Wisconsin High Court Gives Boost To Section 230 In Gun Sales Case

The supposed anti “sex trafficking” law FOSTA/SESTA passed by Congress last year staged a direct attack on Section 230 of the 1996 Communications Decency Act, but this week in the Wisconsin Supreme Court, Section 230—the law that establishes the basis for free online communication—received a solid vote of Constitutional confidence, in the court’s opinion issued in a lawsuit over guns. Section 230 established that the operator of an “interactive computer service” such as an internet provider, social media platform or blogging site, among others, cannot be held legally responsible for content published online by third parties on the service.  Thanks to Section 230, service providers and platforms are not forced into the impossible task of strictly policing all content on their services, allowing users to post whatever they want—and take responsibility for it. Because of Section 230, the internet has no gatekeepers, and information can be shared freely online. But FOSTA blew a hole in Section 230, creating an exception that makes service providers responsible for any activity deemed to promote “sex trafficking,” even if posted by third-part users without the site-operator’s knowledge or input. The Wisconsin case also appeared poised to blast another hole in the internet freedom law, and in fact, that is exactly what happened when the case of Daniel v. Armslist went to a state court of appeals last year.  In the case, Yasmeen Daniel, the daughter of a woman slain by her estranged husband, sued the site Armslist, a service that connected gun buyers with sellers. Daniel said that because the homicidal ex-husband purchased his gun via Armslist, the site should be held responsible for her mother’s death. Because Armslist allows sales by private gun-sellers, who are not required to run federal background checks on purchasers, the ex-husband was able to purchase a firearm even though, due to a domestic violence restraining order, he was legally prohibited from buying a gun. A Wisconsin appeals court agreed with Daniel in April of 2018, ruling that she could get around Section 230 by suing Armslist not as a “publisher,” but over the “design and operation” of its site. Daniel argued that flaws in the site’s design allowed what should have been a banned gun purchase. Lawsuits have frequently attempted to use the “design and operation” tactic as a way around Section 230, most recently in a case involving the gay dating app Grindr, a case on which AVN.com reported. But in the Grindr case, as in previous cases, a court rejected the attempt to sue a site as a defective product, rather than as a publisher. The Wisconsin appellate court, however, failed to follow that precedent, and on Tuesday of this week, the state’s Supreme Court reversed the appellate decision, reaffirming the power of Section 230, as the site TechDirt reported.  “There is always more at stake than just the case at hand,” wrote TechDirt journalist Cathy Gellis. “Whittling away at Section 230's important protection because one plaintiff may be worthy leaves all the other worthy online speech we value vulnerable.” Though FOSTA may have created a Section 2309 exception for sex trafficking, it did not create one for gun trafficking, according to the court, which wrote in its opinion, “Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by Section 230.” Photo By Daderot / Wikimedia Commons