted to make it lawful to 
profit from it online.” Id. at 3461. 
• 
“Roommate’s search function thus differs materially 
from generic search engines such as Google, 
Yahoo! and MSN Live Search, in that Roommate 
designed its system to use allegedly unlawful 
criteria so as to limit the results of each search, 
and to force users to participate in its discriminatory 
process.” Id. 
• 
“By contrast, ordinary search engines do not use 
unlawful criteria to limit the scope of searches 
conducted on them, nor are they designed to 
achieve illegal ends—as Roommate’s search 
function is alleged to do here.” Id. 
• 
“Roommate’s website is designed to force subscribers 
to divulge protected characteristics and 
discriminatory preferences.” Id. at 3470. 
The entire opinion links Roommate’s ostensibly reprehensible 
conduct (and that of its users) with an unprecedented 
interpretation of the CDA’s immunity provision. The majority 
condemns Roommate for soliciting illegal content, but there 
has been no determination that Roommate’s questions or standardized 
answers are illegal. Instead of foreshadowing a ruling 
on the FHA, the opinion should be confined to the issue 
before us—application of § 230(c)(1) to Roommate. The district 
court has not yet ruled on the merits of the FHA claim 
and neither should we. 


3482 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

The Statute 

With this background in mind, I first turn to the text of the 
statute. Section 230 begins with a detailed recitation of findings 
and policy reasons for the statute. Congress expressly 
found that the “Internet and other interactive computer services 
offer a forum for a true diversity of political discourse, 
unique opportunities for cultural development, and myriad 
avenues for intellectual activity,” and that “[i]ncreasingly 
Americans are relying on interactive media for a variety of 
political, educational, cultural, and entertainment services.” 
47 U.S.C. § 230(a)(3), (5). Congress declared that “[i]t is the 
policy of the United States to . . . promote the continued 
development of the Internet and other interactive computer 
services and other interactive media.” § 230(b)(1).6 

Unlike some statutes, subsections (a) and (b) set out in 
clear terms the congressional findings and policies underlying 
the statute. For this reason, it strikes me as odd that the majority 
begins, not with the statute and these express findings, but 
with legislative history. Granted, Congress was prompted by 
several cases, particularly the Prodigy case, to take action to 
protect interactive service providers. See Stratton Oakmont, 
Inc. v. Prodigy Servs. Co., 1995 N.Y. Misc. LEXIS 229 (N.Y. 
Sup. Ct. May 24, 1995). But that case does not cabin the 
scope of the statute, and the background leading up to enactment 
of the CDA is no substitute for the language of the statute 
itself. See Chicago Lawyers’ Comm. for Civil Rights 
Under the Law, Inc. v. Craigslist, Inc., No. 07-1101, slip op. 
at 8 (7th Cir. Mar. 14, 2008) (concluding that, as enacted, 
“Section 230(c)(1) is general[,]” despite its “genesis” in Prodigy). 

6The statute also seeks to “remove disincentives for the development 
and utilization of blocking and filtering technologies” and “to ensure vigorous 
enforcement of Federal criminal laws to deter and punish trafficking 
in obscenity, stalking, and harassment by means of computer.” 
§ 230(b)(4), (5). 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3483 

Section 230(c), the heart of this case, is entitled “Protection 
for ‘good samaritan’ blocking and screening of offensive 
material[.]” The substantive language of the statute itself is 
not so limited. Section 230(c)(1) provides: 

(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. 

§ 230(c)(1). Since it was first addressed in 1997 in Zeran, this 
section has been interpreted by the courts as providing web-
host “immunity,” although to be more precise, it provides a 
safe haven for interactive computer service providers by 
removing them from the traditional liabilities attached to 
speakers and publishers.7 See Zeran, 129 F.3d at 330 (“By its 
plain language, § 230 creates a federal immunity to any cause 
of action that would make service providers liable for information 
originating with a third-party user of the service.”). 

We have characterized this immunity under § 230(c)(1) as 
“quite robust.” Carafano, 339 F.3d at 1123. Five of our sister 
circuits have similarly embraced this robust view of immunity 
by providing differential treatment to interactive service providers. 
Chicago Lawyers’ Comm. for Civil Rights Under the 
Law, Inc. v. Craigslist, Inc., No. 07-1101, slip op. at 7-8 (7th 
Cir. Mar. 14, 2008); Universal Commc’n Sys. v. Lycos, Inc., 
478 F.3d 413, 415 (1st Cir. 2007); Green v. Am. Online, 318 
F.3d 465, 470 (3d Cir. 2003); Ben Ezra, Weinstein, & Co., 
Inc. v. Am. Online Inc., 206 F.3d 980, 986 (10th Cir. 2000); 

7The second part of this subsection, § 230(c)(2), is more accurately 
characterized as an immunity provision, but is not relevant to our discussion 
here. Compare 47 U.S.C. § 230(c)(2) (stating that “[n]o provider or 
user of an interactive computer service shall be held liable . . .”) (emphasis 
added). 


3484 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

Zeran, 129 F.3d at 330; see also Whitney Info. Network, Inc. 

v. Xcentric Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008 
U.S. Dist. LEXIS 11632 (M.D. Fla. Feb. 15, 2008); Doe v. 
MySpace, Inc., 474 F. Supp. 2d 843, 849 (W.D. Tex. 2007); 
Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 
1118 (W.D. Wash. 2004); Blumenthal, 992 F. Supp. at 50-53; 
Barrett v. Rosenthal, 146 P.3d 510, 529 (Cal. 2006); Gentry 
v. eBay, Inc., 121 Cal. Rptr. 2d 703, 717-18 (Cal. Ct. App. 
2002); Schneider v. Amazon.com, Inc., 31 P.3d 37, 42-43 
(Wash. Ct. App. 2001). 
Key to this immunity provision are the terms “interactive 
computer service” provider and “information content provider.” 
The CDA defines an “interactive computer service” as 
any “information service, system, or access software provider 
that provides or enables computer access by multiple users to 
a computer server.” § 230(f)(2). An interactive computer service 
provider is not liable as a “publisher” or “speaker” of 
information if the “information” is “provided by another 
information content provider.” § 230(c)(1). The statute then 
defines an “information content provider” as a “person or 
entity that is responsible, in whole or in part, for the creation 
or development of information provided through the Internet 
or any other interactive computer service.” § 230(f)(3). If the 
provider of an interactive computer service is an information 
content provider of the information at issue, it cannot claim 
immunity as a publisher or speaker. Carafano, 339 F.3d at 
1123. 

Courts deciding the question of § 230(c)(1) immunity “do 
not write on a blank slate.” Universal Commc’n, 478 F.3d at 

418. Even though rapid developments in technology have 
made webhosts increasingly adept at searching and displaying 
third-party information, reviewing courts have, in the twelve 
years since the CDA’s enactment, “adopt[ed] a relatively 
expansive definition of ‘interactive computer service’ and a 
relatively restrictive definition of ‘information content provider.’ 
” See Carafano, 339 F.3d at 1123 (footnotes omitted). As 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3485 

long as information is provided by a third party, webhosts are 
immune from liability for publishing “ads for housing, auctions 
of paintings that may have been stolen by Nazis, biting 
comments about steroids in baseball, efforts to verify the truth 
of politicians’ promises, and everything else that third parties 
may post on a web site.” Craigslist, No. 07-1101, slip op. at 

9. We have underscored that this broad grant of webhost 
immunity gives effect to Congress’s stated goals “to promote 
the continued development of the Internet and other interactive 
computer services” and “to preserve the vibrant and competitive 
free market that presently exists for the Internet and 
other interactive computer services.” Carafano, 339 F.3d at 
1123 (discussing § 230(b)(1), (2)). 
Application of § 230(c)(1) to Roommate’s Website 

Because our focus is on the term “information content provider,” 
and what it means to create or develop information, it 
is worth detailing exactly how the website operates, what 
information is at issue and who provides it. The roommate 
matching process involves three categories of data: About 
Me or Household Description; Roommate Preferences; and 
Comments. 

To become a member of Roommates.com, a user must 
complete a personal profile by selecting answers from drop-
down menus or checking off boxes on the screen. The profile 
includes “location” information (e.g., city and state, region of 
the city, and data about the surrounding neighborhood); 
details about the residence (e.g., the total number of bedrooms 
and bathrooms in the home, and amenities such as air conditioning, 
wheelchair access, high-speed Internet, or parking), 
and the “rental details” (e.g., monthly rent charged, lease 
period, and availability). The last section of the profile is the 
“Household Description” section,8 which includes the total 

8A user who is a room-seeker fills out an equivalent section named 
“About Me.” 


3486 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

number of occupants in the home, their age range, gender, 
occupation, level of cleanliness, whether they are smokers, 
and whether children or pets are present. 

The remaining sections of the registration process are completely 
optional; a user who skips them has created a profile 
based on the information already provided. At his option, the 
user may select an emoticon to describe the “household character,” 
and may upload images of the room or residence. 
Next, users may, at their option, specify characteristics 
desired in a potential roommate, such as a preferred age 
range, gender, and level of cleanliness. If nothing is selected, 
all options are included.9 The final step in the registration pro

9The following is an example of a member profile: 

The Basics 

Rent: $800 per month + $800 deposit 
Lease: 6 month 
Date available: 09/01/04 (14 days) 
Utilities included: N/A 
Features: Private bedroom, Private bathroom 

Residence & Vicinity 

Building: House, 2 bed, 1.5 bath 
Features: N/A 
Location: (Central) Long Beach, CA 

Household 

Occupant: 1, Age 26, Male (straight) 
Occupation: Student 
Smoking habits: Outside smoker 
Cleanliness: About average 
Children: Children will not be living with us 
Pets: Dog(s) 

Preferences 

Age group: 18-99 
Gender: Male (straight or gay), Female (straight or lesbian) 
Smoking: Smoking okay 
Cleanliness level: Clean, Average, Messy 
Pets: Dog okay, Cat okay, Caged pet okay 
Children: Children okay 

Comments 

LOOKING FOR CHILL ROOMATE [sic] TO SHARE 2 BR 
HOUSE WITH DOG AND FERRET -RENT 
800/MO+utill.6mo.lease. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3487 

cess, which is also optional, is the “Comments” section, in 
which users are presented with a blank text box in which they 
may write whatever they like, to be published with their member 
profiles. 

Users may choose an optional “custom search” of user profiles 
based on criteria that they specify, like the amount of 
monthly rent or distance from a preferred city. Based on the 
information provided by users during the registration process, 
Roommate’s automated system then searches and matches 
potential roommates. Roommate’s Terms of Service provide 
in part, “You understand that we do not provide the information 
on the site and that all publicly posted or privately transmitted 
information, data, text, photographs, graphics, 
messages, or other materials (‘Content’) are the sole responsibility 
of the person from which such Content originated.” 

Roommate’s users are “information content providers” 
because they are responsible for creating the information in 
their user profiles and, at their option — not the website’s 
choice — in expressing preferences as to roommate characteristics. 
§ 230(f)(3). The critical question is whether Roommate 
is itself an “information content provider,” such that it cannot 
claim that the information at issue was “provided by another 
information content provider.” A close reading of the statute 
leads to the conclusion that Roommate is not an information 
content provider for two reasons: (1) providing a drop-down 
menu does not constitute “creating” or “developing” information; 
and (2) the structure and text of the statute make plain 
that Congress intended to immunize Roommate’s sorting, displaying, 
and transmitting of third-party information. 

Roommate neither “creates” nor “develops” the information 
that is challenged by the Councils, i.e., the information 
provided by the users as to their protected characteristics and 
the preferences expressed as to roommate characteristics. All 
Roommate does is to provide a form with options for standardized 
answers. Listing categories such as geographic loca


3488 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

tion, cleanliness, gender and number of occupants, and 
transmitting to users profiles of other users whose expressed 
information matches their expressed preferences, can hardly 
be said to be creating or developing information. Even adding 
standardized options does not “develop” information. Roommate, 
with its prompts, is merely “selecting material for publication,” 
which we have stated does not constitute the 
“development” of information. Batzel, 333 F.3d at 1031. The 
profile is created solely by the user, not the provider of the 
interactive website. Indeed, without user participation, there is 
no information at all. The drop-down menu is simply a pre-
categorization of user information before the electronic sorting 
and displaying that takes place via an algorithm. If a user 
has identified herself as a non-smoker and another has 
expressed a preference for a non-smoking roommate, Roommate’s 
sorting and matching of user information are no different 
than that performed by a generic search engine. 

Displaying the prompt “Gender” and offering the list of 
choices, “Straight male; Gay male; Straight female; Gay 
female” does not develop the information, “I am a Gay male.” 
The user has identified himself as such and provided that 
information to Roommate to publish. Thus, the user is the sole 
creator of that information; no “development” has occurred. 
In the same vein, presenting the user with a “Preferences” 
section and drop-down menus of options does not “develop” 
a user’s preference for a non-smoking roommate. As we 
stated in Carafano, the “actual profile ‘information’ consist[s] 
of the particular options chosen” by the user, such that Roommate 
is not “responsible, even in part, for associating certain 
multiple choice responses with a set of [ ] characteristics.” 
339 F.3d at 1124. 

The thrust of the majority’s proclamation that Roommate is 
“developing” the information that it publishes, sorts, and 
transmits is as follows: “[W]e interpret the term ‘development’ 
as referring not merely to augmenting the content generally, 
but to materially contributing to its unlawfulness.” 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3489 

Maj. Op. at 3462. This definition is original to say the least 
and springs forth untethered to anything in the statute. 

The majority’s definition of “development” epitomizes its 
consistent collapse of substantive liability with the issue of 
immunity. Where in the statute does Congress say anything 
about unlawfulness? Whether Roommate is entitled to immunity 
for publishing and sorting profiles is wholly distinct from 
whether Roommate may be liable for violations of the FHA. 
Immunity has meaning only when there is something to be 
immune from, whether a disease or the violation of a law. It 
would be nonsense to claim to be immune only from the 
innocuous. But the majority’s immunity analysis is built on 
substantive liability: to the majority, CDA immunity depends 
on whether a webhost materially contributed to the unlawfulness 
of the information. Whether the information at issue is 
unlawful and whether the webhost has contributed to its 
unlawfulness are issues analytically independent of the determination 
of immunity. Grasping at straws to distinguish 
Roommate from other interactive websites such as Google 
and Yahoo!, the majority repeatedly gestures to Roommate’s 
potential substantive liability as sufficient reason to disturb its 
immunity. But our task is to determine whether the question 
of substantive liability may be reached in the first place. 

Keep in mind that “unlawfulness” would include not only 
purported statutory violations but also potential defamatory 
statements. The irony is that the majority would have us 
determine “guilt” or liability in order to decide whether 
immunity is available. This upside-down approach would 
knock out even the narrowest immunity offered under 
§ 230(c) — immunity for defamation as a publisher or 
speaker. 

Another flaw in the majority’s approach is that it fails to 
account for all of the other information allegedly developed 
by the webhost. For purposes of determining whether Roommate 
is an information content provider vis-a-vis the profiles, 


3490 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

the inquiry about geography and the inquiry about gender 
should stand on the same footing. Both are single word 
prompts followed by a drop-down menu of options. If a 
prompt about gender constitutes development, then so too 
does the prompt about geography. And therein lies the rub. 

Millions of websites use prompts and drop-down menus. 
Inquiries range from what credit card you want to use and 
consumer satisfaction surveys asking about age, sex and 
household income, to dating sites, e.g., match.com, sites lambasting 
corporate practices, e.g., ripoffreports.com, and sites 
that allow truckers to link up with available loads, e.g., 
getloaded.com. Some of these sites are innocuous while others 
may not be. Some may solicit illegal information; others 
may not. But that is not the point. The majority’s definition 
of “development” would transform every interactive site into 
an information content provider and the result would render 
illusory any immunity under § 230(c). Virtually every site 
could be responsible in part for developing content. 

For example, the majority purports to carve out a place for 
Google and other search engines. Maj. Op. at 3461. But the 
modern Google is more than a match engine: it ranks search 
results, provides prompts beyond what the user enters, and 
answers questions. In contrast, Roommate is a straight match 
service that searches information and criteria provided by the 
user, not Roommate. It should be afforded no less protection 
than Google, Yahoo!, or other search engines. 

The majority then argues that “providing neutral tools to 
carry out what may be unlawful or illicit searches does not 
amount to ‘development.’ ” Maj. Op. at 3464. But this effort 
to distinguish Google, Yahoo!, and other search engines from 
Roommate is unavailing. Under the majority’s definition of 
“development,” these search engines are equivalent to Roommate. 
Google “encourages” or “contributes” (the majority’s 
catch phrases) to the unlawfulness by offering search tools 
that allow the user to perform an allegedly unlawful match. If 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3491 

a user types into Google’s search box, “looking for a single, 
Christian, female roommate,” and Google displays responsive 
listings, Google is surely “materially contributing to the 
alleged unlawfulness” of information created by third parties, 
by publishing their intention to discriminate on the basis of 
protected characteristics. In the defamation arena, a webhost’s 
publication of a defamatory statement “materially contributes” 
to its unlawfulness, as publication to third parties is an 
element of the offense. At bottom, the majority’s definition of 
“development” can be tucked in, let out, or hemmed up to fit 
almost any search engine, creating tremendous uncertainty in 
an area where Congress expected predictability. 

“Development” is not without meaning. In Batzel, we 
hinted that the “development of information” that transforms 
one into an “information content provider” is “something 
more substantial than merely editing portions of an email and 
selecting material for publication.” 333 F.3d at 1031. We did 
not flesh out further the meaning of “development” because 
the editor’s alterations of an email message and decision to 
publish it did not constitute “development.” Id. 

Because the statute does not define “development,” we 
should give the term its ordinary meaning. See San Jose 
Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 
(9th Cir. 2004) (stating that dictionaries may be used to determine 
the “ ‘plain meaning’ of a term undefined by a statute”). 
“Development” is defined in Webster’s Dictionary as a “gradual 
advance or growth through progressive changes.” Webster’s 
Third New International Dictionary 618 (2002). The 
multiple uses of “development” and “develop” in other provisions 
of § 230 give texture to the definition of “development,” 
and further expose the folly of the majority’s ungrounded definition. 
See, e.g., § 230(b)(3) (stating that “[i]t is the policy of 
the United States to encourage the development of technologies 
which maximize user control over what information is 
received by individuals, families, and schools”) (emphasis 


3492 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

added).10 Defining “development” in this way keeps intact the 
settled rule that the CDA immunizes a webhost who exercises 
a publisher’s “traditional editorial functions — such as deciding 
whether to publish, withdraw, post-pone, or alter content.” 
Batzel, 333 F.3d at 1031 n.18.11 

Applying the plain meaning of “development” to Roommate’s 
sorting and transmitting of third-party information 
demonstrates that it was not transformed into an “information 
content provider.” In searching, sorting, and transmitting 
information, Roommate made no changes to the information 

10Congress also stated in the CDA that “[i]t is the policy of the United 
States to—(1) to promote the continued development of the Internet and 
other interactive computer services and other interactive media,” and “(4) 
to remove disincentives for the development and utilization of blocking 
and filtering technologies . . .” § 230(b)(1), (4) (emphasis added). 

11The majority’s notion of using a different definition of “development” 
digs the majority into a deeper hole. See Maj. Op. at 3461-63. For example, 
adopting the Wikipedia definition of “content development”—“the 
process of researching, writing, gathering, organizing and editing information 
for publication on web sites”—would run us smack into the sphere of 
Congressionally conferred immunity. Wikipedia, Content Development 
(Web), http://en.wikipedia.org/w/index.php?title=Content_development_ 
%28web%29&oldid=188219503 (last visited Mar. 24, 2008). Both our 
circuit and others have steadfastly maintained that activities such as organizing 
or editing information are traditional editorial functions that fall 
within the scope of CDA immunity. See, e.g., Carafano, 339 F.3d at 112425; 
Zeran, 129 F.3d at 330. Likewise, an alternative definition of “development” 
from Webster’s such as “a making usable or available” sweeps 
too broadly, as “making usable or available” is precisely what Google and 
Craigslist do. In an effort to cabin the reach of the opinion, the majority 
again goes back to whether the content is legal, i.e., a dating website that 
requires sex, race, religion, or marital status is legal because it is legal to 
discriminate in dating. See Maj. Op. at 3464. Of course this approach 
ignores whether the claim may be one in tort, such as defamation, rather 
than a statutory discrimination claim. And, this circularity also circumvents 
the plain language of the statute. Interestingly, the majority has no 
problem offering up potentially suitable definitions of “development” by 
turning to dictionaries, but it fails to explain why, and from where, it 
plucked its definition of “development” as “materially contributing to 
[the] alleged unlawfulness” of content. See Maj. Op. at 3462. 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3493 

provided to it by users. Even having notice that users may be 
using its site to make discriminatory statements is not sufficient 
to invade Roommate’s immunity. See Zeran, 129 F.3d 
at 333 (stating that “liability upon notice has a chilling effect 
on the freedom of Internet speech.”). 

The majority blusters that Roommate develops information, 
because it “requir[es] subscribers to provide the information 
as a condition of accessing its services,” and “designed its 
search system so it would steer users based on the preferences 
and personal characteristics that Roommate itself forces subscribers 
to disclose.” Maj. Op. at 3458, 3460.12 But the majority, 
without looking back, races past the plain language of the 
statute. That Roommate requires users to answer a set of 
prompts to identify characteristics about themselves does not 
change the fact that the users have furnished this information 
to Roommate for Roommate to publish in their profiles. Nor 
do Roommate’s prompts alter the fact that users have chosen 
to select characteristics that they find desirable in potential 
roommates, and have directed Roommate to search and compile 
results responsive to their requests. Moreover, tagging 
Roommate with liability for the design of its search system is 
dangerous precedent for analyzing future Internet cases. 

Even if Roommate’s prompts and drop-down menus could 
be construed to seek out, or encourage, information from 
users, the CDA does not withhold immunity for the encouragement 
or solicitation of information.13 See Blumenthal, 992 

F. Supp. at 52 (stating that “Congress has made a different 
12Again, Roommate does not force users to disclose preferences as to 
roommate characteristics. 

13The First Circuit has noted that “[i]t is not at all clear that there is a 
culpable assistance exception to Section 230 immunity[,]” similar to the 
notion of secondary liability under the Electronic Communications Privacy 
Act of 1986. Universal Commc’n, 478 F.3d at 421. But it also stated 
that it “need not decide whether a claim premised on active inducement 
might be consistent with Section 230 in the absence of a specific exception.” 
Id. 


3494 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

policy choice by providing immunity even where the interactive 
service provider has an active, even aggressive role in 
making available content prepared by others.”) (emphasis 
added); Gentry, 121 Cal. Rptr. 2d at 718 (noting that “enforcing 
appellants’ negligence claim would place liability on eBay 
for simply compiling false and/or misleading content created 
by the individual defendants and other coconspirators.”). The 
CDA does not countenance an exception for the solicitation 
or encouragement of information provided by users. 

A number of district courts have recently encountered the 
claim that an interactive website’s solicitation of information, 
by requiring user selection of content from drop-down menus, 
transformed it into an information content provider. Unsurprisingly, 
these courts reached the same commonsense solution 
that I reach here: § 230(c)(1) immunizes the interactive 
service provider. See Whitney Info. Network, Inc. v. Xcentric 
Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008 U.S. Dist. 
LEXIS 11632, at *36 (M.D. Fla. Feb. 15, 2008) (stating that 
the “mere fact that Xcentric provides categories from which 
a poster must make a selection in order to submit a report on 
the [ ] website is not sufficient to treat Defendants as information 
content providers of the reports”); Global Royalties, Ltd. 

v. Xcentric Ventures, LLC, No. 07-956-PHX-FJM, 2007 U.S. 
Dist. LEXIS 77551 (D. Ariz. Oct. 10, 2007). Simply supplying 
a list of options from which a user must select options “is 
minor and passive participation” that does not defeat CDA 
immunity. Global Royalties, 2007 U.S. Dist. LEXIS 77551, at 
*9; see also Corbis, 351 F. Supp. 2d at 1118 (holding that 
even though Amazon.com “may have encouraged third parties 
to use the Zshops platform and provided the tools to assist 
them, that does not disqualify it from immunity under § 230 
because the Zshops vendor ultimately decided what information 
to put on its site.”). 
Carafano presented circumstances virtually indistinguishable 
from those before us, yet the majority comes to the exact 
opposite conclusion here in denying immunity for sorting and 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3495 

matching third-party information provided in response to 
webhost prompts. The website in Carafano, an online dating 
service named Matchmaker.com, asked its users sixty-two 
detailed questions and matched users according to their 
responses. We held that § 230(c)(1) immunized the dating service, 
and flatly rejected the proposition that matching, sorting, 
and publishing user information in response to webhost 
prompts abrogated CDA immunity. Carafano, 339 F.3d at 
1124-25. A provider’s “decision to structure the information 
provided by users,” which enables the provider to “offer additional 
features, such as ‘matching’ profiles with similar characteristics 
or highly structured searches based on 
combinations of multiple choice questions,” ultimately “promotes 
the expressed Congressional policy ‘to promote the 
continued development of the Internet and other interactive 
computer services.’ ” Id. (quoting § 230(b)(1)). Now the 
majority narrows Carafano on the basis that Matchmaker did 
not prompt the allegedly libelous information that was provided 
by a third party. Maj. Op. at 3468. But the majority 
makes this distinction without any language in the statute supporting 
the consideration of the webhost’s prompting or solicitation. 

The structure of the statute also supports my view that Congress 
intended to immunize Roommate’s sorting and publishing 
of user profiles. An “interactive computer service” is 
defined to include an “access software provider.” § 230(f)(2). 
The statute defines an “access software provider” as one that 
provides “enabling tools” to “filter,” “screen,” “pick,” 
“choose,” “analyze,” “digest,” “search,” “forward,” “organize,” 
and “reorganize” content. § 230(f)(4)(A)-(C). 

By providing a definition for “access software provider” 
that is distinct from the definition of an “information content 
provider,” and withholding immunity for “information content 
providers,” the statute makes resoundingly clear that 
packaging, sorting, or publishing third-party information are 
not the kind of activities that Congress associated with “infor


3496 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

mation content providers.” Yet these activities describe 
exactly what Roommate does through the publication and distribution 
of user profiles: Roommate “receives,” “filters,” “digests,” 
and “analyzes” the information provided by users in 
response to its registration prompts, and then “transmits,” “organizes,” 
and “forwards” that information to users in the form 
of uniformly organized profiles. Roommate is performing 
tasks that Congress recognized as typical of entities that it 
intended to immunize. 

Finally, consider the logical disconnect of the majority’s 
opinion. The majority writes—and I agree—that the open-
ended Comments section contains only third-party content. 
Maj. Op. at 3471-75. But if Roommate’s search function permits 
sorting by key words such as children or gender, the 
majority would label Roommate’s use of such criteria as a 
“discriminatory filtering process.” Id. at 3465. 

At a minimum, the CDA protects the search criteria 
employed by websites and does not equate tools that “filter,” 
“screen,” “pick,” “choose,” “analyze,” “digest,” “search,” 
“forward,” “organize,” and “reorganize” with the “creation or 
development” of information. § 230(f)(4)(A)-(C). 

Ramifications of the Majority Opinion 

I am troubled by the consequences that the majority’s conclusion 
poses for the ever-expanding Internet community. The 
unwise narrowing of our precedent, coupled with the mixing 
and matching of CDA immunity with substantive liability, 
make it exceedingly difficult for website providers to know 
whether their activities will be considered immune under the 
CDA. We got it right in Carafano, that “[u]nder § 230(c) . . . 
so long as a third party willingly provides the essential published 
content, the interactive service provider receives full 
immunity regardless of the specific editing or selection process.” 
339 F.3d at 1124 (quoted in Doe, 474 F. Supp. 2d at 
847; Chicago Lawyers’ Comm. for Civil Rights Under the 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3497 

Law, Inc. v. Craigslist, Inc., 461 F. Supp. 2d 681, 690 n.7 

(N.D. Ill. 2006); Dimeo v. Max, 433 F. Supp. 2d 523, 530 
n.12 (E.D. Pa. 2006); Prickett v. Infousa, Inc., No. 04:05-CV10, 
2006 U.S. Dist. LEXIS 21867, at *4 (E.D. Tex. Mar. 30, 
2006)). 
Significantly, § 230(e) expressly exempts from its scope 
certain areas of law, such as intellectual property law and federal 
criminal laws. § 230(e)(1) (“Nothing in this section shall 
be construed to impair the enforcement of [selected obscenity 
statutes] or any other Federal criminal statute.”); § 230(e)(2) 
(“Nothing in this section shall be construed to limit or expand 
any law pertaining to intellectual property.”). See also Perfect 
10, Inc. v. CCBILL LLC, 488 F.3d 1102, 1118 (9th Cir. 
2007). Thus, for example, a webhost may still be liable as a 
publisher or speaker of third-party information that is alleged 
to infringe a copyright. Notably, the CDA does not exempt 
the FHA and a host of other federal statutes from its scope. 
See § 230(e). The FHA existed at the time of the CDA’s 
enactment, yet Congress did not add it to the list of specifically 
enumerated laws for which publisher and speaker liability 
was left intact. The absence of a statutory exemption 
suggests that Congress did not intend to provide special case 
status to the FHA in connection with immunity under the 
CDA. See TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (stating 
that “[w]here Congress explicitly enumerates certain 
exceptions to a general prohibition, additional exceptions are 
not to be implied, in the absence of evidence of a contrary 
legislative intent.”) (citation omitted); see also Craigslist, No. 
07-1101, slip op. at 8 (stating that “[t]he question is not 
whether Congress gave any thought to the Fair Housing Act, 
but whether it excluded § 3604(c) from the reach of 
§ 230(c)(1)”). 

Anticipating the morphing of the Internet and the limits of 
creative genius and entrepreneurship that fuel its development 
is virtually impossible. However, Congress explicitly drafted 
the law to permit this unfettered development of the Internet. 


3498 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

Had Congress discovered that, over time, courts across the 
country have created more expansive immunity than it originally 
envisioned under the CDA, Congress could have 
amended the law. But it has not. In fact, just six years ago, 
Congress approved of the broad immunity that courts have 
uniformly accorded interactive webhosts under § 230(c). 

In 2002, Congress passed the “Dot Kids Implementation 
and Efficiency Act,” which established a new “kids.us” 
domain for material that is safe for children. Pub. L. No. 107317, 
116 Stat. 2766. Congress stated that the statutory protections 
of § 230(c) were extended to certain entities that operated 
within the new domain. 47 U.S.C. § 941 (stating that 
certain entities “are deemed to be interactive computer services 
for purposes of § 230(c)”). The Committee Report that 
accompanied the statute declared: 

The Committee notes that ISPs have successfully 
defended many lawsuits using section 230(c). The 
courts have correctly interpreted section 230(c), 
which was aimed at protecting against liability for 
such claims as negligence (See, e.g., Doe v. America 
Online, 783 So.2d 1010 (Fla. 2001)) and defamation 
(Ben Ezra, Weinstein, and Co. v. America Online, 
206 F.3d 980 (2000); Zeran v. America Online, 129 
F.3d 327 (1997)). The Committee intends these 
interpretations of section 230(c) to be equally applicable 
to those entities covered by H.R. 3833. 

H.R. REP. No. 107-449 (emphasis added). These statements 
“reflect the Committee’s intent that the existing statutory construction,” 
i.e., broad immunity for interactive webhosts, “be 
maintained in a new legislative context.” Barrett, 146 P.3d at 
523 n.17 (discussing H.R. Rep. No. 107-449); see also Heckler 
v. Turner, 470 U.S. 184, 209 (1985) (noting that subsequent 
legislative history can shed useful light on 
Congressional intent). This express Congressional approval of 
the courts’ interpretation of § 230(c)(1), six years after its 


FAIR HOUSING COUNCIL v. ROOMMATES.COM 3499 

enactment, advises us to stay the course of “robust” webhost 
immunity. 

The consequences of the majority’s interpretation are far-
reaching. Its position will chill speech on the Internet and 
impede “the continued development of the Internet and other 
interactive computer services and other interactive media.” 
§ 230(b)(1). To the extent the majority strips immunity 
because of sorting, channeling, and categorizing functions, it 
guts the heart of § 230(c)(1) immunity. Countless websites 
operate just like Roommate: they organize information provided 
by their users into a standardized format, and provide 
structured searches to help users find information. These sites, 
and their attendant display, search, and inquiry tools, are an 
indispensable part of the Internet tool box. Putting a lid on the 
sorting and searching functions of interactive websites stifles 
the core of their services. 

To the extent the majority strips immunity because the 
information or query may be illegal under some statute or federal 
law, this circumstance puts the webhost in the role of a 
policeman for the laws of the fifty states and the federal system. 
There are not enough Net Nannies in cyberspace to 
implement this restriction, and the burden of filtering content 
would be unfathomable. 

To the extent the majority strips immunity because a site 
solicits or actively encourages content, the result is a direct 
restriction on the free exchange of ideas and information on 
the Internet. As noted in the amici curiae brief of the news 
organizations, online news organization routinely solicit third-
party information. Were the websites to face host liability for 
this content, they “would have no choice but to severely limit 
its use” and “[s]heer economics would dictate that vast quantities 
of valuable information be eliminated from websites.” 
Brief of Amici Curiae News Organizations in Support of 
Roommate.com, LLC 22. 


3500 FAIR HOUSING COUNCIL v. ROOMMATES.COM 

To the extent the majority strips immunity because a web-
site “materially contributed” to the content or output of a web-
site by “specialization” of content, this approach would 
essentially swallow the immunit