Armslist lawsuit supreme court liability
Dan Z for TTAG
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The stalwart civil libertarians at the New York Times have a big problem with inconvenient free speech protections like those provided by Section 230 of Title 47 of the US Code. That’s the federal law that protects online platforms used by third parties.

The Section 230 shield has kept plaintiffs from suing sites like Armslist out of existence when someone uses a firearm bought via one of their transactions to commit a crime. The Wisconsin Supreme Court has dismissed the plaintiffs’ suit against Armslist based on those Section 230 protections and the Times editorial board just can’t abide that.

The plaintiffs in the case have petitioned for cert with the US Supreme Court and the Times has its collective fingers and toes crossed that the Court will not only take the case, but gut the protections that have kept sites like Armslist and others alive and kicking.

The Christchurch, New Zealand, shooter used Facebook Live to broadcast the massacre in real time and Twitter to advertise his racist manifestoes; the El Paso shooter posted his anti-immigrant screed on the message board 8chan, a site infamous for promoting virulent misogyny and white supremacy. But when the owner of 8chan, James Watkins, was called before the congressional Committee on Homeland Security in September to answer questions about violent posts, he replied: “My company has no intention of deleting constitutionally protected hate speech. I feel the remedy for this type of speech is counter speech, and I’m certain that this is the view of the American justice system.”

Mr. Watkins’s feeling has proved correct in case after case attempting to hold websites and social media platforms responsible for defamatory, threatening and illegal content. Courts have very broadly interpreted Section 230’s prohibition on treating online intermediaries as “publishers or speakers” of content provided by their users. And the immunity for internet platforms hasn’t been limited to the forums where extremists congregate, proselytize and organize real-world violence. It has also been extended to websites that sell weapons.

The online firearms marketplace Armslist, which describes itself as the “largest free gun classifieds on the web,” facilitates illegal gun sales by allowing users who cannot pass a background check to find unlicensed sellers. One such user was Radcliffe Haughton, whose estranged wife, Zina, had obtained a restraining order against him. In Wisconsin, where the Haughtons resided, the restraining order prohibited Radcliffe from legally purchasing a firearm. So he turned to Armslist, where he quickly found a seller that didn’t require a background check. Armed with the gun he had purchased, Radcliffe entered the salon where Zina worked on Oct. 21, 2012, killing her and two of her co-workers in front of Zina’s daughter, Yasmeen Daniel. In April 2019, the Wisconsin Supreme Court held that Armslist was immune from liability based on Section 230.

The case is now pending review by the United States Supreme Court. It is a tremendous opportunity for the court to address the deadly dual reality created by an overzealous application of Section 230. The MGM settlement acknowledges that in physical spaces, individuals or businesses that fail to “take care” that their products, services or premises are not used to commit wrongdoing can be held accountable for that failure. It is no less important that this duty to take care be honored in virtual spaces.

– New York Times Editorial Board in Our Collective Responsibility for Mass Shootings

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  1. As I recall the NYT’s was not very upset when Barack Obama’s Justice Department went after Fox journalist James Rosen under the Espionage Act for reporting on our secret war with North Korea. Just saying….

  2. Maybe if Our Forefathers had the foresight to include “shall not be infringed”on the First Amendment we wouldn’t be in this mess.
    Until the Constitutional Convention, ban all high capacity newspapers, blogs, and social networks!
    For the children…!

  3. I appreciate their honesty, that said I find it very disturbing these people want to be in charge and implement what amounts to social credit in this country on the Internet.

    If they think they’re going to stop this sort of thing they’re nuts. It will just go deeper underground.

    • ” It will just go deeper underground.”
      Yes for those that don’t want to advertise intentions, but those that want attention/fame they will continue to get cought and the FBI/police will claim more sucess prompting a more online surveillance.

    • They don’t care about stopping violence. The issue is never the issue. And they have an even stronger hard-on for silencing those who speak out against their power-grabs than they do for civilian disarmament.

    • The goal of the professional left is control, not solutions. Solutions are just friendly-sounding packaging for their true agenda.

    • Why do the solutions proposed by the left always involve more control over your life?

      you seem to think it is incidental? It is the central and core element of progressivism. We are talking about the political philosophy that gave us alcohol prohibition, state eugenics and sterilization, the roots of the war on drugs, and of course initial and all subsequent gun control.

      In progressivism the very purpose of government is to modify the individual’s and population’s behavior. it is why for example epidemiology is so often used by them and why plenty of activities that are not diseases belong in the e CDC purview in their model.

      On this model all ‘problems” can be solved with more government or more taxes, be it “nudges” to modify your behavior or the most draconian laws.

      • Hillary Clinton described the Progressive (oligarchical collectivist) orientation quite eloquently:

        “I don’t believe you change hearts. I believe you change laws, you change allocation of resources, you change the way systems operate.”

        • She may be despicable in every way conceivable but she is not stupid. As James Carville once said, “Bill Clinton is the smartest man I ever knew but Hillary is the brains in that family.” Proceed accordingly.

  4. “facilitates illegal gun sales”
    Someone help me with this. If someone is a “prohibited” person with regard to firearms, can I get in trouble for selling him a firearm through a private transaction? I’m not a licensed dealer. Let’s say he told me he can’t pass the background check. Is this illegal? Would it be different if he didn’t tell me?

    • “A person may sell a firearm to an unlicensed resident of his State, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may sell or transfer a firearm to a licensee in any State. However, a firearm other than a curio or relic may not be transferred interstate to a licensed collector.”

      You are breaking federal law if go ahread with the transfer after being notified. There is no duty on the federal level to ask or notify. State law may varry.

      • *Hypothetical situation*

        What if that person borrows money and gives me their gun as collateral? Then I find out they can’t pass a background check. They pay me back and want their gun back. I hand it back to them. Did I break any laws? Asking for a friend.

        • uhhh, I would sure as hell not do that. They could take me to court over it. I would call the cops if they got uppity even. The liability around them going and shooting someone after you gave em back the gun is something I wouldn’t want to deal with.

        • Holding a firearm as collateral on a loan is illegal in some states. That is definitely the case in Indiana. Since Indiana is one of the most gun friendly states, I have to think it is illegal more often than not across the country.

    • If you knowingly assist in a crime then you have responsibility for that crime. So yes if a person tells you he cannot pass a background check it would be a crime to sell that person a gun.

      • I don’t think knowingly matters. Criminal intent only matters if your name is Hillary and the FBI is looking for an excuse to let you off the hook. How is it selling if it’s their own property and you’re just returning it?

        What if you’re out shooting with someone. They hand you their gun, then they tell you they can’t pass a background check. Is it a crime to hand it back to them? Should you take their gun and run to the police station?

        • Does the language if the law read “sell” or “transfer”. If it covers transfer of possession rather than change in ownership, then you can be charged if you transfer the gun to someone you have reason to believe is a prohibited person.

          Perhaps avoid lending money and going shooting with such people.

        • Does the language if the law read “sell” or “transfer”.

          That’s a smart important distinction. The ATF’s language is sell. This sounds like a great way to make felons out of regular law abiding folks. In my example above, I don’t think it’s selling if you weren’t paid any interest or fees for lending money, but who knows? This would be a great question for any of the resident lawyers here.

          “Perhaps avoid lending money and going shooting with such people.”
          That sounds like great advice, but sometimes you don’t know that info up front.

  5. that’s ok we are just going to delete southpark and all of its references off the internet, see problem solved.

  6. When I was a kid in the 80’s I remember thinking the left was supposed to stand for freedom and the right was a bunch of old churchy prudes who wanted to control everything.
    I wish I could go back in time and show my childhood self all these “the left wants total control of your life and is actively fighting against individual rights” stories and actions of the last decade or so.
    How would making my past-selfs head explode affect the timeline?

    • It’s even worse now because they’re injecting leftist political views into K-12 education. Increasing math scores isn’t a priority. Teaching kids to think for themselves isn’t a priority. Increasing the young political activist army is the priority.

      I saw a segment recently on someone interviewing random young people on the street about socialism. They were pro-socialism of course, but they couldn’t really explain what it was. One young lady said socialism was about being more open minded and accepting of others. This is our future.

      • The term “Socialism” has multiple definitions that are completely different from each other. Most people do not know what each other mean when they use the term. Liberals, conservatives and most posting here on TTAG are completely wrong in their use of it.

        Marxist Socialism is an evil concept from a sick minded utopian of the mid-19th century (who happened to be so pro-gun ownership he included personal ownership of artillery among the rights of the people). The basis of Marxist Socialism being that the ownership and planning of all means of production and distribution would be centrally controlled. From that little nugget, the murder of tens of millions of people grew.

        There’s another use of the term that is all about the citizens of capitalist democracies demanding certain services be provided by government, rather than by for-profit businesses, and paying for it all with taxes. That’s the often misunderstood “Northern European” countries, in particular.

        There are many variations on those. Some are bad, some are not.

        • What most ignorant lefties, like say Bernie Sanders, can’t seem to comprehend is that Sweden had to move away from being a socialist county 30 years ago because their economy was on the brink of destruction. Yet they are used as an excuse to turn this country toward socialism. Not only are they now capitalists, they have, very successfully, used scary right wing strategies like school vouchers and privatization of their social security system. You won’t hear Warren and Sanders bragging about that.

        • Dude, while I agree that Bernie is kind of messed up in his concept of a social-demoractic-capitalist ideal, I’m not following you on Sweden. It has been a free-market capitalist democracy since the end of WW2. Their approach to the “Nordic Model” ……

          ….. has not radically changed.

          These approaches can work in smaller countries where cultures and populations support them. It is a vastly different challenge in a country so large, populous and culturally diverse as the USA to try all that here on a national scale.

        • They made changes in the early 70s that moved them toward socialism. Government spending was out of control while their labor markets shrank. Prior to this, they were one of the richest countries in the world.

          “We did have a period in the 1970s and 1980s when we had something that resembled socialism: a big government that taxed and spent heavily. And that’s the period in Swedish history when our economy was going south.”

          Per capita gross domestic product fell. Sweden’s growth fell behind other countries. Inflation increased.

          Even socialistic Swedes complained about the high taxes.

        • The Leftists will never go along with the ‘Nordic Model’, once the pesky ‘details’ become known.

          Taking a look at it, I found this :

          “Little product market regulation.”

          Oh, and suppressors are ‘over-the-counter’ there as well, and it is considered polite to use one in populated areas…

        • All forms of socialism are bad. At best, it generates a society that replaces voluntary charity and family support with an unfeeling government. Not surprisingly, this results in a degradation of the family unit and the nation-state as a whole. Look at Sweden for a perfect example. The country is a shithole these days with weekly grenade attacks because they had to import third worlders to take care of native Swedes in their old age because they relied on having big daddy government to take care of them in their old age rather than having kids. Free market capitalism works fine with a shrinking population because people can plan ahead to take care of themselves. However, socialist support structures collapse once your population starts to drop and you wind up needing to import foreigners to maintain your tax base to pay for all the people who paid absurd taxes for welfare programs and weren’t able to plan to support themselves in retirement.

        • Marx was long on rhetoric and short on actual solutions. When the problems got too complex his favorite cop-out is “the dictatorship of the proletariat will provide”.

        • As many know from experience; it’s much easier to make pronouncements and whine and complain about our current system than it is to make substantive changes that will actually work in the real world. Policy theory is just that; theory. Classroom theory rarely translates to workable solutions when you get to the real world and have to deal with ‘unfortunate consequences’ which were not anticipated. Like human nature. Which is why socialism has NEVER EVER worked anywhere. It may work temporarily for the shot-callers who control the levers of everyday life for the population. But for the average person it is a misery. Just look at history; Cuba, Venesuela (sp), Soviet Union, and many, many other examples.

  7. If it’s pro-gun, anti-abortion, Christian, etc. it must be censored. If it’s socialist, pro-Muslim, etc. it’s protected free speech.

  8. Hate sites on the internet incite and encourage crazy people to commit mass murder which hurts all law abiding gun owners especially every time a nut case carries out his fantasies of mass murder because he thinks its acceptable behavior after being encouraged on internet extremist hate sites. Many other countries forbid hate speech on their Internets.

    • The issue is: Who gets to decide what is a “hate site?” The government cannot be allowed to do this. Ever. I don’t care if the current batch of people in charge have good intentions or not. Even if they did, it won’t be long until we get a batch that doesn’t.

      There are other bedrocks of a free society, but that’s perhaps the most important. Nobody gets to decide what ideas can and cannot be expressed. Consider that an incandescent, bright red line in the stand-off against those with a drive to enslave and bend others to their will.

    • Hate sites like the New York Times who constantly advocate for the extra-legal overthrow of elected presidents?

  9. Punishing anyone for the wrongs of another is a bad thing.

    It is also what the NYT is promoting in that editorial. Such as punishing a social media site because a user found inspiration there to commit a crime. There would be a difference for a web site that was created for the purpose of inciting violence, such as those supporting terrorism around the world. That’s different, tools of ISIS and whatnot. Not the same as morons mouthing off on Facebook.

    Monitoring social media for clues to planned violence is a good thing. We need more of it and we need to get much better at it. Just keep the focus where it belongs, on evil scum, not on the rest of society they victimize.

    • “It is also what the NYT is promoting in that editorial. Such as punishing a social media site because a user found inspiration there to commit a crime.”

      Like the New York Times themselves, when they go overboard with flashy multi-page coverage with gory photographs.

      …just egging on the next potential mass shooter to beat their ‘high score’…

    • So does the political right want to control speech and to legislate all sorts of private issues in people’s lives. It is the nature of the disease of political partisanship.

      • Not really so much. There’s certainly a handful of right leaning politicians that are statist, but most of them are RINOs or NeoCons. Generally conservative and libertarian politicians are more in line with the constitution and freedom then the left.

      • Name one private issue that the right wanted to interfere with in the past 40 years… I’ll wait.

        • Pretty sure that prostitution is debatable and is mostly blocked by left wing feminazis, not modern conservatives.

        • Quote: “pwrserge says:
          October 10, 2019 at 13:38
          Name one private issue that the right wanted to interfere with in the past 40 years… I’ll wait.”
          Nixon started the War on Drugs in 1971 and it continues to this day. Have to admit the unconstitutional war has been pretty much bipartisan since it got started. But it was started by the Republicans whom are nominatively considered the right.

  10. NYT: “We’re for curtailing 1st. Amendment rights, if it saves just one life. Unless its used against us, that is.”

  11. Washington State just red flagged a guy because he posted Joker memes and may have “posted offensive comments toward women back in 2017”.

    This is insanity.

  12. so if this case wins??

    They do understand that any item sold in say amazon or walmart that kills someone means you can sue amazon or walmart?

    bye bye stores or nay .dot com sales ect

  13. Criminalizing being a victim of a crime, yup sounds like something Democrats support.

    The point of disposing of the 2A is to clear the way for disposing of the rest of your rights.

  14. If it is a friend, lend him the money on his word – if he can’t pay you back, then take the gun as sold to you. I mean, really, how much money is that? If he stiffs you a couple/few hundred dollars, was he a friend? Maybe it is worth that for him to leave your company.

  15. Good idea. We can start with the angry left websites and get red flag orders on the posters. That will take a while. Eventually they will determine its all unnecessary.

  16. “The MGM settlement acknowledges that in physical spaces, individuals or businesses that fail to “take care” that their products, services or premises are not used to commit wrongdoing can be held accountable for that failure.”

    Unfortunately, many of these businesses think making their premises a “Gun Free Zone” is all that is needed to “take care” that no one will commit a “wrongdoing”.

    How about consequences for disarming your clientele and preventing them from providing for their own safety?

  17. What the NYT fails to see is that Section 230 protection is what has allowed Facebook, Twitter, et al to ban, censor, and de-platform so many conservative voices. It also fails to realize that it can very well backfire on them. The Biden Rule backfired on the Democrats. The ‘nuclear option’ backfired on the Democrats so to can this.

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