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Media and Communications

Discriminatory Internet Advertising

Discriminatory Internet Advertising


THE NATIONAL FAIR HOUSING ALLIANCE. THANK
YOU FOR JOINING US. OUR WEBINAR WILL BEGIN SHORTLY, AT 2:00 P.M. EASTERN TIME. ONCE THE
WEBINAR BEGINS, PLEASE SEND US YOUR QUESTIONS USING THE QUESTIONS TOOLBAR SECTION ON YOUR
SCREEN. TOMORROW, WE WILL SEND YOU A LINK TO DOWNLOAD THE PRESENTATION. WE WILL INCLUDE
SOME SUPPORTING MATERIALS THAT WILL BE DISCUSSED TODAY, AND WE WILL ASK YOU TO COMPLETE A VERY
BRIEF EVALUATION. THANK YOU.>>HELLO, THIS IS THE DIRECTOR OF TRAINING
AT THE NATIONAL FAIR HOUSING ALLIANCE. THANK YOU VERY MUCH FOR JOINING US FOR THE FIRST
OF THREE WEBINARS THAT WE WILL BE OFFERING AND SEPTEMBER AND OCTOBER. TODAY’S TOPIC IS
DISCRIMINATORY INTERNET ADVERTISING. WE WILL BEGIN THE WEBINAR IN ABOUT ONE MINUTE. THANK
YOU.>>ARE PRESENTERS TODAY ARE MORGAN WILLIAMS,
THE DIRECTOR OF ENFORCEMENT AND INVESTIGATIONS AT THE NATIONAL FAIR HOUSING ALLIANCE. AND
JUSTIN MONTEIRO, SENIOR PROGRAM RECTOR FOR ENFORCEMENT AT THE NATIONAL FAIR HOUSING ALLIANCE.>>THANK YOU FOR BEARING WITH US. WE ARE SORTING
OUT — [INAUDIBLE] [NO AUDIO]>>HELLO, THIS IS MORGAN WILLIAMS FOR THE
NATIONAL FAIR HOUSING ALLIANCE. FORGIVE THE TECHNICAL PROBLEMS AT THE BEGINNING OF THE
PRESENTATION. I HOPE YOU HEAR ME NOW. THANK YOU FOR JOINING US. AS YOU MAY HAVE NOTED
IN THE SLIDE THAT WE JUST WALKED THROUGH, WE ARE HERE WITH THE NATIONAL FAIR HOUSING
ALLIANCE, A NATIONAL CIVIL RIGHTS ORGANIZATION DEDICATED TO ELIMINATING HOUSING DISSEMINATION
AND ENSURING EQUAL HOUSING OPPORTUNITY FOR ALL PEOPLE IN THE UNITED STATES. WE WELCOME
YOU ALL FOR JOINING US TODAY. THIS TRAINING AIMS TO STRENGTHEN ENFORCEMENT OF FAIR HOUSING
LAWS BY PROVIDING FAIR HOUSING ADVOCATES AN OVERVIEW OF DISCRIMINATORY INTERNET ADVERTISING
UNDER THE FAIR HOUSING ACT. THIS PRESENTATION ASSUMES THAT PARTICIPANTS ARE ALREADY FAMILIAR
WITH SOME FAIR HOUSING BASICS, INCLUDING THE PROTECTED CLASSES UNDER THE FEDERAL FAIR HOUSING
ACT, SERIES OF LIABILITY — THEORIES OF LIABILITY, AND THE ADMINISTRATIVE AND LEGAL PROCESS.
THE POWERPOINT ADMINISTRATION ON THE TOPIC OF BASIC RUNCIBLE’S A FAIR HOUSING LAWS WILL
BE ON THE WEBSITE FOR MEMBERS — ON BASIC PRINCIPLES OF FAIR HOUSING LAWS. TODAY WE
WILL FOCUS ON FOUR TOPICS. WE WILL PROVIDE AN OVERVIEW OF SECTION 3604(C), WHICH PROHIBITS
DISCRIMINATORY STATEMENTS, PUBLISHING DISCRIMINATORY STATEMENTS. WE WILL THEN LOOK AT THE GUIDANCE
THAT HAS BEEN ISSUED IN REGARDS TO 3604(C). THIRD, WE WILL LOOK AT THE COMMUNICATIONS
DECENCY ACT, WHICH PROVIDES SOME IMMUNITY FOR WEBSITE OPERATORS OF ONLINE CONTENT. AND
ITS RELATIONSHIP WITH THE FAIR HOUSING ACT LIABILITY. FINALLY, WE WILL CONCLUDE WITH
AN OVERVIEW OF INVESTIGATIONS IN ENFORCEMENT AS IT RETAINS TO 3604(C). INITIALLY WE WOULD
LIKE TO PRESENT AN OVERVIEW OF 3604(C). HERE WE HAVE LISTED SEVERAL OF THE PROVISIONS OF
3604(C), WHICH INDICATES THAT DISCRIMINATION IN THE SALE AND RENTAL OF HOUSING AND OTHER
PROHIBITED PRACTICES, SPECIFICALLY 3604(A ) APPLIES TO THE REFUSAL TO SELL OR RENT.
3604(B) , DISCRIMINATORY TERMS AND CONDITIONS. 3604(C) , THE FOCUS OF THE DISCUSSION, COVERS
PUBLISHING DISCRIMINATORY STATEMENTS. A DISCRIMINATORY STATEMENT IS THE BASIS FOR A CLAIM OR VIOLATION
OF THE FAIR HOUSING ACT, SEPARATE AND APART FROM THE DISCRIMINATORY ACT WHICH MAY VIOLATE
SOME OTHER PROVISION OF THE FAIR HOUSING ACT. TO FOCUS ON 3604(C) AND THE TEXT OF THE LAW
ITSELF, WHICH AS FAIR HOUSING ADVOCATES OR INVESTIGATORS OR CERTAINLY ATTORNEYS, IT IS
ALWAYS HELPFUL TO GO BACK TO DIRECTLY. IT SHALL BE UNLAWFUL TO MAKE, PRINT, OR PUBLISH,
OR CAUSE TO BE MADE, PRINTED, OR PUBLISHED ANY NOTICE, STATEMENT, OR ADVERTISEMENT WITH
RESPECT TO THE SALE OR RENTAL OF A DWELLING THAT INDICATES ANY PREFERENCE, LIMITATION,
OR DISCRIMINATION BASED ON RACE, COLOR, RELIGION, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN,
OR AN INTENTION TO MAKE SUCH A PREFERENCE, LIMITATION, OR DISCRIMINATION. WHAT DOES THAT
MEAN? ESSENTIALLY THERE ARE FOUR ELEMENTS THAT MAKE AN AD TO SCREW MANDATORY. ONE, THAT
THERE IS SOME ACTIVE MAKING, PRINTING, OR PUBLISHING THEM ARE CAUSING TO BE MADE, PRINTED,
OR PUBLISHED. TWO, THERE IS A NOTICE, STATEMENT, OR ADVERTISEMENT ITSELF. THREE, IT APPLIES
TO THE SALE OR RENTAL OF A DWELLING. AND FOUR, THAT IT INDICATES SOME PREFERENCE OR LIMITATION
BASED ON A PROTECTED CLASS. THIS IS ESSENTIALLY WHAT WE WILL BE DISCUSSING OVER THE COURSE
OF THE PRESENTATION AND WHAT EXACTLY THIS MEANS. 3604(C) APPLIES TO BOTH PERSONS AND
ENTITIES WHO PLACE REAL ESTATE ADVERTISEMENTS, AS WELL AS THE PUBLISHERS OF THOSE ADVERTISEMENTS.
SEPARATE LIABILITY FOR SUPPORT PARTIES. WHAT IS FLAGGED AS THE COMMUNICATIONS DECENCY ACT
WHICH PROVIDES IMMUNITY TO SOME INTERNET PROVIDERS. WE WILL DISCUSS THAT FURTHER. THIS DUAL LIABILITY
IS A CRITICAL COMPONENT TO SECTION 3604(C). IT IS HELPFUL TO THINK ABOUT, WHEN THINKING
ABOUT WHAT EXACTLY THE VIOLATION IS THAT YOU ARE LOOKING AT WHEN YOU SEE A DISCRIMINATORY
STATEMENT. BECAUSE THERE ARE MULTIPLE PARTIES ENGAGED IN HAVING THAT ADVERTISEMENT, CAUSING
THAT ADVERTISEMENT TO BE PRINTED OR PUBLISHED. AND LOOKING AT THIS DUAL LIABILITY IS CRITICAL.
SECTION 3604(C) APPLIES TO VARIOUS FORMS OF COMMUNICATION. COURTS RECOGNIZE THAT LESS
OVERT LANGUAGE CAN UNLAWFULLY INDICATE A DISCRIMINATORY PREFERENCE. FOR EXAMPLE, COUPLES ONLY. SPECIFICALLY
DOES NOT INDICATE THAT FAMILIES WITH CHILDREN ARE BARRED FROM STAYING IN BED RENTAL UNIT.
HOWEVER, IT DOES CLEARLY INDICATE A PREFERENCE FOR COUPLES, WHICH WOULD GENERALLY NOTE — DENOTE
A COUPLE WITHOUT CHILDREN. HOUSING ADVERTISEMENTS MADE BE DISCRIMINATORY IF IT PORTRAYS MODELS
OF ONLY ONE RACE OR NATIONAL ORIGIN OR THEY USE CERTAIN RACE MODELS TO ADVERTISE A PARTICULAR
DEVELOPMENT AND NOT OTHERS. OR TO A PARTICULAR COMMUNITY AND NOT OTHER COMMUNITIES. IN ADDITION,
3604(C) APPLIES TO A WIDE RANGE OF ADVERTISED MEDIA AND STATEMENTS. ELIGIBLE DAMAGES UNDER
3604(C) — WELL, SPECIFICALLY, COMPENSATORY DAMAGE CLAIMS ARE LIMITED TO THE HARM CAUSED
BY HEARING OR READING THE STATEMENT ITSELF. NOTABLY, VICTIMS OF 3604(C) VIOLATIONS CAN
RECOVER DAMAGES FROM INTANGIBLE INJURIES, SUCH AS EMOTIONAL DISTRESS. IN A CASE, RAGIN
VERSUS THE NEW YORK TIMES, 1981, WE WILL REFERENCE MULTIPLE TIMES. AFRICAN-AMERICAN PLAINTIFFS
IN HUMAN MODEL CASES MAY ESTABLISH A CASE FOR DAMAGES BY ORAL TESTIMONY THAT HE OR SHE
IS A NEWSPAPER READER OF A RACE DIFFERENT FROM THE MODELS USED AND WAS SUBSTANTIALLY
INSULTED AND DISTRESSED BY A CERTAIN AD. 3604(C) HAS CERTAIN LIMITATIONS AND IS ALSO VERY EXPANSIVE.
WE ARE GOING TO A SET OF LIMITATIONS AND THE WAYS TO WHICH IT IS EXTENSIVE AS A WAY TO
PROVIDE SOME OVERVIEW ON 3604(C). THE LIMITATIONS INCLUDE THAT IT APPLIES IN CONNECTION WITH
A HOUSING TRANSACTION. THERE ARE SOME FIRST AMENDMENT CONCERNS. AND THERE IS SOME SHARED
LIVING ISSUES THAT NEED TO BE ACCOUNTED FOR, ESPECIALLY IN THE NINTH CIRCUIT. TALK ABOUT
EACH OF THOSE IN DETAIL –3604(C) VIOLATIONS MUST BE IN CONNECTION WITH HOUSING. SO THE
VIOLATIONS ONLY APPLY TO DISCRIMINATORY STATEMENTS MADE IN CONNECTION TO THE SALE OR RENTAL OF
HOUSING. NOTE, A NEIGHBOR IS THEREFORE NOT TYPICALLY IN A POSITION TO VIOLATE 3604(C)
BY MAKING DISCRIMINATORY STATEMENTS. HOWEVER, THEY MAY BE IN VIOLATION OF SOME OTHER PROVISION
OF THE FAIR HOUSING ACT, SUCH AS 3617 WHICH BARS INTIMIDATION AND OTHER HARASSMENT-RELATED
ACTIVITIES ASSOCIATED WITH THE FAIR HOUSING ACT. SECTION 3604(C) HAS RAISED FIRST AMENDMENT
CONCERNS. THE FIRST AMENDMENT SAYS CONGRESS SHALL MAKE NO LAW ABRIDGING THE FREEDOM OF
SPEECH. HOWEVER, 3604(C) PROHIBITS EVERY DISCRIMINATORY NOTICE, STATEMENT, OR ADVERTISEMENT WITH RESPECT
TO ALL HOUSING SALES AND DWELLINGS. THEREFORE, 3604(C) SPECIFICALLY RESTRICTS CERTAIN TYPES
OF COMMUNICATION. HOWEVER , CONTENT-BASED RESTRICTIONS ON SPEECH GET THE HIGHEST LEVEL
OF JUDICIAL SCRUTINY. AND THIS IS SUBSTANTIALLY REDUCED WHEN THE RESTRICTION APPLIES TO COMMERCIAL
SPEECH. HOUSING ADVERTISED OF THE SORT THAT WOULD BE CALLED INTO QUESTION IN REGARDS TO
3604(C) IS COMMERCIAL SPEECH. GENERALLY, THE GOVERNMENT CAN REGULATE COMMERCIAL SPEECH
SO LONG AS THE UNDERLYING CONDUCT IS SUBJECT TO REGULATION. SO THE QUESTION OF 3604(C)
CONSTITUTIONALITY IN REGARDS TO FIRST AMENDMENT SPEECH HINGES ON WHETHER THE CONDUCT IS LEGAL.
PUT ANOTHER WAY, THE TEST TO DETERMINE WHETHER THE FIRST AMENDMENT OBSTETRICIAN A® LA THE
OF 3604(C) STANDS — FIRST AMENDMENT CONSTITUTIONALITY OF 3604(C) STANDS, WHETHER THE DEFENDANT’S
STATEMENT WAS MADE WITH RESPECT TO AN UNLAWFUL ACTIVITY. THERE ARE EXCEPTIONS. OTHER CIVIL
RIGHTS LAWS OFTEN APPLY. THEREFORE, 3604(C) IS REGARDED AS CONSTITUTIONAL REGULATION OF
SPEECH, OF COMMERCIAL SPEECH, REGARDING UNLAWFUL ACTIVITY. AN ADDITIONAL LIMIT OF 3604(C) IS
LIABILITY IN THE REMAKE CONTEXT. ROOMMATES.COM IS A CASE THAT WE WILL TALK ABOUT LATER IN
THE PRESENTATION IN REGARDS TO THE COMMUNICATIONS DECENCY ACT. AND IN REGARDS TO A PRIOR NINTH
CIRCUIT DECISION. HOWEVER, IN EARLY 2012, THE NINTH CIRCUIT HANDED DOWN A DECISION IN
THE ROOMMATES.COM CASE WHICH FOUND THAT THE CONSTITUTIONAL RIGHT TO INTIMATE ASSOCIATION
APPLIES TO ROOMMATES. THE COURT THEN TURNED TO THE PRINCIPLE OF CONSTITUTIONAL AVOIDANCE
TO CONSTRUE THE TERM “DWELLING.” IN DOING SO, CONGRESS — THE COURT FOUND THAT CONGRESS
DID NOT INTEND TO APPLY THE FAIR HOUSING ACT TO SHARED LIVING SPACES. THIS IS A NINTH CIRCUIT
DECISION THAT IS BINDING IN COURTS WITHIN THE NINTH CIRCUIT, WHICH ARE THOSE STATES
IDENTIFIED ON THE WEST COAST THERE IN THE PARENTHESES ON THE SLIDE — ARIZONA, CALIFORNIA,
NEVADA, OREGON, IDAHO, WASHINGTON, AND MONTANA. IN ESSENCE, LIABILITY –3604(C) LIABILITY
UNDER THE ROOMMATES DECISION IN THE NINTH CIRCUIT DOES NOT EXTEND TO THE REMAKE CONTEXT.
THESE LIMITATIONS NOTED –IT IS ALSO IMPORTANT TO NOTE THAT 3604(C) HAS EXTENSIVE REACH.
IT APPLIES REGARDLESS OF INTENT. IT APPLIES TO BOTH BLATANT AND SUBTLE STATEMENTS. IN
DEFENDANTS THAT ARE OTHERWISE EXEMPT UNDER THE FAIR HOUSING ACT MUST STILL ABIDE BY 3604(C)
DICTATES. 3604(C) , A, APPLIES REGARDLESS OF THIS THEATER’S INTENT. THE STATUTE ONLY
REQUIRES THE STATEMENT CONVEY A PREFERENCE OR LIMITATION TO THE ORDINARY LISTENER OR
ORDINARY READER, NOT TO THE SPEAKER — NOT THAT THE SPEAKER INTENDED TO CONVEY SUCH A
PREFERENCE OR LIMITATION. 3604(C) HAS BEEN REGARDED AS A STRICT LIABILITY PROVISION.
3604(C) APPLIES TO BLATANT AND SUBTLE DISCRIMINATORY STATEMENTS , AND WE WILL TALK MORE ABOUT THIS
IN THE GUIDANCE SECTION OF THE PRESENTATION. BUT SUBTLE MESSAGES CAN BE JUST AS EFFECTIVE
AS LATENT STATEMENTS IN DISSUADING PEOPLE FROM ATTEMPTING TO PROCURE HOUSING — AS EFFECTIVE
AS BLATANT STATEMENTS PEERED WE HAVE A QO UOTE FROM THE NEW YORK TIMES WHICH UNDERSCORES
THIS. ORDINARY READERS MAY REASONABLY INFER A RACIAL MESSAGE FROM THE ADVERTISEMENTS THAT
ARE MORE SUBTLE THAN THE HYPOTHETICAL SWASTIKA OR BURNING CROSS, AND WE READ THE WORD PREFERENCE
TO DESCRIBE ANY AD THAT WOULD DISCOURAGE ANY ORDINARY READER. 3604(C) APPLIES TO OTHERWISE
EXEMPTED PROPERTIES. THE FAIR HOUSING ACT APPLIES VERY BROADLY IN THE HOUSING MARKET.
HOWEVER, THERE IS SOME LIMIT TO ITS APPLICATION. 3604(C) HAS GREATER REACH THAN OTHER SUBSTANTIVE
PARTS OF THE FAIR HOUSING ACT. IT APPLIES TO DEFENDANTS THAT ARE OTHERWISE EXEMPT FROM
THE STATUTE. TO PUT IT ANOTHER WAY, THERE ARE SEVERAL CATEGORIES OF DEFENDANTS WERE
ALLOWED TO ENGAGE IN DISCRIMINATORY HOUSING BEHAVIORS THAT ARE NOT PERMITTED TO MAKE DISCRIMINATORY
STATEMENT, SUCH AS ADVERTISERS. SOME OF THOSE EXEMPTIONS ARE IDENTIFIED HERE. THE MRS. MURPHY
EXCEPTION WHICH APPLIES TO APARTMENT BUILDINGS WITH FOUR OR FEWER UNITS WHERE THE OWNER RESIDES.
OR ANY SINGLE-FAMILY HOUSE SOLD OR RENTED BY AN OWNER, SUBJECT TO CERTAIN PROVISOS,
SUCH AS THE OWNER DOES NOT OWN MORE THAN THREE SUCH SINGLE FAMILY HOUSES. AND OF COURSE,
PROTECTING RELIGIOUS ORGANIZATIONS AND PRIVATE CLUBS FROM LIMITING THEIR DWELLINGS TO THEIR
OWN MEMBERS. SO NOTING THAT 3604(C) HAS SIGNIFICANT LIMITS AND IS SIMULTANEOUSLY QUITE EXPANSIVE,
WE’RE GOING TO TALK A LITTLE BIT ABOUT WHAT IT IS MEANT TO IMPACT . AND DISCRIMINATORY
ADS THEMSELVES HAVE A BROAD FUNCTION IN THE HOUSING MARKET THAT 3604(C) IS MEANT TO ADDRESS.
SPECIFICALLY, DISCRIMINATORY ADS REINFORCE THE MESSAGE TO THE PUBLIC THAT IT IS ACCEPTABLE
TO REFUSE TO RENT OR SELL TO MEMBERS OF A PROTECTED CLASS. THIS IN ITSELF STOPS HOME-
SEEKERS IN THEIR TRACKS BEFORE THEY EVER SEE A HOME. IN ADDITION, DISCRIMINATORY ADS CAN
SERVE TO PERPETUATE SEGREGATED LIVING PATTERNS. THIS IS FROM THE SEMINAL CASE, U.S. VERSUS
HUNTER, A FOURTH CIRCUIT CASE FROM 1972. WIDESPREAD APPEARANCE OF DISCRIMINATORY ADVERTISEMENTS
IN PUBLIC OR PRIVATE MEDIA MAY REASONABLY BE THOUGHT TO HAVE A HARMFUL EFFECT ON THE
GENERAL AIMS OF THE ACT — SEEING LARGE NUMBERS OF WHITE ONLY ADVERTISEMENTS IN ONE PART OF
THE CITY MAY DETER NONWHITES FROM VENTURING TO SEEK HOMES THERE, EVEN IF OTHER DWELLINGS
IN THAT SAME AREA MUST BE SOLD OR RENTED ON A NONDISCRIMINATORY BASIS. DISCRIMINATORY
ADS CAN ALSO CREATE THE IMPRESSION THAT DISCRIMINATION IS LEGAL. ILLEGAL HOUSING ADVERTISEMENTS,
AS STATED HERE, CAN FOSTER A PUBLIC IMPRESSION THAT DISCRIMINATION IN HOUSING IS LEGAL, THUS
FACILITATING DISCRIMINATION BY DEFENDANTS. NOTABLY, MILLIONS OF DOLLARS ARE SPENT ON
EDUCATING THE PUBLIC ABOUT FAIR HOUSING RIGHTS. AND THESE DISCRIMINATORY ADS SENT THE MESSAGE
THAT HOUSING DISCRIMINATION IS OK. INDEED, TO CONCLUDE THE OVERVIEW SECTION OF 3604(C),
ITS FUNCTION S ARE OUTLINED HERE. WHAT DID CONGRESS HOPE TO ACHIEVE BY OUTLAWING ALL
DISCRIMINATORY HOUSING ADVERTISEMENTS, INCLUDING THOSE MADE BY OTHERWISE EXEMPT HOUSING PROVIDERS?
ONE, IT HELPS TO PROMOTE HOUSING INTEGRATION BY ENSURING ADVERTISERS DO NOT DETERMINE THAT
— DO NOT DETOUR MINORITY HOME SEEKERS, FAMILIES WITH CHILDREN, PERSONS WITH DISABILITY. TWO,
PREVENTS EMOTIONAL DISTRESS. THREE, IT HELPS TO PROMOTE AWARENESS THAT DISCRIMINATORY PRACTICES
ARE UNLAWFUL. SO THAT IS A BROAD OVERVIEW OF WHAT 3604(C) SPECIFICALLY STATES, ITS ELEMENTS,
ITS APPLICATION, IT’S LIMITATIONS, EXPANSIVENESS, AND ITS IMPACT. WE WILL NOT TALK A LITTLE
BIT ABOUT SOME OF THE GUIDANCE THAT HUD AND OTHERS OFFER IN REGARDS TO 3604(C). SPECIFICALLY,
THERE ARE TWO SOURCES OF TITANS WHICH YOU MAY LOOK TO. ONE IS THE HUD REGULATION ON
FAIR HOUSING ADVERTISING. AND A SECOND IS A HUD MEMO ON GUIDANCE REGARDING ADVERTISEMENTS
UNDER 804 3604(C) OF THE HOUSING ACT, A MEMO ISSUED IN 1995. IT IS REFERRED TO AS THE ACHTENBERG
MEMO. THESE BIG FOR THEMSELVES, AND I WILL BE DRAWING INFORMATION IN THE NEXT FEW SLIDES
ABOUT THE CONTENT AND WHAT THIS GUIDANCE HAS TO SAY. HOWEVER, AS THE CASE WITH ALL HUD
GUIDANCE, THE ULTIMATE AUTHORITY IS HUD ITSELF. AND CERTAINLY DEFER TO HUD’S READING OF THESE
PROTOCOLS, AND THEY ARE CERTAINLY A RESOURCE TO HELP US UNDERSTAND SPECIFICALLY WHAT IS
MEANT UNDER THIS REGULATION AND THIS BROADER GUIDANCE. HUD REGULATIONS PROVIDE SOME GUIDANCE
ON THE FAIR HOUSING ADVERTISEMENTS. THE PURPOSE OF THIS PART OF THE REGULATION, PART 109,
IS TO ASSIST ALL ADVERTISING MEDIA, AD AGENCIES, AND ALL OTHER PERSONS WHO USE ADVERTISING
PUBLISHERS OR PUBLISHING HOUSING ADS WHICH ARE COMPLIANT WITH THE REQUIREMENTS OF THE
FAIR HOUSING ACT. THE GUIDANCE PROVIDES BACKGROUND INFORMATION ON VARIOUS CONTENT OF STATEMENTS
THAT MAY CONSTITUTE DISCRIMINATORY STATEMENTS. THEY PROVIDE ADDED GUIDANCE ON THE SELECTIVE
USE OF ADVERTISING MEDIA OR CONTENT. THEY ALSO PROVIDE INFORMATION ABOUT FAIR HOUSING
POLICIES AND PRACTICES THAT ADVERTISERS AND OTHERS CAN ENGAGE IN TO MITIGATE THEIR LIABILITY
ON THIS ISSUE. SECTION 109.20 COVERS WORDS, PHRASES, SYMBOLS, AND VISUAL AIDS. THE HUD
REGULATION IDENTIFIES THESE VARIOUS CONTENT MATTERS ASSOCIATED WITH STATEMENTS THAT TYPIFY
THOSE MOST OFTEN USED IN RESIDENTIAL REAL ESTATE ADS TO CONVEY EITHER OVERT OR TACIT
DISCRIMINATORY PREFERENCES OR LIMITATIONS. THERE ARE STATEMENTS ASSOCIATED WITH EACH
OF THE PROTECTED CLASSES. IN ADDITION, THE REGULATIONS IDENTIFY THAT CERTAIN PHRASES
IN A DISCRIMINATORY CONTEXT NEED TO BE AVOIDED, SUCH AS RESTRICT DID, EXCLUSIVE, PRIVATE,
MEMBERSHIP APPROVAL . THE REGULATION INDICATES THAT SYMBOLS OR LOGOTYPES THAT IMPLY OR SUGGEST
A PROTECTED CLASS NEED TO BE AVOIDED. THERE ARE CONCERNS ABOUT COLLOQUIALISMS, WORDS OR
PHRASES USE LOCALLY WHICH MAY IMPLY A PREFERENCE. OR AREA DESCRIPTIONS — DIRECT SHINS OR AREA
DESCRIPTIONS ARE ALSO A CAUSE OF CONCERN — DIRECTIONS OR AREA DESCRIPTIONS ARE ALSO A CAUSE OF CONCERN.
SECTION 109.25 COVERS SELECTIVE USE OF ADVERTISING MEDIA OR CONTENT. THE SELECTIVE USE OF THIS
ADVERTISING MEDIA OR CONTENT
IS DETAILED HERE. SPECIFICALLY SELECTIVE GEOGRAPHIC ADS, SELECTIVE USE OF THE EQUAL OPPORTUNITY
SLOGAN OR LOGO, AND SELECTIVE USE OF HUMAN MODELS WHEN CONDUCTING AN AD CAMPAIGN. IT
MAY CONSTITUTE DISCRIMINATORY ADVERTISEMENT, AND THIS COULD INCLUDE STRATEGIC PLACEMENT
OF BILLBOARDS, BROCHURES THAT ARE DISTRIBUTED WITHIN A LIMITED GEOGRAPHY, OR ANY NUMBER
OF ACTIONS ASSOCIATED WITH THE DISPARATE USE OF ADVERTISEMENTS IN REGARDS TO PROTECTED
CLASSES. FINALLY, IN REGARDS TO HUD REGULATIONS, HUD NOTES THAT IN INVESTIGATION OF COMPLAINTS,
IT WILL CONSIDER THE IMPLEMENTATION OF FAIR HOUSING POLICIES AND PRACTICES, DETAILED HERE
IN THE REGULATION. IT IS AS EVIDENCE OF COMPLIANCE WITH THE ORGANIZATIONS AGAINST DISCRIMINATION
AND ADVERTISING OF THE FAIR HOUSING ACT. THIS COULD INCLUDE THE USE OF EQUAL HOUSING OPPORTUNITY
LOGOS OR STATEMENTS OR SLOGANS. THE USE OF HUMAN MODELS IN AN INTEGRATED FASHION. NOTIFICATION
OF FAIR HOUSING POLICY TO EMPLOYEES, CLIENTS ON OR IN A PUBLISHERS’ NOTE ALL MAY HELP TO
MITIGATE LIABILITY ASSOCIATED WITH DISCRIMINATORY ADVERTISING. THE SECOND PIECE OF GUIDANCE
THAT WE WANT TO BRIEFLY PROVIDE SOME OVERVIEW ON IS THE ACHTENB ERG MEMO, A HUD MEMO THAT
SERVES TO PROVIDE GUIDANCE ON THE PROCEDURES FOR THE ACCEPTANCE AND INVESTIGATION OF ALLEGED
3604(C) VIOLATIONS. SPECIFICALLY, THE OPT IN BIRD MEMO — THE MEMO NOTES THAT COMPLAINTS
— THAT HUD ADMINISTRATIVE COMPLAINTS WILL NOT BE ACCEPTED AGAINST PUBLISHERS REGARDING
ADVERTISEMENTS WHERE THE LANGUAGE MIGHT OR MIGHT NOT BE VIEWED AS BEING USED IN A DISCRIMINATORY
CONTEXT. THE PUBLISHER PERMITTED TO PRESENT FACTS NEEDED FOR EXCEPTION. FOR EXAMPLE, A
FEMALE ROOMMATE WANTED. THE AT IS NOT INDICATE WHETHER THE REQUIREMENT FOR A SHARE LEMMING
EXCEPTION IS THAT. HOWEVER, PUBLISHERS CAN RELY ON THE REPRESENTATION OF THE INDIVIDUAL
PLACING THE AD OF THE SHARED LIVING ARRANGEMENT APPLIED TO THE PROPERTY IN QUESTION. NOTE
THAT IF THE HOUSING BEING ADVERTISED IS ACTUALLY A SEPARATE DWELLING UNIT WITHOUT A SHARED
LIVING SPACE, THE PERSON PLACING THE AD MAY BE IN VIOLATION. HOWEVER, AGAIN, UNDER THE
ACHTENBERG MEMO, THE PUBLISHER IS PERMITTED TO PRESENT THE FACTS HERE TO ESTABLISH THE
EXCEPTIONS. HERE , ANOTHER EXAMPLE — HOUSING FOR OLDER PERSONS. THE OWNER- RESPONDENT MAY
BE HELD IN VIOLATION OF THE AD INDICATES AN EXCLUSION FOR FAMILIES WITH CHILDREN AT THE
PROPERTY DOES NOT MEET THE HOUSING FOR OLDER PERSONS EXCEPTION. AGAIN, THE PUBLISHER IS
ENTITLED TO RELY ON THE OWNER’S ASSURANCES THAT THE PROPERTY IS EXEMPT. THESE EXAMPLES
UNDERSCORE THE DUAL LIABILITY THAT WE NOTED AT THE OUTSET IN THE OVERVIEW OF 3604(C).
AGAIN, LIABILITY FALLS BOTH ON, AS A GENERAL MATTER, LIABILITY FALLS BOTH ON THE INDIVIDUAL
PLACING THE AD AS WELL AS THE PUBLISHER OF THE AD. HOWEVER, IN INSTANCES WHERE AN AD
EXPRESSES DISCRIMINATORY SENTIMENT WHICH FALLS WITHIN EXCEPTIONS, SUCH AS GENDER ASSOCIATED
WITH A ROOMMATE OR HOUSING FOR OLDER PERSONS THAT MAY BE DESIGNATED AS SUCH THAT FALL UNDER
THE FAIR HOUSING ACT EXCEPTION, I PUBLISHER IS PERMITTED TO RELY ON THE FACTS STATED IN
THE YET AND IS PERMITTED TO ASSUME THAT THE EXCEPTION HOLDS. IF THE EXCEPTION DOES NOT
HOLD, OF COURSE, THE OWNER — THE INDIVIDUAL POSTING THE AD IS LIABLE. I WANT TO PRESENT
SOME POSSIBLE DISCRIMINATORY TERMS. THIS IS A NONCOMPREHENSIVE LIST THAT IDENTIFIES SOME
TERMS THAT MAY BE HELPFUL IN SEARCHING ADVERTISEMENT FOR STATEMENTS THAT MAY BE DISCRIMINATORY.
THE USE OF THIS LANGUAGE MAY, ON ITS FACE, CONSTITUTE A VIOLATION OF THE FAIR HOUSING
ACT. IN ADDITION, THE LANGUAGE MADE HE IS WITHIN A CONTEXT THAT VIOLATES — MAY BE USED
WITHIN A CONTEXT THAT VIOLATES THE FAIR HOUSING ACT. IT IS IMPORTANT TO NOTE THAT THIS IS
NOT A COMPREHENSIVE LIST. THERE ARE TERMS AM A SUCH AS EMPTY-NESTERS — THERE ARE TERMS,
SUCH AS EMPTY-NESTERS, WHICH MAY INDICATE A PREFERENCE BUT ARE NOT ON THIS LIST BUT
ESTABLISH LIABILITY UNDER 3604(C). THERE ARE TERMS THAT ARE IMPORTANT TO NOTE WHICH MAY
BE UNDERSTOOD TO DESIGNATE A PREFERENCE, AND IN DOING SO MAY CONSTITUTE A VIOLATION OF
3604(C). FOR EXAMPLE, IF A STATEMENT INDICATES THAT A PARTICULAR HOUSING IS PERFECT FOR OR
IDEAL FOR A COUPLE, THAT STATEMENT “PERFECT FOR” OR “IDEAL FOR ” IN ITSELF DOES NOT SAY
ANY NON- COUPLES OR FAMILIES WITH CHILDREN ARE NOT PERMITTED. HOWEVER, IT DOES INDICATE
A PREFERENCE. SO IT IS IMPORTANT TO BE THOUGHTFUL AND CAUTIOUS WHEN THINKING ABOUT TERMS THAT
MAY INDICATE A PREFERENCE AND TO TAKE INTO ACCOUNT THE CONTEXT TO WHICH THOSE TERMS ARE
BEING USED. THE ACHTENBERG MEMO THEN GOES PROTECTED CLASS BY PROTECTED CLASS AND PROVIDES
EXAMPLES OF AD CONTENT THAT CREATES LIABILITY. AND ADD CONTENT THAT DO NOT CREATE LIABILITY.
TO HELP PROVIDE SOME GUIDANCE FOR HOUSING PROVIDERS AND PUBLISHERS ON WHAT HUD DEEMS
ACCEPTABLE AND UNACCEPTABLE. IN REGARDS TO RACE, COLOR, AND NATIONAL ORIGIN, A WHITE
FAMILY HOME OR NO IRISH WOULD BE STATEMENTS THAT WOULD BE VIOLATIONS OF 3604(C). HOWEVER,
MASTER BEDROOM, RARE FIND, DESIRABLE NEIGHBORHOOD ARE ALL USED GENERALLY IN CONTEXT AND DO NOT
DENOTYE A PREFERENCE. IN REGARDS TO RELIGION, A CHRISTIAN HOME OR NO JEWS MAY CREATE LIABILITY.
ADS THAT USE THE LEGAL NAME OF AN ENTITY WHICH CONTAINS A RELIGIOUS REFERENCE OR WHICH CONTAIN
A RELIGIOUS SYMBOL MAY CREATE LIABILITY. HOWEVER, IF THOSE ADS WHICH ARE USING THE LEGAL NAME
OF AN ENTITY WITH A RELIGIOUS REFERENCE ALSO INCLUDE A DISCLAIMER ABOUT THE EQUAL HOUSING
OPPORTUNITY PRACTICES OF THE HOUSING PROVIDER, THEN THAT SIMPLE IN ITSELF WILL NOT CREATE
A LIABILITY. AGAIN, THIS IS DETAILED IN THE ACHTENBERG MEMO. IN REGARDS TO RELIGION, EXAMPLES
OF THAT CREATE CONTENT THAT DO NOT CREATE LIABILITY INCLUDE ADS THAT CONTAIN DESCRIPTIONS
OF THE PROPERTY, SUCH AS AN APARTMENT COMPLEX WITH A CHAPEL OR KOSHER MEALS THAT ARE AVAILABLE
OR ADS WITH SECULARIZED TERMS OR SYMBOLS REGARDING RELIGIOUS HOLIDAYS. IN REGARDS TO SEX AND
GENDER, EXAMPLES OF AD CONTENT THAT CREATE LIABILITY INCLUDE ADS FOR SINGLE-FAMILY DWELLING
OR SEPARATE UNITS SHOULD CONTAIN — ESSENTIALLY, ADS FOR SINGLE- FAMILY DWELLINGS OR SEPARATE
UNITS SHOULD CONTAIN NO EXPLICIT REFERENCE BASED ON SEX. HOWEVER, COMMONLY USED PHYSICAL
DESCRIPTIONS OF HOUSING, SUCH AS MOTHER-IN-LAW SUITE, MAY BE APPROPRIATE. IN REGARDS TO DISABILITY
, CERTAINLY A STATEMENT THAT INDICATES NO WHEELCHAIRS WOULD INDICATE A PREFERENCE THAT
WOULD BE DISCRIMINATORY. HOWEVER, ADS CAN INCLUDE DESCRIPTIONS OF THE PROPERTY OR THE
SERVICES OR FACILITIES OR THE NEIGHBORHOODS OR THE RESIDENT CONDUCT IN A WAY THAT DOES
NOT IN ITSELF ESTABLISH A VIOLATION OF 3604(C). FOR EXAMPLE, IF THERE IS A MENTION OF A JOGGING
TRAIL OR A FOURTH FLOOR WALK UP. CONCURRENTLY, A DESCRIPTION OF ACCESSIBILITY FEATURES ALSO
DO NOT ESTABLISH 3604(C) VIOLATIONS. IN REGARDS TO FAMILIAL STATUS, EXAMPLES OF AD CONTENT
THAT CREATE LIABILITY INCLUDE ADS THAT SIMPLY STATE A PREFERENCE FOR ADULTS, COUPLES, OR
SINGLES OR CONTAIN LIMITATIONS ON THE AGE OR NUMBER OF CHILDREN. HOWEVER, DESCRIPTION
OF THE PROPERTY OR THE SERVICES OR FACILITIES, SIMILARLY, DO NOT ESTABLISH 3604(C) LIABILITY,
SUCH AS A TWO-BEDROOM, DESCRIBING AN APARTMENT COMPLEX UNIT AS COZY, OR IDENTIFYING THE PRESENCE
OF A FAMILY ROOM. THEY DO NOT ESTABLISH 3604(C) LIABILITY. THEN WE HAVE SOME QUESTIONS. I
AM LOOKING FOR A MALE REMAKE, NON-SMOKER, NO DRUGS, NO CHILDREN, ABLE TO PAY RENT ON
TIME. A SECOND EXAMPLE — I AM LOOKING FOR A FEMALE CHRISTIAN TO SHARE AN APARTMENT WITHIN
THE CEDAR HILL AREA, MUST BE LIVING IN THE DALLAS AREA, NO ONE FROM OVERSEAS. THESE ARE
EXAMPLES OF ADVERTISEMENTS — PUTTING THEM FORWARD TODAY, ASK WHETHER THESE ADS WOULD
VIOLATE THE FAIR HOUSING ACT. ON THEIR FACE , UNDER THE GUIDANCE THAT WE JUST DETAILED,
THERE ARE STATEMENTS WHICH CREATE LIABILITY. SO THIS LIABILITY IS SOMETHING THAT WILL CONSTITUTE
A 3604(C) VIOLATION, BUT FOR THE INDIVIDUAL THAT POSTED THE AD AND THE TRADITIONAL CONTEXT
OF NEWSPAPERS AND OTHER PUBLISHERS, THE PUBLISHER OF THE AD. HOWEVER, THE QUESTION OF WHETHER
THESE ADS VIOLATE THE FAIR HOUSING ACT TURN ON ANOTHER ISSUE. AND THAT IS WHETHER THESE
ADS WERE PUBLISHED IN TRADITIONAL PRINT FORM OR WHETHER THEY WERE PUBLISHED ONLINE. AND
BY A WEBSITE OPERATOR. THAT BRINGS US TO THE QUESTION OF COMMUNICATIONS DECENCY ACT AND
FAIR HOUSING LIABILITY. AND IT CONCLUDES OUR OVERVIEW OF THE GUIDANCE ON 3604(C). OF COURSE,
IF THERE ARE QUESTIONS AT THE CONCLUSION OF THE PRESENTATION, WE’RE GOING TO HAVE AN OPPORTUNITY
FOR QUESTION AND ANSWER. SO WE WELCOME QUESTIONS ON EITHER THE OVERVIEW OR THE GUIDANCE THAT
ARE DETAILED HERE. BUT WE’RE GOING TO SHIFT GEARS AND TALK A LITTLE BIT ABOUT THE COMMUNICATIONS
DECENCY ACT AND FAIR HOUSING ACT LIABILITY AND CONCLUDE WITH SOME REMARKS ON INVESTIGATIONS
AND ENFORCEMENT. THE GIMMICK IS IN DECENCY ACT OF 1996 STATES THAT A PROVIDER OF INTERACTIVE
COMPUTER SERVICES, CLEARLY A TERM WRITTEN INTO LEGISLATION IN THE 1990’S, SHALL NOT
BE A PUBLISHER OF CONTENT BUT ORIGINATES FROM THIRD PARTIES. UNDER THE CASE LAW, AN ENTITY
BECOMES A PUBLISHER WHEN IT EXERCISES EDITORIAL CONTROL OVER CONTENT. WE WILL TALK A LITTLE
BIT FURTHER ABOUT THAT. BEFORE WE TALK A LITTLE BIT FURTHER ABOUT THE APPLICATION OF COMMUNICATIONS
DECENCY ACT IN REGARDS TO THE FAIR HOUSING ACT AND WHEN AN ENTITY BECOMES A PUBLISHER
FOR THE PURPOSES OF COMMUNICATION DECENCY ACT AND UNITY, I WANT TO NOTE THAT, BECAUSE
LAWMAKERS WERE INTERESTED IN FACILITATING THE FREE FLOW OF IDEAS ON THE INTERNET BUT
ALSO WISH TO ENCOURAGE WEBSITE OPERATORS TO SCREEN AND FILTER OFFENSIVE CONTENT, THEY
INCLUDED A GOOD SAMARITAN PROVISION IN THE COMMUNICATIONS DECENCY ACT. IT STATES THAT
NO PROVIDER OR USER OF AN INTERACTIVE COMPUTER SERVICE OR WEBSITE OPERATOR SHALL BE HELD
LIABLE ON ACCOUNT OF ANY ACTION VOLUNTARILY TAKEN IN GOOD FAITH TO RESTRICT ACCESS TO
YOU OR AVAILABLE MATERIAL THAT THE PROVIDER OR USER CONSIDERS TO BE OBSCENE, LEWD, FILTHY,
HARASSING, OR OTHERWISE OBJECTIONABLE. OR ANY ACTION TAKEN TO ENABLE OR MAKE AVAILABLE
TO INFORMATION CONTENT PROVIDERS OR OTHERS THE TECHNICAL NEEDS TO RESTRICT ACCESS OF
THE MATERIALS DESCRIBED HERE. WHAT DOES THIS MEAN? UNDER THIS PROVISION, WEBSITE OPERATORS
ARE ABLE TO SCREEN AND FILTER OFFENSIVE CONTENT. SOME COMMENTATORS HAVE EVEN ANSWERED TO MEDICATIONS
DECENCY ACT TO BE READ TO MEAN THAT ONLY THOSE WEBSITE OPERATORS THAT ARE ENGAGED IN OFFENSIVE
CONTENT ARE ABLE TO CLAIM IMMUNITY FROM THE OFFENSIVE CONTENT — ALL THAT SAYS THE COMMUNICATIONS
DECENCY ACT DOES PROVIDE
THE WEBSITE OPERATOR WITH SOME LEVEL OF IMMUNITY. AND WE ARE GOING TO TALK FURTHER ABOUT THAT.
BUT EVEN WITH THAT IMMUNITY, THE WEBSITE OPERATOR IS STILL PERMITTED TO SCREEN OR FILTER THE
CONTENT ON THEIR WEBSITE IN A WAY THAT WOULD PROMOTE OPEN HOUSING OR RESTRICT DISCRIMINATORY
STATEMENTS. TWO SIGNIFICANT CASES THAT WE ARE GOING TO LOOK AT WHEN WE TALK ABOUT THE
APPLICATION OF THE COMMUNICATIONS DECENCY ACT TO FAIR HOUSING ACT LIABILITY. THE FIRST
IS THE CRAIGSLIST CASE OF A CHICAGO LAWYERS’ COMMITTEE VERSUS CRAIG LIST AM A DECIDED IN
2008. IN THE CASE, THE COMMUNICATIONS DECENCY ACT PROTECTS ONLINE INFORMATION SYSTEMS FROM
BEING TREATED AS THE PUBLISHER OR SPEAKER OF ANY INFORMATION PROVIDED BY THIRD PARTY,
INCLUDING DISCRIMINATORY HOUSING ADVERTISEMENTS. IN ESSENCE, CRAIGSLIST, WHICH IS A FORUM FOR
THIRD PARTIES TO POST, IN THIS CASE, HOUSING ADVERTISEMENTS AND WAS NOT HELD LIABLE AS
A TRADITIONAL PUBLISHER WOULD BE, BECAUSE THEY ARE SIMPLY PROVIDING THE CONTENT THAT
THE THIRD PARTY HAS POSTED. THEREFORE, THEY FALL UNDER THE DICTATES OF THE COMMUNICATIONS
DECENCY ACT. WE’RE REGARDED AS IMMUNE FROM LIABILITY, AGAIN, IN ANY INSTANT — INSTANCE
IN WHICH AN INDIVIDUAL POSTED A DISCRIMINATORY STATEMENT IN REGARDS TO HOUSING AVAILABILITY
ON CRAIGSLIST, THAT INDIVIDUAL THAT WAS POSTING THE AD WAS STILL LIABLE, REGARDLESS OF THE
IMMUNITY PROVIDED TO THE WEBSITE OPERATOR UNDER THE COMMUNICATIONS DECENCY ACT. HOWEVER,
CRAIGSLIST, AND THAT CASE, HAS BEEN HELD TO BE IMMUNE FROM THE LIABILITY OF THE THIRD-
PARTY POSTER. IN CONTRAST, ROOMMATES.COM, DECIDED IN THE NINTH CIRCUIT IN 2008, THE
SINK IS THAT CREATED ISSUES REGARDING THE SHARED LIVING CONTEXT IN THE NINTH CIRCUIT
IN 2012. IT WOULD BE FOR THE NINTH CIRCUIT IN 2008, AND ON THE ISSUE OF IMMUNITY UNDER
THE COMMUNICATIONS DECENCY ACT. THE NINTH CIRCUIT HELD THAT AN UNITY DID NOT APPLY TO
AN INTERACTIVE ONLINE OPERATOR WHOSE QUESTIONNAIRE VIOLATED THE FAIR HOUSING ACT. IN ORDER TO
USE ROOMMATES.COM, USERS HAD TO CREATE A PROFILE AND ANSWER A SERIES OF QUESTIONS . THE QUESTIONS
WERE PROVIDED BY REMITS.COM. THESE QUESTION INCLUDED THE USER’S NAME, E-MAIL ADDRESS,
AND ALSO INCLUDED QUESTIONS ABOUT GENDER, SEXUAL ORIENTATION, NUMBER OF CHILDREN, AND
WHETHER THE CHILDREN LIVED WITH THE USER. USERS WERE THEN ALSO PROMPTED TO STATE THE
TYPE OF ROOMMATE THEY WERE LOOKING FOR IN TERMS OF GENDER, SEXUAL ORIENTATION, NUMBER
OF CHILDREN. THE COURT FOUND THAT THE SPECIFIC QUESTIONS HERE MEANT THAT ROOMMATES.COM WAS
NOT SIMPLY POSTING THE CONTENT FROM THIRD-PARTY OPERATORS BUT WAS ACTUALLY HELPING TO GENERATE
THE CONTENT. AS SUCH, WAS NOT SUBJECT TO THE IMMUNITY PROVISIONS OF THE COMMUNICATIONS
USING THE ACT. NOTABLY, THE COURT DID FIND THAT ROOMMATES.COM, TWO THOUSAND EIGHT DECISION,
WAS IMMUNE UNDER THE COMMUNICATIONS DECENCY ACT FOR THE ADDITIONAL COMMENT PORTION OF
THE WEBSITE. THIS IS THE PORTION OF THE PROFILE WHERE POSTERS COULD SIMPLY INPUT CONTENT WITHOUT
ANY CONTROLS BY ROOMMATES.COM, SIMILAR TO THE FORMAT UTILIZED BY CRAIGSLIST. HERE AGAIN,
IN ACCORD WITH THE CRAIGSLIST DECISION, THE NINTH CIRCUIT FOUND THAT AN UNITY DID EXTEND
TO ROOMMATES.COM.
IN THE CURRENT CONTEXT OF INTERNET HOUSING ADVERTISEMENTS AND THE CRAIGSLIST DECISION
AND THE EXTENT TO WHICH THE COMMUNICATIONS DECENCY ACT HAS AFFORDED IMMUNITY TO ONLINE
WEBSITES, IN THE CONTEXT OF THE CRAIGSLIST DECISION IN THE COMMUNICATIONS DECENCY ACT,
WE NOW SEE RAMPANT PROLIFERATION OF ADVERTISEMENTS IN WHICH DISCRIMINATORY STATEMENTS ARE BEING
MADE. ONE REAL STRONG SET OF EXAMPLES OCCURRED IN THE POST-KATRINA AND RITA GULF COAST IN
WHICH ADVERTISEMENTS ON WEBSITES WERE POSTED THAT WERE CREATED FOR HURRICANE EVACUEES.
WEBSITES AND POSTINGS INCLUDING STATEMENTS — PROVIDER WILL PROVIDE ROOM AND BOARD FOR
$400 BUT PREFERS TWO WHITE FEMALES. NOT TO SOUND RACIST, BUT BECAUSE WE WANT TO MAKE
THINGS MORE UNDERSTANDABLE FOR OUR YOUNGER CHILDREN, WE WOULD LIKE TO HOUSE WHITE CHILDREN.
HERE, UNDER THE COMMUNICATIONS DECENCY ACT, ASSUMING THE CONTENT IS SIMPLY PROVIDED BY
A THIRD-PARTY WITHOUT ANY CONTROL BY ANY OF THESE WEBSITE PROVIDERS, THE WEBSITE PROVIDERS
THEMSELVES MAY BE FREE OF LIABILITY, BUT THE INDIVIDUALS THAT ARE POSTING THE ADS MAY STILL
BE SUBJECT TO 3604(C) LIABILITY FOR MAKING THOSE DISCRIMINATORY STATEMENTS. IN 2009,
N FHA CONDUCTED AN INVESTIGATION WITH 27 MEMBER ORGANIZATIONS AND IDENTIFIED MORE THAN 7500
DISCRIMINATORY ADS. COMMON VIOLATIONS INCLUDED DISCRIMINATORY STATEMENTS IN REGARDS TO FAMILIAL
STATUS, NATIONAL ORIGIN, RELIGION, AND SEX. AS A RESULT OF THIS STUDY , NFHA AND MEMBER
ORGANIZATION PARTNERS ISSUED A REPORT ENTITLED “FOR RENT: NO KIDS! HOW AN INTERNET HOUSING
ADVERTISEMENTS PERPETUATE DISCRIMINATION.” IT CALLS ON CONGRESS TO AMEND THE COMMUNICATIONS
DECENCY ACT TO CLARIFY THAT, IN FACT, ONLINE HOUSING PROVIDERS ARE RESPONSIBLE FOR DISCRIMINATORY
STATEMENTS, AND TO HELP MITIGATE THE PROLIFERATION OF DISCRIMINATORY STATEMENTS THAT ARE OCCURRING
ONLINE AS A RESULT OF THE IMMUNITY AFFORDED TO WEBSITE OPERATION — OPERATORS IN THE COMMUNICATIONS
DECENCY ACT. ALSO IN 2009, NFHA FILED SUIT AGAINST AMERICAN CLASSIFIEDS, THE LARGEST
CLASSIFIED ADVERTISEMENT PUBLISHER IN THE COUNTRY. AFTER A YEAR-LONG INVESTIGATION,
IT IN THE CUP — IT UNCOVERED OVER 60 DISCRIMINATORY ADS, NOTABLY IN PRINT AND ONLINE. THE COMMUNICATIONS
DECENCY ACT INTERPRETATION WOULD HAVE THE ILLOGICAL RESULT OF HOLDING AMERICAN CLASSIFIEDS
LIABLE FOR THE ADS PUBLISHED IN ITS NEWSPAPER BUT NOT FOR THOSE ADS IT PUBLISHED ONLINE.
THE AMERICAN CLASSIFIEDS LITIGATION WAS SETTLED IN FEBRUARY 2011 FROM MONETARY PAYMENT FROM
INCLUDING FAIR HOUSING ADVERTISING TRAINING FOR AMERICAN CLASSIFIEDS STAFF. WE ARE CURRENTLY
OPERATING IN AN ENVIRONMENT THAT IS INCREASINGLY COMPLICATED BECAUSE OF COMMUNICATIONS DECENCY
ACT IN UNITY. AS A RESULT, WE WANT TO SPEAK WITH YOU SOME ABOUT HOW TO BE CAREFUL AND
THOUGHTFUL AND ENGAGING IN INVESTIGATION AND ENFORCEMENT OF 3604(C) VIOLATIONS. WITH THAT,
I WILL TURN IT OVER TO MY COLLEAGUE JUSTIN MONTEIRO.>>GOOD AFTERNOON, EVERYONE. TO FOLLOW-UP
ON WHAT MORGAN MORGAN WAS SAYING, ENFORCEMENT OF 3604(C) CLAIMS CAN PRESENT SIGNIFICANT
CHALLENGES. IN THE 2009 REPORT, WE POINT OUT THAT THERE IS AN INCREASING NUMBER OF HOUSING
ADS BEING PLACED ONLINE. HOWEVER, WITH THE CURRENT INTERPRETATIONS OF THE CDA, IT IS
NOT LIKELY THAT IT INTERACTS WITH WEBSITES THAT MOST OF THE ADS ARE POSTED OR PUBLISHED
WOULD BE HELD LIABLE FOR DISCRIMINATORY CONTENT. WHEN IT IS POSTED BY A THIRD- PARTY. ONE OPTION
THAT GROUPS HAVE RESORTED TO AS PURSUING ENFORCEMENT ON AN AD-BY- AD BASIS. AS OUR REPORT ALSO
POINTS OUT, THIS APPROACH CAN BE LARGELY INEFFECTIVE AND BURDENSOME. IN THAT INVESTIGATION, 7500
ADS WERE IDENTIFIED, BUT ONLY 1000 CLAIMS WERE FILED. FAIR HOUSING GROUPS OFTEN HAVE
LIMITED RESOURCES WITH WHICH TO DEVELOP INVESTIGATIONS, AND COMPLAINTS ARE FILED WITHOUT BEING DEVELOPED
BUT A BURDEN ON HUD, WHICH IS STATUTORILY REQUIRED TO INVESTIGATE COMPLAINTS WITHIN
100 DAYS HERE AT IF THE ADVERTISER IS NOT IDENTIFIED PRIOR TO FILING, HUD MAY NEED TO
ISSUE MULTIPLE SUBPOENAS TO OBTAIN INFORMATION ABOUT THE ADVERTISER OR EVEN ASSIGN THE CASE
FOR INVESTIGATION. BECAUSE THESE INVESTIGATIONS CAN TAKE TIME, REGARD WAS THAT THE ENTITY
DOING THE INVESTIGATION, WHETHER IT IS A LOCAL FAIR HOUSING GROUP OR IF IT IS HUD, IF THE
ADVICE OFTEN CAUSE — THE AD BY ITSELF CAN CAUSE WIDESPREAD HARM. OFTEN THE HOUSING OPPORTUNITY
BEING ADVERTISED IS NO LONGER AVAILABLE BY THE TIME THE INVESTIGATION INCLUDES. AND IN
THE MEANTIME, THE AD MAY HAVE BEEN VIEWED BY POTENTIALLY MILLIONS OF READERS. CONSEQUENTLY,
THIS MAY CAUSE THE PUBLIC TO ASSUME THAT SUCH STATEMENTS ARE LEGAL AND PERMISSIBLE AND THAT
HOUSING PROVIDERS CAN DENY PERSONS BASED ON PROTECTED CLASSES. THAT SAID, ENFORCEMENT
SHOULD BE DONE STRATEGICALLY. HOWEVER, THERE IS NO FORMULA FOR BRINGING A 3604(C) CASE.
HOWEVER, THERE ARE THINGS YOU MAY CONSIDER BEFORE INITIATING INVESTIGATIONS AND BRINGING
ENFORCEMENT ACTION. SYSTEMIC ACES AND — CASES AND CASES THAT HAVE LARGE IMPACT ON THE PRACTICES
AND POLICIES OF HOUSING PROVIDERS MAY ALLOW FOR MORE EFFECTIVE ENFORCEMENT GIVEN OUR LIMITED
RESOURCES. NUMBER TWO, BRINGING ENFORCEMENT WHEN THE DWELLING IS COVERED BY THE FAIR HOUSING
ACT LEAVES ROOM FOR BRINGING ADDITIONAL CLAIMS WHEN YOU ARE FILING YOUR COMPLAINT. FOR EXAMPLE,
A DISCRIMINATORY ADVERTISEMENT, WHEN INVESTIGATED, MAY ALSO YIELD A 3604A, B, OR D CLAIM. TESTING
AND OTHER INVESTIGATIVE ACTIVITIES MAY HELP UNCOVER THOSE ADDITIONAL CLAIMS, AS WELL AS
INFORMATION THAT COULD HELP FACILITATE A TIMELY INVESTIGATION. ALSO, CONSIDER HOW YOUR ORGANIZATION
IS HARMED BY THE DISCRIMINATION AND PLAN TO DIVERT RESOURCES TO COUNTERACT THE DISCRIMINATORY
CONTACT. LASTLY, CONSULT WITH NFHA , EXPERIENCED ATTORNEYS, AND OTHER EXPERTS. THIS MAY HELP
IN THE CONSTRUCTION OF STRONG CASES, HELP TO AVOID PITFALLS, AND REDUCE THE RISK IN
MAKING THAT CASE LAW. SO WHEN DEVELOPING CASES , IT CAN BE FAIRLY SIMPLE TO IDENTIFY POTENTIAL
VIOLATIONS. SIMPLY DOING A GOOGLE SEARCH ACROSS THE INTERNET COME A SETTING UP AN RSF FEED,
OR WHEN LOOKING AT A PARTICULAR SITE, USING A CONTROL F SEARCH OR IF YOU ARE ON A MAC,
A COMMAND F SEARCH, YOU CAN FIND PHRASES THAT ARE POTENTIALLY DISCRIMINATORY. YOU HEARD
THE EARLIER COMMENTS THAT WERE SHOWN AS WELL AS THE ACHTENBERG MEMO, YOU CAN FIND SOME
TERMS THAT YOU CAN SEARCH. YOU SHOULD ALSO PAY ATTENTION TO YOUR LOCAL MARKET, AN ISSUE
THAT MAY BE AT PLAY, ANY COLLOQUIALISM THAT MAY BE USED TO EXTRACT A PREFERENCE OR LIMITATION
WHERE YOUR FAIR HOUSING OFFICE IS LOCATED. ADS ARE OFTEN POSTED IN MORE THAN ONE LOCATION.
IF YOU FIND ONE ADVERTISEMENT, SEE IF IT EXISTS ELSEWHERE ON THE INTERNET AND COMPARE THE
LANGUAGE AMONG THE ADVERTISEMENTS TO SEE IF IT IS CONSISTENT. IF NOT, THERE MAY THE AN
ISSUE WITH SELECTIVELY USING DISCRIMINATORY LANGUAGE ON DIFFERENT WEBSITES, WHICH CAN
BE AN ISSUE. ALSO INVESTIGATE TO SEE IF THE ADVERTISEMENT EXISTS IN PRINT. THIS WAS THE
CASE IN NFHA’S CASE AGAINST AMERICAN CLASSIFIEDS. BECAUSE SYSTEMIC INVESTIGATIONS CAN LEAD TO
MORE EFFECTIVE USE OF LIMITED RESOURCES, IT MAY STRATEGICALLY MAKE SENSE TO FOCUS ON AT
POSTED BY HOUSING PROFESSIONALS COME A WHICH IS REAL ESTATE AGENTS, PROPERTY MANAGEMENT
COMPANIES. HOWEVER, CONSIDER THE POTENTIAL IMPACT OF ANY INVESTIGATION PRIOR TO INITIATING
ANY ACTIVITY . THAT IS TO SAY YOU DO NOT NEED TO LIMIT YOUR INVESTIGATIVE ACTIVITIES TO
THESE ENTITIES BUT RATHER CONSIDER THE IMPACT THAT YOUR INVESTIGATION WILL HAVE. USE ADVERTISEMENTS
AS AN INTERFACE WITH HOUSING OPPORTUNITIES AND TO FIND OUT MORE INFORMATION ABOUT THE
ADVERTISER AND THE HOUSING BEING OFFERED. USE PHONE NUMBERS, E-MAIL ADDRESSES, AND ADVANCED
CALLING TO DETERMINE WHAT THE ADDRESS OF THE PROPERTY IS HIM A THE TYPE OF PROPERTY, AND
WHO POTENTIAL RESPONDENTS MAY BE. AND IN SITUATIONS IN WHICH THE HOUSING IS COVERED BY THE FAIR
HOUSING ACT, TESTING MAY BE A USEFUL TOOL FOR GATHERING EVIDENCE OF ADDITIONAL CLAIMS
THEY CAN BE ENFORCED UNDER THE FAIR HOUSING ACT. LASTLY, IDENTIFY ANY MODIFIED — BONA
FIDES THOSE TOO ARE HARMED BY THE ACT, THAT MAY ASSIST IN DEVELOPING STRONG CLAIMS. SOME
STATEMENTS ARE DISCRIMINATORY ON THEIR FACE. HOWEVER, THERE MAY BE OTHER IT CAN
ALLOW YOU TO BUILD ADDITIONAL [INDISCERNIBLE]
PRIOR TO TESTING, YOU WANT TO MAKE SURE THAT YOU HAVE AN OPPORTUNITY TO INTERFACE EITHER
THROUGH THE PHONE, E-MAIL — IT’S ALL SO THAT YOU MAY JOB BY THE HOUSING IF IT IS A MANAGED
PROPERTY OR OTHER HAS A PROFESSIONAL THAT HAS REGULAR BUSINESS HOURS. THERE IS NO CONTACT
INFORMATION IN THE ADVERTISEMENT, YOU HAVE TO DO ADDITIONAL RESEARCH. AS MUCH AS WE HATE
TO ADMIT, IN SOME INSTANCES, YOU ON THE FIELD TO DO A TEST. BUT IF YOU AREN’T HAVING A SYSTEMIC
INVESTIGATION CAN — BUT IF YOU ARE BUILDING A SYSTEMIC INVESTIGATION, THE INABILITY TO
TEST WILL NOT BE AN ISSUE. SCOUTING OR ADVANCED CALLING CAN PROVIDE YOU WITH INFORMATION TO
HELP AID THE INVESTIGATION AND DESIGN FUTURE TESTS BEFORE YOU SELECT YOUR TESTERS, MAKE
SURE YOU KNOW WHAT PARTICULAR CLASS YOU ARE TESTING FOR. THERE MAY BE MULTIPLE ISSUES
IN ONE AD. IN SOME AREAS, ONE STATEMENT MAY PROJECT BUT MULTIPLE CLASSES ARE AT PLAY.
FOR EXAMPLE, YOU ARE IN AN AREA WHERE MARITAL STATUS IS A LOCALLY PROTECTED CLASS. AS ALWAYS,
WITH TESTING, BE AWARE PROTECTION ISSUES WHEN DECIDING WHICH TEST TO USE AND HAD TO DESIGNER
THE PROFILES AND HAD TO STRUCTURE THE TEST. AND ALSO BE AWARE THAT , ALTHOUGH I HOUSING
PROVIDERS WILLING TO PUT IN A DISCRIMINATORY PREFERENCE IN WRITING OR IN AN AD, THEY MAY
NOT BE WILLING TO COMMIT ORAL STATEMENTS OVER THE PHONE AND THEY MAY MR. PRESENT THE AVAILABILITY
OF THE UNIT. ANYONE WHO MAY BE PERCEIVED TO BE A WRECK — A PROTECTED CLASS . WHEN DOING
TESTING, DO WRAPAROUND TESTS IN ORDER TO PROVE MISREPRESENTATIONS OF AVAILABILITY, AND DIFFERENCES
IN TERMS AND OTHER VIOLATIONS IN ADDITION TO THE 3604 C WHICH YOU HAVE DOCUMENTED IN
THE ADVERTISEMENT. HOWEVER, THERE IS NO FORMULA. LET THE FACTS OF THE SITUATION LET YOU DETERMINE
HOW TO PROCEED. MANY INVESTIGATIONS CAN BE DEVELOPED SYSTEMICALLY. WHEN YOU ARE DEVELOPING
A SYSTEM, A CASE, IDENTIFY ADDITIONAL PROPERTIES THEY MAY OWN AND TRY TO IMPLEMENT THE MAPPING
OVER CENSUS DATA TO GET A THOROUGH PICTURE OF WHERE THESE PROPERTIES ARE LOCATED. IN
ADDITION, AS YOU ARE LOOKING AT THESE PROPERTIES, LOOK FOR SPECIFIC ADVERTISEMENTS THAT MAY
CONTAIN DISCRIMINATORY LANGUAGE. BUT IS ALSO INFORMATIVE TO REVIEW WEBSITES FOR SPECIFIC
HOUSING PROVIDERS. LOOK FOR DISCRIMINATORY STATEMENTS IN APPLICATIONS AND ELIGIBILITY
REQUIREMENTS. IT MAY BE POSSIBLE THAT THEY CAN LEAD YOU TO NOT NECESSARILY TO DISCRIMINATORY
STATEMENTS BUT OVERLY RESTRICTIVE OR WHAT CAN BE VIEWED AS HIGHLY RESTRICTIVE CRITERIA
THAT MAY WANT ADDITIONAL INVESTIGATION. COLLECT AND PRESERVE ALL THE ADVERTISEMENTS WEBPAGES
THAT YOU COME ACROSS THE BEST OF YOUR ABILITY. IF YOU’RE ABLE TO KEEP HARD COPIES AS WELL
AS ELECTRONIC COPIES OF ALL ADVERTISING, IF YOU HAVE ACCESS TO PROGRAM SUCH AS FANTASIA,
THAT SHOULD BE FAIRLY SIMPLE. IF YOU DON’T, YOU CAN TRY SAVING THE PAGE AS A PDF AND,
AT THE VERY LEAST, TAKING AN EXTREME SHOT — TAKING A SCREENSHOT AND SERVING IT — AND
SAVING IT AS A WORD DOC. IN ADDITION TO PROVIDING ADDITIONAL CLAIMS, YOU CAN USE IT TO HELP
FOCUS AND TEST MULTIPLE PROPERTIES TO DETERMINE IF THE ISSUE IS COMPANYWIDE OR IF IT IS ISOLATED
TO SPECIFIC PROPERTIES. LASTLY, THAT BRINGS US TO SOME ENFORCEMENT. AGAIN, FAIR HOUSING
CASES IN GENERAL ARE CHALLENGING TO BRING. AND 3604 C CLAIMS ARE NOT EXCEPTION. IT CAN
BE EASY TO GET TRIPPED UP IF THE CASE IS NOT CRAFTILY DEVELOPED AND THERE IS NO FORMULA
FOR BRINGING ENFORCEMENT. HOWEVER, ONE BEST RIGHT ASSIST CONSOLE IT WITH GROUPS THAT HAVE
EXPERIENCE WITH THESE CASES. CONSULT WITH EXPERIENCED ATTORNEYS AND OTHER EXPERTS WHO
CAN BE OF ASSISTANCE. ADDITIONALLY FOCUSING YOUR INVESTIGATION ON HOUSING PROVIDERS WHO
MAY HAVE AN IMPACT ACROSS THE REGION OR ACROSS THE LARGE GROUP IN DEVELOPING A SYSTEMIC INVESTIGATION
AND DEVELOPING IT PRIOR TO FILING MAY BE MORE EFFECTIVE ENFORCEMENT. FAIR HOUSING ORGANIZATIONS
WANT TO MAKE SURE THAT THEY ARE COUNTERACTING THE DISCRIMINATORY BEHAVIORS THEY COVER. IN
THE CASE OF ADVERTISING DISCRIMINATION, IT MAY REQUIRE EDUCATION OUTREACH IN THAT THE
FACT OF THE CASE AND THE DISCRIMINATORY BEHAVIOR WILL ULTIMATELY DETERMINE WHAT ACTIONS ARE
NEEDED IN ORDER TO COUNTERACT THE DISCRIMINATION. FERRER HOUSING GROUPS SHOULD ALWAYS IDENTIFY
HOW THE DISCRIMINATORY BEHAVIOR FRUSTRATES THEIR MISSION AND EQUALLY WE SHOULD ALWAYS
DOCUMENT THE RESOURCES TO COUNTERACTING ANY DISCRIMINATORY BEHAVIOR THEY UNCOVER. AND
THAT CONCLUDES THE BULK OF OUR PRESENTATION. JUST TO REVIEW, THREE MAIN POINTS THAT WE
CAME AWAY WITH. AT THE VERY LEAST, THE FAIR HOUSING ACT AS POWERFUL PROVISION WITH SCRUMMAGE
RESTATEMENTS , THE CDA INTERPRETATIONS HAVE TURNED BACK THE PROGRESS OF THE FAIR HOUSING
ACT AND ENFORCEMENT OF AD CASES PRESENT CHALLENGES. WITH THAT, I WILL TURN IT BACK TO MORGAN WHO
HAS ADDITIONAL COMMENTS TO MAKE.>>THANK YOU ALL VERY MUCH FOR JOINING US.
THAT IS THE SUBSTANCE OF OUR PRESENTATION. AGAIN, AN OVERVIEW OF 3604 C THE GUARDIANS
ASSOCIATED WITH 3604 C , SOME COMMENTS ASSOCIATED WITH THE RELATIONSHIP BETWEEN THE DECENCY
— THE COMMON DECENCY ACT AND THE FAIR HOUSING ACT. AND TAKING INTO ACCOUNT WHEN THINKING
INVESTIGATION AND ENFORCEMENT. AT THIS STAGE, WE WOULD LIKE TO NOTE A COUPLE OF THINGS.
ONE IS IT THERE WILL BE SEVERAL UPCOMING NOT FOLLOW — SEVERAL NAFA WEBINARS ON FAIR HOUSING
AND EDUCATION STRATEGIES. THERE WILL BE A WEBINAR ON TRAINING AND COOPERATIVE AND HOMEOWNERS
ASSOCIATIONS AND IT WILL BE BOTH WITH FAIR HOUSING ADVOCATES. IF YOU HAVE ANY QUESTIONS,
PLEASE CONTACT
THE E-MAIL IDENTIFIED RIGHT THERE. WE HAVE COVERED A LOT OF GROUND IN A SHORT TIME. NO
DOUBT, THERE WILL BE QUESTIONS. IN THE TOOLBAR, THERE IS AN OPPORTUNITY TO POSE QUESTIONS
AND WE ARE JUST PULLING UP SOME OF THESE QUESTIONS. IT LOOKS LIKE QUITE A FEW HAVE BEEN POSTED.
WE WILL TAKE SOME TIME HERE TO REVIEW THESE BRIEFLY AND TO PREPARE SOME RESPONSES TO SOME
OF THESE QUESTIONS. IF YOU HAVE ADDITIONAL QUESTIONS, PLEASE FEEL FREE TO POST THEM IN
THE QUESTION BOX. SO THE QUESTION HERE — THIS IS AN ENFORCEMENT QUESTION, WHICH I THINK
IS A GOOD ENFORCEMENT QUESTION BECAUSE IT GETS INTO THE COMPLICATION OF INTERNET ADVERTISING
CASES IN GENERAL. THE QUESTION IS “WE DO NOT HAVE A BONA FIDE INDIVIDUAL. IT IS STILL STRATEGICALLY
BETTER TO BRING A COMPLAINT RATHER THAN TO NOT FILE A COMPLAINT AT ALL. THE ISSUES AROUND
AN ORGANIZATION BRINGING ANY COMPLAINTS ARE THAT IT NEEDS TO ESTABLISH STANDING. IN DOING
SO, IT MUST SHOW FRUSTRATION OF RESOURCES AND — AND DESSERT — AND DIVERSION OF RESOURCES.
THE INJURY SUFFERED BY A DISCRIMINATORY AD MUST BE DOCUMENTED AND A
FAIR HOUSING OFFICE NEEDS TO BE VERY THOUGHTFUL ABOUT HOW IT GOES ABOUT. VENTING ITS INJURY.
MANY OF THE DECISIONS THAT HAVE BEEN ISSUED — UNFAVORABLE DECISIONS THAT HAVE IN ISSUED
AGAINST FAIR HOUSING OFFICES HAVE BEEN ISSUED IN THE ADVERTISING CONTACT. S CONTENT. WE
WANT TO CAUTION ALL FAIR HOUSING ADVOCATES TO BE VERY COGNIZANT OF ORGANIZATIONAL STANDING
CASES. IT DOESN’T MEAN THAT STANDING CAN BE ESTABLISHED. IT JUST MEANS THAT WE HAVE TO
BE VERY CAUTIOUS. IN ADDITION, THERE ARE RESOURCE AND CAPACITY ISSUES THAT ANY FAIR HOUSING
OFFICE AND THAT HUD ITSELF FACE WHEN ENGAGING IN THESE INVESTIGATIONS. AS JUSTIN COMMENTED,
THERE IS A NEED TO — IN THE CASE OF AN ONLINE ADVERTISEMENT — THERE IS A NEED TO IDENTIFY
THE SPECIFIC INDIVIDUAL WHO POSTED THE ADVERTISEMENT. THIS CAN BE A CHALLENGING TASK THAT MAY REQUIRE
LEGAL ACTION IN ITSELF TO SUBPOENA INFORMATION. IN INSTANCES WHERE YOU ARE DEALING WITH A
SMALL HOUSING WRITER THERE ARE CERTAIN RESOURCE CONSIDERATIONS THAT ANY FAIR HOUSING OFFICE
WILL HAVE TO MAKE IN IT AND WE WOULD LIKE TO KNOW THOSE. IN PART BECAUSE HUD ITSELF
FACES CAPACITY ISSUES AND THIS MUST BE TAKEN INTO ACCOUNT AND THINKING ABOUT HOW TO STRATEGICALLY
ENGAGED IN ENFORCEMENT ACTS. THERE ARE OTHER THINGS TO TAKE INTO ACCOUNT WHEN FACING A
ORGANIZATIONAL COMPLAINT, BUT IT UNDERSCORES SOME OF THE ISSUES THAT NEED TO BE CONSIDERED.
TAKE A MOMENT HERE TO IDENTIFY SOME OF THE QUESTIONS. CAN YOU REVIEW THE REQUIREMENTS
OF ANY ADVERTISERS IN PRINT ADS RELATED TO THE USE OF HUD, THE HUD LOGO OR EQUAL OPPORTUNITY
STATEMENT? IN RESPONDING TO THAT QUESTION, I WILL NOTE THAT THE HUD REGULATION THAT WE
COVERED SPECIFICALLY — PART 109 .30 COVERS FAIR HOUSING POLICIES AND PRACTICES. IN THAT
GUIDANCE, THAT HUD REGULATION, HUD NOTES THAT IT WILL, IN THE INVESTIGATION OF COMPLAINTS,
CONSIDER THE IMPLEMENTATION OF FAIR HOUSING POLICIES AND PRACTICES DETAILED IN THE SECTION
OF THE REGULATION AS EVIDENCE OF COMPLIANCE WITH THE PROHIBITIONS AGAINST DISCRIMINATION
AND ADVERTISING IN TERRORIZING — IN FAIR HOUSING. THAT INCLUDES THE USE OF FAIR HOUSING
LOGO. SO THE READING OF THE REGULATION INDICATES THAT HOUSING PROVIDERS AS WELL AS PUBLISHERS
ARE BEST SUITED IN AFFIRMATIVELY USING THE FAIR HOUSING MATERIAL IN ORDER TO HELP SHIELD
THEMSELVES FROM LIABILITY. A QUESTION HERE IS — MENTIONED EARLIER, NAFA REPORTED ENFORCEMENT
— DO YOU BELIEVE EDUCATION AND OUTREACH CAN BE THE MOST EFFECTIVE TO REDUCE THE FREQUENCY
OF THESE ADS? IS THERE A HISTORY OF ISPS LIKE CRAIGSLIST AND COOPERATING WITH HOUSING ORGANIZATIONS?
IT GETS TO THE COMMUNICATION DECENCY ACT POSED DURING — POSED. WE CAN CONTINUE TO PRESS
CONGRESS TO CHANGE THE COMMUNICATION DID — THE COMMUNICATION DECENCY ACT. GIVEN THE RESOURCES
REQUIRED, WE CAN THINK ABOUT HOW TO TARGET OUR LIMITED RESOURCES IN A WAY THAT RESULTS
IN SYSTEMIC INVESTIGATIONS THAT MAY HAVE SOME GREATER IMPACT. FINALLY, I WOULD NOTE THAT
EDUCATION AND OUTREACH IS IMPORTANT. OUR NEXT WEBINAR COVERS EFFECTIVE STRATEGIES. THE IMPACT
OF THESE DISCRIMINATORY ADS ARE VERY WIDESPREAD. THE EXTENT TO WHICH THEY MAY CREATE MISPERCEPTIONS
ABOUT THE FAIR HAS A ACT REQUIREMENTS. SO IT IS DEFINITELY INCOME IN IT FOR FAIR HOUSING
ADVOCATES TO ENGAGE. ALTHOUGH NAFA WOULD CERTAINLY NOTE THAT THAT IS BEST PAIRED WITH SYSTEMIC
AND OARSMEN. — WITH SYSTEMIC ENFORCEMENT. THERE IS SOME INTEREST IN CLARIFYING THE EXTENT
TO WHICH INDIVIDUALS WERE POSTING THE AD, THE HOUSING PROVIDERS THEMSELVES, OUR SUBJECT
TO HOUSING ACT LIABILITY, EVEN IN THE FACE OF THE EXEMPTIONS THAT MAY OTHERWISE COVER
THE CONDUCT ITSELF. ONE EXAMPLE IS THE MS. MURPHY EXAMPLE. AGAIN, THAT IS AN INSTANCE
IN WHICH A HOUSING WRITER MAY HAVE SOME CERTAIN NUMBER OF UNITS AND RESIDE ON THE PROPERTY
OR IN THE VICINITY AND MAY BE EXEMPT AS A RESULT. CERTAIN PROVISIONS OF THE FAIR HOUSING
ACT. UNDER 3604 C, THAT HOUSING PROVIDER IS STILL BARRED FROM ISSUING DISCRIMINATORY STATEMENTS
AND IS STILL LIABLE COME EVEN IN LIGHT OF THAT EXCEPTION. THAT IS COMPLICATED TO SOME
EXTENT IN THE NINTH CIRCUIT UNDER THE ROOMMATES DECISION IN WHICH FAIR HOUSING ACT REQUIREMENTS
DO NOT APPLY TO SHARED LIVING SITUATIONS. IT SHOULD BE NOTED THAT NAFA READS THAT DECISION
IN A NARROW FASHION. HOWEVER, WE DO NOTE EXTREME CAUTION IN ANY FAIR HOUSING ADVOCATE WHO THINK
ABOUT ENGAGEMENT IN ENFORCEMENT IN A REMAKE CONTEXT. WITHIN THE NINTH CIRCUIT OR OTHERWISE.
JUST REVIEWING THE QUESTIONS HERE IF YOU WILL BEAR WITH US FOR A MOMENT. INC. YOU OFFICE
OF MEETING THESE QUESTIONS. IT SEEMS THAT WE HAVE LARGELY COVER THE SUBSTANCE OF THESE
QUESTIONS IN SOME FASHION. BUT THERE ARE MORE QUESTIONS COMING IN. IF THERE IS SOME COMPONENT
OF YOUR QUESTION THAT WE HAVEN’T ADDRESSED OR IF YOU HAVE AN — HAVE ANY QUESTIONS, PLEASE
FEEL FREE TO SEND THEM IN. BOOKS AND WE HAVE MORE QUESTIONS THAT WE WILL GO THROUGH SHORTLY.
THERE ARE A COUPLE OF QUESTIONS HERE THE DEAL WITH HOW TO PROCEED WITH INVESTIGATIONS. ONE
IS LOCATED IN A COLLEGE TOWN WHERE THEY SEE ADS FOR THIS DUDEN’S ONLY OR SPECIALIZING
FOR STUDENTS OR MEDICAL GRADUATES PREFERRED.>>THIS IS A GOOD QUESTION. IT RAISES THE
ISSUE OF WHAT CONSTITUTES A DISCRIMINATORY PREFERENCE. THE PERSPECTIVE ON THIS MATTER
AND ENGAGING IN AN INVESTIGATION ON ADVERTISING CASES IS THAT IT WOULD BE BEST TO ENGAGE IN
ENFORCEMENT FOR THIS TYPE OF ADVERTISEMENT NOT JUST ON THE BASIS OF THE ADVERTISEMENT,
BUT ALSO WHAT OTHER INVESTIGATION THE FAIR HOUSING OFFICE CAN DEVELOP. FOR EXAMPLE, ENGAGING
IN TESTING ON THE BASIS OF FAMILIAL AXIS — FAMILIAL STATUS WOULD BE A LOGICAL NEXT STEP IN CONSIDERING
ENFORCEMENT OF THIS ADVERTISEMENT. CERTAINLY, A POTENTIAL CLAIM THAT SHOWS PRACTICES OF
DISCRIMINATION WOULD SIGNIFICANTLY ULSTER A CLAIM — SIGNIFICANT LABELS TO HER THAT
THIS ADVERTISEMENT HAS DISCRIMINATORY PREFERENCE. ABSENT THAT TESTING EVIDENCE, IT WOULD NOT
BE A STRONG AND CERTAINLY RECOMMENDING GAUGING IN INVESTIGATIONS TO BOLSTER EVIDENCE WITH
TESTING AND ALSO TO DEVELOP AN INVESTIGATION INTO SOMETHING THAT MAY BE MORE SYSTEMIC AND
MAY INVOLVE ALTERNATE HOUSING COMPLEXES BY THE SIMILAR HOUSING PROVIDER OR OTHERWISE
TAKE INTO ACCOUNT A PATTERN OF DISCRIMINATORY PRACTICES THAT MAY BE AT PLAY. A COUPLE OF
TERMINOLOGY MATTERS. WHAT IS A WRAPAROUND TEST AND WHAT IS BONA FIDE? WHEN WE USE THE
TERM WRAPAROUND TEST, WE ARE REFERRING TO A TEST USING FAIR HOUSING TESTERS ARE MISTRY
SHOPPERS IN THE HOUSING MARKET IN WHICH IT PROTECTED CLASS TESTER IS PAIRED WITH A CONTROLLED
TESTER TO ASSESS DIFFERENCES IN TREATMENT IN INSTANCES WHERE A PROTECTED CLASS TESTER
MAY BE GIVEN CERTAIN TREATMENT AND ANY CONTROLLED TESTER IS GIVEN OTHER TREATMENT. A WRAPAROUND
TEST IS A TEST IN WHICH A — WHEN WE ARE REFERING TO A BONAFIDE, A CLAIM AS OPPOSED TO A FAIR
HOUSING OFFICE ITSELF. THERE IS A QUESTION HERE DEALING WITH SEEING POSSIBLE
DISCRIMINATORY ADS FOR SINGLE TENANT ONLY AND BEST FOR ONE PERSON. THERE’S A QUESTION
ID HGWEW — IF THERE IS A LIST WE CAN SHARE. ONE SLIDE COVERED POSSIBLE SA — STATEMENTS.
YOU CAN REFERENCE
THAT SLIDE.>>WE DON’T WANT TO GET TOO DEEP IN THE TESTING
METHODOLOGY. YOU’D HAVE
YOUR PROTECTED TESTER AND YOUR INITIAL CONTROL TTESTER CONTACT THAT — CONTACT THE SAME HOUSING
PROVIDER AGAIN. IT’S WRAPS AROUND. IT’S ON — IT’S JUST SOME CLARITY ON HOW A WRAP AROUND
TEST WORDS. — WORKS. YOU CAN CONTACT US OFFLINE AND WE CAN ANSWER THOSE AFTER THE WEBINAR.>>THERE’S ONE MORE QUESTION. IS THERE ANY
HOPE FOR THE DECENCY ACT TO CATCH UP TO THE INTERNET OR ANY STRATEGY TO MAKE IT HAPPEN.
IN REGARDS TO THE SIGNIFICANT ONLINE RESEN — PRESENCE, WE ARE IN A SITUATION WHERE THE
HOUSING ACT AND ITS PROVISIONS ARE BEING BOARDED. WE’D LOVE TO
TALK WITH FOLKS FURTHER ABOUT ENGAGING
IN THAT ADVOCACY. NAH — NAFA INCLUDES EACH
OF OUR BOARD MEETINGS. BOARD MEMBERS SPEND A DAY GOING TO THE HILL. WE APPLAUD OUR BOARD
AND OTHER MEMBERS FOR ENGAING IN THOSE EFFORTS. WE CAN ENGAGE THOSE WHO DO OUR POLICY COMMUNICATIONS
WORK IN THOSE ONGOING COMM8N — ONGOING COMMUNICATIONS. THE CHALLENGES WE FACE IN INVESTIGATING AD
ENFORCING THESE ISSUES. WE ENCOURGE THOSWE WHO DO SO IN A THOUGHTFUL FASION — THOUGHTFUL
FASHION.

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