Land Use Prof Blog

Thanksgiving with a refugee (via Airbnb)

A friend of mine here in Boise rents out her home on Airbnb enough to have earned herself "super host" status.  Several weeks ago, she was approached by Airbnb to engage in an activity that was remarkably wonderful and, to Airbnb's credit, not highly publicized:  they just did it.

The conceit was simple:  in cities with recent arrivals of refugees, Airbnb asked hosts if they would be willing to serve a newly-arrived refugee family Thanksgiving dinner.  My friend here in Boise agreed and was paired with a 7-member family recently resettled from the Congo:  a mother and father both ages 50, with children ages 21, 19, 16, 14, and 7 years old.  As folks may know, Boise has a large resettlement community and, amazingly, was the the city where hosts reached out the most of any place in the country.  Here is a follow-up e-mail my friend received from Airbnb:

. . . Across the country 41 host families invited over 130 newly resettled refugees from 8 different countries for dinner - with a couple rescheduled for next week. Boise led for the most number of plates served, with Pittsburgh and Raleigh coming in a close second.

New friends bonded over Thanksgiving turkey, stuffing, and dessert. So far, we’ve heard of children working on homework together while parents drank tea and made plans to spend time together in the future; One host family are taking their new friends sledding for the first time this winter and a host and guest family discovering they were really neighbors living within walking distance from each other.  

 

This was the first time we've tried this and working with multiple agencies across the United States was definitely challenging. Not every dinner was smooth - one host was left with lots of leftovers when most of the family did not arrive to one of the refugee families learning about the perils of Los Angeles Thanksgiving traffic (4 hours!). . . .

 

A great project, and one that gives hope especially in this time when the dominant national narrative is anti-thetical to precisely this kind of sharing and engagement.

2017 Affordable Housing & Community Development Law Law Student Legal Writing Competition

To share with your students.  Link to instructions here.

Also download the instructions here:  

Download 2017 Writing Competition Guidelines

OECD begins roll-out of international land use survey with policy highlights document

Last year, I served as an adviser on United States' land use policy for OECD's survey of worldwide land use policy.  The fruits of OECD's massive study are just now rolling out.  Here is a link to the first summary publication, called The Governance of Land Use:  Policy Highlights.  The document serves as a great introduction to land use law and policy, its complexities, and where it is likely to go from here.  The global focus also gives a refreshingly new look at issues.  Well worth a read.  The larger reports that this report summarizes will tentatively roll out in Spring, 2017.

ESSAY: Prescriptions for a Dangerous Nostalgia

As my friends melt down around me and declare that Trump’s election means the end is nigh, I have found myself feeling remarkably resilient and thinking about how now is precisely the time that state and local governments matter most.

I am not the first to declare this.  Bruce Katz at Brookings has a nice piece declaring the importance of cities regardless of the impending diminishment of federal leadership on just about everything.

Nonetheless, I wanted to give my own particular spin on this because I feel this election really tugs at different parts of my history.  Before I divulge my policy prescriptions, let me indulge in a little personal history. 

I grew up a decidedly middle-class Midwesterner in Dayton, Ohio, though I should be clear that my father was a physicist, and so ours was not exactly a “Joe Six Pack” family or one tied to the factories or mills of the Rust Belt.  That said, I went to a public school, and I met and was friends with a wide variety of kids who were tied to that life.  The Moraine Assembly, one of the enormous and fabled facilities of the mighty General Motors days, was located in my town, and all those kids were in my classes.  From that place, I headed east to an Ivy League, then west to a law degree and a master’s at ultra-liberal California universities, and spent most of my adult life in New York City and San Francisco.  I’d become, in some sense, an “elite,” though, as Joan Williams notes in her excellent post-election essay in the Harvard Business Review, the folks back home never really thought much of anything I’d accomplished because it was intellectual work and it didn’t make me rich.  For the past six years, I have lived in Boise, Idaho.  Though I root for the Boise State Broncos, my boyhood’s sense of geography still views Ohio Stadium as the locus where important things are decided, such as college football championships and presidential elections. 

With my sabbatical looming next year, I had long thought that I would spend some time next year returning to my boyhood home to answer a certain question that I had framed in my mind as something like, “whatever happened to Dayton?”.  I never expected that question to be of any real significance to anyone other than myself until the election and, suddenly, everyone was talking about the industrial Midwest, the “white working class,” and how this bastion of blue went red.  Someday, I am going to write more about that.

For today, I am less interested in thinking about how the industrial Midwest turned a presidential election than I am in thinking about how the kind of work that I do—and that many of the blog readers do—can have an effect in soothing some of the underlying cankers that the election exposed. 

Here are several prescriptions for dealing with the issues the election exposed, some of which have to do with the Midwest, and some of which are more broadly framed. 

First, the industrial Midwest clearly needs to engage all areas, and especially its rural areas, in economic development that helps them create a “ground up” vision of their own economic future.

If you look at a vote of industrial Midwestern states by county, you see that most urban areas voted blue, most rural areas voted red.  Now, it may be that a lot of those voting “red” are simply conservatives, which is perfectly fine.  But reports seem to indicate that many of them voted for Trump because of a sense of hopelessness about their economic futures.  Whether that is true, or just a convenient narrative that is developing, is unclear to me at this point.  I will say, however, that it rings true to me as a native Midwesterner:  Almost every major business that was located in Dayton when I grew up there in the Eighties is now gone.  NCR.  Mead.  Citizens Bank.  And, of course, the Moraine Assembly, where GM had built S-10 pickups, all closed or moved elsewhere, among many others.

To address this, the bottom-up model for economic development I suggest Midwest communities adopt is the Colorado Blueprint, which I wrote about in an article a few years ago.  Here is how I summarized that project:

In January, 2011, then-newly-elected Colorado Governor John Hickenlooper initiated one of the most aggressive “bottom up” economic development planning strategies ever devised in the United States. The strategy was outlined in Hickenlooper’s Executive Order 2011-003, Implementing a Statewide Economic Development Strategy, which provided:

In order to grow Colorado’s economy, it is vital to engage Coloradans across the state in developing a comprehensive and collaborative approach to economic development. This new approach is designed to identify the needs, priorities, vision, strengths, and weaknesses of each of the state’s counties, and incorporate them into 64 economic development plans, tailored to each county. These plans will roll up into fourteen regional plans that will comprise a comprehensive, statewide economic development plan.

This planning effort, which became known as Colorado Blueprint, engaged more than 5,000 people at more than 50 meetings around the State.  More than 8,600 surveys were completed and all of the State’s 64 counties participated. A State team designated to lead the effort traveled more than 6,000 miles. In addition, a dozen state agencies and statewide organizations participated. This was the “bottom up” approach: the State did not begin drafting any economic development objectives until it first went and talked to people throughout the State’s regions.

The result of the “bottom up” approach was the Colorado Blueprint document, which was delivered in October 2011, just nine months after Governor Hickenlooper began the program.

The document provided detailed action items for the State in six identified objectives: (1) build a business friendly environment; (2) retain, grow, and recruit companies; (3) increase access to capital; (4) create and market a stronger Colorado brand; (5) educate and train the workforce of tomorrow; and (6) cultivate innovation and technology.

But what is most instructive for rural economic development is that the Colorado Blueprint process did not begin with the statewide plan. Instead, the process created action plans for each of the State’s counties and then rolled those up into fourteen regions plans. For instance, the Comprehensive Economic Development Strategy developed for Region 9 (Region 9 Strategy) encompasses some of Colorado’s most rural areas located at State’s most south-western area. The Region 9 Strategy concluded with a chart that listed each of the region’s priorities, established strategies for achieving those priorities, listed specific actions that could be taken to advance the strategies, and then listed expected outcomes and measurable results.

As a bolded statement in the Colorado Blueprint document noted, “This is not a comprehensive collection of all-encompassing end-goals for all of Colorado, but rather a first set of achievable objectives to undertake together.” This type of action item planning arising from the communities empowers localities with steps to an achievable local future that is, simultaneously, tied to a statewide and even a global future.

If the industrial Midwest really feels as disenfranchised as it seems in this election, a broad embrace of Colorado’s ground-up economic development planning seems a necessity for those states.

Second, liberals need to learn to talk “red state,” especially with regard to environmental goals.

Successful environmental results in red states largely evade the notice of blue state environmentalists because blue states are looking for success on their terms.  To be successful in red states, environmentalism needs to realize that it needs to “speak” to the other half of the country that is not necessarily “progressive,” and doesn’t ever want to be.  Apparently this is something people are just starting to contemplate in earnest:  I was at a fundraiser earlier this week for a conservation group here in Idaho and the director said his phone was ringing off the hook with people all over the country asking him how the group had been so successful in a deeply red state.

Let me give several other examples of how I have seen this play out since being in Idaho that perhaps expand on the necessity to speak environmentalism in a language that aligns with conservative values.

The City of Boise recently established what it calls a “LIV District,” which largely causes confusion among those that don’t look further.  So, what does LIV mean?  Here is how Boise defines it:

LASTING ENVIRONMENTS

Recognize, protect and improve the health and sustainability of all our activities, our connections to one another, and our natural resources.

INNOVATIVE ENTERPRISES

Work with individuals, nonprofits, and businesses to encourage creativity and collaboration that will promote economic prosperity and improve lives.

VIBRANT COMMUNITIES Engage citizens and organizations to spark new connections, inspire cooperation, and strengthen Boise’s rich, community-minded spirit.

Now, if you have just the most basic knowledge of sustainability principles, you will recognize these as essentially the trivium of “Es”—environment, economy, and equity—that have formed the basis of sustainable development theory for decades.  But in a conservative state like Boise where the word “sustainability” draws out the anti-Agenda 21ers, Boise is re-branding these core ideas in a way that is amenable to the local community.

Similarly, the law school here in Boise recently moved into a beautiful, renovated WPA-era courthouse as our new location.  As part of upgrade, the building was attached to the city’s geothermal system, making it almost certainly one of the most energy-efficient law schools in the country.  But guess what?  This is a red state, and so the state administrative agency that owns the building didn’t bother with LEED certification, and we as a law school make no effort to publicize that we have this incredibly “green” building.  Why?  Because “green” in Idaho is distrusted.  But the state administrative agency that manages buildings could justify expanding the geothermal system because it made excellent long-term economic sense.  And so, while the law school building is a great “green” success, it will never be marketed as such.  Instead, it will be marketed as an efficient use of taxpayer dollars, which it also is. 

By the way:  did you know that Boise has the country’s largest geothermal heating system that heats most of the major downtown buildings?  Probably not, because it’s not the kind of place that highlights how “green” it is.

Finally, I heard one of the leaders of Envision Utah, probably the country’s most successful regional planning organization of the last several decades, talk about how they address a deeply conservative population about planning.  He noted that they never talk about “density”; instead, they did significant outreach to find out what mattered to individuals in the greater Salt Lake City area.  What they found was that there was significant concern that families could not stay together because there was not a housing mix that allowed for family members in different life stages to live close together.  That interest in keeping families close together became a way to talk about density that resonated with the local values in a way that “density” never would. 

These are just a few examples, but they illustrate that environmentalism in red states cannot proceed with the same language as in blue states.  It needs to speak to local values.  Given that the two fastest growing regions of this country—the Mountain West and the South—are dominated by conservative constituencies, there is an imperative to develop a language of environmentalism and land use law that speaks to the values of those who live there.  By speaking the local language, new avenues of collective engagement open up where doors might be closed to the same policies when cloaked in “progressive” values.

Third, cities should continue to focus on driving markets for energy efficiency and climate change.

Whatever Trump does with climate change as a policy matter, he cannot change the fact that the large majority of carbon emissions (up to 70% by some estimates) arise from cities that, overwhelmingly voted against Trump and that want to do something about carbon emissions.  For this reason, leadership by cities is more important than ever.  Take for instance, Santa Monica’s leadership in implementing its recent net-zero residential building requirement, or Salt Lake City’s commitment to use 100% renewable energy by 2032.  Barring a far-reaching federal preemption over matters traditionally of local concern, Trump will be powerless to control cities that seek to aggressively combat climate.  Of course, there are many aspects of climate change that require a federal response, but let us not underestimate the power of cities, regions, and even states to lead the way while the Trump administration dithers in pseudo-science.

Finally, we must face the fact that the real enemy of the white working class is not trade, but technology, and we must chart a legitimate way forward. 

By painting the demise of Midwestern jobs in trade, Trump was able to wrap the loss of jobs in the bitter reprise of Springsteen that “those jobs are going boys and they ain’t coming back.”  Trade permitted the indulgence in racism, xenophobia, and a “them” that was taking away everything from an “us.”

But let us return, once more, to the Moraine Assembly, so close to my childhood home.  Growing up, the Assembly made S-10s.  Later, when I was off at an Ivy League, I read that GM had re-tooled the whole factory to make brakes.  After that I lost touch, but with a little research I learned that GM kept the place open until 2008.  Since then, that massive stretch of steel that could house 41 football fields has been idle.

(Incidentally, the closure of the Assembly was the subject of an HBO documentary, The Last Truck: Closing of a GM Plant filmed by Steve Bognar and nominated for an Oscar.  Steve was a childhood hero of mine.  He taught a documentary film class at my high school and led a group of us in making a documentary about the lawsuit over whether Robert Maplethorpe’s photographs were pornography that arose from display at the Cincinnati Contemporary Arts Center.  We called it, "Oh Say Can We See?".  It was not nominated for an Oscar.)  

 

Until 2014, when the Assembly was purchased by China-based Fuyao Glass Industry Group Co. Ltd., which manufactures automotive glass for GM and other automakers.  That’s right, a Chinese investor bought this facility in the heartland and...a Chinese company brought jobs back to the U.S.  It now employees several thousand, but at $12 an hour, whereas the GM jobs paid $30 an hour. 

So, if we were to re-write the Springsteen verse to the parable of the Moraine Assembly, it would be that “those jobs probably aren’t coming back, but if they do, there will be fewer of them, you’ll get paid less, and you’ll be working for a Chinese company.”

What changed since the closure of the GM factory and the Fuyao factory opened, of course, was automation.  The speed of technological change affects the working class first, and it affects industrial workers most.  The twenty-first century is only going to exacerbate this trend; as has been well documented, the impending ubiquity of autonomous vehicles will largely destroy the last bastion of “good” white working class jobs, the long-haul trucker.

So, if there is a culprit to the loss of jobs in this part of the country, technology is probably a more likely culprit than trade.  But as vital as it is to address that challenge, it has no easy resolution.  There is no easy scapegoat to technology’s march. 

The best first response might be to invest in re-training to help factory workers transition to other industries.  This was the lure of “green jobs” when the Midwest’s factory workers were going to be employed making wind turbines but, again, that required just a fraction of the jobs employed prior to the march of technology.

I have no easy response to what technology does to industrial towns.  But let me end, with a broader parable about my hometown.  Earlier this year, I picked up David McCullough’s The Wright Brothers about the Dayton-born brothers who invented mechanized flight.  The book chronicles the Dayton of their time and, as hard as it is to imagine, living in Dayton at the turn of the twentieth century was kind of like being in Palo Alto when Hewletts and Packards were tinkering in their garages.  Here is how McCullough describes it:

Then, too, there was the ever-present atmosphere of a city in which inventing and making things were central to the way of life.  At about this time, just prior to the turn of the century, according to the U.S. Patent Office, Dayton ranked first in the country relative to population in the creation of new patents.  The large factories and mills of Dayton kept growing larger, producing railroad cars, cash registers, sewing machines, and gun barrels.  (36)

Dayton was not alone; at the turn of the twentieth century, the industrial Midwest was a place of tinkerers that were pushing the forward edges of industrialism.  But there was also something else about the Midwestern culture that was always a little reluctant to engage the future and embrace change.  I have always recalled this passage from a New Yorker article about the Cincinnati race riots several decades ago (Cincinnati is just south of Dayton):

At other times, in other ways, conservative impulses have thwarted social and economic progress. For instance, in the early nineteenth century, Cincinnati was the nation’s leading cultural and mercantile outpost beyond the Alleghenies; but by mid-century the city fathers, prosperous and satisfied stewards of an economy tied to steamboat transportation, resisted the imperative to adapt to a railroad-based system. (One consequence was that this hastened the meatpacking industry’s shift from Cincinnati to Chicago.)

That passage stuck with me because it gave a history to the impulse that I felt, from an early age, to leave the industrial Midwest.  For, while I felt the spirit of the Wright Brothers in the place, it always seemed there was a self-satisfied impulse that what existed now was good enough.  Whatever had allowed Chicago to bypass Cincinnati prevented the place from fully engaging the world as it is rather than a nostalgia for a bygone era.   

If I am upset about the election, it is that the destructive nostalgia of the place I left now has hold of the nation.  That makes it all the more imperative not to brow-beat the Midwest, but engage and help those afraid of the future find a place in it, and perhaps even attain some aspiration to lead.  I always had a special, local’s love of Melville’s declaration that, “men not very much inferior to Shakespeare, are this day being born on the banks of the Ohio.”  For all of the hubris in such a claim, why shouldn’t Ohio, and all the Midwest, be that kind of place that Shakespeares are born, and moreover, that they want to stay?  It would mean creating a culture there not just of getting jobs back, but picking up where the Wright Brothers left off:  embracing change, technology, and facing down the strong headwinds that give lift to the wings of planes, states, and nations.  I don’t know if the industrial Midwest will ever get there, but it seems we all may need to spend more time helping them try.

Should doing business on the Internet preempt local land use regulation? Airbnb bets big on yes.

The sharing economy is bringing a whole host of new issues to the fore that perhaps were not imaginable a few years ago.  One of the most important might be the relation between the Communications Decency Act § 230 (CDA § 230) and land use regulation.  In short, CDA § 230 has become Airbnb and other short-term rental companies' litigation strategy of the year.  They argue that CDA § 230, in essence, provides them immunity from cities seeking to impose penalties against the STR companies for advertising illegal units.  At its base, the argument is that because platform-based companies do business on the Internet, they are immune from land use regulations that would otherwise apply to them if they were a business operating off the Internet.  This strikes me as an incredibly dangerous line of cases because, should Airbnb prevail, it would seem that anyone could take an existing non-Internet business, move it to a platform-based delivery model, and all of a sudden, land use regulations that would otherwise apply are magically unenforceable.

Also of note are that the only amicus briefs filed thus far in these CDA § 230 cases are by professors and organizations that are strong advocates of the Internet as a regulation-free zone.  Their amicus briefs make no mention of the local effects of the STR industry, much less even acknowledge that their arguments would preempt local land use regulations not just in the case of STRs, but potentially in a very broad set of circumstances.  Here are the two amicus briefs from the San Francisco case:

Download Airbnb v San Francisco - Internet Association Amicus

Download Airbnb v San Francisco - EFF Volokh Amicus

It is surprising to me that no land use / property / local government professors are weighing in.  I will acknowledge my own failure to do so (where does the time go?); however, I really think courts need to hear from this group of scholars on the implications of viewing the Internet as some purely disembodied, privileged mechanism that transcends time, space, and regulation.  The effects of STRs are very local, and very real.  As many folks know, I am actually a believer in growing sharing economy uses, but I do not believe that shrouding such businesses in preemption of local regulation simply because of the avenue of commerce used makes any sense at all.

Luckily, the first court to weigh in on this seems to understand what is at stake.  A decision denying a preliminary injunction was just issued on November 8 by a district court in San Francisco.  Here is an excerpt on the CDA § 230 claim from Airbnb, Inc. v. City & Cty. of San Francisco, No. 3:16-CV-03615-JD, 2016 WL 6599821, at *3–6 (N.D. Cal. Nov. 8, 2016):

 

II. Likelihood of Success on the Merits

A. CDA Section 230(c)

 

Plaintiffs' lead argument is that the Ordinance is preempted by the CDA. Dkt. No. 50 at 10. Section 230(c)(1) of the CDA states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The CDA includes an express preemption clause, which provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

Our circuit holds that Section 230(c)(1) precludes liability for claims involving “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” Doe v. Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016) (internal quotation omitted). There is no dispute in this case that plaintiffs provide an interactive computer service or that the information in their rental listings comes directly and exclusively from third-party users. Consequently, plaintiffs' Section 230 challenge turns on whether the Ordinance “inherently requires the court to treat” them as “the ‘publisher or speaker’ of content provided by another.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009).

 

Plaintiffs' argument is straightforward. In their view, the threat of a criminal penalty for providing and receiving a fee for Booking Services for an unregistered unit requires that they actively monitor and police listings by third parties to verify registration. Plaintiffs contend that is tantamount to treating them as a publisher because it involves the traditional publication functions of “reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” Id.; see also Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008) (en banc) (any activity “that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230”).

 

*4 But the Ordinance does not threaten the liability plaintiffs fear. As the text and plain meaning of the Ordinance demonstrate, it in no way treats plaintiffs as the publishers or speakers of the rental listings provided by hosts. It does not regulate what can or cannot be said or posted in the listings. It creates no obligation on plaintiffs' part to monitor, edit, withdraw or block the content supplied by hosts. To the contrary, as San Francisco has emphasized in its briefs and at oral argument, plaintiffs are perfectly free to publish any listing they get from a host and to collect fees for doing so –– whether the unit is lawfully registered or not –– without threat of prosecution or penalty under the Ordinance. Dkt. No. 57 at 9; Dkt. No. 72 at 25:20-24. The Ordinance holds plaintiffs liable only for their own conduct, namely for providing, and collecting a fee for, Booking Services in connection with an unregistered unit. Dkt. No. 50-2 at 3; Dkt. No. 57 at 9. This regulation of plaintiffs' own conduct “does not depend on who ‘publishes' any information or who is a ‘speaker.’ ” City of Chicago, Ill. v. Stubhub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010) (rejecting Section 230(c) challenge to municipal tax on Internet auction sites).

 

Plaintiffs recognize that the Ordinance is not, on its face, directed to content or speech. Dkt. No. 72 at 8:25-9:11. In an effort to surmount that hurdle, plaintiffs reel off a long list of federal and state cases that have broadly applied Section 230(c). Dkt. No. 50 at 10-18. While it is certainly true that these cases found preemption, they are all readily distinguishable from the facts here. The cases plaintiffs rely on involved claims and regulations that would have imposed liability on the service provider as a publisher or speaker of content supplied by a third party. In Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1266-68 (W.D. Wash. 2012), for example, the plaintiff was “the second largest online advertising service” in the country, and challenged a Washington state law that made it a felony offense to display content advertising or offering the sexual abuse of a minor. In that circumstance, where the crime expressly consisted of an act of publication, the court had no trouble finding preemption because the state law would necessarily hold Backpage.com liable for publishing advertising content supplied by third parties. Id. at 1273. The same result was reached in Goddard v. Google, No. C 08-2738 JF (PVT), 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008). The plaintiff there sought to hold Google liable for injuries from “clicking on web-based advertisements” hosted by Google. Id. at *1. The court found that “[p]laintiff claims in essence that she was harmed because Google hosted certain online content” and that her claims “would effectively hold Google liable for its publication of third-party content in contravention of § 230.” Id. at *5. In Doe v. Backpage.com, LLC, 817 F.3d 12, 16 (1st Cir. 2016), victims of child sex trafficking sought to hold Backpage.com liable because its “rules and processes governing the content of advertisements are designed to encourage sex trafficking.” The First Circuit found that these claims “[w]ithout exception” encompassed Backpage's editorial and publication “decisions about how to treat postings” by third parties, and were therefore precluded. Id. at 21-22. In addition, the First Circuit appears to take a more expansive view of Section 230(c) preemption than the Ninth Circuit. And in another case plaintiffs cite involving Backpage.com, the law at issue expressly criminalized the sale of or the offer to sell an advertisement for commercial sexual abuse of a minor. Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 816-17 (M.D. Tenn. 2013).

 

Plaintiffs' other case citations are inapposite for the same reason –– they all turned on facts showing that the service provider would necessarily be held liable as the publisher or speaker of online content provided by another. Much more germane, and of course controlling, are the Ninth Circuit's recent decisions denying preemption under Section 230(c). These cases acknowledge Congress's goals in Section 230(c) “to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material,” and to preserve the “vibrant and competitive free market” for interactive computer services. Barnes, 570 F.3d at 1099-1100 (internal quotation omitted). But they also hold, contrary to plaintiffs' position, that Section 230(c) does not provide limitless immunity for online activity or conduct related to it. Congress enacted Section 230 primarily “to protect websites against the evil of liability for failure to remove offensive content.” Roommates.com, 521 F.3d at 1174. Section 230(c) does not create “a general immunity from liability deriving from third-party content.” Barnes, 570 F.3d at 1100; see also City of Chicago, 624 F.3d at 366 (same). “To ‘provid[e] immunity every time a website uses data initially obtained from third parties would eviscerate [the statute].’ ” Barnes, 570 F.3d at 1100 (quoting Roommates.com, 521 F.3d at 1171)(brackets in original).

*5 The correct test, then, is not whether a challenged activity merely bears some connection to online content. It is whether a regulation or claim “inherently requires the court to treat” the “interactive computer service” as a publisher or speaker of information provided by another. Barnes, 570 F.3d at 1102. Applying this test, our circuit has denied preemption when a regulation or claim does not turn on holding an Internet service liable for posting or failing to remove content provided by a third party. Internet Brands, 824 F.3d at 851 (denying preemption of duty to warn relating to defendant's online practices); see also Barnes, 570 F.3d at 1107 (denying preemption of promissory estoppel claim relating to online postings because “Barnes does not seek to hold Yahoo liable as a publisher or speaker of third-party content, but rather as the counter-party to a contract”). So too here, where the challenged Ordinance regulates plaintiffs' own conduct as Booking Service providers and cares not a whit about what is or is not featured on their websites.

 

Plaintiffs' other main CDA argument draws on a preemption decision far removed from the CDA and Section 230(c). Plaintiffs argue that a 2012 Supreme Court opinion, National Meat Association v. Harris, 132 S.Ct. 965 (2012), sets a general rule that a preemption analysis must assess the “practical effect” of the challenged ordinance and how it “operates in fact” to determine whether it runs afoul of a bar. Dkt. No. 64 at 8; Dkt. No. 72 at 8:4-12. In that case, the Supreme Court struck down a California state law that imposed criminal penalties on slaughterhouses for selling products from nonambulatory animals for human consumption. National Meat, 132 S.Ct. at 975. It held that the Federal Meat Inspection Act (“FMIA”) broadly preempts state laws that purport to impose any additional or different standards on slaughterhouse facilities or operations, including the handling of nonambulatory animals. Id. at 970-71. The federal statute did not explicitly refer to sales activities, and proponents of the California law tried to avoid preemption by saying it regulated only those practices. Id. at 972. But the Court disagreed. It held that the “inevitable effect” of the sales ban “is to make sure that slaughterhouses remove nonambulatory pigs” from their operations. Id. Allowing that to stand would “make a mockery of the FMIA preemption provision.” Id. at 972-73.

 

Plaintiffs argue that this same reasoning applies here. While they acknowledge that the Ordinance does not on its face treat them as publishers or speakers of third party content, Dkt. No. 72 at 8:25-9:11, they insist that it will have the practical effect of compelling them to monitor listings and remove postings for unregistered rentals. Dkt. No. 64 at 11; Dkt. No. 72 at 14:6-16. They point to the sequence of events leading up to the Ordinance as suggestive evidence. Dkt. No. 50 at 6-7. The Original Ordinance would have treated plaintiffs as liable for content provided by users; San Francisco withdrew that law essentially as a concession that it would not survive review under Section 230(c). Id. The current Ordinance, in plaintiffs' view, is designed to achieve the same impermissible end through indirect means. Dkt. No. 50 at 19; Dkt. No. 64 at 1.

 

This argument is not well taken. As an initial matter, plaintiffs raised National Meat for the first time in a reply brief, and a case can be made that the Court should decline to consider it for that reason alone. United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006); FT Travel –– New York, LLC v. Your Travel Center, Inc., 112 F. Supp. 3d 1063, 1079 (C.D. Cal. 2015). The Court addresses it anyway for the sake of completeness and because the risk that plaintiffs have unfairly sandbagged San Francisco is not substantial.

 

Plaintiffs' problem is that they have failed to submit evidence showing that the Ordinance will in fact inevitably or perforce require them to monitor, remove or do anything at all to the content that hosts post. Airbnb says the Ordinance will make screening listings for registration status “very likely” but stops short of saying that it would be a necessity. Dkt. No. 52 ¶ 25. Plaintiffs might indeed voluntarily choose to screen listings, and the facts show that Airbnb already reviews and “discretionarily removes listings” for other reasons. Id. ¶ 14. But the Ordinance does not compel that result. It may be equally likely that plaintiffs will consider other measures unrelated to editing user content, such as posting a notice to users that they can provide Booking Services in San Francisco only for units that are lawfully registered and verified as such. See Internet Brands, 824 F.3d at 851 (approving warning notice on website). Or they may consider charging fees for publishing listings, rather than for facilitating transactions –– a measure San Francisco concedes is lawful. See Dkt. No. 57 at 14 (“Under the Ordinance, Hosting Platforms are free to charge a fee for posting a listing (even a listing for an unregistered unit) on their websites.”). The record before the Court simply does not support a finding that the Ordinance will inevitably or necessarily treat plaintiffs as publishers or speakers of user content, or force them to edit or remove postings.

*6 Plaintiffs also slight the fact that preemption under the FMIA is different from and potentially much broader than under Section 230(c). Compare CDA, 47 U.S.C. § 230(e)(3) (“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”) (emphasis added) with FMIA, 21 U.S.C. § 678 (barring a state from imposing requirements “in addition to, or different than... requirements within the scope” of the FMIA –– even if the requirements do not conflict). It is the scope of Section 230(c) that governs here, and the Ninth Circuit has expressly cautioned against applying it “beyond its narrow language and its purpose.” Internet Brands, 824 F.3d at 853. Requirements that might have an incidental ripple effect on Internet postings are not barred under the CDA. “Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the internet” even when a claim “might have a marginal chilling effect on internet publishing businesses.” Id.

 

Other factors also counsel against plaintiffs' reading of National Meat. Cases that have construed National Meat in contexts outside the FMIA have limited it to its particular facts. The Second Circuit, for example, declined to apply it to find preemption of a New York state law regulating the sale of certain tobacco products. See U.S. Smokeless Tobacco Mfg. Co. LLC v. City of New York, 708 F.3d 428, 434 (2d Cir. 2013). The circuit held that “it does not follow that every sales ban...should be regarded as a backdoor” attempt to regulate conduct upstream from the actual sale of goods or services. Id. In addition, the broad reading of National Meat that plaintiffs urge would give them a windfall over potential competitors. The Ordinance is intended to apply to all hosting services, whether online or not. Dkt. No. 50-2 at 2. Plaintiffs' backdoor argument under Section 230(c) would carve out favorable treatment for themselves, as online companies, that booking service providers not based on the Internet would not enjoy. See Roommates.com, 521 F.3d at 1164 n.15 (CDA immunity should not be applied to “give online businesses an unfair advantage over their real-world counterparts”).

 

Plaintiffs have not demonstrated a likelihood of success or a serious question on preemption under Section 230(c). Consequently, an injunction is denied on that ground.

 

 

 

New edition of Land Use & Environmental Law Review

The latest issue of Land Use & Environment Law Review is out.  Here are the articles included in this year's edition:

 

CFP: Idaho Law Review NREL Edition: Climate Change and Adaptation in the Pacific

From our students (and my colleague Anastasia Telesetsky, who is working with the students on this project):

 

The Idaho Law Review’s

Natural Resources & Environmental Law 2018 Edition:

“Climate Change and Adaptation in the Pacific”

The Idaho Law Review is pleased to announce that the theme of the Natural Resources & Environmental Law (NREL) 2018 Edition will be “Climate Change and Adaptation for the Pacific.” This edition will showcase eight to ten substantive articles that analyze existing and proposed adaptation policies and practices in both the Pacific Northwest Region and the Pacific Islands. All articles will be submitted for peer-review.

Sea level rise, extreme weather events, increased flooding, infrastructure damage, increased drought, wildfires, ocean acidification, and shifting fisheries, are forcing governments to address the impacts and consequences of an increasingly warming climate. Under the United Nations Framework Climate Change Convention, States are expected to formulate, implement, publish, and regularly update national and regional program to facilitate adequate adaptation to climate change. The objective of this law review edition is to explore how the United States is adapting to climate pressures in the Pacific Northwest and in those Pacific Island regions where the U.S. has jurisdiction (e.g. Guam, Northern Mariana Islands, and American Samoa).

Some of the questions that we hope will be addressed within this edition and at the conference organized in advance of the edition include:

• How are laws and policies within the Pacific Region addressing sea level rise, erosion, inundation risks, and flooding linked to climate change?
• Is there a need for a initiative to address how vulnerable ecological areas will adapt to sea level rise and ocean acidification? What is the appropriate level for such an initiative--state, national, or regional level?
• What roles could or should local, state, and federal governments play in establishing and developing policies and initiatives that promote climate change adaptation in regards to water resource management within the Pacific Northwest and Pacific Islands particularly in relation to drought and wildfire risks?
• To what extent should governments require actions from private firms to implement adaptation programs?
• What role should businesses like insurance companies play in developing programs that promote climate change adaptation and stimulate protective infrastructure developments?
• In regards to climate-triggered species migrations, due to our increasingly warming climate, how can the U.S. adapt its policies in the Pacific Northwest or the Pacific Islands including fisheries plans and habitat conservation plans to be responsive to climate change?

Individuals who are invited to publish an article with the Idaho Law Review will also be invited to a public research conference to be held either in Moscow, Idaho or Couer D’Alene, Idaho before the publication in early Spring 2018. We invite you to please submit your short abstracts (no more than 300 words) and CVs to be considered for this edition. Please contact the Review by sending an e-mail to Janell Middleton at [email protected] by December 1, 2016.

CFP: Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302

CALL FOR PRESENTATION PROPOSALS

 

Institute for Law Teaching and Learning—Summer 2017 Conference

Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302

July 7-8, 2017

University of Arkansas at Little Rock William H. Bowen School of Law

ABA Standard 302 requires all law schools to establish learning outcomes in certain areas, such as knowledge of substantive and procedural law, legal analysis and reasoning, and the exercise of professional and ethical responsibilities.  While requiring outcomes in these areas, however, the ABA also has given law schools discretion under Standard 302(d) to individualize their programs by establishing learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession.”  These other professional skills “are determined by the law school and may include skills such as  interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.”  This language encourages law schools to be innovative and to differentiate themselves by creating learning outcomes that are consistent with their own unique values and particular educational mission. 

The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law schools are establishing learning outcomes related to “other professional skills,” particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills.  Which, if any, of the outcomes suggested in Standard 302(d) have law schools established for themselves, and why did they select those outcomes?  How are law professors teaching and assessing skills such as cultural competency, conflict resolution, collaboration, and self-evaluation?  Have law schools established outcomes related to professional skills other than those suggested in Standard 302(d)?  If so, what are those skills, and how are professors teaching and assessing them?

The Institute welcomes proposals for workshops on the teaching and assessment of such skills in doctrinal, clinical, externship, writing, seminar, hybrid, and interdisciplinary courses.  Workshops can address the teaching or assessment of such skills in first-year courses, upper-level courses, required courses, electives, academic support teaching, or extracurricular programs.  Workshops can present innovative teaching materials, teaching methods, course designs, assessment methods, curricular, or program designs.  Each workshop should include materials that participants can use during the workshop and also when they return to their campuses.  Presenters should model best practices in teaching methods by actively engaging the workshop participants. 

The Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme.  To be considered for the conference, proposals should be one single-spaced page (maximum) and should include the following information:

• the title of the workshop;
• the name, address, telephone number, and email address of the presenter(s);
• a summary of the contents of the workshop, including its goals and methods; and
• an explanation of the interactive teaching methods the presenter(s) will use to engage the audience.

The Institute must receive proposals by February 1, 2017.  Submit proposals via email to Kelly Terry, Co-Director, Institute for Law Teaching and Learning, at [email protected].

Conference Details

 

Schedule of Events:

The UALR Bowen School of Law will host a welcome reception on the evening of Thursday, July 6.  The conference will consist of concurrent workshop sessions that will take place at the law school all day on Friday, July 7 and until the early afternoon on Saturday, July 8. 

Travel and Lodging:

A block of hotel rooms for conference attendees has been reserved at the Little Rock Marriot Hotel, 3 Statehouse Plaza, Little Rock, AR 72201.  The discounted rate will be available until June 5, 2017.  Reservations may be made online by using this link: Group rate for UALR School of Law Room Block July 2017.  Reservations also may be made by calling the hotel’s reservations department at 877-759-6290 and referencing the UALR Bowen School of Law/ ILTL Conference Room Block.

Fees:

The conference fee for participants is $400, which includes materials, meals during the conference (two breakfasts and two lunches), and the welcome reception on Thursday evening, July 6.  The conference fee for presenters is $300. 

For more information:

Please visit our website (http://lawteaching.org/conferences/2017/) or contact one of the ILTL Co-Directors:

Professor Kelly Terry

[email protected]; 501-324-9946

Professor Emily Grant

[email protected]; 785-670-1677

Associate Dean Sandra Simpson

[email protected]; 509-313-3809