The best part about this decision is that it keeps the line of demarcation very clear. Can you run a website that allows 3rd party users to advertise goods which may or may not be lawful to sell? YES, YOU CAN. Can you go further and personally participate in the sale of unlawful goods/services and then claim CDA immunity simply because you also happened to run the website where a 3rd party posted an advertisement for those goods/services? NO, YOU CANNOT (see HomeAway v. Santa Monica).

I understand Prof. Goldman isn’t comfortable with that line, suggesting in his earlier post on HomeAway, “If Section 230 doesn’t protect the marketplace operator from liability for closing marketplace transactions, eventually local governments will lard up the transaction process and that will lead to the end of online marketplaces.”

This is an appealing argument to some extent, and I agree we should try to keep Section 230’s boundaries from shrinking as much as possible. However, I don’t think the “end of online marketplaces” is imminent.

First, it seems like most online marketplaces (Amazon, etc.) have been growing and thriving just fine despite having to live without complete CDA protection. See, e.g., McDonald v. LG Electronics, Inc., 219 F.Supp.3d 533 (D.Md. 2016) (finding CDA does not bar negligence and breach of implied warranty claims against Amazon, while dismissing those claims for other reasons).

Indeed, bear in mind — the CDA only applies in the United States, so other countries have been living in a CDA-free world since the Internet began. Does that mean there are no online marketplaces in other countries? Of course not! They may have silly and unfamiliar names — banggood.com, alibaba.com, etc. — but it’s clear that online marketplaces CAN and DO exist without the need for absolute immunity from any/all forms of regulation. Yeah, less regulation is usually better than more regulation, but my point is that the presences of some small amount of regulation is not instantly fatal to the entire species.

Second, over the past few years, we’ve seen some efforts to curtail the CDA, most obviously with SESTA/FOSTA which Eric mentioned just yesterday. While I agree that any reduction in the scope of the CDA is usually a bad thing, is it really unacceptable that you can no longer easily find hooker ads on Craigslist or Backpage? I mean, yeah — I completely agree that FOSTA probably hurt sex workers more than it helped them by forcing them to find clients on the sidewalk where it’s impossible to do any vetting. That’s a bad thing. I’m also sure this has made it much harder to help a small percentage of people like runaways who have turned to sex work (and who would otherwise be easier for a parent to find by scrolling through online ads in the pre-FOSTA era). Still, the truth is that FOSTA has probably caused a significant reduction in the sex worker marketplace, if only because it’s just harder to find sex ads online. Is that really a bad thing? I dunno, but I’m not losing any sleep over it.

At the end of the day, my view remains unchanged — the CDA is, and must remain, a solid, impenetrable wall, like the Hoover Dam. Any crack in the dam, however small, can and will eventually lead to a catastrophic failure, so cracks must not be allowed to form.

At the same time, I am OK with the concept that SOME level of regulation of online marketplaces is acceptable. I don’t agree this will necessarily mean the disappearance of all online commerce. But that debate aside, in the Armslist case it’s clear the website operator did not cross the line in any way that would justify imposing liability on it. Thus, sad facts notwithstanding, it’s clear the Wisconsin Supreme Court got this one right.