Freedom of Association

It is not at all uncommon that voters support restrictions on employers that they would never accept on themselves.  For example, the government has made it pretty clear that normal rights to freedom of association don't really exist in the workplace -- numerous restrictions exist on who I can and cannot hire (or at least not-hire) in my business.

So it will be interesting when the government steps in and tells folks that a very basic freedom of association -- say, the ability to choose who one wants to share an apartment with -- does not really exist.

  • morganovich

    this is a weird one (and typical of the 9th circuit).

    they seem to be arguing that the matching software is the issue and are taking the line that a company making such matches bases on race/sex/sexual orientation violates the "fair housing" statutes.

    this seems to me to be the wrong way to look at it though.

    what the system is doing is not imposing any sort of will of the company (roomates.com) but rather allowing users to more effectively seek others with whom they have a better chance of successfully cohabitation. to deny users the ability to screen for people they would likely be happy living with pretty much renders the whole system useless.

    there is no law governing the choosing of roommates. i can pick my roommate bases exclusively on what kind of shoes they wear if i see fit.

    so establishing a law making the automation of my pursuing such a right illegal seems ludicrous. in effect, they are saying that something i am free to do in a face to face meeting is illegal because i seek to to it in an automated fashion online.

    makes little sense.

    (though i could see how under existing CA law, a landlord looking to rent an apartment on a new lease could be prohibited from expressing such preferences. (this is not to say that this is or isn't a good idea, merely within existing statute))

    but to prevent private individuals from exercising their right to associate or not is well outside the law. and defining the company as the principal actor here seems inaccurate as it is not expressing any preferences.

  • Dr. T

    This is old news. All we have now is a new case in a different federal court district.

    Years ago ads such as "Single white female looks for same to share apartment." were judged to be violations of the Fair Housing Act (which was meant to apply to landlords but was so badly written that the courts decided it applied to individuals looking for roommates).

  • HTRN

    All I can say about this is.. There's a reason it's called the "9th Circus"

  • markm

    It is by now quite well settled legally that you do have freedom of association in roommates. You can inquire about an applicants sex, religion, age, etc. and only accept young church-going Baptist men. The bizarre thing is that CA keeps trying to ban expressing such preferences in advertising - so that rather than seeing that you won't fit in the advertisements, you have to call all these places and be discriminated against in person. Note the difference between roommate and house sharing arrangements and commercial rentals; in the latter case, discrimination is legally and properly banned, so there's no good reason to express discriminatory preferences in advertising; in the former case, they tried to ban expressing legal preferences!

    In the Craigslist.com case, Craigslist was sued because it allows posters to put such requirements in the text of the listings. You still have to read through all the advertisements to find the few that seem to be a good fit. The courts ruled that this was legal, overturning part of the CA law in respect to roommate and house sharing arrangements only. Roommates.com apparently has a better system, where various preferences are checked off in a database, so you won't even see the listings that obviously don't fit. The 9th Circuit has decided that Roommates.com can be banned from actively processing these criteria.

    They may be correct on the law, but IMHO, it's an asinine law and CA's legislators ought to be ashamed of themselves. (Again.) According to them, it's better to waste time and confront the "discrimination" against you directly than to have unsuitable listings screened out automatically!!!

  • CT_Yankee

    I'm just waiting for these rules to creep into internet dating, because it often leads to cohabitation. Will I still be able to specify the sex, age, or size of potential mates?

    Markm (above) is right. The primary effect of this law is to make people waste time calling or visiting other people who would not even consider letting them move in.

    I can search a new or used car site by price and model, saving me the time of reading adds for cars with features that I don't want. Would you rather spend an afternoon at the dealer finding out that a car being offered was too big and costs far more than you can afford?

    The government wants you to not express your preferences in advance, and better yet, not at all. Make add readers talk to advertisers that they could never live with. Let other people just wonder why the advertiser turns them down. Watch total strangers try to tell you who you should share a bathroom and kitchen with.

  • eddie

    From the comments on the linked-to article, it appears that the 9th Circuit did not rule on the freedom-of-association aspects of the case. They instead made a pretty technical ruling about whether an online advertising provider can be held to the same standards as a print advertiser, or whether instead they are protected from liability by certain provisions of the Communications Decency Act.

    The 9th Circuit (with Judge Kozinski writing, no less!) said, essentially, that just being online doesn't protect them. The court didn't say anything about whether roommates.com actually violated the law - they sent that back down for a trial court to determine. They just said that if they broke the law, they'll be held to the same standards as a newspaper.

    There's an interesting wrinkle concerning the degree to which roommates.com is liable for discrimination due to their use of drop-down boxes vs. the users themselves being liable due to their use of free-entry text fields. The majority view hinges on that element, and uses it to distinguish this case from an earlier case in the 7th Circuit involving craigslist.

    It appears to me that the 9th Circuit got it right this time. Go figure.

    Seriously, go read the comments at Drum. Good stuff there.

  • GU

    Eddie is right, the fact that Kozinsky wrote the majority opinion makes it unlikely that this is just another instance of a liberal court gone wild. The Fair Housing Act is the real culprit; interpreted correctly, it leads to ridiculous results like these.