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.

Filed Under: cda 230, free speech, gun sales, intermediary liability, section 230, wisconsin
Companies: armslist


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  1. icon
    Stephen T. Stone (profile), 20 Jan 2019 @ 8:58pm

    Re: Re:

    when the website hitdes in another country, behind all kinds of lawyers of hosts, cannot be traced, and has a judgment-proof owner, that on't work.

    This is the point where you go to hosting providers and domain registrars with a court ruling and ask them to take down/de-register the URL for the website hosting that defamatory ruling. If that does not work, you still have the court ruling and a megaphone called “social media” through which you can speak.

    The revenge porn site that lost 230 protection did so because someone from the site was uploading. Other sites were ruled immune, as were many tube sites. 230 directly inflicted that harm.

    Those other sites did not openly solicit/create/help users upload and distribute revenge porn. And while I’m here, I’m gonna explain to you exactly how Section 230 works by using a simple example: the shithole of the Internet that is 4chan.

    4chan has a board for posting images of sexy women. Some anonymous schmuck could theoretically post revenge porn — e.g., an image of an ex-girlfriend that they did not have permission to post — on that board. Without Section 230, 4chan moderators/administrators would have to hold back that post to determine (among other things) whether the poster had permission to post it. They would also have to hold back every other post on that specific board and the rest of the site for the same reason. The justification for that holdback would be “we don’t want to be sued if we fuck this up”. But that holdback would ruin the usability of the site for its userbase, which would make said userbase flee the site (potentially for more “open” sites that have fewer “we don’t want to get sued” worries).

    Now apply what I said about 4chan to basically any other website or online service that allows third-party submissions (e.g., Twitter, YouTube, Tumblr, Mastodon instances, MySpace, blogs such as this one). Imagine how quick that one change would crush those sites and services. And we need not stop at those services, either — email is still alive and kicking, and I bet someone would love to force Google into doing to Gmail what was, in this hypothetical example, done to 4chan.

    230 protects services such as Twitter and Gmail and comment systems such as Disqus from being held legally liable for any content which its owners/administrators did not directly create/publish and did not directly help others to do so. When someone uses a tool to do something bad, you punish the person who did the bad thing, not the people who sold that “bad guy” the tool or the people who made the tool.

    It's one thing to say this type of harm is acceptable under Section 230, quite another to deny the harm in the first place.

    No one denies the so-called “harm” exists or that it is “acceptable”, but your argument seems to go like this: “A platforms that allows third-party submissions is used to defame someone. 230 generally protects platforms from liability for those submissions. Therefore, 230 is used to protect defamatory content.” If you cannot spot the fallacy in that argument, you have stepped into a small puddle and gotten in way over your head.

    The guy who had 1,000+ men sent to his door for sex by an ex-lover was certainly harmed by 230.

    No, he was harmed by the ex-lover who sent those men.

    He's suing Grindr.

    And unless he can prove someone at Grindr knowingly participated in that awful stunt in any way, that lawsuit will go nowhere fast.

    This site is little more than a pathetic temper tantrum

    Says a lot that you keep coming back here, then. If it is so unimportant and worthless and pathetic, what keeps you from ignoring it and giving it more traffic that it can point to and say “look, people still visit us”?

    slanted language (the hallmark of amateur writing)

    …says the anonymous coward who calls this site a “pathetic temper tantrum”, conflates defamation with the distribution of child porn and revenge porn in a blatant attempt to inflame emotions, and refuses to provide citations for statements of fact that would bolster any arguments based on said facts.


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