## Facts

- San Francisco historically restricted short-term residential rentals (generally under 30 days) in many residential units.
- In 2015, the city created a limited exception allowing short-term rentals by “permanent residents” who registered with the city and satisfied conditions (including insurance and code compliance), administered by a city office responsible for short-term rental enforcement.
- In 2016, the city amended its framework to target “booking service providers” by making it unlawful to provide booking services and collect a fee for a short-term rental transaction involving a residential unit not lawfully registered with the city.
- Violations could be treated as misdemeanors and also subject to administrative penalties.
- Airbnb operates an online platform where third-party hosts create listings and guests book stays; Airbnb processes transactions and collects service fees, but does not own or manage listed properties.
- Airbnb filed suit and sought a preliminary injunction, arguing the ordinance was preempted by Communications Decency Act (CDA) § 230 and violated the First Amendment by effectively requiring monitoring and restricting listing-related speech.

## Issues

1. Whether CDA § 230 likely preempted the ordinance because it allegedly treated the platform as the publisher or speaker of third-party listing content.
2. Whether the ordinance likely violated the First Amendment by imposing content-based or speaker-based burdens on speech, rather than regulating economic conduct.
3. Whether Airbnb satisfied the standards for preliminary injunctive relief.

## Decision

- The court denied the motion for a preliminary injunction.
- The court concluded Airbnb was not likely to succeed on its CDA § 230 claim because the ordinance targeted fee-based booking transactions for unregistered units, not publication of listing content.
- The court concluded Airbnb was not likely to succeed on its First Amendment claim because the ordinance functioned as a content-neutral regulation of commercial conduct with, at most, incidental effects on speech.
- Because the merits showing failed, the court held injunctive relief was unwarranted under the preliminary-injunction factors.

## Legal Principles

- CDA § 230 immunity generally bars liability that treats an interactive computer service as the publisher or speaker of third-party content, but it does not immunize platforms from laws regulating their own non-expressive commercial conduct.
- A law aimed at completing and profiting from unlawful transactions can avoid CDA § 230 preemption when liability does not turn on hosting, displaying, editing, or removing third-party content.
- Economic regulations that principally govern commercial conduct are typically evaluated as content-neutral measures; incidental effects on speech do not, by themselves, convert such regulations into content-based restrictions.
- A preliminary injunction requires, at minimum, a sufficient showing on likelihood of success on the merits, along with consideration of irreparable harm, equities, and the public interest.

## Conclusion

The court refused to enjoin San Francisco’s ordinance because it was best characterized as regulating the platform’s fee-based booking transactions for unregistered short-term rentals, not the publication of user-generated listings, making CDA § 230 preemption and First Amendment relief unlikely at the preliminary-injunction stage.


Airbnb, Inc. v. City & Cnty. of San Francisco, No. 3:16-cv-03615-JD, 2016 WL 6599821 (N.D. Cal. Nov. 8, 2016)