Bodin v. New Orleans: Per Se Takings Remain Tethered to the Right to Exclude; § 230 Does Not Preempt STR Transaction-Bans and Nonpublic License-Verification Duties

Court: U.S. Court of Appeals for the Fifth Circuit
Date: August 5, 2026
Panel: Wiener, Haynes, and Graves, Circuit Judges (Graves, J.)
Parties: Bret Bodin, Brad Newell, Darian Morgan, Michael Rosas, Mid-City Mike Rentals, L.L.C. (Hosts) and Airbnb, Incorporated (Plaintiffs–Appellants) v. New Orleans City (Defendant–Appellee)

1. Introduction

Bodin v. New Orleans is the Fifth Circuit’s latest decision in a long-running dispute over New Orleans’s efforts to curb perceived neighborhood harms from short-term rentals (“STRs”) brokered through platforms such as Airbnb. After earlier challenges to the City’s STR regime produced mixed outcomes (including successful Commerce Clause and Equal Protection challenges), this appeal targeted two newer ordinances:

  • The 2023 Ordinance: caps STR licenses to one property per residential block and distributes licenses by lottery (with an added French Quarter limitation where an existing bed and breakfast can preclude issuance on the block).
  • The 2024 Ordinance: regulates STR platforms by prohibiting them from processing transactions for unlicensed rentals and requiring license-status verification through the City’s electronic system (including periodic reverification).

The key issues on appeal were (1) whether the 2023 Ordinance is an uncompensated taking under the Takings Clause, and (2) whether § 230 of the Communications Decency Act preempts the 2024 Ordinance’s platform-focused duties.

2. Summary of the Opinion

The Fifth Circuit affirmed the district court’s dismissal of:

  • The Hosts’ Takings Clause challenge to the 2023 Ordinance, holding that the ordinance effects neither a per se taking nor a regulatory taking under Penn Cent. Transp. Co. v. City of N.Y..
  • Airbnb’s § 230 preemption claim against the 2024 Ordinance, holding that the ordinance does not treat Airbnb as the publisher or speaker of third-party content because (a) the transaction ban targets unlawful bookings rather than publication decisions, and (b) verification can be accomplished through “distinct, internal, and nonpublic” license information supplied by hosts rather than monitoring public listing content.

The panel also summarily affirmed dismissal of other claims after reviewing the record, but the opinion’s doctrinal work centers on Takings doctrine and § 230’s “publisher or speaker” inquiry.

3. Analysis

3.1 Precedents Cited (and How They Shape the Decision)

A. The court’s STR litigation backdrop: the Hignell-Stark line

  • Hignell-Stark v. City of New Orleans ("Hignell-Stark I") (5th Cir. 2022): described the City’s pre-2017 STR ban and sustained a Commerce Clause challenge to a 2019 “primary resident” requirement. The Bodin panel uses it to contextualize the City’s iterative regulatory approach and the documented neighborhood impacts prompting stricter zoning controls.
  • Hignell-Stark v. City of New Orleans ("Hignell-Stark II") (5th Cir. 2025): recounted the proliferation of STRs and held a subsequent “no businesses owning STRs” revision violated Equal Protection. In Bodin, this history underscores that the City’s newer tools (block caps, platform transaction limits) are different in kind from the previously invalidated classifications.

B. Per se takings: cabined to physical appropriation and the right to exclude

  • Armstrong v. United States (1960): supplies the foundational “just compensation” framing.
  • Sheetz v. Cnty. of El Dorado (2024) and Cedar Point Nursery v. Hassid (2021): do the heavy lifting. The panel reads them as reaffirming that per se takings attach when government physically appropriates property or otherwise interferes with the owner’s right to exclude—and not whenever government burdens any “fundamental” attribute of ownership.
  • Tyler v. Hennepin County (2023): invoked by the Hosts to broaden per se takings through historical property concepts. The panel sharply limits Tyler to its setting—where a classic appropriation occurred and the only question was whether the “surplus” value was “property” protected by the Takings Clause.
  • Loretto v. Teleprompter Manhattan CATV Corp. (1982): used to emphasize that the Hosts’ residential property is unquestionably “property,” but the issue is whether the ordinance “takes” it under the appropriate test.

The court’s doctrinal move is clear: it rejects a proposed “fundamental-right-to-lease” per se takings rule, insisting the per se category remains anchored to physical invasion/appropriation and the right to exclude.

C. Regulatory takings: Penn Central balancing, with emphasis on “character” in ordinary zoning

  • Penn Cent. Transp. Co. v. City of N.Y. (1978): provides the three-factor framework.
  • Hodel v. Irving (1987) and Kaiser Aetna v. United States (1979): used as comparators for “extraordinary” regulations—those destroying essential sticks (e.g., the right to exclude, the right to pass certain property to heirs). The court contrasts the STR cap with these rare, high-severity scenarios.
  • Murr v. Wisconsin (2017): supports the principle that “reasonable land-use regulations do not work a taking.”
  • Legacy Hous. Corp. v. City of Horseshoe Bay (5th Cir. 2025): supplies Fifth Circuit gloss on Penn Central, including skepticism toward profit-loss metrics and recognition that reasonable zoning typically favors government under the third factor.
  • AbbVie, Inc. v. Fitch (5th Cir. 2025) (per curiam): illustrates how the third Penn Central factor can be dispositive when economic impact and expectations are weak or equivocal.
  • United States v. Cent. Eureka Mining Co. (1958) and Andrus v. Allard (1979): reinforce that loss of the “most profitable use” and “loss of future profits” rarely establish a taking.
  • Nekrilov v. City of Jersey City (3d Cir. 2022): persuasive authority that STR restrictions often do not upset reasonable investment-backed expectations given the regulatory nature of land use.
  • United States v. Kan. City Life Ins. Co. (1950) and United States v. Causby (1946): exemplars where governmental action effectively destroyed practical use (agricultural value; commercial chicken farming), used to show the Hosts’ alleged losses were modest by comparison.

D. § 230: “publisher or speaker” limits and the “on its face” functional inquiry

  • Doe v. MySpace, Inc. (5th Cir. 2008): frames § 230 as immunizing claims stemming from publication of third-party information and cautions against artful pleading.
  • A.B. v. Salesforce, Inc. (5th Cir. 2024): supplies the modern Fifth Circuit two-prong test and the key question: does the duty derive from publisher status or require traditional publication functions (monitoring, altering, removing content)?
  • Calise v. Meta Platforms, Inc. (9th Cir. 2024): cited for the “or else face liability” framing; supports the idea that compelled content moderation triggers § 230 concern.
  • HomeAway.com, Inc. v. City of Santa Monica (9th Cir. 2019): central comparator; upheld a similar platform transaction restriction and emphasized the “on its face” nature of the duty (permitting hosting of listings while banning completion of unlawful transactions).
  • Doe v. Internet Brands, Inc. (9th Cir. 2016): used to align the Ninth Circuit’s approach with the Fifth Circuit’s functional analysis.
  • Free Speech Coal., Inc. v. Paxton (5th Cir. 2024), aff'd (2025): invoked to emphasize § 230’s purpose—protecting against speaker liability from hosted speech—rather than immunizing all platform-adjacent obligations.
  • Barnes v. Yahoo!, Inc. (9th Cir. 2009): supports the proposition that § 230 is not triggered merely because platform obligations use data that would not exist “but for” third-party content.

3.2 Legal Reasoning

A. Takings Clause—Per se taking rejected: no physical appropriation and no interference with the right to exclude

The Hosts argued for a broadened per se rule: if government interferes with a “fundamental” property right (here, the right to lease/“include” renters), it automatically triggers per se takings protection. The panel rejects this as doctrinally incorrect because:

  • Contextual reading of Supreme Court cases: The opinion insists that the cited language in Sheetz and Cedar Point protects against physical appropriation or interference with the right to exclude, not any asserted “fundamental” incident of ownership.
  • Tyler is not a vehicle to rewrite the per se test: Tyler is treated as a “what counts as property” case (surplus equity), not a “what counts as a taking” expansion. Here, residential property is undeniably “property”; the question is whether the ordinance “takes” it under the established per se test.
  • Include ≠ exclude: The court reasons that the right to exclude gets special Takings Clause treatment because its infringement is akin to physical invasion; the asserted “ability to include” short-term guests does not carry that same constitutional status.

Because the 2023 Ordinance neither physically appropriates property nor interferes with the right to exclude, it is not a per se taking.

B. Takings Clause—Regulatory taking rejected: Penn Central balance favors the City

Applying the three Penn Central factors, the court assumes (without deciding) that the first two factors favor the Hosts, but finds them weak and outweighed by the third:

  • Economic impact (weak): Allegations of reduced STR revenue are treated as “slender” support for a taking (Andrus v. Allard). Even accepting the concrete example (about $20,000/year), the losses are not severe in the way required for regulatory takings, particularly given skepticism that lost profits are even a proper metric (Legacy Hous. Corp. v. City of Horseshoe Bay).
  • Investment-backed expectations (weak): The Hosts could still rent long-term; STRs had been banned until 2017; and reasonable investors must account for the City’s land-use regulatory power. Thus, any expectation of regulatory stasis is deemed unreasonable.
  • Character of the governmental action (strongly favors City): The ordinance is characterized as a “reasonable zoning regulation” intended to address documented neighborhood harms. Under Murr v. Wisconsin and Fifth Circuit gloss in Legacy Hous., ordinary and reasonable land-use regulations typically weigh against finding a taking. The court, citing AbbVie, Inc. v. Fitch, treats the third factor as potentially dispositive where the other factors are minor or equivocal.

The “extraordinary action” argument fails because the ordinance does not destroy an “essential stick” (as in Kaiser Aetna v. United States or Hodel v. Irving); it modestly restricts STR activity while leaving other economically beneficial uses intact.

C. § 230 preemption rejected: the 2024 Ordinance regulates transactions and nonpublic verification, not publication

The court applies its two-prong test from A.B. v. Salesforce, Inc., focusing on whether the ordinance treats Airbnb as a “publisher or speaker” of third-party content (i.e., whether it imposes duties that necessarily require monitoring, altering, or removing content).

  • Booking requirement: The ordinance bans platforms from collecting fees for facilitating bookings of unlicensed STRs. The court frames this as regulating unlawful transactions and platform conduct, not publication. Critically, the ordinance leaves Airbnb “free to host as many unlawful listings” as it chooses; liability attaches to completing/charging for the booking, not to leaving content up.
  • Functional inquiry “on its face”: The panel distinguishes between what the law requires and how Airbnb might choose to comply. Even if Airbnb’s business preference is to delete or edit listings, § 230 preemption turns on whether the duty necessarily requires content moderation.
  • Verification requirement: Although it involves “verification” and “reverification,” the court finds a compliance path that avoids monitoring public listing content: hosts must provide detailed license information to the platform for verification through the City’s system, and the ordinance does not require that license status be published on the public listing. This “distinct, internal, and nonpublic” data is not treated as § 230-protected third-party content for publisher-liability purposes.

The result is a platform-regulation blueprint that survives § 230: target transaction facilitation and require back-end compliance checks using nonpublic licensing data, rather than mandating editorial decisions about third-party speech.

3.3 Impact

A. Land-use and Takings litigation: clarifying the per se boundary and reinforcing zoning deference

  • Per se takings constrained: The opinion is a firm rejection of attempts to repackage operational limits (like lease-duration limits) as per se takings by labeling them “fundamental.” Within the Fifth Circuit, litigants challenging STR rules will face a high bar unless they can plausibly allege physical appropriation or interference with the right to exclude.
  • Penn Central “character” can be decisive in zoning cases: Bodin signals that where economic-loss and expectation allegations are modest—and the regulation fits the mold of reasonable land-use policy—the third factor may carry the case for the government, especially at the pleading stage.
  • Profit-loss allegations alone are unlikely to carry: The court’s skepticism about lost profits (and its comparison to classic destruction-of-use cases like Causby) will likely shape how STR plaintiffs plead economic impact going forward.

B. § 230 and local platform regulation: a roadmap for “conduct-based” ordinances

  • Transaction-based restrictions are more § 230-resilient: By emphasizing that the ordinance regulates booking facilitation rather than speech hosting, the decision strengthens municipal efforts to address unlawful online-mediated activity through payment/transaction controls.
  • Nonpublic verification design matters: The court’s reliance on host-to-platform licensing disclosures suggests a drafting lesson: compliance systems that operate through back-end data submission and verification—without compelling platforms to review, edit, or remove public listings—are less likely to be characterized as publisher/speaker regulation.
  • Potential litigation frontier: Future disputes may turn on whether verification systems, in operation, truly avoid compelled monitoring of public content, and whether “should know” triggers create de facto moderation duties—questions not resolved here because the panel focused on what the ordinance requires “on its face.”

4. Complex Concepts Simplified

  • Per se taking: A “automatic compensation” category. In modern doctrine, it typically covers (a) physical occupation/appropriation or (b) interference with the owner’s right to exclude others (think: forced access akin to a physical invasion).
  • Regulatory taking (Penn Central): When regulation doesn’t physically take property but is so burdensome it is treated as the functional equivalent of a taking. Courts balance: (1) economic impact, (2) interference with reasonable expectations, and (3) character of the government action.
  • Right to exclude vs. “right to include”: The right to exclude is the power to keep others off your property—central in takings cases because forced entry resembles physical occupation. A claimed right to include (invite renters) is not treated the same way in per se takings analysis.
  • § 230 “publisher or speaker” test: § 230 protects platforms from being held liable for decisions like whether to display, remove, or edit users’ content. A law is more likely preempted if it effectively forces the platform to police or remove user speech to avoid liability.
  • “On its face” vs. “how the platform might comply”: The court asks what the ordinance legally requires, not whether the platform’s preferred compliance method is to delete listings.

5. Conclusion

Bodin v. New Orleans delivers two durable rules. First, the Fifth Circuit refuses to expand per se Takings Clause doctrine beyond physical appropriation and interference with the right to exclude, and it treats STR caps as ordinary land-use regulation best analyzed (and rejected here) under Penn Central. Second, the court holds that § 230 does not preempt municipal STR platform rules that regulate transaction facilitation and require license verification through nonpublic data flows rather than compelled moderation of public third-party listings. Together, these holdings strengthen local governments’ capacity to regulate STR density and enforce licensing through platform-side transaction controls without triggering either automatic takings liability or § 230 preemption.