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The Ninth Circuit made a potentially big decision yesterday – Fair Housing Council v. Roommates.com — that could significantly increase website companies’ liability for content posted by their users (I’ve posted the decision below the fold as an iPaper). Eugene Volokh and Susan Crawford both have interesting things to say about the case. Volokh thinks it’s both correct and fairly inconsequential. I’m not sure I agree. To me, this case illustrates the stark divide between law-in-theory and law-in-practice. As a purely theoretical matter, I tend to agree with Volokh that the decision isn’t a big deal. But when you consider the practical implications, I think it becomes quite harmful.

First, some background. Let’s say that, in the comments section here, Gary Farber accuses “Cleek” of having poor indie-rock sensibilities. Outraged, Cleek sues Typepad (the host of our blog) for defamation. Typepad, however, didn’t actually say anything about Cleek’s music tastes, it just made blog space available for others to provide comments.

In this case, Cleek would be out of luck because of 47 U.S.C. § 230. Section 230 grants immunity to websites and service providers for content posted by other parties that use their sites. Thus, you can’t sue Yahoo for offensive statements made on chat boards, nor can you sue Google for content that its search engine pulls up. It’s a good law, and it’s been interpreted quite broadly over the years to avoid “chilling” Internet activity. For instance, Blogger wouldn’t exist if the company could have been sued for every random comment on blogspot sites.

With that in mind, the next relevant law is the Fair Housing Act. To be grossly general, it prevents housing brokers from discriminating on the basis of, among other things, sex and family status. Because brokers can’t refuse to sell to families, they generally can’t even ask whether you have children.

Enter Roommates.com. As the name suggests, this site allows people to find and provide housing. To get started, the site’s users must enter information about themselves in various prompts (they were drop-down windows as I understand). Some of these questions involved children and gender (e.g., “Children present” or “Children not present”) that would normally be illegal.

Long story short, Roommates got sued under the Fair Housing Act. Roommates responded that they are immune under Section 230 because its users were the ones who actually entered the information. The court disagreed, finding – and here’s the key – that the structure of the question prompts was itself illegal content creation. In other words, the question prompts themselves were illegal because they required people to answer illegal questions. Critically, the court went on to find that the site’s search engine also lacked immunity because its results were based on these illegally-structured question-and-answers. (This is a very brief description, so read the opinion below the fold if you want more detail).

As a purely theoretical matter, the decision seems harmless enough. As Volokh explains, Roommates was “channel[ing] the speech in likely illegal directions.” Also, as Crawford notes, the logic of the case could be limited to the more egregious facts of this case. If it is so limited, the decision won’t be that big a’deal.

The problem, though, is that the case will create big problems in the real world. Specifically, it will be impossible to cabin the case’s logic to these specific facts. Vague holdings, like children, tend to grow more expensive through time. If the Supreme Court lets the decision stand, I predict that it will significantly increase litigation and chill Internet activity (e.g., sites like Roommates will be much less efficient as prompts become bulletin boards).

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One of the themes of the John Adams mini-series is the tension between the passions of the mob and the rule of law. We tend to forget – spoiled by 150 years without domestic war – just how precarious the line between civilization and anarchy can be. As 1770s Boston illustrated, mobs can rise quickly and do terrible things. In watching this tension play out on HBO, it reminded me of my own evolution regarding the “rule of law” (the concept). Ironically enough, the George W. Bush era has made me far more conservative on legal matters than I once was. Specifically, Bush has made me more of an Adams man than a Jefferson one.

As a law student, legal realism made a deep impression on me. To be perfectly blunt, I thought law didn’t matter. Constitutional law in particular seemed like one giant fraud – it was nothing more than political preferences cloaked in an impenetrable linguistic façade of legalisms. It was no accident that conservative judges tended to line up on different sides than liberal judges. Nor was it an accident when sweeping constitutional changes occurred with new administrations. [What’s particularly annoying about conservative jurisprudence is not so much that it’s political, but the obnoxious self-righteous denials that it is even slightly political. Their positions (which practically all align with their political views) are not policy preferences but simply “interpretations” of a “static” constitution, or the will of the framers, or whatever.]

In short, law was politics – nothing more. The rule of law was a convenient fiction. And recent events seemed to support that skepticism. Bush v. Gore remains to this day a naked exercise of illegitimate judicial power-grabbing. The audacity of 5 individuals to stop the election for the President of the United States burns me to this day. They should have all, frankly, been impeached for that (if not tarred and feathered – though that apparently really burns). Bush v. Gore was the ultimate vindication of legal realism’s predictions. It happened in 2000. I entered law school in 2000. So it goes.

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If I were the plaintiffs in the Heller Second Amendment case, I would file an amicus brief with nothing but the HBO John Adams mini-series attached. Looking back to 18th century Boston, it’s much easier to see how guns and militias provided important checks on government overreach. The problem, though, is that the colonial era has passed. The expansive gun rights of that era would have far different effects in post-industrial urban society.

And that leads to one of my broader criticisms of American conservatism — from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life — and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well. I’ll start with the law though.

To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.

The Heller gun case provides a perfect example. Personally, I think the Second Amendment is textually indeterminate – i.e., the text could plausibly support either a collective or individual-based right. For that reason, parsing commas in this context is rather pointless. If there are two equally plausible textual readings, then the question should shift to policy – what should we do? What are the consequences of selecting one reading over the other?

The answer, I think, turns on the type of place you live in. If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way. Given these variations, it seems like the obvious answer is to defer to legislatures (which requires a more collective view). The elected leaders of Montana can do what they want, while DC can do what it wants. And long as Congress doesn’t ban militias, we’re all good.

The broader point, though, is that the analysis should acknowledge changing conditions. Extreme gun rights advocates like to pretend we all live in John Adams’ world. In that world, millions of complete strangers don’t live right on top of each. There, militias actually do further liberty. In our world, however, things are different. Millions of strangers are in fact clustered together. In our world, nuclear-powered industrialized armies have far more formidable weapons than muskets and cannons.

To be clear, I’m not saying we should ban guns. I’m just saying the Second Amendment is an artifact from a different era, and that its artifact-ness should influence our reading of it. More specifically, the fact that it’s a relic of the musket era should, at the least, allow modern legislatures some leeway in interpreting it.

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