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 com, LLC was superseded by the enactment of the 2018 Amendment [FOSTA], but the broad legal principles immunizing other website operators, like Annslist, remain in effect.”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.

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