More Bad Facts Making More Bad Law, This Time In Wisconsin

from the thy-online-speaker's-keeper dept

A few weeks ago we, and others, filed an amicus brief in support of Airbnb and Homeaway at the Ninth Circuit. The basic point we made there is that Section 230 applies to all sorts of platforms hosting all sorts of user expression, including transactional content offering to rent or sell something, and local jurisdictions don't get to try to impose liability on them anyway just because they don't like the effects of those transactions. It's a point that is often forgotten in Section 230 litigation, and so last week the Copia Institute, joined by EFF, filed an amicus brief at the Wisconsin Supreme Court reminding them of the statute's broad application and why that breadth so important for the preservation of online free speech.

The problem is that in Daniels v. Armslist, the Wisconsin Court of Appeals had ignored twenty-plus years of prior precedent affirming this principle in deciding otherwise. We therefore filed this brief to support Armslist in urging the Wisconsin Supreme Court to review the Court of Appeals decision.

As in so many cases involving Section 230 the case in question followed an awful tragedy: someone barred from owning a gun bought one through the online marketplace run by Armslist and then shot his estranged partner. The partner's estate sued Armslist for negligence in having constructed a site where dangerous people could buy guns. As we acknowledged up front:

Tragic events like the one at the heart of this case often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that prevents a worthy plaintiff from obtaining one, it is tempting for courts to ignore it in order to find a way to give them that remedy.

Nonetheless, there was more at stake than just the plaintiff's interest. This case might look like a gun policy case, or a negligence case, but, like with Airbnb/Homeaway, this case was really a speech case, and laws like Section 230 that help protect speech are ignored at our peril because doing so imperils all the important expression they exist to protect.

The reason it was a speech case is that, as in the Airbnb/Homeaway case where someone was using the platform to say, "I have a home to rent," here someone had used the Armslist platform to say, "I have a gun to sell." Because these platforms only facilitate these narrow topics of expression it's easy to lose sight of what's getting expressed and instead focus on the consequences of the expression. But that's the problem with these cases: someone is trying to hold an Internet platform liable for the consequences of what someone said, and that's exactly what Section 230 forbids.

Tempting though it may be to try to find exceptions to that critical statutory protection, it is important to hold the line because Section 230 only works when it can always work. It wouldn't accomplish anything if platforms were only protected from certain forms of liability but still had to monitor all their users' content anyway. Congress recognized that such monitoring would be an impossible task and crippling to platforms' ability to remain available to facilitate users' speech. A major reason Section 230 exists is to protect speech from the corrosive effects these monitoring burdens would have on it. It is also why Section 230 does not let state and local jurisdictions impose their own monitoring burdens through the threat of liability, as the Wisconsin appeals court decision would do.

Thanks to local counsel Kathryn Keppel at Gimbel, Reilly, Guerin & Brown LLP for all her help getting this brief filed.

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Filed Under: cda 230, free speech, guns, section 230, wisconsin
Companies: armslist


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  1. icon
    That Anonymous Coward (profile), 11 Jun 2018 @ 6:02pm

    We want to hold those with the most money accountable.
    This is the legal concept beneath this.

    Can't sue gun makers, they are protected, everyone else is fair game no matter how insane it actually is.

    Child dies in traffic accident, did they sue the other driver?
    Hells no, they sued Apple for not proactively making the phone not work while moving in a car (bolstered by random patent of an idea never brought to fruition).

    Liability isn't supposed to be increased because you have more money, but hey look here a court gave a payday to someone who suffered a tragedy by holding a 3rd party responsible for the bad act of another.

    People will cheer this b/c they can't look outside of the bubble.
    Man robs bank
    Someone injured gets to sue -
    The bank
    The mask maker
    Gun makers are immune so ammo maker
    Car company who produced get-away car
    Clothing maker who dressed the robber
    Shoe maker who made the robbers shoes
    The city for providing the roads to escape
    Security system maker for not deploying the killer robot drone they hold a patent on
    The teller who handed over the money
    The teller who hit the silent alarm
    The rent-a-cop company
    The furniture maker for not making the fixtures bullet proof
    (I could go on, but why help the bastard lawyers who bring these cases)

    We live in an age when all of the knowledge of mankind is online (98% behind paywalls but its still online), yet somehow there isn't a simple system for private gun sellers & buyers to make sure everything is okay. Of course to mention this will bring the screeching that I want to take away all the guns, but keeping records on paper to placate those with fears a database would tell the feds where to send the drone strikes is dumb.

    Other than adding 'on the internet' to the transaction, how is this different that a classified ad in the paper?
    Or have the courts followed the stupidity of the patent office that thinking the addition of 'on the internet' means the law no longer applies & they need to punish the sites for daring to allow buyers & sellers to connect with each other?

    The platform isn't responsible.
    The seller might be responsible (depending on whats required to sell a gun in a private sale).
    The buyer is responsible.

    Trying to turn these cases into a payday (and they might be upset & lashing out but they only sued the deepest pockets so...) is capitalizing on tragedy, makes for stupid rulings, and is sort of disgusting.

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