Roommate.com LLC's Third Brief on Cross-Appeal

8/3/2019 Roommate.com LLC's Third Brief on Cross-Appeal

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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 Courtfor 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 FloorLos Angeles, California 90017-2543Telephone: (213) 443-3000Facsimile: (213) 443-3100

TIMOTHY L. ALGER(Bar No. 160303)

P.O. Box 60537Palo Alto, California 94306

Telephone: (714) 470-5042

Attorneys for Defendant-AppellantRoommate.com, LLC


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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .......................................................................... 1

ARGUMENT ........................................................................................................ 5

I. PLAINTIFFS LACK EVIDENCE OF CONCRETE INJURYNECESSARY FOR STANDING .............................................................. 5

A.! Plaintiffs Purported Investigation Does Not ConferStanding ............................................................................................ 6

B. Plaintiffs Outreach Efforts Do Not Confer Standing ..................... 8

C. Future Monitoring Costs Fail to Confer Standing ......................... 10

II.! THE FHA DOES NOT APPLY TO POSTINGS FORROOMMATES IN SHARED HOMES ................................................... 11

A.! Plaintiffs Mischaracterize the Nature of this Case ......................... 11B. As a Matter of Statutory Interpretation, the FHA Does Not

Reach Arrangements To Share Single Dwellings .......................... 13

C. Plaintiffs Precedent Confirms that the FHA Applies Only toCommercial Housing Arrangements .............................................. 16

D. Plaintiffs Fail to Address Roommates BFOQ Argument ......... 21

III.! THE DECISION BELOW CREATES A STATUTORYCONFLICT WITH FUNDAMENTAL CONSTITUTIONALRIGHTS .................................................................................................... 22

A.! Section 3604(c) Cannot Be Used To Punish a Website ThatMatches Roommates Based on Lawful Preferences ...................... 23

B. Roommate Unquestionably Has Standing To Raise ItsConstitutional Arguments .............................................................. 24

C. Roommate Selection Implicates the Right of IntimateAssociation ..................................................................................... 27


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1.! The Interests of Roommate and its Users Are NotDiminished by the Nature of the Postings ........................... 28

2. Roommate Living Is Intimate Association .......................... 31

D.! Even if Considered Commercial, Roommate SelectionFalls Within Constitutional Protections ......................................... 36

1.! Roommates.com Does Not Involve Illegal Activity ........... 382. The Government Does Not Have a Substantial Interest

in Controlling Speech About Roommate Selection ............. 41

3. Regulation of Roommate Postings Does Not DirectlyAdvance, and Is Not Directly Linked to any

Government Interest ............................................................ 44

4. The Restriction Sought Is More Extensive thanNecessary ............................................................................. 45

IV.! THE INJUNCTION IS FATALLY OVERBROAD ................................ 48A.! The Injunction Makes Searching for Compatible

Roommates More Difficult ............................................................ 48

B. The Injunction Impairs the Speech Rights of People Beyond

the Reach of the FHA ..................................................................... 51

C. Any Injunction Must Be Narrowly Tailored .................................. 52

CONCLUSION ................................................................................................... 53

RESPONSE AND REPLY BRIEFAS TO ATTORNEYS FEES AND COSTS ........................................... 54

SUMMARY OF THE ARGUMENT ................................................................. 54

I. THE DISTRICT COURT FAILED TO REDUCE PLAINTIFFSAWARD DUE TO LIMITED SUCCESS ............................................... 54

A.! Plaintiffs Obtained Only a Limited Victory ................................... 541.! Plaintiffs Completely Lost Their Central Claim for

Liability ................................................................................ 55


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2. Plaintiffs Failed To Obtain the Money They Sought .......... 56

3. Plaintiffs Failed To Get the Injunction They Sought .......... 57

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

II.! THE HOURLY RATES APPROVED BY THE COURT WEREREASONABLE ........................................................................................ 60

A.! The Court Properly Rejected Plaintiffs Evidence of HourlyRates ............................................................................................... 62

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


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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


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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


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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


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Housing Opportunities Made Equal v. Cincinnati Enquirer,943 F.2d 644 (6th Cir. 1991) ......................................................................... 41

HUD v. Roberts2001 WL 56376 (H.U.D.A.L.J. Jan. 19, 2001) ............................................. 20

HUD v. Fung2008 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


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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


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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


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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


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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


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Other Authorities

Bureau of the Census, 2010 Census Questionnaire Reference Book....................................................................................................................... 15

James D. Walsh, Reaching Mrs. Murphy: A Call for Repeal of theMrs. 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 ConstitutionalRights of Roommate Seekers,

4 MODERN AM.(Special Issue) (2008) .............................................. 32, 35, 42

John T. Messerly, Roommate Wanted: The Right to Choicein 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 Statementsand 3604(c),29 FORDHAM URB.L.J. 187 (October 2001) .................................................. 45

Kevin M. Wilemon, The Fair Housing Act, the CommunicationsDecency Act, and the Right of Roommate Seekers toDiscriminate 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


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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


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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


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did notrest 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


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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


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information about their gender, sexual orientation, and familial status in a

readily searchable format. By barring the efficient collection of information

with prompts and optionalanswers, 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 INJURYNECESSARY 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).


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A. Plaintiffs Purported Investigation Does Not Confer StandingIn 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. InFair

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 alsoN.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 76-

77.

1Roommate.com, LLC, operates the website roommates.com. In this

brief, Roommate refers to the LLC, and roommates.com refers to the

website.2

Citations to Plaintiffs-Appellees Second Brief on Cross-Appeal (the

Red Brief) are designated using [RB] [Page Range].


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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

3Appellants Excerpts of Record (ER) at ER-V:818, 906. Citations

employ the format ER-[Volume]:[Page Range].4

ER-V:868-88, 881, 899.5

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.


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personnel, usually in response to particular complaints, and take people away

from other important work.7

B. Plaintiffs Outreach Efforts Do Not Confer StandingPlaintiffs 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

7In 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. InRagin 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.3d629, 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 633.8 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, theinjury suffered by Sierra Club members was impairment of their use of the

forests, streams, mountains, and other resources. 412U.S. at 685. Also,

standing in SCRAPwas 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.


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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 alltheir expenditures

9ER-V:798-801, 827-28, 833, 851-52, 859-60, 906-24.

10 ER-VI:1305-06;see also ER-V:827-28, 848-50, 861-62.

11 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).


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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 StandingAn 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 ER-V:822-29; ER-VI:1303-06.13

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 addressinghousing 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.


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because as with their past efforts they are unfocused and not fairly traceable

to Roommate.15

II. THE FHA DOES NOT APPLY TO POSTINGS FORROOMMATES IN SHARED HOMES

A. Plaintiffs Mischaracterize the Nature of this CasePlaintiffs 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

15 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.2d1138, 1148 (C.D. Cal. 2007), andFlorida 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, inBrowning, 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.


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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

16 See RB 8-9 (asserting that users must fill out a form and provide

responses regarding their preferences).17 ER-I:74 (incorrectly stating that [e]ach subscriber must also describe

his preferences in roommates with respect to the same three criteria).18 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 courtcompare the postings on roommates.com with a rental sign for an empty

dwelling and there is no factual basis to do so.19 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.


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perform custom searches that disclose allhomes 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 NotReach 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.


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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 thesharing 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

21 2 STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS, 1194

(Bernard Schwartz ed., 1970) (quoting Sen. Hubert Humphrey).

22

Roommates and housemates are considered by the U.S. CensusBureau to be a different type of living arrangement from a boarder or

roomer. See QT-P11, Household Relationship and Group Quarters

Population: 2000, available athttp://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 arms-


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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 athttp://2010.census.gov/partners/

pdf/langfiles/qrb_English.pdf.23 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.).


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the FHA applies to all rooms in single residences. Rather, the exemption

contemplates independentliving 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 toCommercial 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


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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


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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

24ER-IV:529, 536 (users of the website may perform a custom search

based on their own specific criteria).


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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 notconsider 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, inHUD 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

25 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.


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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.

InHUD 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.

InDFEH 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.


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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 ArgumentPlaintiffs 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 inInternational 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.


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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

(citingBates 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 CONFLICTWITH 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).


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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 ThatMatches 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


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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 ItsConstitutional 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)).


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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 inEisenstadt,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

26 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-matchingwebsites have cropped up without controversy that serve particular groups. See,

e.g., http://www.prideroommates.com/; http://www.easyroommate.com/Gay-

Roommate; 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/.


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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 permittedto 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 onFleck & Associates v. Phoenix, 471 F.3d 1100,

1106 (9th Cir. 2006), is misplaced. InFleck, 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,


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independent of its users. SeeC&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 IntimateAssociation

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).

27Plaintiffs 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 interestswere 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).


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1. The Interests of Roommate and its Users Are NotDiminished 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 counterto 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

28 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).


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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


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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.


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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 AssociationPlaintiffs 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

29 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


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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).

30 Christine A. Kolosov, Fair Housing Laws and the ConstitutionalRights of Roommate Seekers, 4 MODERN AM.(Special Issue) 3 (2008),

available athttp://www.wcl.american.edu/modernamerican/documents/

Kolosov.pdf?rd=1.31

See id. at 5 ([L]iberty and autonomy mean little if individuals are

powerless to decide with whom to create intimate relationships.).


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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

notheld 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 inRotary Club andRoberts?

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 inIDK, Inc. v. Clark County, 836 F.2d 1185, 1193 (9th Cir. 1988),

andNational Assn for Advancement of Psychoanalysis v. Cal. Bd. of

Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000), because they involved arms-

length commercial transactions between escort-client and psychoanalyst-client.

32 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 Courthas 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).


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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 onsharinga 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

33 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.


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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; accordBrooke 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

34 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.


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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 FallsWithin 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

35 The legaldetermination 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 liablefor 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.).


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running afoul of even the intermediate scrutiny ofCentral 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 underCentral Hudson.36

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 SupremeCourts 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


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1. Roommates.com Does Not Involve Illegal ActivityAs 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 inLawrence 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). InRagin 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 deafman who called a hotline looking for housing listings. 429 F.3dat 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.


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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

37 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))).


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Section 3604(c) if it applies to roommates at all does not create a

category of prohibited speech beyond

Documents

Roommate.com LLC's Third Brief on Cross-Appeal