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Roommates.com has an indemnity clause in its Terms of Service. It may recover costs and consequential damages from its posters. I would be interested in hearing lawyer comments about that ubiquitous clause. No one is mentioning this lawyer horror, for some reason.

Worth noting that all computer monitors in fact display 3 colors, generally but not always Red Green Blue, and mix them to simulate the *un*simulated colors. The simulated colors presumably come from a pixel flickering between several colors and counting on your eyes and brain to mix them. Clearly that last requirement is the problem for the plaintiffs in that case.

RE: Pittsburgh couple—Overreaching I suspect. Okay, I don’t want anyone driving down my private road either, but since the county website has substantially similar photos what greater damages is Google responsible for now that its photos are available via web? Now they want a cash settlement? Come on!

RE: Anti-tobacco ordinances—this is stupid. I don’t understand how one can legally inhale cigarette smoke directly but if one dares to do so “second hand” somehow it’s an offense against the public and outlawed? Make the play age eighteen and over and volunteer only, then call it a day. Enough of the goody-two-shoes nanny-state folks.

“males or other protected groups”

Since when are males a protected group?

“simulated colors”

Really?

When I was little I was required to go to a place where they taught me stuff (I can explain the concept if anybody is interested).

One of the things I was taught was that there are but three “primary” colors, from which all others are formed by mixing.

Never heard of simulating a color. Do you use a pig whistle, or what?

I wonder if th failure to disclose this condition would be considered illegal in other jurisdictions? The caveat emptor principle ought to have been applied in New York more strictly. This house’s paranormal condition was reported in the press including Reader’s digest for God’s sake. Sure the Vendor is estopped from denying the haunting and I submit the purchaser had constructive notice. It was not a latent defect, it was not a breach of title. Who your gonna call? Ghostbusters They are out there!

The anti-discrimination statutes used to bring the lawsuit against Roommates.com are being applied in an unconstitutional manner in Fair Housing Council v. Roommates.com.

Even if there were a compelling interest in eradicating sex discrimination that generally overrode free speech rights, it would not justify ruling against Roommates.com, since the way the statutes are being applied in the Roommates.com case actually undermines, rather than advances, society’s interest in protecting victims of discrimination from harm.

It makes no sense for the statutes to prohibit gender-specific roommate ads, when the statutes themselves do not prohibit considering sex in selecting a roommate, but only in advertising that “discriminatory” preference.

There is no blanket “anti-discrimination” exemption to the First Amendment. See Boy Scouts v. Dale, 530 U.S. 640 (2000) (Boy Scouts’ First Amendment right to not associate with gays overrode New Jersey’s antidiscrimination law protecting against sexual orientation discrimination); UWM Post, Inc. v. Bd. of Regents, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991) (“Title VII is only a statute, it cannot supersede the requirements of the First Amendment”); cf. Lyle v. Warner Brothers, 38 Cal.4th 264, 132 P.3d 211 (Cal. 2006) (Chin, J., concurring); Meltebeke v. Bureau of Labor and Industries, 903 P.3d 351, 363 (Or. 1995).

Selection of roommates ought to be protected by the freedom of intimate association rooted in the First and Fourteenth Amendments. See Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (membership in small group like boy scout pack is protected by First Amendment freedom of intimate association); Louisiana Debating and Literary Association v. New Orleans, 42 F.3d 1483 (5th Cir. 1995) (freedom of intimate association overrode city’s antidiscrimination ordinance as to truly private clubs); Wilson v. Taylor, 733 F.2d 1539, 1542-44 (11th Cir. 1984) (dating is protected by freedom of intimate association). But even if that were not so, the laws do not yet purport to forbid people from picking roommates based on their sex.

Since the ultimate selection of roommates based on sex is legal under federal and state law, advertising of that preference cannot be prohibited. It is well-settled law that speech — even commercial speech — about a lawful transaction cannot be banned.

For example, the Eleventh Circuit recently held that since a state exempted certain medical uses of vibrators from its ban on vibrators, it could not ban advertising of vibrators, since the underlying activity being advertised was not always illegal.

The Supreme Court has also made clear that speech about lawful transactions cannot be banned. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (since tobacco use has not been prohibited for adults, advertising about tobacco could not be banned merely because some children might see it); Greater New Orleans Broadcasting Assn., Inc. v. U.S., 527 U.S. 173 (1999) (since liquor wasn’t banned, advertising about it couldn’t be banned, either).

Thus, even if there were a sweeping “anti-discrimination” exception to the First Amendment, it would not justify application of the statute to Roommates.com in this case, and would not justify rejecting its First Amendment defense (the appeals court decision in this case specifically reserved the First Amendment issue in a footnote, and left it open to be resolved on remand).

The “anti-discrimination” laws which the Ninth Circuit holds Roommates.com not to be immunized against, actually increase the harm of sex discrimination, by forcing would-be roommates to personally experience sex discrimination, rather than being able to avoid it.

When I searched for a roommate in Summer 1993 in Sacramento, after newly arriving in the city, I wasted many quarters (I was calling prospective roommates from a room in a hotel that charged by the call) calling rentals advertised in the Sacramento Bee, only to be told by the female voice answering the phone that they didn’t want me to be their roommate because of my sex (male). It made me feel like an unwanted intruder. (I was ill with an ear infection at the time to boot, and didn’t have much money).

I would never have called those numbers in the first place if they could have advertised that they wanted a female roommate. But legal impediments to advertising a discriminatory preference made that impossible, and subjected me to the personal stigma of discrimination.

So I called, not knowing that the advertisor was a woman, or that they did not want a male housemate.

The antidiscrimination laws themselves subjected me to personal, in-your-face discrimination I would never have experienced absent those laws.

I don’t object to ads that say “we want a female roommate.” I wouldn’t want to force female tenants to rent to me. After all, there are plenty of OTHER landlords or share rentals who would be happy to rent to a man.

But I do object to being told that face-to-face, and losing perfectly good money to be told that.

And that’s how the discrimination laws at issue in the Roommmates.com case work with respect to gender-based roommate ads.

They defeat, rather than advance, the goal of protecting people from the harms of discrimination.

— Hans Bader, Counsel, Competitive Enterprise Institute