Academic journal article Missouri Law Review

Unfair Housing on the Internet: The Effect of the Communications Decency Act on the Fair Housing Act

Academic journal article Missouri Law Review

Unfair Housing on the Internet: The Effect of the Communications Decency Act on the Fair Housing Act

Article excerpt

I. INTRODUCTION

The use of online advertisements is a relatively new, but rapidly-growing phenomenon. Consumers have latched onto the idea of holding an online garage sale and its use has seen a marked increase. For example, online classified advertising services users increased eighty percent between 2004 and 2005. (1) Consumers, however, sell more than baseball gloves and books online. One sector of the online advertisement market that has proven to be problematic is the sale of housing rental space. These advertisements would seemingly fit within the scope of the Fair Housing Act, which contains a provision regulating housing advertisements. However, these advertisements also fall within reach of the Communications Decency Act. These two statutes contain conflicting provisions, and it remains to be seen whether they can be harmonized.

This article will first discuss the scopes of both the Fair Housing Act and the Communications Decency Act. It will then look at two cases that have addressed the intersection of the two statutes. Finally, this article will discuss the merits of each court's decision and suggest a path for the future.

II. STATUTORY CONFLICT

Two recent cases (2) address the issues that arise when section 804(c) of the Fair Housing Act (FHA) (3) seemingly conflicts with the Communications Decency Act of 1996 (CDA) (4) in the forum of the Internet. Before discussing the cases and their outcomes, however, it is first necessary to analyze the legal backdrop against which these cases were decided.

A. The Fair Housing Act

The Fair Housing Act was enacted in 1968 and prohibits housing discrimination based on the protected categories of race, color, gender, disability, age, religion, and familial status. The basic policy behind the FHA is "to provide, within constitutional limitations, for fair housing throughout the United States." (5) The FHA was a long overdue policy when Congress enacted the statute in 1968. From 1940 through 1970, racial segregation was "a permanent structural feature of the spatial organization of American cities." (6) This segregation was the result of both private and governmental action. On the private side, the real estate industry was institutionalizing discrimination (7) and banks were frequently denying home loans to African Americans. (8) The government was also perpetuating the discrimination by channeling public mortgage funds away from established black areas or potentially black areas. (9) The FHA was an "attempt to alter the whole character of the housing market." (10) Despite the enactment of the FHA and the resulting large-scale public and private abandonment of overtly racist housing tactics, a segregation problem still exists today. (11) For example, one recent study conducted in Boston found that nearly half of the African-American homebuyers were concentrated in only seven of 126 communities. (12) Thus, it is clear that the goals of the FHA have not yet been realized.

With the history of the FHA in mind, let us now turn to the specific provision of the FHA that is in issue in this article, section 3604(c). Section 3604(c) provides that it is unlawful "[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin." (13) Even with this broad language, the Supreme Court has acknowledged and reinforced the "'broad and inclusive' compass" of the FHA (14) and has afforded the FHA "generous construction." (15) Moreover, the section 3604(c) ban on discriminatory advertising is even more expansive in its reach than other FHA prohibitions on discrimination.

Other portions of section 3604 prohibit discriminatory refusals to rent, sell, or negotiate, as well as discrimination in the terms, conditions, or privileges of the sale or rental of a dwelling or in the provision of related services. …

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