Armslist Wins Another Section 230 Ruling–Stokinger v. Armslist

May 6, 2020 · by · in Derivative Liability, E-Commerce

This case involves the tragic shooting of a police officer. The shooter acquired the gun illegally from a seller who had acquired the gun via Armslist. Among other defendants, the victim sued Armslist for a variety of claims, including negligence. Armslist defended on Section 230 grounds.

The plaintiffs said their claims don’t treat Armslist as a publisher/speaker; instead, the claims are based on how Armslist developed, designed, and maintained its service. The Doe v. Backpage and Daniel v. Armslist precedents clearly rejected these Section 230 workarounds, making this an easy defense win from a legal doctrinal standpoint. (See also Gibson v. Craigslist, another defense-favorable ruling directly on point). In retrospect, I’m a little surprised the plaintiffs pressed the Armslist/Section 230 issue without a stronger plan to get around the Doe and Daniel precedents.

The court rejects other attempts to get around Section 230:

  • The plaintiffs “allege that Armslist either knew or should have known that its website facilitates and encourages illegal gun trafficking.” The court says that knowledge of illegal activity is irrelevant to Section 230. Cite to the Lycos case.
  • The plaintiffs claim they are suing over Armslist’s conduct and the content it created. The court says those arguments were rejected in Daniel v. Armslist.
  • The plaintiffs said there should be a presumption against preemption of state common law. The court responds that Section 230 expressly preempts state claims.

The court never reached the merits of the negligence claim, but the Seventh Circuit rejected Armslist’s negligence liability in Vesely v. Armslist. I’m not sure how the plaintiffs planned to overcome that ruling even if they found a way around Section 230.

The court adds some color to the Doe v. Backpage ruling. First, it says the “court’s holding in Backpage. com, LLC was superseded by the enactment of the 2018 Amendment [FOSTA], but the broad legal principles immunizing other website operators, like Annslist, remain in effect.” In a footnote, it adds:

[It is] not the role of this court to rewrite legislation to comport with a perceived or presumed purpose motivating its enactment. The quite legitimate question of whether websites like Annslist.com should operate in the fashion they do must be addressed by Congress. If Congress did not intend to immunize firearms markets like Armslist, then it need only amend § 230 to reflect that intent as it did in response to the court’s decision in Backpage. com, LLC.

While Congress could create additional exceptions to Section 230, that isn’t the right solution. Most obviously, it would hork Section 230 but possibly not change the outcomes due to the First Amendment backfill. For more on the Section 230/First Amendment interface, see this article.

Case citation: Stokinger v. Armslist LLC,, 2020 WL 2617168 (Mass. Superior Ct.). The opinion is dated March 13, 2020, but for reasons that aren’t clear to me, notice of the opinion wasn’t sent until April 28, 2020.

JULY 2024 UPDATE: It’s hard to believe this case is still going. The shooting took place in January 2016, and Stokinger first filed the lawsuit in October 2018. After the state court’s dismissal on 230 grounds, the court also granted dismissal for lack of personal jurisdiction in Massachusetts. That led to jurisdictional discovery and a final dismissal some time in 2021. Stokinger then sued in New Hampshire federal court in September 2023 (more than 7 years after the shooting?) on a negligent website design theory. Armslist again moved to dismiss for lack of personal jurisdiction.

Armslist has a filter to sort listings by state, including New Hampshire. Citing Johnson v. Huffington Post, the fact that every state is a filtering option means “the filtering feature is necessarily designed to benefit users regardless of their location.” There have been similar rulings based on states being listed in dropdown menus. Thus, “the fact that New Hampshire was one of 50 states included in the website’s filtering function is of little value.”

Armslist had a premium membership that included some NH-based vendors–totaling no more than $3k per year (less than 0.4% of revenues). The court disregards this because there’s no evidence “Armslist did anything to recruit or solicit premium vendors in the state.”

The fact that Armslist has NH listings also doesn’t change the analysis because that’s action by third-parties, not Armslist.

I was wondering why this case has been so tenaciously fought over so many years. Stokinger is represented by a team of 7 lawyers from local counsel (McDowell & Morrissette, PA), Blank Rome in DC, and the Brady United Against Gun Violence. My inference is that the Brady outfit is using this as impact litigation. Sadly, they are getting bogged down in procedural details, and the court didn’t even mention the statutes of limitation. 

Stokinger v. Armslist, LLC, 2024 DNH 056 (D.N.H. July 15, 2024)

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