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. identicon
    Pixelation, 11 Jun 2018 @ 3:43pm

    Just the tip

    If someone sells a car to a criminal through Ebay and that person goes out and runs people down, will they get to sue Ebay?

    reply to this | link to this | view in thread ]

  2. This comment has been flagged by the community. Click here to show it
    Anonymous Coward, 11 Jun 2018 @ 3:44pm

    ---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.---

    Looks just like progressivism to me, what's wrong with that? While I can understand the idea of precedent in court, we should not be running around trusting that a court ruling "any" court ruling is perfect... not even SCOTUS as we know for a fact that every case that has been tried there would have a different outcome depending on which time they get tried.

    Most people get most things wrong most of the time. Courts are no exception.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 11 Jun 2018 @ 3:48pm

    Re: Just the tip

    I hope so, people will quickly figure out how stupid it is to force businesses to become liable for the actions of their consumers.

    Holding businesses liable in this way is nothing more than SJW bullshit to try and force businesses to comport themselves according to their moral truths and tantamount to being the same as a slapp lawsuit except this one comes from a citizen against a business rather than the other way around.

    reply to this | link to this | view in thread ]

  4. identicon
    Peter Nelson, 11 Jun 2018 @ 3:51pm

    This was really well written Cathy

    I've always understood this argument Cathy, but you did a really good job capturing the point clearly. Thank you.

    (as an aside, you're missing the word 'is' at the end of the first paragraph after the word breadth)

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 11 Jun 2018 @ 5:06pm

    While I get your tack about protecting section 230 in the amicus breif, and favor the action. This suit should have been decided in favor of Armslist from the get go. The outcome of the buyers action is tragic and despicable, it is not the responsibility of Armslist for facilitating the private sale between a gun owner and buyer. Would the same court hold a gun show liable in the exact same situation, or a coffee shop where the ad was palced on a community bulletin, or a utility whose pole was used for the posting of a paper version of the ad of the seller? Yes, speech is involved, but this smacks of trying to simply punish the company for being the place where the legal loophole for private sale of guns does not allow for punishing anyone directly involved in the transaction. In a way the court is saying it is novel and punishable because the idea was implemented using the internet. It's like the court is thinking like a patent troll, and it's too bad that Alice can't be applied.

    reply to this | link to this | view in thread ]

  6. identicon
    Agammamon, 11 Jun 2018 @ 5:53pm


    We don't trust any court ruling is perfect. Not even the courts do that.

    One of their core principles 'stare decisis' is predicated on the idea that while courts make mistakes, its better to let some of these mistakes stand because having a *stable* legal system - one where people know the law and the limits of illegality - is more important than being perfect.

    That doesn't mean courts don't overturn precedent. It just means they give strong weight to precedent as ' good enough' before deciding whether or not to overturn a bad earlier decision.

    reply to this | link to this | view in thread ]

  7. 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.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 11 Jun 2018 @ 9:34pm

    You can't yell FIRE in a crowed theater

    reply to this | link to this | view in thread ]

  9. icon
    Bergman (profile), 12 Jun 2018 @ 1:08am

    Re: Just the tip

    A better analogy would be someone spray painting an ad for a hitman on the capitol building -- by this logic, the government would be liable for the death.

    reply to this | link to this | view in thread ]

  10. icon
    ShadowNinja (profile), 12 Jun 2018 @ 10:14am

    While I see what you're trying to argue against, simply pointing to section 230 and arguing free speech rights ignores the other part of the equation.

    These cases aren't just 'your speech is bad, you're going to be punished for it'. These cases are about people who use websites to violate local/state/federal laws, and the websites refusing to block people from these areas from using the website to break the law.

    Lets use AirBnB as an example. A number of areas have outlawed AirBnB, yet AirBnB still lets people do business in those areas anyway, in blatant violation of the law. Also, AirBnB doesn't follow a boatload of regulations that hotels/etc. need to follow.

    Chances are very high that no matter what part of the country you live in, you're breaking the law if you've ever rented something out to someone at AirBnB. This clip from Adam Ruins Everything does a good job at explaining why you're probably breaking the law using AirBnB.

    reply to this | link to this | view in thread ]

  11. identicon
    Wendy Cockcroft, 13 Jun 2018 @ 5:48am


    Yes, speech is involved, but this smacks of trying to simply punish the company for being the place where the legal loophole for private sale of guns does not allow for punishing anyone directly involved in the transaction.

    The legal loophole appears to be that background checks don't apply to private arms sales. They should apply to all arms sales; no licence, no gun.

    If the buyer already had a licence, fair enough, but that assumes he had to go through a background check to get one.

    reply to this | link to this | view in thread ]

  12. identicon
    Wendy Cockcroft, 13 Jun 2018 @ 6:00am


    Fair dues, ShadowNinja, but as we have had pointed out to us on many occasions here on TD, everyone commits at least three felonies every day.

    And how exactly could a platform block people in $area from using its services? IP blocking? They'd use VPNs, etc., to get around the blocks.

    AirBnB doesn't run a hotel service, it's more like a static ride-sharing service where people are put in touch with people with a spare bed for a small consideration. Last time my husband and I used it, we had the run of the house while the owners were away, but we had to buy our own food and toiletries. That was fine by us, we just bought our own. Hotels tend to be a lot bigger than a two-up/two-down semi-detached private residence, and their main income is from paying guests. AirBnB hosts are just making a bit of extra pocket money, as a rule.

    I'm not sure whether the house we rented was rented accommodation or not (very much against the rental agreement, if that's the case, and if it was social housing, that's a no-no), we didn't ask. I mean, technically you are right, but enforcement from either side is problematic.

    I daresay AirBnB could be forced to carry out checks on each of the landlords (for want of a better term) to ensure they own the properties they're renting out (and are therefore entitled by law to rent them), but is that worth pursuing?

    reply to this | link to this | view in thread ]

  13. icon
    ralph_the_bus_driver (profile), 13 Jun 2018 @ 6:32pm

    Re: Just the tip

    A car has a useful purpose in society. Every year automobiles safely and efficiently transport people and goods. A gun has one purpose and that is to kill.

    If someone sold a car and it was used as intended then no problem. If someone sells a gun and uses it as intended, someone is getting hurt or, as here, killed.

    There is nothing new here. The Supreme Court in Heller said that States could regulate gun sales. This site tried to do an end run around Wisconsin law and claim immunity for their willful action. The Appeals Court saw through their argument.

    The site either knew, or should have known, that their actions violated local law. This has nothing to do with free speech any more than baking a cake is free speech. It has to do with the 11th Amendment that allows a State to regulate their own laws.

    reply to this | link to this | view in thread ]

  14. icon
    ralph_the_bus_driver (profile), 13 Jun 2018 @ 6:44pm


    *italic* Yes, speech is involved, but this smacks of trying to simply punish the company for being the place where the legal loophole for private sale of guns does not allow for punishing anyone directly involved in the transaction. *italic*

    No, that is not speech. That is commerce.

    The Supreme Court in Heller admitted that States could regulate guns in their jurisdictions. That is what Wisconsin has done.

    A pimp directing customers to a hooker is not free speech. It is a crime.

    Someone who sells cars knowing, or not caring, if they are legal is still breaking the law. There is no speech issue involved.

    These are commercial activities, not free speech issues. The 11th Amendment reserves that for the States.

    reply to this | link to this | view in thread ]

  15. identicon
    Boston_AL, 25 Oct 2018 @ 12:15pm

    Re: Re: Just the tip

    You are wrong sir. The primary purpose of a firearm is for self-protection against a lethal attacker, and while that may lead to a death, the intent is to stop an attack; not to “kill”. Hunting - in the US - is based in conjunction with wildlife management and preservation of healthy game stocks. The cost of licenses and fees on sportsmen goes directly to wildlife management and conservation.

    Firearms are also used - most often in the US - for sport; target shooting, clay pigeon shooting, etc. activities of skill, not unlike golf.

    Your characterization that a firearm is solely for killing (evil intent) is just plain ignorant. There are millions of Lawful and Respecful Gun Owners in the US, and even more firearms. They have not and do not go around using their firearms to wantonly kill people (or animals). The actions of a few criminals / mentally deranged people does in no way taint the greater law abiding millions.

    reply to this | link to this | view in thread ]

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