Armslist Defeats Lawsuits Over Illegal Gun Sales (Without Section 230’s Help)–Webber v. Armslist

July 16, 2023 · by · in Content Regulation, Derivative Liability, E-Commerce, Marketing

Armslist publishes users’ classified ads for guns. Two estates sued Armslist for allegedly facilitating illegal gun sales that led to murders. My blog post on the district court rulings. Section 230’s availability in such situations is uncertain, but on appeal, a TAFS[FN] judge displays the obvious-in-retrospect bias of preferring more guns in the hands of more people, no matter how many tragic outcomes might ensue. So I think this opinion is pro-guns, not pro-Internet.

[FN: TAFS = Trump-Appointed Federalist Society judge. As I’ve explained before, TAFS judges often deploy an overly self-confident style that selectively engages with the precedent to reach the desired outcome.]

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The opinion spends 6 pages discussing the Seventh Circuit’s tortured jurisprudence on Section 230. Wrapping up this discussion, the court says:

we need to decide whether § 230(c)(1) precludes the plaintiffs’ claims only if they have stated a cause of action against Armslist LLC. We therefore assess those claims

Huh? It’s true that Section 230 only matters if the plaintiffs have meritorious substantive claims. However, the court could have saved itself 6 pages of work by doing that merits analysis first and then concluding that it doesn’t need to discuss Section 230 because there’s no liability. Instead, it turned the previous 6 pages into superfluous dicta. Why did it do that?

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By sidestepping Section 230, the court engages a straightforward and vital question: are online publishers liable for third-party ads without Section 230’s help? In this case, the answer is no.

The plaintiffs claimed Armslist was negligent because it failed to perform some of the functions that Wisconsin law imposes on “gun dealers.” The court responds:

Armslist LLC is not a firearms dealer—rather, it operates a website that hosts third-party advertisements for the sale and purchase of firearms. The state has not entrusted it with enforcing the provisions of the regulatory scheme governing handgun transfers….If we decided that plaintiffs stated a negligence claim against Armslist LLC based on these three categories of allegations, that conclusion would contravene the Wisconsin legislature’s judgment on which entities—i.e., firearms dealers—will be held liable for meeting the requirements of state and federal law

[This sidesteps the obvious question of whether Wisconsin could statutorily impose such duties on an online publisher like Armslist, an issue that probably will come up in other cases.]

The court rejects the plaintiffs’ other arguments on causation grounds:

  • Plaintiffs argued that Armslist didn’t curb high-volume sellers. The court says the gun buyer could have bought the gun from other sources, so the seller’s identity wasn’t a determinant.
  • Plaintiffs argued that Armslist didn’t make it easy for users to flag illegal conduct. The court says Armslist included the ATF’s contact info in its TOS, so what more would have a flag have done? [This is an obvious non-sequitur. Online services routinely moderate content that the government could not act on.]
  • Plaintiffs argued that Armslist didn’t educate its users about gun laws. This omission also didn’t cause the deaths.

No causation, no negligence. Defense wins.

The court also rejects an aiding-and-abetting claim:

The fact that private sales are legal in Wisconsin provides an obvious alternative explanation for armslist.com’s design. Bauer also fails to point to a specific action Armslist LLC took in “continuing” to design and administer the website to promote illegal sales that might indicate an intent to assist; rather, Bauer seems to contend that armslist.com aided and abetted illegal transactions simply by virtue of its continued existence. But the failure to prevent unlawful conduct is alone insufficient to state a claim for aiding and abetting.

Oddly, the court didn’t discuss the seemingly directly-applicable Supreme Court’s Taamneh ruling on aiding-and-abetting, which would have supported the conclusion.

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Implications

The Vesely Precedent. I’m baffled that this panel never cited the 7th Circuit’s prior and binding Armslist precedent, Vesely v. Armslist from 2014. That precedent also involved a murder resulting from an illegal gun transaction. The court held that Armslist didn’t have a duty to the victims because they were not in a special relationship; and Armslist didn’t aid-and-abet the crime simply by accepting ads. The district court opinions extensively discussed it, I’m sure the parties’ appellate briefs repeatedly cited it, and it supported the current decision–so why wasn’t it acknowledged at all?

A World Without Section 230. This ruling contributes to the slow-growing law of online intermediaries when Section 230 isn’t in play. Other examples of such cases include Roe v. Amazon, Sandler v. Calcagni, Lunney v. Prodigy, and the Taamneh case. In general, defendants have fared pretty well in these non-230 cases. However, as the Taamneh case showed, the considerations are complex and fact-specific without Section 230’s overlay, which lengthens the proceedings and jacks up the defense costs even when it reaches the same outcomes.

Next Steps. The 7th Circuit has denied the plaintiffs’ en banc petition, so I assume this case is next headed to the Supreme Court.

Case citation: Webber v. Armslist LLC, 2023 WL 3945516 (7th Cir. June 12, 2023).

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