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