Airbnb, Inc. v. City & County of San Francisco
217 F. Supp. 3d 1066
N.D. Cal.2016Background
- Airbnb and HomeAway operate online platforms connecting hosts and guests; listings are user-generated and plaintiffs charge fees for facilitating bookings.
- San Francisco enacted ordinances legalizing short-term rentals only if hosts register with the City’s Office of Short-Term Residential Rental (OSTR) and obtain a registration number.
- Ordinance 178-16 (the challenged Ordinance) makes it a misdemeanor for a "Hosting Platform" to provide or collect a fee for "Booking Services" for an unregistered unit; it does not, on its face, regulate listing content.
- Plaintiffs sued seeking a preliminary injunction, arguing the Ordinance is preempted by the Communications Decency Act §230, violates the First Amendment, and imposes criminal strict liability without scienter.
- San Francisco stayed enforcement pending litigation and represented OSTR lacks a functioning, prompt registration-verification mechanism but is willing to work with platforms to develop one.
- The Court denied the preliminary injunction on CDA, First Amendment, and scienter grounds, but deferred ruling on whether lack of an effective verification system warrants injunctive relief and ordered supplemental briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CDA §230 preemption | Ordinance will force platforms to monitor/verify listings and thus treat them as publishers/speakers of third‑party content | Ordinance regulates platforms’ own conduct (providing/charging for booking services), not publication or content | Denied — no likelihood of §230 preemption; Ordinance does not inherently treat platforms as publishers |
| First Amendment (content/speaker‑based) | Ordinance is a disguised content‑based restriction on advertisements for unregistered rentals | Ordinance targets commercial conduct (booking transactions), not speech; any speech impact is incidental | Denied — not a targeted content/speaker restriction; if commercial speech, it concerns unlawful transactions and is unprotected |
| Criminal strict liability / scienter | Ordinance imposes strict criminal liability without mens rea for facilitating bookings | City agrees scienter is commonly required and the Court can construe Ordinance to include scienter | Denied — Court construes Ordinance to require scienter; no likelihood of success on strict‑liability claim |
| Enforcement/verification fairness | Platforms fear prosecution because OSTR cannot promptly verify registration status | City concedes verification gaps and says it will engage platforms to develop a system | Deferred — Court reserved decision on injunctive relief limited to lack of an effective verification/verification process and ordered supplemental briefing |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (preliminary injunction standard)
- Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir.) (test for §230 preemption)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.) (§230 immunity and publication functions)
- Fair Hous. Council v. Roommates.com, 521 F.3d 1157 (9th Cir. en banc) (limits of §230 immunity)
- City of Chicago v. StubHub!, 624 F.3d 363 (7th Cir.) (regulation of provider conduct, not publication)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (content/speaker‑based speech principles)
- Arcara v. Cloud Books, Inc., 478 U.S. 697 (business regulation that incidentally burdens speech)
- National Meat Ass'n v. Harris, 565 U.S. 452 (preemption assessed by practical effect)