CASE NOS. 09-55272, 09-55875, 09-55969 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROOMMATE.

COM, LLC, Defendant-Appellant and Cross-Appellee, vs. FAIR HOUSING COUNCIL OF SAN FERNANDO VALLEY; FAIR HOUSING COUNCIL OF SAN DIEGO; each individually and on behalf of the general public, Plaintiffs-Appellees and Cross-Appellants.

APPELLANT ROOMMATE.COM, LLCS THIRD BRIEF ON CROSS-APPEAL On Appeal from the United States District Court for the Central District of California District Court Case CV03-9386 PA (RZx) QUINN EMANUEL URQUHART & SULLIVAN, LLP Susan B. Estrich (Bar No. 124009) Scott B. Kidman (Bar No. 119856) Christopher E. Price (Bar No. 200796) 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 TIMOTHY L. ALGER (Bar No. 160303) P.O. Box 60537 Palo Alto, California 94306 Telephone: (714) 470-5042

Attorneys for Defendant-Appellant Roommate.com, LLC

TABLE OF CONTENTS Page PRELIMINARY STATEMENT .......................................................................... 1 ARGUMENT ........................................................................................................ 5 I. PLAINTIFFS LACK EVIDENCE OF CONCRETE INJURY NECESSARY FOR STANDING .............................................................. 5 A.! B. C. II.! Plaintiffs Purported Investigation Does Not Confer Standing ............................................................................................ 6 Plaintiffs Outreach Efforts Do Not Confer Standing ..................... 8 Future Monitoring Costs Fail to Confer Standing ......................... 10

THE FHA DOES NOT APPLY TO POSTINGS FOR ROOMMATES IN SHARED HOMES ................................................... 11 A.! B. C. D. Plaintiffs Mischaracterize the Nature of this Case ......................... 11 As a Matter of Statutory Interpretation, the FHA Does Not Reach Arrangements To Share Single Dwellings .......................... 13 Plaintiffs Precedent Confirms that the FHA Applies Only to Commercial Housing Arrangements .............................................. 16 Plaintiffs Fail to Address Roommates BFOQ Argument ......... 21

III.!

THE DECISION BELOW CREATES A STATUTORY CONFLICT WITH FUNDAMENTAL CONSTITUTIONAL RIGHTS .................................................................................................... 22 A.! B. C. Section 3604(c) Cannot Be Used To Punish a Website That Matches Roommates Based on Lawful Preferences ...................... 23 Roommate Unquestionably Has Standing To Raise Its Constitutional Arguments .............................................................. 24 Roommate Selection Implicates the Right of Intimate Association ..................................................................................... 27 i

1.! 2. D.!

The Interests of Roommate and its Users Are Not Diminished by the Nature of the Postings ........................... 28 Roommate Living Is Intimate Association .......................... 31

Even if Considered Commercial, Roommate Selection Falls Within Constitutional Protections ......................................... 36 1.! 2. 3. Roommates.com Does Not Involve Illegal Activity ........... 38 The Government Does Not Have a Substantial Interest in Controlling Speech About Roommate Selection............. 41 Regulation of Roommate Postings Does Not Directly Advance, and Is Not Directly Linked to any Government Interest ............................................................ 44 The Restriction Sought Is More Extensive than Necessary ............................................................................. 45

4. IV.!

THE INJUNCTION IS FATALLY OVERBROAD................................ 48 A.! B. C. The Injunction Makes Searching for Compatible Roommates More Difficult ............................................................ 48 The Injunction Impairs the Speech Rights of People Beyond the Reach of the FHA ..................................................................... 51 Any Injunction Must Be Narrowly Tailored .................................. 52

CONCLUSION ................................................................................................... 53 RESPONSE AND REPLY BRIEF AS TO ATTORNEYS FEES AND COSTS ........................................... 54 SUMMARY OF THE ARGUMENT ................................................................. 54 I. THE DISTRICT COURT FAILED TO REDUCE PLAINTIFFS AWARD DUE TO LIMITED SUCCESS ............................................... 54 A.! Plaintiffs Obtained Only a Limited Victory................................... 54 1.! Plaintiffs Completely Lost Their Central Claim for Liability ................................................................................ 55 ii

2. 3. B.! C. II.!

Plaintiffs Failed To Obtain the Money They Sought .......... 56 Plaintiffs Failed To Get the Injunction They Sought .......... 57

Plaintiffs Pre-Litigation Letter Was Properly Considered ........... 57 The Token Reduction Was an Abuse of Discretion....................... 58

THE HOURLY RATES APPROVED BY THE COURT WERE REASONABLE ........................................................................................ 60 A.! The Court Properly Rejected Plaintiffs Evidence of Hourly Rates ............................................................................................... 62

CONCLUSION ................................................................................................... 65

iii

TABLE OF AUTHORITIES Page Cases 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)....................................................................................... 37 Ackerman v. Carlson Indus., 2004 WL 3708670 (C.D. Cal. 2004) ............................................................. 61 Bank of Boston v. Bellotti, 435 U.S. 765 (1978)....................................................................................... 27 Bates v. United Parcel Service, Inc., 511 F.3d 974 (9th Cir. 2007) ......................................................................... 22 Bd. of Dirs. of Rotary Intl v. Rotary Club, 481 U.S. 537 (1987)................................................................................. 32, 33 Bigelow v. Virginia, 421 U.S. 809 (1975)....................................................................................... 29 Blum v. Stenson, 465 U.S. 886 (1984)....................................................................................... 63 Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)......................................................................................... 37 Boos v. Barry, 485 U.S. 312 (1988)................................................................................. 23, 43 Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 1999 WL 562097 (S.D.N.Y. July 30, 1999) .................................................. 58 Brock v. Local 375, 860 F.2d 346 (9th Cir. 1988) ......................................................................... 27 C&C Plywood Corp. v. Hanson, 583 F.2d 421 (9th Cir. 1978) ......................................................................... 27 Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003) ................................................................. 47, 50 iv

Central Alabama Fair Housing Center v. Lowder Realty Co., 236 F.3d 629 (11th Cir. 2001) ......................................................................... 8 Central Hudson Gas & Elec. Corp. v. Public Serv. Commn, 447 U.S. 557 (1980)...........................................................................37, 41, 45 Chicago Lawyers Comm. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) ...................................................................36, 56 Chicago v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086 (7th Cir. 1992) ................................................................. 11, 56 City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)....................................................................................... 28 Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) ....................................................................... 21 Corder v. Brown, 25 F.3d 833 (9th Cir. 1994) ........................................................................... 55 Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925 (9th Cir. 2008) ........................................................................... 8 Coyote Publg, Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010) ......................................................................... 45 Craig v. Boren, 429 U.S. 190 (1976)................................................................................. 25, 27 DFEH v. DeSantis, FEHC Dec. No. 02-12, 2002 WL 1313078 (Cal. FEHC 2002) .................... 20 Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009) ............................................................. 55 Davis v. FEC, 128 S. Ct. 2759 (2008)................................................................................... 24 Edenfield v. Fane, 507 U.S. 761 (1993)....................................................................................... 41

Eisenstadt v. Baird, 405 U.S. 438 (1972)................................................................................. 25, 26 Fair Housing Council v. Main Line Times, 141 F.3d 439 (3d Cir. 1998) ............................................................................ 9 Fair Housing Council v. Montgomery Newspapers, 141 F.3d 71 (3rd Cir. 1998) ............................................................................. 6 Fair Housing Council v. Penasquitos Casablanca Owners Assoc., 523 F. Supp. 2d 1164 (S.D. Cal. 2007) ......................................................... 61 Fair Housing Council v. Roommates.com, LLC, 489 F.3d 921 (9th Cir. 2007) (original panel opinion) .................................. 11 Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc) ..................................2, 13, 35, 50 53 Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002) ........................................................................... 7 Fleck & Assocs. v. Phoenix, 471 F.3d 1100 (9th Cir. 2006) ....................................................................... 26 Florida State Conference of NACCP v. Browning, 522 F.3d 1153 (11th Cir. 2008) ..................................................................... 11 Goddard v. Google, 640 F. Supp. 2d 1193 (N.D. Cal. 2008) ......................................................... 55 Greater L.A. Council on Deafness v. Cmty. Television, 813 F.2d 217 (9th Cir. 1987) ......................................................................... 59 Greater New Orleans Broadcasting Assoc. v. United States, 527 U.S. 173 (1999)....................................................................................... 46 Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994) ....................................................................... 55, 59 Hensley v. Eckerhart, 461 U.S. 424 (1983)...........................................................................55, 57, 58

vi

Housing Opportunities Made Equal v. Cincinnati Enquirer, 943 F.2d 644 (6th Cir. 1991) ......................................................................... 41 HUD v. Roberts 2001 WL 56376 (H.U.D.A.L.J. Jan. 19, 2001) ............................................. 20 HUD v. Fung 2008 WL 366380 (H.U.D.A.L.J. Jan. 31, 2008) ..................................... 19, 20 IDK, Inc. v. Clark County, 836 F.2d 1185 (9th Cir. 1988) ................................................................. 33, 34 Intl Union, etc. v. Johnson Controls, Inc., 499 U.S. 187 (1991)....................................................................................... 21 La. ACORN Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000) ........................................................................... 9 Lawrence v. Texas, 539 U.S. 558 (2003)....................................................................................... 38 Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977)................................................................................... 44, 47 Lopez v. San Francisco Unified School Distr., 385 F. Supp. 2d 981 (N.D. Cal. 2005) ........................................................... 63 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)......................................................................................... 5 Madsen v. Womens Health Ctr., Inc., 512 U.S. 753 (1994)....................................................................................... 48 Maldonado v. Lehman, 811 F.2d 1341 (9th Cir. 1987) ....................................................................... 60 Marya v. Slakey, 190 F. Supp. 2d 95 (D. Mass. 2001) .............................................................. 19 McCown v. City of Fontana, 565 F.3d 1097 (9th Cir. 2009) ....................................................................... 58

vii

McGinnis v. Kentucky Fried Chicken, 51 F.3d 805 (9th Cir. 1995) ........................................................................... 59 Moore v. City of East Cleveland, 431 U.S. 494 (1977)................................................................................. 38, 39 Moore v. James H. Matthews & Co., 682 F.2d 830 (9th Cir. 1982) ......................................................................... 60 Mundy v. Household Finance Corp., 885 F.2d 542 (9th Cir. 1988) ......................................................................... 58 NAACP v. Alabama, 357 U.S. 449 (1958)....................................................................................... 27 N.D. Fair Housing Council, Inc. v. Allen, 319 F. Supp. 2d 972 (D.N.D. 2004) ............................................................ 6, 9 Nadarajah v. Holder, 569 F.3d 906 (9th Cir. 2009) ......................................................................... 63 National Assn for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) ....................................................................... 33 Pennsylvania v. Del. Valley Citizens Council, 483 U.S. 711 (1987)....................................................................................... 60 Pierce v. Socy of Sisters, 268 U.S. 510 (1925)....................................................................................... 25 Pittsburgh Press Co. v. Pittsburgh Commn on Human Relations, 413 U.S. 376 (1973)....................................................................................... 40 C&C Plywood Corp. v. Hanson, 583 F.2d 421 (9th Cir. 1978) ......................................................................... 27 R.A.V. v. City of St Paul, 505 U.S. 377 (1992)....................................................................................... 43 Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993) ................................................................................ 8

viii

Ragin v. New York Times Co., 923 F.2d 995 (2d Cir. 1991) .......................................................................... 38 Riley v. Natl Fedn of the Blind, 487 U.S. 781 (1988)....................................................................................... 28 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)....................................................................................... 32 Schwarz v. Secy of Health & Human Services, 73 F.3d 895 (9th Cir. 1995) ........................................................................... 59 Shelton v. Tucker, 364 U.S. 479 (1960)....................................................................................... 27 Simon & Schuster, Inc. v. N.Y. Crime Victims Bd., 502 U.S. 105 (1991)....................................................................................... 43 Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001) ....................................................................... 60 S. Cal. Housing Rights Center v. Krug, 564 F. Supp. 2d 1138 (C.D. Cal. 2007) ......................................................... 11 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ....................................................................... 48 Texas v. Johnson, 491 U.S. 397 (1989)....................................................................................... 43 Thompson v. W. States Medical Ctr., 535 U.S. 357 (2002)....................................................................................... 47 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)....................................................................................... 41 U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973)....................................................................................... 39 United States v. Hunter, 459 F.2d 205 (4th Cir. 1972) ...................................................................37, 38

ix

United States v. Space Hunters, Inc., 429 F.3d 416 (2d Cir. 2005) ..............................................................18, 19, 38 United States v. Stevens, 130 S. Ct. 1577 (2010)............................................................................. 40, 43 United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973)......................................................................................... 8 Virginia Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976)................................................................................. 28, 44 Valentine v. Chrestensen, 316 U.S. 52 (1942)......................................................................................... 38 Village of Belle Terre v. Borass, 416 U.S. 1 (1974)..................................................................................... 35, 39 Virginia v. American Booksellers Assn, 484 U.S. 383 (1988)....................................................................................... 26 Voris v. Wash. Human Rights Commn, 704 P.2d 632 (Wash. Ct. App. 1985) ............................................................ 21 Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001) ......................................................................... 5 Ward v. Rock Against Racism, 491 U.S. 781 (1989)....................................................................................... 52 White v. City of Richmond, 713 F.2d 458 (9th Cir. 1983) ......................................................................... 60

Statutes 24 C.F.R. 100.201 ......................................................................................................... 4 42 U.S.C. 3601 ............................................................................................................ 18 3602 ......................................................................................................13, 15 3603(b)(2) ................................................................................................... 15 3604(a) ..................................................................................................12, 47 3604(b) ........................................................................................................ 47 3604(c) ......................................................... 1, 23, 24, 37, 38, 41, 45, 46, 47 3604(d) ........................................................................................................ 47 3604(f) ........................................................................................................ 47 47 U.S.C. 230 ................................................................................................................ 1 54 Fed. Reg. 3232 (Jan. 23, 1989) ...................................................................... 17 Cal. Civ. Code 52(a) ............................................................................................................ 56 1940(a) ........................................................................................................ 32 1940(c) ........................................................................................................ 32 Fed. R. Evid. Rule 408 ................................................................................................... 57, 58

xi

Other Authorities Bureau of the Census, 2010 Census Questionnaire Reference Book ....................................................................................................................... 15 James D. Walsh, Reaching Mrs. Murphy: A Call for Repeal of the Mrs. Murphy Exception to the Fair Housing Act, 34 HARV. C.R.-C.L. L. REV. 605 (1999) ....................................................... 15 Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 632-33 (1980) .................................................................. 33 Christine A. Kolosov, Fair Housing Laws and the Constitutional Rights of Roommate Seekers, 4 MODERN AM. (Special Issue) (2008) ..............................................32, 35, 42 John T. Messerly, Roommate Wanted: The Right to Choice in Shared Living, 93 IOWA L. REV. 1949, 1976 (2008) .............................................................. 28 STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS, 1194 (Bernard Schwartz ed., 1970) ............................................................... 14 Robert G. Schwemm, Discriminatory Housing Statements and 3604(c), 29 FORDHAM URB. L.J. 187 (October 2001) .................................................. 45 Kevin M. Wilemon, The Fair Housing Act, the Communications Decency Act, and the Right of Roommate Seekers to Discriminate Online, 29 WASH. U. J.L. & POLY 375 (2009) ......................................................... 42 Brooke Wright, Note, Fair Housing and Roommates, 2009 B.Y.U.L. REV. 1341(2009) ................................................................... 35

xii

REPLY BRIEF AS TO THE JUDGMENT

PRELIMINARY STATEMENT This appeal squarely presents the question whether certain speech about the choice of a roommate in shared living quarters is regulated by the Fair Housing Act. What remains of this lawsuit is the contention that formatted postings by individuals and automated computer matching based on gender, sexual orientation, and the presence of children in the home factors which are indisputably and justifiably relevant to many peoples choice of roommates violate 42 U.S.C. 3604(c). Plaintiffs inflammatory claims about race and religion, and their characterizations of defendant as a commercial housing information vendor, have no bearing on the issues here. If individuals are allowed by the law to select roommates based on gender, sexual orientation, or the presence of children, the law cannot punish speech that facilitates that selection. For the same reasons, the law cannot provide the basis for damages and an injunction against a website that enables individuals to use a basic matching function to find suitable roommates based on those same criteria. As plaintiffs would have it, this Courts en banc decision addressing the Communications Decency Act, 47 U.S.C. 230, predetermined liability under 1

the Fair Housing Act. To the contrary, the en banc Court repeatedly stated that it was not deciding whether the fair housing laws applied to roommate selection and speech. Whether a roommate matching site even falls within the FHA or, if it does, whether the FHA is constitutional as applied to such a site, was reserved and is now before the Court in this appeal. The en banc Court stated: 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 Roommates actions in soliciting and developing the content of the website; whether that content is in fact illegal is a question we leave to the district court. Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1171 n.30 (9th Cir. 2008) (en banc). Neither this Court nor the district court has found that Roommate operates a commercial brokerage for sale and rental of housing falling within the FHA. The grant of partial summary judgment to plaintiffs, and partial denial of defendants cross-motion, was based on the district courts erroneous construction of the FHA as reaching roommates living in shared homes, and it 2

did not rest on the false suggestion by plaintiffs that Roommates website facilitated discriminatory rentals of dwellings by commercial landlords. This is solely a dispute about the selection of, and speech about, roommates in common households. The Acts own language does not reach the relationships of those who share a home within a single dwelling. And there is nothing in the legislative history that suggests that Congress in 1968 intended to regulate such relationships. Indeed, the enactment of the Mrs. Murphy exception indicates that Congress sought to keep the FHA from interfering with far less private and personal relationships the rental of dwelling units to people living independently in a boarding house. How can it be rationally argued that Congress wanted the FHA to restrict roommate choice where people share kitchens, bathrooms, and sometimes even bedrooms in a common household characterized not by profit motive, but by the fair division of expenses while giving Mrs. Murphy, the operator of a commercial boarding house, the right to exclude independent renters based on discriminatory preferences? Can it be the law that Mrs. Murphy may refuse to rent to African-Americans with whom she might have no regular contact, simply because she owns and lives in a small multi-unit building, but a devout young woman cannot select and advertise for a

female roommate who will respect her traditions, and a gay man cannot openly state he would prefer to live with another gay man without kids? Congress made crystal clear forty-two years ago that it did not intend for the FHA to interfere with the associational and privacy interests of individuals within their homes. For four decades, the Act has achieved its salutary goal of integrating neighborhoods by forbidding discriminatory behavior in the sale or rental of dwellings. This has been accomplished without lawsuits using the Act as a weapon to silence those who merely want to create a common household in which they will feel safe and comfortable. As discussed below and in Roommates Opening Brief, summary judgment was erroneously granted to plaintiffs. As an initial matter, plaintiffs lack a cognizable injury, and therefore lack standing. Moreover, the FHA, by its plain language, does not control solicitations for roommates in common households, and there is no reason to believe that Congress intended to regulate such speech. Legislation also must be construed to avoid constitutional questions, and this requires the Court to reject any interpretation of the FHA that impedes the exercise of First Amendment associational and free speech rights. The district court also erred by entering an overbroad injunction that prohibits the redesign of roommates.com so users may voluntarily provide 4

information about their gender, sexual orientation, and familial status in a readily searchable format. By barring the efficient collection of information with prompts and optional answers, the district court misread and misapplied this Courts en banc decision. At minimum, the Court should reverse and remand for reconsideration of the injunction.

ARGUMENT I. PLAINTIFFS LACK EVIDENCE OF CONCRETE INJURY NECESSARY FOR STANDING At summary judgment, a fair housing plaintiff must submit admissible evidence of an injury that is cognizable for organizational standing; generalized claims of injury are insufficient. Walker v. City of Lakewood, 272 F.3d 1114, 1124 (9th Cir. 2001). The plaintiff must suffer a distinct and palpable injury, id. at 1123 (citations omitted), and it must be concrete and particularized, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

A.

Plaintiffs Purported Investigation Does Not Confer Standing

In plaintiffs view, searches for offensive Internet advertising and public education efforts about housing ads give them standing to sue Roommate.1 (RB 14-23.)2 But this is not the law. Plaintiffs review of roommates.com while surfing the web looking for discriminatory content was not a diversion of resources because it was part of their normal, day-to-day operations. In Fair Housing Council v. Montgomery Newspapers, similar activities reading newspaper housing advertisements did not confer standing. 141 F.3d 71, 72, 75-80 (3rd Cir. 1998); see also N.D. Fair Housing Council, Inc. v. Allen, 319 F.Supp.2d 972, 977 (D.N.D. 2004) (no standing because the councils efforts were part of its normal, day-to-day operations). Just like the Fair Housing Council in Montgomery, the plaintiffs here came upon the perceived discriminatory matter during a regular review of housing advertising. 141 F.3d at 77. The controlling fact in Montgomery was not timing, but that reviewing ads was part of a housing organizations regular day-to-day activities. Id. at 7677.

Roommate.com, LLC, operates the website roommates.com. In this brief, Roommate refers to the LLC, and roommates.com refers to the website. Citations to Plaintiffs-Appellees Second Brief on Cross-Appeal (the Red Brief) are designated using [RB] [Page Range]. 6
2

Plaintiffs do not deny that their efforts to find unlawful ads is a part of their day-to-day operations.3 Plaintiffs discovered roommates.com not because of any outside complaint, but merely by surfing the web.4 Their investigation was to visit the website and view the three formatted questions and basic matching function that remain in dispute.5 Plaintiffs did not even open a case file.6 Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002), relied on by plaintiffs, is inapposite because it involved efforts that went beyond regular day-to-day activities. In Combs, the plaintiff received complaints and then conducted controlled tests by sending testers to the apartment complex to rent apartments. Id. at 902-05. Unlike surfing the web, such tests divert an organizations resources because they require special expenditures of time and

Appellants Excerpts of Record (ER) at ER-V:818, 906. Citations employ the format ER-[Volume]:[Page Range].
4 5

ER-V:868-88, 881, 899.

ER-V:830. Plaintiffs do not dispute that the time and effort expended on the Additional Comments postings cannot create standing. Their investigation evidence consists in large part of just such a review, however. ER-V:836-37; ER-VII:1340.
6

ER-V:821, 899. 7

personnel, usually in response to particular complaints, and take people away from other important work.7 B. Plaintiffs Outreach Efforts Do Not Confer Standing

Plaintiffs outreach efforts also fail to establish standing because they too were part of regular day-to-day activities. (RB 17.)8 Their employees attended conferences, distributed brochures, and conducted housing education efforts

In their brief, amici National Fair Housing Alliance, et al., rely on two cases to argue that plaintiffs purported injuries were not a part of their regular, day-to-day activities. Neither is apposite. In Ragin v. Harry Macklowe Real Estate Co., the court found standing based on a housing organizations responses to individual complaints and assistance in filing complaints with state authorities. 6 F.3d 898, 905 (2d Cir. 1993). In Central Alabama Fair Housing Center v. Lowder Realty Co., the issue was damages, not standing. 236 F.3d 629, 639-43 (11th Cir. 2001). Moreover, the investigation was in response to complaints by individuals affected by the defendants actions and involved a series of tests. Id. at 633. Plaintiffs argue that standing was granted on far less significant evidence of injury in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973), and Council of Insurance Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 932 (9th Cir. 2008). Neither case involved organizational standing under the FHA. In SCRAP, the injury suffered by Sierra Club members was impairment of their use of the forests, streams, mountains, and other resources. 412 U.S. at 685. Also, standing in SCRAP was decided on the pleadings pursuant to a motion to dismiss. See id. Molasky-Arman involved a concrete and particularized injury an insurance agents constitutional rights under the privileges and immunities clause. 552 F.3d at 931-32. 8
8

before this case and would have continued to do so if roommates.com did not exist.9 Additionally, plaintiffs outreach work is not fairly traceable to Roommates actions. See La. ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 304-06 (5th Cir. 2000) (no standing because there was no specific redeployment of programs or resources); Fair Housing Council v. Main Line Times, 141 F.3d 439, 443 (3d Cir. 1998) (requiring evidence of a necessary causal connection between the organizations injury and preferential advertisements); Allen, 319 F.Supp.2d at 1748 (no standing because efforts were not targeted solely at the Defendants, but are designed to benefit the community as a whole). Plaintiffs efforts were directed at Internet advertising generally, rather than Roommates activities. Indeed, plaintiffs outreach efforts intentionally omitted references to roommates.com,10 and they admit that the educational and training efforts addressed general trends in Internet advertising.11 Nevertheless, plaintiffs claim that all their expenditures

9 10 11

ER-V:798-801, 827-28, 833, 851-52, 859-60, 906-24. ER-VI:1305-06; see also ER-V:827-28, 848-50, 861-62.

ER-V:851-852; ER-VI:1305-06; see also ER-V:827 (conference discussion was about internet advertising, the fact that the council had to file a complaint related to the Internet advertising, and the principles that we hold that housing discrimination is illegal, whether its in terms of advertisement, whether its done in print versus the Internet). 9

regarding advertising on the Internet are fairly traceable to just one of numerous roommate websites, without any showing that the expenditures directly address this defendants activities.12 The focus on advertising generally, and not this defendant, characterizes all of the outreach efforts plaintiffs rely on for standing. (RB 16-18.) Their standing is based on each meeting that we may have gone to, each mailing that we may have done, each PSA that was sent out; training meetings we may have attended, where we discussed discriminatory advertising allegations and issues related to Internet websites in general . . . .13 C. Future Monitoring Costs Fail to Confer Standing

An intention to engage in monitoring does not give plaintiffs standing, either. Reviewing websites is a part of plaintiffs day-to-day activities, and they acknowledged that this monitoring will include websites other than roommates.com.14 Plaintiffs future outreach efforts fail to establish standing

12 13

ER-V:822-29; ER-VI:1303-06.

ER-V:882-83; see also ER-V:901-903 (conference discussion attributable to the amount of time and effort and costs that go into addressing housing discrimination in advertising generally, and in particular the Internet over the last four years); ER-V:827 (So because this is all new territory, new terrain, it was very important that we address it and people had questions about how to advertise on the Internet, so there are questions and answers, and people who ask questions about that.).
14

ER-VII:1449. 10

because as with their past efforts they are unfocused and not fairly traceable to Roommate.15 II. THE FHA DOES NOT APPLY TO POSTINGS FOR ROOMMATES IN SHARED HOMES A. Plaintiffs Mischaracterize the Nature of this Case

Plaintiffs defense of the judgment is premised on the fundamentally illogical proposition that Roommate can be liable for violating the FHA even in circumstances where its users cannot. If the FHA cannot prohibit people from selecting roommates based on preferences as to gender, sexual orientation, or the presence of children, the Act cannot be used to punish publication of statements indicating such preferences, or matching based on those preferences. This is a lawsuit about the matching of roommates in shared homes based on factors that are indisputably and justifiably relevant to most people, on a website characterized by the Court as a useful service. Fair Housing Council

These efforts address Internet advertising generally. ER-VII:1351-54, 1456-58, 1465. The cases relied on by plaintiffs are inapposite. In Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086, 1099 (7th Cir. 1992), Southern California Housing Rights Center v. Krug, 564 F.Supp.2d 1138, 1148 (C.D. Cal. 2007), and Florida State Conference of NACCP v. Browning, 522 F.3d 1153, 165-66 (11th Cir. 2008), the future costs were directly traceable to the defendant. For example, in Browning, the future costs included on-site tests and surveys of tenants at the defendants apartment complex, as well as sending mailers to the defendants tenants. 522 F.3d at 165-66. 11

15

v. Roommates.com, LLC, 489 F.3d 921, 929 (9th Cir. 2007) (original panel opinion). Roommates.com makes no inquiry about race or religion, and uses neither criteria to match users. Nor does roommates.com require users to state preferences a fact that is intentionally obscured by plaintiffs16 and was apparently misunderstood by the district court.17 No one is precluded from using the service if they state no preference; plaintiffs assertion that [t]his is no different than a real estate broker demanding that a landlord provide him with a list [of] which races of people he will and will not rent to as a condition of listing the landlords dwelling for rent (RB 9), is baseless. 18 Nor does roommates.com deny access to postings for shared homes based on users gender, orientation, or familial status.19 Users of the site may

See RB 8-9 (asserting that users must fill out a form and provide responses regarding their preferences). ER-I:74 (incorrectly stating that [e]ach subscriber must also describe his preferences in roommates with respect to the same three criteria). Plaintiffs inflammatory analogies are typified by their assertion that the roommates.com preferences page is no different than a sign in a window saying For Rent No Kids. RB 10. In reality, roommates.com offers users the opportunity to say, Happy to have a roommate with or without kids, or Prefer to have a roommate without kids. Nowhere did the district court compare the postings on roommates.com with a rental sign for an empty dwelling and there is no factual basis to do so. For this reason, the district courts conclusion that Roommate violated 42 U.S.C. 3604(a) by making dwellings unavailable is also unsupportable. ER-I:79-80. 12
19 18 17

16

perform custom searches that disclose all homes available for sharing, notwithstanding any preferences stated by a person who has a home to share, and people with homes to share may search among all users looking for homes.20 There is no limitation of information in the roommates.com database that is based on users characteristics. Plaintiffs falsely asserted this to the en banc Court (see 521 F.3d at 1167, 1169-70), and they repeat the claim here as well. (RB 10-11, 43.) B. As a Matter of Statutory Interpretation, the FHA Does Not Reach Arrangements To Share Single Dwellings In an effort to extend the FHA into peoples homes, plaintiffs mangle the language of section 3602(b), which defines a dwelling as any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families. 42 U.S.C. 3602(b) (emphasis added). The statute creates a clear distinction between portions of buildings or structures that may be considered dwellings, and residences. While the statute contemplates that residences might be shared by one or more families, it does not include in its definition of dwelling any subdivision of a

20

ER-IV:529, 536; ER-IX:1813, 31. 13

shared household. The definition of dwelling expressly anticipates that one dwelling might be shared by multiple unrelated residents. Thus, so long as a building, structure, or portion thereof is occupied as, or intended for occupancy as, a residence, that structure or portion that constitutes a residence constitutes a single dwelling, and the sale or rental of that dwelling is controlled by section 3604. The FHA comes into play only when the occupants sell or rent the entire dwelling. The creation or alteration of a common household within a dwelling, as contemplated by the questionnaire and matching of prospective roommates on roommates.com, do not involve the sale or rental of a dwelling, but rather involve the sharing of a residence a transaction beyond the scope of the FHA. Further, this lawsuit is not about Mrs. Murphys who open their homes to transient guests,21 and Roommate does not contend that user postings fall within the exception for boarding houses.22 Mrs. Murphy functions as a

2 STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS, 1194 (Bernard Schwartz ed., 1970) (quoting Sen. Hubert Humphrey). Roommates and housemates are considered by the U.S. Census Bureau to be a different type of living arrangement from a boarder or roomer. See QT-P11, Household Relationship and Group Quarters Population: 2000, available at http://factfinder.census.gov/servlet/ QTTable?_bm=y&-geo_id=D&-qr_name=DEC_2000_SF1_U_QTP11&ds_name=D&-_lang=en. Roommates are people who share[] living quarters primarily to share expenses. A roomer or boarder has more of an arms14
22

21

commercial landlord and does not share her home with others.23 The Mrs. Murphy exemption is relevant, however, because it supports the plain meaning of section 3602s definition of dwelling. The exemption applies to a commercial boarding arrangement in which separate living quarters are occupied or intended to be occupied by no more than four families living independently of each other. 42 U.S.C. 3603(b)(2) (emphasis added). Residences occupied by one or more families in a common household are not (and do not need to be) included in the exemption because sections 3602 (defining dwelling) and 3604 (identifying prohibited transactions) reach only the sale or rental of an entire dwelling, not the portion of a dwelling occupied or shared by one of multiple residents of the dwelling. The fact that, for purposes of this exemption, a dwelling may be considered to have multiple units or living quarters does not confirm that

length relation with the person from whom they rent a room: Some sort of cash or noncash payment (e.g., chores) is usually made for their living accommodations. Bureau of the Census, 2010 Census Questionnaire Reference Book, at 23-24, available at http://2010.census.gov/partners/ pdf/langfiles/qrb_English.pdf. See James D. Walsh, Reaching Mrs. Murphy: A Call for Repeal of the Mrs. Murphy Exception to the Fair Housing Act, 34 HARV. C.R.-C.L. L. REV. 605, 610, 612 (1999) (describing the exception as a political concession, born more out of racist prejudice than faithfulness to the First Amendment, and pointing out that Mrs. Murphy has no associations, either intimate or expressive, that would afford her constitutional protection to discriminate.). 15
23

the FHA applies to all rooms in single residences. Rather, the exemption contemplates independent living by separate families, who might be subject to the FHA because they are not participating in a common household. Indeed, the language of the Mrs. Murphy exemption reveals congressional awareness that the term dwelling did not, as a general matter, include agreements to share a common household. If Congress had wanted to expand the FHA to arrangements involving the sharing of a single dwelling, not simply the boarding house model where families live independently, Congress easily could have done so. The fact that Congress chose not to do so confirms that such shared living arrangements are beyond the scope of the FHA. C. Plaintiffs Precedent Confirms that the FHA Applies Only to Commercial Housing Arrangements As discussed in Roommates Opening Brief, the FHAs legislative history, HUD regulations, case law, and administrative decisions confirm that the Act is intended to make commercial housing rentals available to all, but was never intended to regulate the composition of common households. Plaintiffs quote a heavily excerpted HUD commentary as evidence that the FHA applies generally to the rental of rooms. Plaintiffs go so far as to assert that dwelling includes situations in which sleeping accommodations 16

are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling. (RB 31 (quoting 54 Fed. Reg. 3232, 3244 (Jan. 23, 1989)).) Reviewed more thoroughly, however, this very HUD commentary indicates that the sorts of dwelling units to which the FHA applies are boarding and dormitory rooms that involve independent living, not a common household: The final rule defines dwelling unit as a single unit of residence for a family or one or more persons. . . . Examples of dwelling units include a single family home and an apartment unit within an apartment building. In other types of dwellings (as defined in 100.20) in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling, rooms in which people sleep are dwelling units. For example, dormitory rooms and sleeping accommodations intended for occupancy as a residence in shelters for homeless persons are dwelling units. 54 Fed. Reg. at 3244 (emphasis added). This commentary, of course, is consistent with the notion that there are circumstances where people live in close proximity, but independently, and the FHA applies to such residences unless they fall into an exception. Moreover, although this commentary 17

actually relates to the definition of dwelling unit in 24 C.F.R. 100.201, which implements the FHAs prohibition against discrimination because of handicap, it nonetheless confirms that both HUD and Congress were cognizant of a distinction between home-sharing and commercial rental arrangements. Nor does the case law upon which plaintiffs rely compel a different conclusion. In United States v. Space Hunters, Inc., 429 F.3d 416 (2d Cir. 2005), a housing information vendor refused to assist the disabled, uttering offensive and discriminatory epithets and denying access to listings. 429 F.3d at 419-23. In contrast, every user of roommates.com has access to every listing on the website.24 And there is no indication that defendants business in Space Hunters was restricted to roommate matching with user-provided information. The defendant acted as a housing broker: It compile[d] information from classified advertisements about rooms for rent in New York City, advertise[d] the availability of rooms for rent, communicate[d] with owners or landlords of rooms for rent, and refer[red] prospective tenants according to their preferred neighborhood and price range. Id. at 419. The Space Hunters defendant did

ER-IV:529, 536 (users of the website may perform a custom search based on their own specific criteria). 18

24

not even assert that it was helping create common households; it also failed to meet the requirements of the Mrs. Murphy exception. Id. at 423-27.25 Plaintiffs reliance on Marya v. Slakey, 190 F.Supp.2d 95 (D. Mass. 2001), is equally flawed. The case involved a potential roomers challenge to discriminatory rental practices at a student boarding house. The district court denied the defendants motion for summary judgment on several grounds. Critical to the analysis, the court found that the existing tenant who expressed a racial preference was potentially an agent of the non-resident owner of the dwelling. See id. at 100-03. Moreover, the court did not consider whether the FHA applied to the sharing of a single residence in the absence of an agency relationship between a tenant and a non-resident owner, and the Marya defendants did not raise the arguments Roommate brings before this Court. See id. at 100, 104. Similarly, in HUD v. Fung, a HUD administrative law judge noted that a subdivided condominium, with three bedrooms and three separate, unrelated leases, created a living arrangement that was much like that of a rooming

Plaintiffs cite a footnote in Space Hunters as evidence that the court considered whether the FHA applies to room-sharing arrangements in private homes. The Second Circuit did no such thing and indeed, the footnote itself is included only to show the defendants feelings toward the FHA and disabled people. Id. at 423 n.4. 19

25

house with a shared kitchen and bathroom. 2008 WL 366380, at *3 (H.U.D.A.L.J. Jan. 31, 2008). A lessee attempted to sublet her room to a black woman, only to have the other lessees and the owner conspire to reject the sublessor solely on the basis of her race. See id. In HUD v. Roberts, the ALJ found that a homeowners inquiries into the race of prospective tenants served no legitimate purpose and were not reasonably related to [the tenants] qualification for housing rental. 2001 WL 56376, at *5 (H.U.D.A.L.J. Jan. 19, 2001). The homeowner was not looking to share a home, but was expressing a preference or dispreference for renting to people of a certain race while communicating with people who were either prospective tenants or posed as prospective tenants. Id. at *5-*6. In DFEH v. DeSantis, FEHC Dec. No. 02-12, 2002 WL 1313078 (Cal. FEHC 2002), which involved an alleged denial of a room in an apartment on the basis of race, the Fair Employment and Housing Commission pointed out that [t]his case raises significant issues of the constitutional protections of freedom of speech and the right to privacy and association. Id. at *5 n.1. The commission determined that it lacked the power to declare a statute unenforceable on the basis of it being unconstitutional unless an appellate court has made that determination. Id. Moreover, the Commission concluded that evidence of the apartment lessees discrimination was inconclusive. Id. at *8. 20

Finally, Voris v. Washington Human Rights Commission did not apply state fair housing law to a shared household, but involved a woman operating a boarding house with multiple tenants. Voris, 704 P.2d 632, 634, 636 (Wash. Ct. App. 1985). Indeed, the Voris court noted that the landlord did not share common spaces in her home with her tenants, so the 1976 state attorney general opinion, which exempted roommates from state fair housing laws, was inapplicable. Id. at 637; cf. RB 34 n.5. In sum, the authorities on which plaintiffs rely confirm that while commercial boarding arrangements may involve the rental of a dwelling subject to the FHA, there is simply no precedent for extending the FHA to the creation of shared households. D. Plaintiffs Fail to Address Roommates BFOQ Argument

Plaintiffs ignore this Courts observation that there are circumstances in which facial discrimination under the Fair Housing Act [may be] permissible. Community House, Inc. v. City of Boise, 490 F.3d 1041, 1051 (9th Cir. 2007). In Community House, the Court drew on the Supreme Courts Title VII BFOQ jurisprudence, as set forth in International Union, etc. v. Johnson Controls, Inc., 499 U.S. 187, 197 (1991), in deciding an FHA case. See Community House, 490 F.3d at 1048-51.

21

Rather than addressing this precedent and this Courts view that BFOQ principles may be used in assessing a fair housing claim, plaintiffs largely disregard the point, citing a single, inapposite case involving the propriety of importing a BFOQ standard into the ADAs business necessity defense. (RB 36 (citing Bates v. United Parcel Service, Inc., 511 F.3d 974, 995-96 (9th Cir. 2007).) Thus, if the Court determines the FHA facially applies to roommate selection, the Court can and should hold that gender, sexual orientation, and the presence of children may be legitimately considered by individuals in the search for and selection of roommates, and the expression of such preferences does not violate the FHA.

III.

THE DECISION BELOW CREATES A STATUTORY CONFLICT WITH FUNDAMENTAL CONSTITUTIONAL RIGHTS Congress never intended for the FHA to interfere with the constitutional

rights of Americans who for generations have been selecting those with whom they will live based on gender, orientation, and the presence of children. Congress made clear that the Acts purpose was to provide, within constitutional limitations, for fair housing throughout the United States. 42 U.S.C. 3601 (emphasis added). 22

The district courts expansion of the FHA to roommate selection, and speech relating to that selection, in granting summary judgment to plaintiffs brought the FHA into direct conflict with the First Amendment, and this was error. It is well settled that federal courts have the power to adopt narrowing constructions of federal legislation. Indeed, the federal courts have the duty to avoid constitutional difficulties by doing so if such a construction is fairly possible. Boos v. Barry, 485 U.S. 312, 330-31 (1988). By construing the FHA as not reaching the speech at issue here, the Court can avoid that conflict. A. Section 3604(c) Cannot Be Used To Punish a Website That Matches Roommates Based on Lawful Preferences Plaintiffs glibly assert that the constitutional rights of roommates.coms users are not implicated here. (RB 2.) But roommates.com asks about preferences that individuals may lawfully exercise in creating a common household, and then matches potential roommates. Selecting a roommate based on gender, sexual orientation, or the presence of children is lawful, and plaintiffs do not argue otherwise but plaintiffs contend that facilitating the expression and exercise of such preferences is not. Plaintiffs first try to get around the constitutional problems presented by their claims by contending that Roommate engages in discriminatory conduct, and that conduct stands on its own, separate from any right an 23

individual might have to engage in preferential selection of a roommate. (RB 39-40.) This is nonsense because the only conduct Roommate engages in is facilitating communication among its users. If the FHA permits people to select roommates based on gender, orientation, and the presence of children in the home, roommates.com cannot be engaging in conduct forbidden by the FHA. B. Roommate Unquestionably Has Standing To Raise Its Constitutional Arguments Roommates standing to raise constitutional concerns about application of the FHA to selection of roommates is not in doubt here. Roommate has its own First Amendment right to receive and convey information, which is directly impacted by the judgment here. Moreover, Roommate is certainly entitled to challenge the interpretation given to the FHA by the district court on the ground that it violates the constitutional rights of others. Of course, Article III standing is the obligation of plaintiffs, not defendant, and, as discussed in Section I, plaintiffs have not met their burden. See Davis v. FEC, 128 S. Ct. 2759, 2768 (2008) (to have standing, claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendants challenged behavior; and likely to be redressed by a favorable ruling (emphasis added)).

24

In any event, Roommate meets the requirements for standing. If upheld, the injunction will dramatically curtail defendants automated matching of prospective roommates, which is a fundamental part of its business, thereby causing both Roommate and its users direct and palpable injury.26 See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 445-46 (1972) (professor allowed to challenge statute forbidding distribution of contraceptives to unmarried persons); Craig v. Boren, 429 U.S. 190, 194-95 (1976) (beer vendor permitted to challenge differential age requirement of female and male drinkers); Pierce v. Socy of Sisters, 268 U.S. 510 (1925) (private schools may assert due process rights of parents required to send their children to public school). Also, the outcome of this litigation might restrict the speech of those who use the website to communicate with others in the exercise of their right to select roommates. As the Supreme Court stated in Eisenstadt, in First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert

Even as Roommate a service open to everyone with, or seeking, a home to share has defended itself in this litigation, a host of roommate-matching websites have cropped up without controversy that serve particular groups. See, e.g., http://www.prideroommates.com/; http://www.easyroommate.com/GayRoommate; http://www.rainbowroommates.com/ http://kosherroommates.com; http://www.jewishroommates.com/; http://www.roomwithajew.com/map.html; http://www.accesschristian.com/; http://www.ldshousing.net/; http://ldsroomie.com/; http://muslimroommates.org/. 25

26

precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech. 405 U.S. at 445 n.5. This was echoed by the Supreme Court in Virginia v. American Booksellers Assn, 484 U.S. 383, 392-93 (1988): [I]n the First Amendment context, [l]itigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statutes very existence may cause others not before the court to refrain from constitutionally protected speech or expression. Id. at 392-93 (internal quotation marks omitted) (booksellers had standing to challenge statute restricting sale of sexual materials). Plaintiffs reliance on Fleck & Associates v. Phoenix, 471 F.3d 1100, 1106 (9th Cir. 2006), is misplaced. In Fleck, a corporation operating a gay mens social club challenged a city ordinance prohibiting the operation of live sex act businesses. The court determined that Fleck lacked standing because its only injury was a privacy violation, and corporations have no such privacy rights. 471 F.3d at 1104. No such concerns are implicated here, since an entity such as Roommate has free speech rights under the First Amendment,

26

independent of its users. See C&C Plywood Corp. v. Hanson, 583 F.2d 421, 423 (9th Cir. 1978); Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978).27 C. Roommate Selection Implicates the Right of Intimate Association Plaintiffs attempt to avoid the conflict between the First Amendment and their interpretation of the FHA by mischaracterizing roommates.com and pressing a cramped view of the associational right. An interpretation of the FHA that restricts speech calculated to find and enter into a relationship with a roommate would be a direct and substantial burden on the right of intimate association subject to strict scrutiny. See Shelton v. Tucker, 364 U.S. 479, 488 (1960); NAACP v. Alabama, 357 U.S. 449, 463 (1958); Brock v. Local 375, 860 F.2d 346, 350 (9th Cir. 1988).

Plaintiffs contention that a for-profit entity cannot have associational standing ignores Craig, where the plaintiff had standing despite its profit motive. 429 U.S. at 192-93 (equal protection rights of males 18-20 years provided the basis for beer vendor to establish claim of unconstitutionality of the age-sex differential). And plaintiffs have advanced no evidence in support of their assertion that Roommate has interests adverse to its users. RB 43. The opposite is the case: Many people use roommates.com precisely because they want to find compatible roommates quickly and efficiently, and if their interests were adverse, they would not use the service. The handful of complaints cited by plaintiffs stands in stark contrast to the hundreds of thousands of people who have used roommates.com with satisfaction. See ER-IX:1803, 5 (In any given year, approximately 1 million new postings for roommates are created by users.); ER-IX:2025-68 (compiling hundreds of positive testimonials from roommates.com users). 27

27

1.

The Interests of Roommate and its Users Are Not Diminished by the Nature of the Postings

The postings on roommates.com do not merely propose a commercial transaction that might result in reduced protection under the First Amendment. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993); see also Riley v. Natl Fedn of the Blind, 487 U.S. 781, 795-96 (1988) (speech with commercial aspects is still fully protected where intertwined with informative speech). Roommates typically share the expenses of a residence,28 but those details are a small fraction of the information in a roommates.com posting. Users describe themselves, their interests, their messiness and tidiness, their animals, their schedules, and the homes they hope to share. If economic motive were the sole reason for the postings, users would not be interested in sharing this personal information with others. Indeed, such disclosures run counter to users economic interests, because they limit the potential matches. This is nothing close to I will sell you the X prescription at the Y price. Va. Bd. of Pharmacy v. Va. Citizens

Economically speaking, it is safe to assume that most people looking for roommates do not anticipate making a profit but rather defraying their own living costs or perhaps attempting to live in dwellings that they otherwise could not afford. John T. Messerly, Roommate Wanted: The Right to Choice in Shared Living, 93 IOWA L. REV. 1949, 1976 (July 2008). See also supra n.22 (citing U.S. Census Bureau definition of roommate). 28

28

Consumer Council, Inc., 425 U.S. 748, 761 (1976); see also Bigelow v. Virginia, 421 U.S. 809, 818 (1975) ([C]ommercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.). Thus, while it might have a financial element, roommate selection is intimate by its nature (the sharing of personal spaces) and the manner in which the relationship is created (the consideration of many factors that do not involve money). People want to be and feel safe and secure. Sharing a home involves trusting another individual (or several) in an environment of vulnerability. Regulating such choice is beyond the competence of government. Restricting speech undertaken to engage in the very selection that is permitted by law does not pass constitutional muster because it imposes a direct and substantial burden on the associational right. It curtails the flow of information necessary to find and make an informed decision about a potential roommate. This, in turn, reduces housing opportunities. If a person cannot make a public posting announcing their interest in finding a gay male roommate without children, that individual will be limited to (1) word-of-mouth or (2) not stating preferences in their public postings, but making the roommate choice based on preferences anyway while not saying so. Word-of-mouth is an 29

ineffective way to find a roommate; it burdens people on both sides of a potential transaction because it is slow and will reach relatively few people. The person with a home, looking for a roommate, will end up with fewer inquiries from possible roommates, and less choice, and might have vacant living space for quite some time, imposing an economic loss. At the same time, a person without a home, but who might meet those preferences (and make a great roommate), is far less likely to hear about the opportunity, and the speech restriction consequently diminishes the odds they will find an appropriate home during a time of need. A burden also is imposed on both sides of the transaction if a person makes a non-preferential posting, but actually makes the choice of roommate based on unspoken preferences such as gender, orientation, or children. The person with the home must consider responses from, interview, and ultimately reject many individuals. This time-consuming and unpleasant process will discourage those with homes from attempting to share them. The result, again, is fewer housing opportunities. Those who are rejected without learning the true reasons why are embittered by the fruitless expenditure of time, energy and money, as they knock on doors, follow dead-end leads, and lose time at work while investigating shared homes that are not, in reality, truly available.

30

In the creation of common households, truthful speech enhances housing opportunities. Punishing speech expressing a preference for a roommate based on gender, orientation, or the presence of children results in less access to appropriate homes, and imposes a direct and substantial burden on the right of intimate association. 2. Roommate Living Is Intimate Association

Plaintiffs mischaracterize defendant as engaging in the rental of rooms (RB 46), as if such rooms were divorced from the individuals living in them. The roommate relationship is defined by both the sharing of expenses and deference for the other persons feelings and space, and this is shown in the same daily behaviors we expect to see among family members cleanliness in the kitchen and bathrooms, respect for times of sleep, and respect for personal property and private places. Its a question of getting along not just paying money to a stranger or employer for four walls, a ceiling and a floor. Indeed, plaintiffs citation to state statutes regulating landlord-tenant relationships defeats their own argument.29 Roommate relationships do not

Plaintiffs reference to pervasive government regulation also misses the mark because it ignores the fact that families living in rental housing owned by a landlord are subject to regulations but still enjoy the right of intimate association within the home. Cf. RB 49. Also, the landlord-tenant laws in the California Civil Code which makes no mention of roommates, let alone 31

29

depend on contracts and statutes; as one commentator put it: [C]ompatability is particularly important to roommates as their conflicts are typically resolved through discussion and compromise.30 As the Supreme Court made clear, the right of intimate association includes the right to exclude. Simply put, adults may select other adults for personal relationships without government interference. [F]reedom of association receives protection as a fundamental element of personal liberty. Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).31 Such relationships involve the distinctively personal aspects of ones life. Id. at 620. Courts are required to consider factors such as size, purpose, selectivity, and whether

roomers, as asserted by plaintiffs do not control the relationship of individuals within a common household, anyway. They apply to persons, however denominated, who hire dwelling units. Cal. Civ. Code 1940(a). A dwelling unit is a structure or a part of a structure that is used as a home, residence, or sleeping place by one person maintaining a household or by two or more persons who maintain a common household. Id. 1940(c). Christine A. Kolosov, Fair Housing Laws and the Constitutional Rights of Roommate Seekers, 4 MODERN AM. (Special Issue) 3 (2008), available at http://www.wcl.american.edu/modernamerican/documents/ Kolosov.pdf?rd=1. See id. at 5 ([L]iberty and autonomy mean little if individuals are powerless to decide with whom to create intimate relationships.). 32
31 30

others are excluded from critical aspects of the relationship. Bd. of Dirs. of Rotary Intl v. Rotary Club, 481 U.S. 537, 546 (1987).32 Plaintiffs contention that intimate association is limited to the family is flat-out wrong. The Supreme Court has declared the opposite: [W]e have not held that constitutional protection is restricted to relationships among family members. Rotary Club, 481 U.S. at 545 (emphasis added). Also, if that is the rule, why did the Court expend so much effort grappling with the rights parameters in Rotary Club and Roberts? The quasi-familial relationships of roommates are nothing like the facts in the cases cited by plaintiffs. This Court denied the right to intimate association in IDK, Inc. v. Clark County, 836 F.2d 1185, 1193 (9th Cir. 1988), and National Assn for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000), because they involved armslength commercial transactions between escort-client and psychoanalyst-client.

Absent from the applicable factors is any mention of duration. Messerly, supra n. 28, 93 IOWA L. REV. at 1966. Messerly, in arguing that roommate relationships are intimate associations, notes that the Supreme Court has already established marriage as a protected intimate association despite the fact that a couple may dissolve and create this relationship anew through divorce and remarriage as the individuals react to changing feelings or circumstances. Id. at 1966-67; see also Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 632-33 (1980) (discussing the value of even short-lived relationships). 33

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In a psychoanalyst-client relationship, any intimacy is one-sided, professional ethical rules establish firm doctor-patient boundaries, and the parties spend their time together in meetings of finite length. Likewise, an escort-client relationship possesses few, if any, of the aspects of an intimate association, because the escort is determined by the employer and may be involved with a large number of clients, the relationship does not involve any activities of family life, and a day, an evening, or even a weekend is [not] sufficient time to develop deep attachments or commitments. IDK, 836 F.2d at 1193.33 In contrast, roommates set up a common household. The roommates.com questionnaire focuses on sharing a home, and it uses personal facts and preferences to match prospective roommates. (ER-IX:1805-12.) The very selectivity of defendants roommate-matching is both the basis for plaintiffs claim and the irrefutable answer to their assertion that picking a roommate is not selective enough to qualify as intimate association. Plaintiffs effort to dismiss the precedents in Roommates brief involving private clubs on the ground that they involve social rather than commercial

Plaintiffs selection of quotes from Additional Comments proves the point. Wanted are roommates who are responsible, help each other out if needed, will respect peoples space and belongings, and very respectful towards each other and of each others need for privacy. RB 50-51. These are not relationships based on merely on an exchange of money for a good or service they are relationships of trust and respect. 34

33

relationships (RB 52), ignores the fact that social clubs impose membership dues, and typically involve such other financial obligations as annual contributions and fundraising commitments. Similarly, plaintiffs contention that governmental regulation of whether unrelated individuals can live with one another is subject to mere rational basis review is based on zoning cases, including Village of Belle Terre v. Borass, 416 U.S. 1 (1974). (RB 47.) Whether certain types of residences or groups of people can be located in a particular area is quite different from a law that affirmatively requires an individual to accept a cohabitant. Kolosov, supra n.30, at 5; accord Brooke Wright, Note, Fair Housing and Roommates, 2009 B.Y.U. L. REV. 1341, 1365-66 (2009) (contrasting restrictions on roommate advertisements, which can make it impossible to find an appropriate roommate, with zoning laws, which merely require unrelated individuals to live in a different neighborhood).34 Finally, plaintiffs claim that there is no connection between Roommates conduct and the ability of users to ultimately pick with whom they

Plaintiffs assertion that some people who post on roommates.com do not live in the homes is another attempt to distract. The district court concluded in granting summary judgment that the postings are for shared homes. ER-I:79. Further, any posting for unshared residences is inconsistent with the express purpose of the site. The CDA prohibits any finding of liability for such postings. Roommates, 521 F.3d at 1171-72. 35

34

live (RB 53), is wrong: Their whole point is to punish Roommate for facilitating selectivity in searching for roommates. If plaintiffs prevail, users would be unable to express preferences, or receive match lists, based on gender or familial status, imposing a direct and substantial burden on their associational right.35 D. Even if Considered Commercial, Roommate Selection Falls Within Constitutional Protections The constitutional limits of section 3604(c) were noted recently by the Seventh Circuit in Chicago Lawyers Committee v. Craigslist, Inc., 519 F.3d 666, 668 (7th Cir. 2008). [A]ny rule that forbids truthful advertising of a transaction that would be substantively lawful encounters serious problems under the First Amendment. Id. at 668 (citing Supreme Court commercial speech decisions). Even if roommate postings are considered commercial, the FHA cannot be stretched so far as to allow government control without

The legal determination that publishing roommate preferences violates the FHA affects both Roommate and its users. If the district courts interpretation of the FHA is upheld, roommates.coms users might also be liable for any preference they express in their Additional Comments. To be sure, those who misuse roommates.com for commercial purposes would certainly be liable. See Craigslist, 519 F.3d at 672 (Using the remarkably candid postings on craigslist, the Lawyers Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination.). 36

35

running afoul of even the intermediate scrutiny of Central Hudson Gas & Elec. Corp. v. Public Serv. Commn, 447 U.S. 557 (1980). Twelve years after the enactment of section 3604(c), the Supreme Court used the Central Hudson case to announce a four-part analysis for determining whether the government can regulate commercial speech. First, the court must determine whether the speech is protected by the First Amendment i.e., whether it concerns lawful activity and is not misleading. Second, the court must determine whether the government has a substantial interest in regulating the expression. Third, the court must determine whether the regulation directly advances the government interest. Fourth, the court must determine whether the regulation is no more extensive than necessary to serve the government interest. 447 U.S. at 566. If section 3604(c) is interpreted as reaching speech relating the selection of roommates, it would be invalid under Central Hudson.36

Previous decisions addressing the constitutionality of section 3604(c) should not influence the Courts analysis. United States v. Hunter, 459 F.2d 205 (4th Cir. 1972), involving Mrs. Murphy housing, predates the Supreme Courts view, since 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), that blanket bans on speech about lawful activities must be reviewed with special care. In 44 Liquormart, the Court rejected the notion that the power to prohibit or to regulate particular conduct necessarily includes the power to prohibit or regulate speech about that conduct. 517 U.S. at 509-511 (opinion of Stevens, J.). Hunters rejection of a First Amendment challenge was based on 37

36

1.

Roommates.com Does Not Involve Illegal Activity

As discussed above, roommate selection based on gender, sexual orientation, and the presence of children is protected by the right of intimate association, which permits people to freely choose those with whom they live. Roommates.com simply facilitates that choice. The limits to government power inside the home are rooted in substantive due process, as well as First Amendment associational rights. As the Supreme Court reiterated in Lawrence v. Texas, 539 U.S. 558 (2003),[l]iberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. Id. at 562. Similarly, in Moore v. City of East Cleveland, 431 U.S. 494 (1977), the Supreme Court used substantive due process to invalidate a city ordinance that

Valentine v. Chrestensen, 316 U.S. 52 (1942), which held that purely commercial speech was not constitutionally protected. Valentine has since been overruled. See Virginia Bd. of Pharmacy, 425 U.S. at 758 (1976); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 n.6 (1983). In Ragin v. New York Times Co., 923 F.2d 995 (2d Cir. 1991), a First Amendment-based challenge failed because the underlying conduct was illegal (the use of models in housing advertisements to indicate a preference), which is not our situation. Space Hunters also involved illegal underlying conduct the refusal to help a deaf man who called a hotline looking for housing listings. 429 F.3d at 420. On appeal from a motion to dismiss, the Second Circuit did not address whether section 3604(c) withstood constitutional scrutiny if the underlying conduct was lawful, i.e., not an act of housing discrimination under the FHA, nor did the court consider a challenge to the Act on First Amendment grounds. See id. at 423-27. 38

restricted which relatives qualified as family under the housing code. The Court made clear that the governments power does not include social engineering within the home: [T]he Constitution prevents East Cleveland from standardizing its children and its adults by forcing them to live in certain narrowly defined family patterns. Id. at 505-06; see also id. at 508 (Brennan, J., concurring) (The Constitution cannot be interpreted . . . to tolerate the imposition by government upon the rest of us of white suburbias preference in patterns of family living. . . . [F]or large numbers of the poor and deprived minorities of our society . . . compelled pooling of scant resources requires compelled sharing of a household.).37 Plaintiffs contend that Roommates allegedly unlawful behavior has an existence independent of what constitutes prohibited housing discrimination, hanging this theory on the Mrs. Murphy exemption and the FHAs prohibition of preferential advertising even by Mrs. Murphy. (RB 57-58.) This fails because Roommate is not seeking protection under the Mrs. Murphy exception. The Acts restriction of Mrs. Murphys speech probably runs afoul of current

See also Belle Terre, 416 U.S. at 18 (Marshall, J., dissenting) (freedom of association is broad enough to encompass the right to invite the stranger into ones home not only for entertainment but to join the household as well (quoting U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 538-45 (1973) (Douglas, J., concurring))). 39

37

First Amendment standards anyway, since Mrs. Murphys discriminatory acts are lawful under section 3603(b)(2).38 Plaintiffs are, in effect, arguing that there is a category of speech that can be banned outright because it is related to conduct that plaintiffs consider objectionable. Roommate does not engage in any housing transactions; it simply enables potential roommates to speak to each other for free or for a modest monthly fee. Even where the underlying conduct is criminal, the First Amendment still restricts any effort by government to ban related speech. The Supreme Court confirmed this yet again in United States v. Stevens, 130 S. Ct. 1577 (2010), in striking down a federal statute criminalizing the commercial creation, sale or possession of certain depictions of animal cruelty. The Court acknowledged that the prohibition of animal cruelty itself has a long history in American law. Id. at 1585. However, the Court said, we are unaware of any similar tradition excluding depictions of animal cruelty from the freedom of speech codified in the First Amendment. Id.

Pittsburgh Press Co. v. Pittsburgh Commn on Human Relations, 413 U.S. 376 (1973), is inapposite: The underlying activity hiring based on gender is illegal. Selection of roommates based on gender, orientation, or presence of children is not illegal. 40

38

Section 3604(c) if it applies to roommates at all does not create a category of prohibited speech beyond the reach of the First Amendment, no matter how offensive plaintiffs might consider preferential statements about roommates. At minimum, section 3604(c) as applied to Roommate is required to pass constitutional muster under Central Hudson which it cannot do. 2. The Government Does Not Have a Substantial Interest in Controlling Speech About Roommate Selection The requirement that the speech restriction directly and materially advance the asserted governmental interest is an exacting one. This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree. Edenfield v. Fane, 507 U.S. 761, 770-71 (1993). Plaintiffs do not come close to meeting this requirement. The goal of the FHA is to eliminate discrimination in housing and to promote diverse communities. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972); Housing Opportunities Made Equal v. Cincinnati Enquirer, 943 F. 2d 644, 652 (6th Cir. 1991). Suppressing the speech of those who wish to share their homes does not further this purpose. Many people become roommates so they can live in a residence or community that they could 41

not afford if they lived alone. Making such cohabitation more difficult which necessarily results from the restriction advocated by plaintiffs burdens the efforts of members of historically repressed groups to associate and perpetuates homogeneity in the more desirable locales.39 The preferences at issue here involve only gender, orientation, and the presence of children. While Congress expressed a desire to break down ghetto walls and racially integrate housing, prohibiting ads stating preferences unrelated to race does not serve the independent legislative objective of integration.40 There is no reason to believe that preferential statements about roommates despite their prevalence and general acceptance in society, and HUDs failure to enforce the FHA against such statements for more than 40 years has interfered with the integration of housing. Moreover, there is not one scintilla of evidence that any roommates.com posting has resulted in the denial of actual housing opportunities to anyone. Bald assertions of psychic harm also do not provide a basis for regulating roommate speech relating to gender, orientation, or children. Postings that

See Kevin M. Wilemon, The Fair Housing Act, the Communications Decency Act, and the Right of Roommate Seekers to Discriminate Online, 29 WASH. U. J.L. & POLY 375, 397 (2009) (arguing that preferential roommate ads empower minorities and comparing them to professional networking).
40

39

Kolosov, supra n.30, at 9. 42

merely offend or stereotype do not justify content-based regulation. Texas v. Johnson, 491 U.S. 397, 412, 418 (1989); Boos, 485 U.S. at 322; see also Simon & Schuster, Inc. v. N.Y. Crime Victims Bd., 502 U.S. 105, 118 (1991) ([T]he fact that society may find speech offensive is not sufficient reason for suppressing it.).41 Plaintiffs make the conclusory claim that preferential speech involving roommates is properly prohibited because it helps prevent housing discrimination and gives rise to the public perception that such discrimination may be legal.42 (RB 59-61.) Of course, plaintiffs fail to explain how limiting preferential speech about roommates will reduce discrimination in roommate selection. If a woman wants a female roommate, she is going to exercise that selectivity even if the law forbids her from expressing that intention. And the kind of generalized public-benefit justification offered by plaintiffs here that the government can forbid socially harmful speech has been repeatedly rejected by the Supreme Court, most recently in Stevens: The First

The Supreme Courts condemnation of content-based restrictions extends even to categories of speech that can be forbidden altogether. R.A.V. v. City of St Paul, 505 U.S. 377, 386 (1992) (overturning ordinance barring hate speech involving race, color, creed, religion or gender because it was rooted in government hostility or favoritism towards the underlying message expressed). 42 No evidence was presented in this case in support of this proposition. 43

41

Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh its costs. Our constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. 130 S. Ct. at 1585. 3. Regulation of Roommate Postings Does Not Directly Advance, and Is Not Directly Linked to any Government Interest The necessary fit under Central Hudson is lacking where the regulation impedes the flow of truthful, lawful information because government paternalistically fears the impact on recipients. Virginia Bd. of Pharmacy, 425 U.S. at 773; Linmark Assocs. v. Township of Willingboro, 431 U.S. 85, 96-97 (1977); see also Robert G. Schwemm, Discriminatory Housing Statements and 3604(c), 29 FORDHAM URB. L.J. 187, 280-82 (October 2001) (acknowledging insufficient fit between the FHAs purpose and section 3604(c) where the underlying activity is exempt from other FHA provisions). Even if it is assumed that the governments interest in regulating speech about roommate selection is fostering diversity (rather than stopping offensive speech, which is inadequate), prohibiting individuals from expressing a preference in roommates based on gender, orientation, or presence of children does not directly advance that interest. Those who wish to share their homes 44

only with adults or people of their own gender or sexual orientation will do so whether or not they can publish their preferences. No one will share their home with someone they fear or find offensive, no matter what the law requires. Any interpretation of the FHA that handcuffs individuals in the choice of roommates will be defied in a society that views the choice of cohabitants to be an unrestricted, individual choice and those who might be inclined to honor such a law will simply choose not to live with a roommate. Rather than enhancing housing opportunities, the availability of homes particularly for those with limited financial resources will be diminished. Thus, unlike the restrictions on prostitution advertising at issue in Coyote Publishing, Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010), cited by plaintiffs, the injunction here will do nothing to reduce actual discrimination with regard to roommate selection.43 4. The Restriction Sought Is More Extensive than Necessary

Plaintiffs interpretation of section 3604(c) as reaching speech by potential roommates goes far beyond what is necessary to serve any government interest. The statute would prohibit a broad array of

Contrary to plaintiffs strained contention (RB 60), the content on roommates.com does not commodify housing discrimination the way that advertisements for prostitution commodify sex. See Coyote Publg, 598 F.3d at 602-04. Prostitution is almost universally prohibited, while selecting and having a roommate based on personal preferences is lawful. 45

43

communication: It is not limited to public advertisements; the statute reaches any notice or statement, and this necessarily includes the many thousands of roommail communications among roommates.coms users. As discussed above, plaintiffs interpretation would create a substantial societal burden, making the search for a compatible roommate more difficult and burdensome. While it still might be possible to find a compatible roommate, the speech restriction will make the task so difficult that many people with homes will not make them available for roommates, and this will reduce housing opportunities. See Greater New Orleans Broadcasting Assoc. v. United States, 527 U.S. 173, 194 (1999) (striking down casino advertising ban because it sacrificed an intolerable amount of truthful speech about lawful conduct when compared to the policies at stake and the social ills that one could reasonably hope such a ban to eliminate).44

Plaintiffs contend that roommate seekers can express preferences in the Additional Comments. (RB 55.) The immunity of section 230 does not extend to roommates.coms users, however. If the Court determines that preferential statements relating to roommate selection are prohibited by the FHA, plaintiffs and others very well might begin bringing claims against individuals. Moreover, roommates.com matches users based on formatted questions and answers, and not the contents of free-form responses to Additional Comments. Manual, profile-by-profile review of Additional Comments responses by users of the site would be wildly inefficient, and the unstructured responses might not even contain the basic information (such as gender and lifestyle) that is important to many people looking for compatible 46

44

The government interest in diversity in housing can be readily advanced by alternatives that do not run afoul of the First Amendment. The FHA already prohibits discrimination in the rental or sale of a dwelling; the goal of ending actual discrimination is better served by prosecuting those who unlawfully discriminate in such transactions, rather than publishers. See 42 U.S.C. 3604(a), (b), (d), (f) (prohibiting discriminatory acts). And educational outreach would better sensitize the public regarding offensive speech and stereotypes than the selective muzzling of speech. See Linmark, 431 U.S. at 9798 (describing alternatives to ban on For Sale signs, including education, publicity about community diversity, and inducements to reduce home sales). If the First Amendment means anything, it means that regulating speech must be a last not first resort. Thompson v. W. States Medical Ctr., 535 U.S. 357, 372 (2002). Where the government can achieve its interests in a manner that . . . restricts less speech, the Government must do so. Id. at 371. Accordingly, any interpretation of the FHA that would encompass statements about roommates in shared housing would not survive First Amendment scrutiny. The district court erred in granting summary judgment to

roommates. See Carafano v. Metrosplash.com, 339 F.3d 1119, 1124-25 (9th Cir. 2003) (describing the benefits of formatted interactive websites). 47

plaintiffs, on the ground that the FHA applies to statements and matching of potential roommates, and the judgment should be reversed.

IV.

THE INJUNCTION IS FATALLY OVERBROAD Plaintiffs fail to make a serious defense of the district courts injunction,

which restricts activities for which Roommate is immune under the CDA, and prohibits the collection of all information in a formatted manner relating to gender, orientation, or children. Plaintiffs glib assertion that the injunction is subject only to abuse of discretion review ignores the law. An injunction restricting speech can be no broader than necessary to remedy a specific harm. Madsen v. Womens Health Ctr., Inc., 512 U.S. 753, 765 (1994). An overbroad injunction is an abuse of discretion. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (rejecting injunction reaching further than plaintiffs claimed infringement of their free exercise right). A. The Injunction Makes Searching for Compatible Roommates More Difficult Roommates website does not restrict the availability of listings to its users. To the contrary, every subscriber can search the entire database of

48

postings. Automated matching merely lets users quickly find prospective roommates who interest them. If Roommate redesigns the website in compliance with the current injunction, it must eliminate prompts for users regarding gender, orientation, and children, even if responses are voluntary. The injunction also can be reasonably interpreted as barring prompted, voluntary posting of users photographs which tend to reveal a persons gender. As a consequence, users who consider these characteristics important in a roommate will need to either (1) state them in Additional Comments; or (2) make direct inquiries to other users. Both options make the search for compatible roommates more time consuming, while not reducing preferential speech. The same principles apply to Roommates email alert service. Nothing is gained by preventing a user who does not want to live with a man from asking only for alerts about possible female roommates. That user will select a female anyway, and can communicate that preference in Additional Comments, but prohibiting focused alerts simply makes the search for a roommate more burdensome and time-consuming. Plaintiffs raise two unavailing arguments in defense of the injunction. First, they claim that the en banc panel found that Roommate had no CDA 49

immunity for posing questions. (RB 64.) While the Court noted that plaintiffs had at least a plausible claim based on the questions, the Courts focus was on their mandatory nature. Roommates, 521 F.3d at 1164 (The [Carafano] site provided neutral tools specifically designed to match romantic partners depending on their voluntary inputs. By sharp contrast, Roommates website is designed to force subscribers to divulge protected characteristics . . . . (emphasis added)). The district court disregarded the Courts reasoning in refusing to allow roommates.com to use questions with voluntary answers. Second, plaintiffs argue that Roommates objection to the injunction focuses on the speculative effect it might have on some future conduct by Roommate, not on its effect on how the website currently operates. (RB 64.) Of course, the injunction will necessarily alter the manner in which the website operates. And it prevents a redesign that will allow users to efficiently search for compatible roommates based even on voluntarily provided information, which, as discussed in detail in Roommates Opening Brief, may be collected and used without liability pursuant to the CDA, so long as any formatting and functionality is neutral and does not materially contribute to illegality. Id. at 1169.

50

B.

The Injunction Impairs the Speech Rights of People Beyond the Reach of the FHA

Plaintiffs do not cite a single instance in which the FHA has been applied to govern the speech of people looking for a home. To the contrary, the Act itself, its interpretations by HUD and in the case law, and the policies behind its enactment focus on commercial housing transactions and, in particular, the actions and speech of those who own housing or are acting on behalf of owners. People seeking a place to live have an unfettered right to state and act on any preferences they might have. Setting aside roommates for the moment, the law does not punish those who are looking for homes from saying to anyone, including a real estate agent, I would like to buy a house in neighborhood with lots of kids, or I would like an apartment within walking distance of the temple. The injunction impermissibly inhibits the rights of homeseekers to state and act on preferences, however, by forbidding Roommate from making available to them formatted questions or matching using even voluntary responses. Denying such users of roommates.com the choice of focusing their search based on the characteristics of those with a home to share is not only unwarranted, it is unconstitutional.

51

C.

Any Injunction Must Be Narrowly Tailored

The district court abused its discretion by issuing an injunction that goes far beyond the underlying harm. The First Amendment requires that speech restrictions be narrowly tailored and reach no further than necessary to achieve the governments legitimate goal. Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). Here, the only harm that possibly violates the FHA is roommates.coms requirement that users disclose their gender, orientation, and presence of children. Plaintiffs concerns can be ameliorated simply by making the submission of this information voluntary. It also could be ameliorated by informing users that the matching merely sorts postings based on stated preferences, and by better explaining that users can use custom searches to access all postings, regardless of preferences. The injunction silences legitimate postings and efficient searches, while doing nothing to actually reduce preferential roommate selection. Consistent with these principles, and with the limits imposed by the CDA and already applied by this Court in this very case, Roommate can, at most, be enjoined from:

52

(1) requiring housing seekers to answer questions about their gender, familial status or sexual orientation as a condition of using the service; and (2) using compelled answers to these questions to limit access to information about housing.

CONCLUSION For the foregoing reasons, the Court should reverse the district courts award of summary judgment, awarding summary judgment to Roommate instead. In the alternative, at minimum, the Court should remand for reconsideration of the scope of the injunction pursuant to this Courts previous, en banc holdings in Roommates, 521 F.3d 1157.

53

RESPONSE AND REPLY BRIEF AS TO ATTORNEYS FEES AND COSTS

SUMMARY OF THE ARGUMENT In reducing plaintiffs fee award by only 10 percent, the district court abused its discretion by failing to calibrate the award to plaintiffs overall level of success. A more appropriate reduction, given the outcome, would be 50 percent. As to plaintiffs cross-appeal regarding hourly rates, the rates awarded were within the courts discretion and supported by properly considered evidence.45

I.

THE DISTRICT COURT FAILED TO REDUCE PLAINTIFFS AWARD DUE TO LIMITED SUCCESS A. Plaintiffs Obtained Only a Limited Victory

Incredibly, plaintiffs claim a complete win in this case, despite losing three of five claims, losing on their central contention that Roommate should be

With regard to plaintiffs cross-appeal in Case No. 09-55969, Roommate agrees with plaintiffs statements of jurisdiction, the issues, and the standard of review. Although plaintiffs did not provide an independent statement of facts for Case No. 09-55969, Roommates disagreements regarding the facts relevant to the cross-appeal are set forth in Roommates Opening Brief and discussed below. 54

45

liable for user-generated content in Additional Comments, obtaining only a small fraction of demanded damages, and failing to obtain most of the requested injunctive relief. (RB 67.) Plaintiffs forget that degree of success is the most critical factor in determining the reasonableness of an attorneys fee award. Corder v. Brown, 25 F.3d 833, 836 (9th Cir. 1994). Success is measured by comparing the results obtained with the results initially sought. Hensley v. Eckerhart, 461 U.S. 424, 439-40 (1983); Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994). As the district court recognized, plaintiffs results were significantly below those desired when they commenced the action.46 1. Plaintiffs Completely Lost Their Central Claim for Liability

Plaintiffs failure to obtain a ruling that Roommate was liable for usergenerated content in Additional Comments pervades all aspects of their case. Plaintiffs contended through much of the litigation that the FHA trumps the CDA. They were wrong, and the en banc decision is now regularly cited to grant protection under section 230. See, e.g., Goddard v. Google, 640 F.Supp.2d 1193 (N.D. Cal. 2008); Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 968 (N.D. Ill. 2009). This loss drastically limited potential damages and any injunction.

ER-I:5. Further, plaintiffs themselves concede they obtained limited success. RB 71. 55

46

Plaintiffs argument that, after losing this issue on summary judgment and on appeal, they failed to pursue it more vigorously by seeking rehearing en banc is an admission, not a response. Further, a further challenge in this area would have been fruitless: the Seventh Circuit came to the same conclusion as this Court, in Craigslist, 519 F.3d at 671-72 (confirming section 230 immunity for publication of housing ads). Plaintiffs misguided focus on Additional Comments dramatically increased the costs of this litigation for both sides, and justifies a large reduction in any fees award. 2. Plaintiffs Failed To Obtain the Money They Sought

Plaintiffs claim that their monetary relief $75,000 for each plaintiff is evidence of a complete victory, despite initially seeking millions of dollars. (RB 67.) Plaintiffs cannot now disavow the demands made in their prelitigation letter and two complaints, in which plaintiffs demanded punitive damages, statutory damages under the Unruh Act of no less than four thousand dollars for each and every instance of discrimination, and a trebling of all damages.47 Cal. Civ. Code 52(a). Plaintiffs also cannot distance themselves from their demand for disgorgement. Disgorgement was sought in their complaints and, at the

47

ER-II:138-43, 153-58; ER-XII:2650-57. 56

August 2008 summary judgment hearing, when asked why plaintiffs continued to pursue an unfair competition claim, plaintiffs counsel declined to drop it and told the court, I believe there are remedies that may be unique to 17-200, such as disgorgement and things of that kind.48 3. Plaintiffs Failed To Get the Injunction They Sought

Rather than show success in comparison to the relief they sought, plaintiffs focus on the damage that the injunction may inflict on Roommates business. (RB 67.) The measure of success is not the financial harm suffered by the defendant in litigation, however. Hensley, 461 U.S. at 439-40. This lawsuit had the express purpose of obtaining injunctive relief regarding Additional Comments, training for defendants staff, the posting of fair housing links on the web site, and elimination of the formatted questions. Plaintiffs achieved only one of these four demands. As the district court correctly concluded, the injunctive relief . . . is far narrower than Plaintiffs initially sought.49 B. Plaintiffs Pre-Litigation Letter Was Properly Considered

Rule 408 does not make inadmissible plaintiffs November 21, 2003 letter, which was sent more than a month before initiation of the lawsuit.

48 49

ER-IX:2089 (emphasis added). ER-I:5 (emphasis added). 57

The letter was not sent to compromise the claim or as part of compromise negotiations. Fed. R. Evid. 408. The letter was a pre-lawsuit, unilateral demand. See Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 1999 WL 562097, at *1 (S.D.N.Y. July 30, 1999) (pre-litigation offer not precluded by Rule 408 because the offer was not an offer to settle an actual dispute as to an existing claim). The cases cited by plaintiffs are inapposite. In McCown v. City of Fontana, 565 F.3d 1097, 1104 n.4 (9th Cir. 2009), the proposed settlement agreement resulted from settlement discussions, not a pre-litigation demand. In Mundy v. Household Finance Corp., 885 F.2d 542, 546-47 (9th Cir. 1988), the lawsuit was not yet filed, but a terminated employee had expressed his intent to sue and the defendant employer sent a letter to settle the existing legal dispute. C. The Token Reduction Was an Abuse of Discretion

A reduction of 10 percent in light of Plaintiffs failures in this litigation ignores the law, and is not justified by plaintiffs contention that they deleted discrete time for their unsuccessful claims. A reduction for limited success is designed to calibrate the entire fee award to the total result in the litigation. Hensley, 461 U.S. at 439-40.

58

Plaintiffs cases do not help them. Schwarz v. Secretary of Health & Human Services, 73 F.3d 895, 904-05 (9th Cir. 1995), deals with unrelated claims, which require different analysis. Here, plaintiffs lost most of their case, both as to their housing claims and as to the related claims that were dismissed. Hensely also supports Roommates position. The Supreme Court stated that a district courts discretion is limited in light of the considerations we have identified. 461 U.S. at 436-37. The most important aspect of these considerations is that the district court should focus on the significance of the overall relief obtained by the plaintiff. Id. at 435. The claimed voluntary reduction of time by plaintiffs also falls short of the necessary adjustment. Plaintiffs claimed 10-percent reduction, even combined with the Courts nominal adjustment of 10 percent, is nothing close to the 50-percent reduction required in these circumstances. See McGinnis v. Kentucky Fried Chicken, 51 F.3d 805 (9th Cir. 1995) (award of $148,000 to win $34,000 was unreasonable); Harris, 24 F.3d at 18 (affirming 50-percent fee reduction for limited success); Greater L.A. Council on Deafness v. Cmty. Television, 813 F.2d 217, 222 (9th Cir. 1987) (imposing 60-percent reduction for partial success).

59

II.

THE HOURLY RATES APPROVED BY THE COURT WERE REASONABLE The district court, citing Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir.

2001), used the prevailing market rates in the relevant community when it set the hourly rates for the fee award.50 Roommate submitted evidence regarding recent FHA fee awards, attorneys billing rates for FHA cases, and sworn statements about the reasonableness of rates for FHA cases.51 Plaintiffs fail to explain why the hourly rates, fee awards, and declarations about reasonable rates of their own attorneys in other housing cases should not provide excellent guidance for an award in this case. This Court has held that evidence of counsels customary hourly rate may be considered by the district court. White v. City of Richmond, 713 F.2d 458, 461 (9th Cir. 1983), abrogated on other grounds by Pennsylvania v. Del. Valley Citizens Council, 483 U.S. 711 (1987); accord Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir. 1987) (citing White); Moore v. James H. Matthews & Co., 682 F.2d 830, 840 (9th Cir. 1982) (district court may consider

50 51

ER-I:4.

ER-XII:2634-38, 2644-2849, 2727, 2732-44, 2755, 2826; ERXIII:2932-57. 60

counsels normal billing rate because it usually reflect[s], in at least a general way, counsels reputation and status). In light of the ample evidence relating to the reasonableness of hourly rates for plaintiffs counsel, Christopher and Elizabeth Brancart, the district court did not abuse its discretion in awarding $400 per hour.52 Similarly, the court correctly awarded $350 per hour for the work of Liza Cristol-Deman,53 and $300 per hour for Michael Evans54 and Gary Rhoades.55

See ER-X:2376, 12; Plaintiffs Supplemental Excerpts of Record (SER) 20, 8; ER-XII:2721-31, 2732-44, 2737, 2742, 8, 2749, 10; ER-XIII:2942, 2945, 2955; see also ER-XII:2755, 3, 4 (Brancart declaration stating that $350 per for attorney with over 18 years of legal experience in fair housing litigation is reasonable); Fair Housing Council v. Penasquitos Casablanca Owners Assoc., 523 F.Supp.2d 1164, 1172-73 (S.D. Cal. 2007) (awarding the Brancarts $350 per hour); ER-XII:2776 n.7 (accepting $350 per hour as a reasonable rate for California, Bay-area based attorneys).
53 54

52

ER-X:2390-93, 10; ER-XIII:2945, 39; ER-X:2392; ER-XII:2775.

Plaintiffs fail to state Mr. Evans routine billing rate. The only evidence about his skill and reputation is the $225 awarded in Ackerman v. Carlson Indus., 2004 WL 3708670 at *2 (C.D. Cal. 2004). ER-XI:2425-26, 10-11. Plaintiffs omit Mr. Rhoades billing rate for routine matters. The only recent fee award noted in his declaration is $250 per hour in Ackerman. Mr. Rhoades lacks the professional standing of the Brancarts, as plaintiffs acknowledge by seeking a lower rate for his services. 61
55

A.

The Court Properly Rejected Plaintiffs Evidence of Hourly Rates

Rather than rely on evidence of rates charged by attorneys with substantial experience in housing litigation, plaintiffs submitted a collection of non-FHA case materials, premised on the idea that this is an exceedingly complex case.56 The district court concluded, however, that this action has presented issues of first impression, [but] those issues were relatively discreet and similar in complexity to those involved in many housing discrimination cases. 57 This conclusion was not an abuse of discretion. The operation of the website is self-evident, and even in 2004 it was apparent that the parties seem to agree on the basic factual issues and the disputed issues are ones of law.58 There were just three parties to the action, with both plaintiffs similarly situated and represented by the same counsel. In opposing Roommates motion for fees in 2004, plaintiffs asserted that this case was not complex and nothing about this case warranted the use of more than two attorneys.59

56 57 58 59

ER-X: 2195-96. ER-I:5. ER-XII:2662. ER-XII:2842. 62

Plaintiffs evidence of appropriate rates had other problems. They submitted a summary chart purporting to show the appropriate fee by year of law school graduation. (SER 25-27.) There is no authority for basing hourly rates on graduation year, which reveals nothing about legal skills, expertise, reputation, or market rates. Further, the chart relies on a compilation of orders and declarations selected for the purpose of artificially inflating the hourly rates including references to class actions, patent litigation, FOIA requests, trademark lawsuits and other kinds of cases, but not a single case involving housing or similar civil rights litigation. It also focuses on large firms with the highest billing rates.60 The prevailing rate is not the highest rate, but that which is customary. Blum v. Stenson, 465 U.S. 886, 894-96 & n.9 (1984); Nadarajah v. Holder, 569 F.3d 906, 930-31 (9th Cir. 2009) (same); Lopez v. San Francisco Unified School Distr., 385 F.Supp.2d 981, 988 (N.D. Cal. 2005) (courts must consider customary charges for similar services). Plaintiffs reliance on the declarations of Barrett Litt and Michelle Uzeta are similarly problematic. Their opinions are premised on misunderstandings about this case. They characterize the en banc decision as a tremendous

60

See SER 68-174. 63

result and a significant victory for plaintiffs,61 when, in reality, it was a mixed result. The declarants also seem unaware of the original claims sought by plaintiffs and the fact that they failed to recover on most of their claims and requests for relief.62

61 62

ER-XI:2449, 2463.

Further, Mr. Litts conclusion is based on sources he refuses to identify, referring to an anonymous defense fee expert and Firm X. He also appears to have cherry picked his data, relying on purported billing rates from the large law firms that are the most expensive in Los Angeles. ER-XI:2440, 2445, 2447, 8, 21, 24.
62

ER-XI: 2445, 21. 64

CONCLUSION The Court should reverse the district courts order granting attorneys fees and costs to plaintiffs, and remand solely for a recalculation consistent with plaintiffs partial success.

DATED: May 14, 2010

TIMOTHY L. ALGER

By s/ Timothy L. Alger Timothy L. Alger QUINN EMANUEL URQUHART & SULLIVAN, LLP Attorneys for Defendant-Appellant Roommate.com, LLC

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(C) & CIRCUIT RULE 32-1 Pursuant to Fed. R. App. P. 28.1(e), 32(a)(5), 32(a)(7)(B), and 32(a)(7)(C), the attached third brief on cross-appeal is proportionately spaced, has a typeface of 14 points, and contains 13,809 words.

s/ Christopher E. Price Attorney for Defendant-Appellant

May 14, 2010 Date

66

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on May 14, 2010. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ Christopher E. Price Attorney for Defendant-Appellant May 14, 2010 Date

67

CERTIFICATE FOR BRIEF IN PAPER FORMAT

U.S. Court of Appeals Docket Numbers: 09-55272, 09-55875, 09-55969 I certify that this brief is identical to the version submitted electronically on May 14, 2010, pursuant to Rule 6(c) of the Administrative Order Regarding Electronic Filing in All Ninth Circuit Cases.

s/ Christopher E. Price Attorney for Defendant-Appellant

May 14, 2010 Date

68