Armslist Lawsuits: Plaintiffs and Judges Find Ways Around Federal Law
Armslist, a website where people can post ads relating to the sale of firearms, has been the target of many lawsuits in recent years. Much of that protection comes from Section 230 of the Communications Decency Act, passed by Congress in 1996, which has protected online speech by stating that websites and other interactive computer services can’t be viewed in court as the publisher of information written by other people. In effect, this means that if someone posts a comment on this blog for which they might be liable in court, we aren’t legally responsible for it.
Federal courts have, rightly, interpreted Section 230 quite broadly as protective of speech on the internet. In the past, this has meant Armslist wasn’t held liable when other people posted want to buy or want to sell ads for guns on their website. This has been the result even if a death or injury resulted when someone bought a gun from someone else via an advertisement on Armslist and then used it to hurt someone else.
This April, though, the Wisconsin Court of Appeals allowed a plaintiff to eviscerate Section 230 of the CDA by sidestepping its plain meaning. For a more in-depth view of Daniel v Armslist, LLC., read this excellent article by law professor Eric Goldman. As I read the decision, what troubled me most was that the court allowed the case against Armslist to be reinstated because the plaintiff wasn’t asking Armslist be held responsible because of posts made by other people on its site, but because the design of the website facilitated illegal transactions.
This is troubling, as hinted at in Professor Goldman’s blog, because the court is essentially saying that it’s not the posting of the sale ad or purchase of the gun that is a cause of action, but the design of the website itself. This leads me to ask which had more to do with the murders committed with the gun in question – the design of the website or the posting of the ad for the specific gun used? I think most would say the actual transfer of the firearm is more relevant.
The transfer of the firearm occurred because people made posts on a website, and Section 230 says the website can’t be held responsible when third parties make comments or posts on a website. But that’s not what the court held. So now, if you as a plaintiff want to get around Section 230, all you have to do is say you’re not trying to hold them specifically responsible for the transaction that occurred, you’re suing because you don’t like the design of their site.
One of the most “dangerous design features” – yes that’s a quote from these lawsuits – is the ability to sort out dealer sales from private party sales. This is not a feature unique to Armslist or even to gun sale websites.
Taking this line of reasoning to its next level, the Brady Campaign is helping push a lawsuit against Armslist in Massachusetts, Stokinger v. Armslist, LLC., asking the court to find that Armslist has a duty to prevent illegal gun sales. If the Wisconsin Court of Appeals eviscerated Section 230, this lawsuit asks the court to run Section 230 over with a bulldozer.
The goal of this lawsuit is to shut down Armslist, not to improve its site design.
But what if it succeeds?
Will Craigslist be liable for fatalities caused by drivers who used their “private party sale” filter to avoid dealer sales?
Much of these lawsuits – at least, going by the Stokinger complaint – seem to be based on tricking the court into thinking that only criminals buy guns in private party sales and that Armslist was designed to facilitate such sales. The Wisconsin Court of Appeals fell victim to this fallacious assertion. I believe Armslist is trying to get that case in front of the Wisconsin Supreme Court, and I hope they succeed – not only for their sake but for the sake of everyone who conducts business on the Internet.
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