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SAN FRANCISCO — Free Press joined the American Civil Liberties Union (ACLU), Lawyers’ Committee for Civil Rights Under Law (LCCRUL), and the National Fair Housing Alliance in an amicus brief arguing that Facebook violates fundamental civil-rights protections by offering an advertising tool that discriminates based on “protected characteristics” of users, including race and gender. All Rise Trial and Appellate served as outside counsel to the organizations for the filing.

The case, Rosemarie Vargas, et al v. Facebook, Inc., is before the U.S. Court of Appeals for the Ninth Circuit after being dismissed by a federal district court in 2021. The amicus brief explains that the lower court made several key errors, including its conclusion that Section 230 of the Communications Decency Act prevents Facebook from being held liable for the plaintiff’s claims regarding the company’s own conduct and content.

“Discrimination in advertisements for housing, jobs, and other key aspects of American life has a long history, as do civil rights laws curtailing it,” the groups write. “That such discrimination happens on the Internet does not make Facebook’s practices different in kind from discriminatory offline conduct that has been found to violate civil rights laws.”

The brief argues that these laws have long proscribed discriminatory advertising that makes it harder for people of color to access economic opportunities. “Facebook is liable not for third-party content, but for its own conduct in causing or materially contributing to civil rights violations — a distinction that makes Section 230 protection inapplicable to Facebook” here.

Extensive reporting by The Markup and other news outlets has revealed a continuous stream of discriminatory advertisements on Facebook, despite the company’s agreement in 2019 to end some of its targeting options for housing, job, and credit ads.

“This suit is a necessary legal step in remedying systemic discrimination based on Facebook users’ identities and protected traits,” said Nora Benavidez, senior counsel and director of digital justice and civil rights at Free Press. “The district court failed to fully consider the extent to which Facebook’s advertising practices deny specific users equal experience and opportunity online, by placing them into cohorts which are either included or excluded from seeing housing ads on the platform. We live in a digital-first society: People use the internet and social media to find opportunities, from housing to jobs to voting information. The district-court decision ignored decades of civil-rights precedent that are applicable in the digital context. Now, the Ninth Circuit has an opportunity to reverse the lower-court ruling and clarify that Facebook’s actions are clearly civil-rights violations for which platforms can and should be liable."

“Facebook’s segregation of its users imposed greater burdens on people of color and women when they sought to access housing, jobs, credit and other opportunities protected by civil-rights laws,” said David Brody, LCCRUL’s senior counsel and senior fellow for privacy and technology. “When users have to pay more in time, money, or effort, or endure humiliation to achieve the same access or quality of service, that is a denial of equal opportunity, just like when a realtor solicits white buyers but not Black buyers.”

Linda Morris, staff attorney at the ACLU Women’s Rights Project, said: “The elimination of Facebook’s discriminatory ad-targeting practices is critical to advancing racial and gender equity in housing, employment and credit. That can only happen if courts recognize the harms of online discrimination, and apply civil-rights laws to the discriminatory tools of the digital age.”

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