LOS ANGELES — A California city’s ordinance prohibiting advertisements for unpermitted vacation rentals doesn’t violate either the First Amendment or the Communications Decency Act, a federal court ruled last month when dismissing a lawsuit brought by companies that list short-term rentals on their websites.
Chapter 6.20 of the Santa Monica Municipal Code requires a permit and establishes operating standards for home-sharing and vacation-rental activities, including the renting of a room for occupancy of 30 or fewer days. The ordinance’s clause prohibiting advertisements for unpermitted rentals prompted a constitutional and statutory challenge in the case of Homeaway.com, Inc. v. City of Santa Monica.
The plaintiffs alleged the advertising ban violated the Communications Decency Act, a federal law that says websites aren’t legally responsible for publishing others’ content. In a June 14 opinion, U.S. District Court Judge Otis D. Wright II rejected the argument, citing the “persuasive” reasoning of a 2016 opinion in Airbnb, Inc. v. City & County of San Francisco, a case that has since been settled.
Wright held Santa Monica’s ordinance “does not penalize Plaintiffs’ publishing activities; rather, it seeks to keep them from facilitating business transactions on their sites that violate the law.” Therefore, the plaintiff website companies couldn’t avail themselves of the statute’s protections.
He then addressed the claim that the ordinance was an unconstitutional infringement on free speech. “Plaintiffs allege that the Ordinance is a content-based restriction that burdens and impermissibly chills their protected commercial speech and, therefore, violates the First Amendment,” Wright wrote.
He concluded, however, “the conduct banned by the Ordinance — booking transactions for residential properties not listed on the City’s registry — does not have such a ‘significant expressive element’ as to draw First Amendment protection.” Wright noted he had reached the same conclusion a few months earlier in an opinion denying the plaintiffs’ motion for a preliminary injunction against the ordinance’s enforcement.
In his opinion dismissing the case, Wright addressed new constitutional arguments raised by the plaintiffs, and he reiterated the First Amendment’s inapplicability to the case because the ordinance “imposes no liability on Plaintiffs for the content of materials on their websites.”
He also emphasized the relevance of illegality.
“The Court agrees with the City that the First Amendment does not protect speech proposing an illegal transaction,” Wright wrote, citing a 1973 Supreme Court opinion, Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations. “There can be no dispute that it is illegal in Santa Monica to rent a unit that does not comply with the Ordinance.”
Again referencing the San Francisco case, Wright said: “Plaintiffs cannot use the First Amendment as a shield to allow them to communicate offers to rent illegal units.”
Santa Monica’s ordinance, first enacted in 2015 and most recently amended last year, is part of a national trend of municipalities stepping up enforcement efforts against unpermitted vacation rentals.
Wright is a former Marine and sheriff’s deputy who has served on the federal bench since 2007 after being nominated by President George W. Bush.
(This story first appeared at Medium.com.)