In Which We Warn The Wisconsin Supreme Court Not To Destroy Section 230
from the not-just-fosta dept
One of the ideas that we keep trying to drive home is that the Internet works only because Section 230 has allowed it to work. Mess with Section 230, and you mess with the Internet. FOSTA messed with it statutorily, but it isn’t just Congress that can undermine all the speech and services that depend on Section 230’s protection for the platforms that enable them. Courts can mess with it too.
While it’s bad enough when courts get questions of whether Section 230 applies wrong at the trial court level, the higher the court, the more potentially destructive the decision if the court decides to curtail its protection. On the other hand, the higher the court, the more durable Section 230’s protective language becomes when the decision gets it right. This post is about one of those cases where the future utility of Section 230 hangs in the balance, and where we hope that the Wisconsin Supreme Court, the highest court in the state, gets it right and finds it applies to the platform being sued — and therefore all other platforms that depend on its protection.
We’ve written before about this case, Daniel v. Armslist. As with a lot of the litigation challenging Section 230 it was one of those “bad facts make bad law” sorts of cases. In this case an estranged husband, against whom there was a restraining order, bought a gun from an unlicensed seller who had advertised through the Armslist site. Notably it does not appear that the sale was necessarily illegal ? in Wisconsin unlicensed dealers apparently do not have to run background checks ? nor was the sale fully transacted on the site (the actual purchase was made in a McDonalds parking lot). Of course, even if the sale had been illegal, or fully brokered via the site, Section 230 should still have insulated the platform, but here the Section 230 inquiry should be much more straight forward: the lawsuit alleging that Armslist negligently designed a site that facilitated a third party’s speech ? in this case, the speech offering the gun for sale ? should have been barred by Section 230.
The trial court actually had gotten this question right and dismissed the case. Unfortunately a state appeals court in Wisconsin opted to ignore twenty-plus years of jurisprudence, as well as the statute’s pre-emption provision, which would have directed such a finding, and reversed the trial court’s original decision. Armslist then sought review by the Wisconsin Supreme Court, and we filed an amicus brief supporting their petition. One of the main points we made in the brief was how much stood to be affected if the decision was not overturned and Section 230’s applicability in Wisconsin was now narrowed in ways Congress hadn’t intended. After all, it isn’t just Armslist in the crosshairs; it is all platforms everywhere, and all the speech and services they enable, in Wisconsin and beyond, that are threatened if platforms can no longer depend on Section 230’s critical protection applying to them as it once had.
Fortunately the Wisconsin Supreme Court agreed to hear the case, and this week we filed yet another amicus brief in support of Armslist on the merits. It is similar to the previous brief, with the added example of how much the Copia Institute itself, and Techdirt in particular, depends on Section 230 remaining robust and effective. It relies on it as a user of other services — for instance, to have its posts shared through social media — and as a platform itself. There could not be a comments section on Techdirt — or all the vibrant and insightful discussion found there — without Section 230 protecting the site from liability for what commenters say.
It would be easy for the tragedy underpinning this case to cause the court to fixate on Armslist and the type of user content it intermediates. But Internet platforms come in all sorts of shapes and sizes, offering all sorts of services, and enabling all sorts of speech on all sorts of topics. And all of them will be affected by how the court resolves this particular case before it. So we hope our brief helps remind the Wisconsin justices of just how much is at stake.