By Jodi Lessner

March 21, 2025

Radcliffe Haughton sat in the front seat of his car as he purchased a semi-automatic handgun on Armslist.com, an “online classifieds” for firearms.¹ Haughton used a filter on Armslist to narrow his results to private sellers who would not need to run a background check. Two days earlier, a Wisconsin court issued a restraining order against Haughton that barred him from owning a gun.² A background check would have revealed this order. The next day, gun in hand, Haughton arrived at his wife’s workplace and killed three people, including his wife Zina, before killing himself.³ Soon after, Zina’s daughter filed suit against the seller and Haughton’s estate. Armslist, however, was and is shielded from civil liability based on a provision of § 230 of the Communications Decency Act (“CDA”), which grants immunity to internet platforms for the illegal behavior of its users.

The CDA was enacted in 1996 to maintain the openness of internet communication and to prevent excessive government interference in “the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulations.”⁴ § 230(c)(1) immunizes interactive computer service providers from civil liability for third-party content published on their platforms, including state tort liability.⁵ The grant of immunity is broad, but courts have held in limited circumstances that § 230 does not apply if the interactive computer service provider is “responsible, in whole or in part, for the creation or development” of the content.⁶ What constitutes “development” is a source of debate amongst courts, and can be the difference between immunity and liability.

In the physical world, third parties can be held civilly or criminally liable for other people’s actions and associated concomitant harms through claims such as contributory negligence, complicity, conspiracy, or aiding and abetting.⁷ In the internet space, however, the maximalist interpretation of § 230 adopted by the majority of courts makes it nearly impossible to apply these causes of action to similar activity that takes place online. Thus, a fundamental conflict arises between the civil liberties interest of free speech purportedly promoted by § 230 and the inevitable sanctioning of illegal activity that results. While freedom of expression is a critical element of a functioning internet and society, limits must be placed on interactive computer services’ ability to pass off illegal activity as legitimate speech deserving of immunity.

I. Interpretations of Section 230 and Immunity for Resulting Illegal Conduct

To counteract fears that a broad grant of immunity would encourage computer service providers to ignore potentially obscene or unlawful third-party content, Congress included a “Good Samaritan” provision in the Communications Decency Act, which allows providers to remove objectionable third-party content from its websites without fear that it will open itself up to lawsuits regarding the content that it chooses not to remove.⁸ The distinction between deleting and creating content was a central concern of § 230’s drafters. In 1995, a New York state court found that a financial message board had become a “publisher” under state law when it voluntarily deleted some messages “on the basis of offensiveness and ‘bad taste,’” opening the door to liability for the content that it chose not to delete.⁹ Former United States Representative Christopher Cox (R-Calif.), a co-sponsor of what would soon become the CDA, thought this decision was “exactly the wrong result,” because it would punish companies for trying to self-regulate, and thus would turn the internet into a “cesspool.”¹⁰

The belief that the internet should be allowed to develop freely without fear of sanction fueled the content of §230(c)(1), which enumerates three factors to determine when and for whom immunity applies: (1) immunity is available to a “provider or user of an interactive computer service;”¹¹ (2) liability must be based on the defendant having acted as a “publisher or speaker;” and (3) immunity can be claimed only when information is “provided by another information content provider.”¹² In other words, in instances where the platform is acting solely as a service provider by “passively” displaying the content of third parties, the website may claim immunity.¹³ When the website is “responsible, in whole or in part” for creating or developing content on its website, immunity does not apply.¹⁴

Thus, the subtle nuances between editing, deleting, and developing are key to presenting a successful argument that an internet platform provider is or is not entitled to immunity.¹⁵ Interpretation of the phrase “responsible, in whole or in part, for the creation or development of” is the critical distinguishing feature between the maximalist and minimalist interpretations of § 230, and is often the difference between a valid cause of action and the immediate granting of a motion to dismiss.

A. The Maximalist Approach

Most circuit courts, state supreme courts, and lower courts have adopted the maximalist interpretation of § 230. This approach was implicitly adopted by the United States Supreme Court when it declined to grant cert and hear arguments in Daniel v. Armslist, LLC and Doe v. Backpage.com, which affirmed the immunization of platforms that facilitate illegal activity, so long as they acted only as neutral hosts for that information.¹⁶

The maximalist approach to § 230 rests on the assumption that a broad immunity provision will lead to more speech on the internet, and therefore nearly all online conduct is deserving of protection and immunity. In Zeran v. America Online, one of the earliest cases interpreting § 230, the Fourth Circuit rejected a negligence action brought against America Online (“AOL”). Plaintiffs alleged that AOL “unreasonably delayed in removing defamatory messages” posted by a third-party on the grounds that the CDA “plainly immunizes computer service providers … from liability for information that originates with third parties,” even though the website was on notice that the statements were defamatory.¹⁷ In so holding, the Fourth Circuit wrote that the plain language of § 230 “creates a federal immunity to any cause of action that would make service providers liable for information” originating from third-parties, and rejected the argument that notice of wrongful activity alters immunity.¹⁸ This immunity applies to both distributors – those who transmit the information – and publishers – those who have a role in the creation and circulation of the content – under the theory that distributor liability is a subset of publisher liability, foreclosing both arguments under § 230.¹⁹ Fear of litigation, the court argued, would encourage service providers to automatically restrict speech any time they receive notice of a potentially defamatory statement, thus creating a chilling effect.²⁰

This approach has been adopted by internet maximalist policy groups, such as the Electronic Frontier Foundation, who believe that the internet should act as an unencumbered marketplace of ideas, “ensuring that all views – especially controversial ones – can be presented and received by users.”²¹ In their view, § 230 is critical to maintaining this freedom and “benefits the Internet as a whole.”²² Thus, merely providing the forum is not enough to be considered a content creator subject to liability.²³ In Chicago Lawyers v. Craigslist, the Seventh Circuit held that Craigslist could not be held liable for violating the Fair Housing Act simply because it provided a forum that was used by third-parties to post discriminatory housing advertisements.²⁴ The definition of “cause” had to be narrower and would only apply if Craigslist itself had caused a “particular statement to be made, or perhaps the discriminatory content of a statement” by providing, for example, incentives for those who included discriminatory content in their postings.²⁵ Similarly, providing neutral tools to upload or search for content does not amount to “development” for purposes of the immunity exception, even if the tools could also be used to upload illegal content.²⁶

The maximalist approach sanctions the advancement of illegal behavior so long as the internet service platform did not materially contribute to the unlawfulness.²⁷ A material contribution to the alleged illegality of the content “does not mean merely taking action that is necessary to the display of the allegedly illegal content,” but instead requires that the platform is “responsible for what makes the displayed content” unlawful.²⁸ Absent such a showing, the cause of action lies against the third-party and not the platform.

What constitutes material responsibility for illegal conduct is not a settled standard. There is debate over whether a platform is materially responsible for illegal firearms sales that result in violence if the platform was specifically designed to facilitate off-the-books sales of firearms and otherwise illegal weaponry.²⁹ The law, as it stands, does not deem this a sufficient material contribution to illegal conduct such that immunity would be stripped, focusing instead on the need to preserve the “free exchange of information over the internet.”³⁰ A different reading of the text and understanding of the interplay between civil liberties and the First Amendment, however, might result in a different definition of “material,” thus expanding the landscape for causes of action against the platform.

B. The Minimalist Approach

Although most circuit courts have accepted the maximalist interpretation of § 230, some legal scholars, courts, and critics argue that the minimalist interpretation is a more accurate reading of the statute from a plain text and public policy perspective.³¹ One critic of the maximalist approach is, ironically, a representative who drafted § 230 in 1996, Christopher Cox. In an interview with NPR conducted after § 230 was amended in 2018, Cox stated that the “original purpose of the law was to help clean up the Internet, not to facilitate people doing bad things on the Internet.”³² In discussing an interpretation that prevents liability for websites that facilitate illegal behavior, Cox said “I’m afraid … the judge-made law has drifted from the original purpose of the statute,” and that websites that are involved in “soliciting” unlawful materials or that are connected to unlawful activity should not be immune under § 230.³³

Minimalists argue that a plain text reading of the statute in conjunction with the text’s stated purpose supports the view that facilitating illegal behavior or soliciting unlawful materials should not render the platform immune under § 230. The goal of the “Good Samaritan” provision was to allow for internal policing that incentivized removing objectionable third-party content without fear of liability for content that remained. The provision grants immunity to internet service platforms for “good faith” efforts to restrict access to material that can be construed as “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”³⁴ Affording immunity to platforms that engage in no “good faith” efforts to remove objectionable content sanctions the behavior of platforms that “actively engage in harmful activity,” and goes against the goal of § 230 to promote the “vibrant and competitive free market that presently exists for the Internet,” which implicitly excludes illegal.³⁵

Just as the First Amendment does not protect all speech in the physical world, minimalists argue that § 230 should not be construed to grant constitutional protection to all speech on the internet.³⁶ The First Amendment has always “permitted restrictions upon the content of speech in a few limited areas” – including obscenity, defamation, fraud, and incitement – so long as the categories were “narrowly limited classes of speech.”³⁷ “Speech integral to criminal conduct” is another category of speech that is not protected by the First Amendment.³⁸ In Giboney v. Empire Storage, the Supreme Court wrote that “[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”³⁹ In other words, speech that is an essential element of illegal conduct is not immunized by the First Amendment simply because it is speech.⁴⁰ While maximalists argue that neutral internet service platforms are not speakers and therefore are not responsible for speech integral to the violation of a criminal statute – even when those platforms host the contested speech and are thus an integral element to the illegal conduct – minimalists respond that such an expansive interpretation of “the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements . . . and conspiracies deemed injurious to society.”⁴¹

Congress has recognized that platforms do not possess unlimited immunity for neutral hosting of all illicit content or speech that leads to illegal activity. In 2018, Congress amended § 230 to clarify that the Act does not prevent law enforcement from holding online platforms liable for hosting content that promotes or facilitates sex trafficking.⁴² It also included a provision promoting “blocking and filtering technologies” to restrict children’s access to “objectionable or inappropriate online material.”⁴³ Encouraging the use of speech-restrictive technology and carving out circumstances in which platforms can be held liable for hosting illicit content runs counter to the maximalist view that the purpose of § 230 is to provide an unfettered forum for free speech. Instead, it indicates that restricting platforms that foster illicit activity is, in some instances, the intended outcome of the statute.

II. § 230 Immunity for Platforms that Facilitate Illegal Firearm Sales

Armslist.com, the website through which Radcliffe Haughton bought his weapon to later kill his wife, two others, and himself, describes itself as the “largest free gun classifieds on the web.”⁴⁴ Armslist, which was established in 2007 in response to a decision by Craigslist to ban gun sales, follows a Craigslist sales model: third parties post advertisements for weapons and weapons accessories on the website and interested buyers reply.⁴⁵ Sellers on Armslist are divided into private and “premium” vendors. Private buyers or sellers are individuals who wish to make an “occasional sale” or purchase.⁴⁶ They are not required to register for an account with Armslist, and because they are private parties, do not require a background check.⁴⁷ “Premium vendors” must register with Armslist and possess a federal firearm license (“FFL”), which confers an obligation to conduct a background check on any interested buyer.⁴⁸ Armslist allows buyers to filter their searches specifically for private parties, thereby bypassing a background check, and allows the sale of nearly any kind of legal gun, including pistols, rifles, and shotguns, as well as illegal weapons and accessories, such as automatic weapons, silencers, suppressors, collapsable stocks, extended magazines, auto sears (to convert semi-automatic weapons to automatic), and rocket propelled grenades.⁴⁹

In denying cert in Daniel v. Armslist,⁵⁰ brought after Haughton’s murders, the Supreme Court declined to disturb the maximalist decision reached by the Wisconsin Supreme Court: that Armslist simply provided “neutral tools” for people to post advertisements selling weapons, some of which very well could be advertisements for lawfully conducted sales, thereby shielding the site from liability if these neutral tools happened to be used “for unlawful purposes.”⁵¹

In its reasoning, however, the Wisconsin Supreme Court fails to apply its definition of “neutral tools” to the facts at hand. The court writes that neutral tools are features provided by an interactive computer service provider that can “be utilized for proper or improper purposes.”⁵² While this might be true in certain circumstances, such as advertisements posted by federal firearm license holders who conduct background checks or private sales of collectors’ items, there is no scenario in which a website that facilitates the sale of illegal weapons could ever be “utilized for proper purposes.”⁵³ In Fair Housing Council, the Ninth Circuit wrote, “[w]here it is very clear that the website directly participates in developing the alleged illegality. . . immunity will be lost.”⁵⁴ The Ninth Circuit’s interpretation of “direct participat[ion] in developing the alleged illegality” is not limited to the facts of Fair Housing Council, even if neither the Wisconsin Supreme Court nor the United States Supreme Court are bound by its holdings.⁵⁵ Indeed, the dissent in Daniel utilized this standard and found that Armslist had directly participated in the illegality when it specifically designed its website to facilitate illegal transactions.⁵⁶

A study conducted by Everytown for Gun Safety supports this finding. Each year, 1.2 million online ads are placed on the portion of the Armslist website designated for sales that do not require a background check before purchase.⁵⁷ The existence of such a page facilitates transactions that are legal from the seller’s perspective, but potentially illegal from a buyer’s perspective if said buyer is prohibited from purchasing or owning a weapon, such as was the case with Haughton. Ultimately, only 10% of sales facilitated by Armslist involve a background check.⁵⁸ Nearly 1 in 9 prospective buyers who respond to ads from unlicensed sellers on Armslist would not pass a background check if it was conducted; a rate seven times higher than the denial rate at points of sale – physical and online – that require background checks.⁵⁹

Another such website, DEFCAD, follows a similar model to Armslist, allowing users to upload schematics for 3-D printed weapons and accessories. Interested buyers can download the schematics and print a weapon in their own home, no background check or regulation required. DEFCAD is structured in a way where interested buyers can filter not only for private sellers, but also for a wide range of illegal firearms and firearm accessories. Filter selections include “machine guns,” “fully-automatic,” “grenade launchers,” and “auto sears.”⁶⁰

Despite hosting schematics for clearly illegal weapons, under current maximalist interpretations of § 230, DEFCAD cannot be held liable for the illegal sales of weapons, resulting injuries induced by third-party downloads, or hosting the schematics for the illegal weaponry itself.⁶¹ DEFCAD is aware of the protections provided by § 230 and includes references to its grant of immunity in its Terms of Use, stating “[b]y uploading/downloading/viewing any CAD models appearing on this site, you understand and agree that all such models are … not created nor materially modified by DEFCAD … [M]odels appearing on this site are ‘information provided by another information content provider’ within the meaning of 47 U.S.C. § 230(c)(1).”⁶² In citing § 230 in its Terms of Use, DEFCAD is openly asserting that the illegal content that it hosts is immune from suit and claims legal protection “meant to help the internet flourish” that also “ensure[s] the guns keep flowing.”⁶³

III. Strategies to Prevent Illicit Online Firearm Sales Within the Current Political Landscape

The future of § 230 is unclear. When passed in 1996, the Communications Decency Act enjoyed bipartisan support.⁶⁴ Today, however, criticism of the provision comes from both parties, albeit for different reasons. On the left, lawmakers are concerned that the immunity provisions make it impossible to hold internet platforms accountable for hosting and facilitating illegal and extremist activity.⁶⁵ On the right, Republicans believe that § 230 allows internet platforms, mainly social media companies, to suppress speech with impunity.

In May of 2020, in response to concerns that social media companies were limiting his speech and other speech coming from the right, President Trump signed an executive order titled “Executive Order on Preventing Censorship” meant to tackle online platforms “engaging in selective censorship that is harming [the] national discourse.”⁶⁶ The concerns in the executive order reflect antipathy towards the Good Samaritan provision.⁶⁷ The executive order declared that the scope of immunity created by § 230(c) should be clarified such that “immunity should not extend beyond its purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate and censoring certain viewpoints.”⁶⁸

According to this narrower definition of “good faith,” websites that delete content are engaging in “editorial conduct” that would strip the platform of immunity and make it “exposed to liability like any traditional editor and publisher that is not an online provider.”⁶⁹ President Trump did not have time to turn these policy goals into reality in 2020, but now, as Trump begins his second term in office, his cabinet selections indicate a renewed interest in picking up where he left off. President Trump’s new Chair of the Federal Communications Commission (“FCC”), Brendan Carr, wrote a chapter in the Project 2025 publication calling for the FCC to reinterpret § 230 and eliminate “the expansive, non-textual immunities that courts have read into the statute” that apply to content deletion under §230(c).⁷⁰

The incoming Trump administration’s proposed changes to § 230 would not meaningfully alter the immunity granted to online platforms that host illegal content and facilitate illegal activity. Tackling illicit firearm sales requires stripping immunity for hosting the sale of illegal weapons and accessories. Expanding liability for what a platform chooses to delete would not alter this immunity calculation; if anything, it would discourage sites like Armslist and DEFCAD from deleting known harmful or illicit content from their sites for fear of being sued by users for content-based discrimination.

Because current and future interpretations of § 230 will continue to shield online platforms from liability for the hosting of illicit activity, alternative litigation strategies need to be deployed to hold platforms accountable for the illegal weapons sales that they facilitate. Claims that do not argue that the website acted as a content creator or editor, as required under § 230, present a significant opportunity for plaintiffs seeking to lift the liability protection from the platform. Such claims could open up pathways for plaintiffs to pursue legal action against platforms that host illegal content.⁷¹

In 2021, the family of a police officer who died after being shot by a gun sold through Armslist brought claims of negligence, negligence per se, public nuisance, aiding and abetting tortious conduct, and civil conspiracy against the company in federal district court. The plaintiffs alleged that a gun trafficker purchased the handgun from an unlicensed online store on Armslist.com run by Thomas Caldwell.⁷² The plaintiffs contended that Caldwell deliberately chose to sell firearms on Armslist.com because it lacked the safeguards used by competitor websites, such as requiring sellers to have a federal firearms license.⁷³ Instead of only suing Caldwell, however, the plaintiffs sued Armslist for allowing private sales by unlicensed dealers on its website who did not possess a license to sell.⁷⁴ The plaintiffs alleged, amongst other things, that the site does not allow users to flag posts that contain potentially unlawful conduct, that the site creates filters for users to bypass background checks and other safeguards, and that the site takes no precautions to prevent prohibited persons from using the website.⁷⁵

Armslist subsequently moved to dismiss the complaint for failure to state a claim, arguing that § 230(c) of the CDA provided immunity from liability for any conduct of its users.⁷⁶ In response, the plaintiffs argued that they were seeking to hold Armslist liable for “its own content and negligent conduct in the design of the Armslist.com website.”⁷⁷ The plaintiffs alleged that Armslist should have structured the website differently by including safeguards and screening provisions to prevent illegal firearms dealers from using the website to sell guns without a license.⁷⁸ The Eastern District of Wisconsin responded favorably to this argument, noting that § 230 protection is not a “broad grant of immunity,” and does not immunize Armslist from suit because the allegations did not rest on the site’s status as a platform hosting third-party content.⁷⁹

Armslist appealed the decision and a claim with similar allegations – Webber v. Armslist – to the Seventh Circuit, which consolidated the cases.⁸⁰ The Seventh Circuit ultimately dismissed the cases because the plaintiffs did not sufficiently plead that Armslist was the cause-in-fact of the deaths given the transfers of the weapons after the purchase from Armslist that broke the chain of negligent causation.⁸¹ However, it did note that had it been required to determine if immunity should apply to the defendant’s actions, “§ 230(c)(1) is not a comprehensive grant of immunity for third-party content … [and it] may not necessarily preclude liability if the underlying claims identify the interactive computer service’s own content as objectionable.”⁸²

The Supreme Court applied a similar form of reasoning in the copyright context in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., which held that a website that distributes a device “with the object of promoting its use [for illegal purposes] as shown by clear expression or other affirmative steps taken to foster [the illegal activity]. . . is liable for the resulting acts … by third parties.”⁸³ Future litigants wishing to avoid § 230’s grant of immunity should frame their claims in the language of the Supreme Court: websites that create specific pages and filters that facilitate off-the-books sales to people prohibited from owning or purchasing firearms or encourage the sale of illegal weapons like machine guns constitute the “affirmative steps” necessary to open the site up to liability for the resulting acts of third parties.

IV. Conclusion

The murder of Zina Daniel Haughton is not the only death caused by a firearm purchased on Armslist.com. Buyers who otherwise would not be eligible to purchase a gun have turned to Armslist to buy weapons under-the-table that have later been used to perpetrate intimate partner violence, suicide, gun trafficking, and mass shootings.⁸⁴ In all of these instances, Armslist used the immunity provision of § 230 to escape liability and avoid accountability for its role in facilitating illegal sales or the purchase of otherwise illegal weapons. In the physical world, third parties can be held liable for contributing to another’s illegal action. On the internet, however, websites can hide behind a provision designed to facilitate the promotion of the free exchange of ideas, even when the website does nothing of the sort. Just as Congress amended § 230 in 2018 to exempt websites that facilitate sex trafficking from receiving liability immunity, recognizing that sex trafficking does not advance the “vibrant and competitive free speech market” at the core of § 230, Congress can and should amend § 230 to exempt gun trafficking and the sale of illegal weapons and parts under the same logic.⁸⁵ To preserve the original purpose of § 230, limits must be placed on interactive computer services’ ability to pass off illegal activity as legitimate speech deserving of immunity.

Jodi Lessner, J.D. Class of 2025, N.Y.U. School of Law.

Suggested Citation: Jodi Lessner, Safety Off: Section 230 and the Immunization of Illegal Firearm Sales on the Internet, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2025).

1
Colin Lecher & Sean Campbell, The Craigslist of Guns: Inside Armslist, the online ‘gun show that never ends’, The Verge (Jan. 16, 2020), https://www.theverge.com/2020/1/16/21067793/guns-online-armslist-marketplace-craigslist-sales-buy-crime-investigation.
2
Id.
3
Id.
4
47 U.S.C. §230(b)(2) (1998); see also Mainstream Loudoun v. Bd. of Trs. of Loudoun Cnty. Libr., 2 F. Supp. 2d 783 (E.D. Va. 1998).
5
47 U.S.C. §230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider.”).
6
47 U.S.C. § 230(f)(3) (defining “internet content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”).
7
Brief for The Cyber Civil Rights Initiative as Amici Curiae Supporting Petitioners, Daniel v. Armslist, LLC, 140 S.Ct. 562 (2019).
8
47 U.S.C. §230(c)(1) (shielding an interactive computer service provider from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”).
9
Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995).
10
Alina Selyukh, Section 230: A Key Legal Shield For Facebook, Google Is About To Change, NPR (Mar. 21, 2018), https://www.npr.org/sections/alltechconsidered/2018/03/21/591622450/section-230-a-key-legal-shield-for-facebook-google-is-about-to-change.
11
47 U.S.C § 230(f)(2) (defining “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”).
12
47 U.S.C. §230(f)(3) (defining “information content provider” as someone who is “responsible, in whole or in part, for the creation or development of” the offending content).
13
Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1166-67 (9th Cir. 2008) (analogizing neutral internet platforms with other physical-world platforms that support third-party content when writing, “[t]he projectionist in the theater may push the last button before a film is displayed on the screen, but surely this doesn’t make him the sole producer of the movie.”).
14
Id. at 1162; see also MCW, Inc. v. Badbusinessbureau.com, L.L.C., 2004 WL 833595, at *10 (N.D. Tex. Apr. 19, 2004) (finding that titles and headings, which were added to the content creator’s material separately by the service provider and contained defamatory statements, were part of the websites’ content and therefore not immune under § 230).
15
Courts have repeatedly rejected the idea that profiting from the contents of the website negates immunity, even if the contents result in illegal behavior. See Hill v. StubHub, Inc., 727 S.E.2d 550, 560 (N.C. Ct. App. 2012) (“[T]he fact that a website operates a commercial business or makes a profit has no relevance to the immunity determination.”); see also Goddard v. Google, Inc., 2008 WL 5245490, at *3 (N.D. Cal. Dec. 17, 2008) (“[T]he fact that a website elicits online content for profit is immaterial; the only relevant inquiry is whether the interactive service provider ‘creates’ or ‘develops’ the content.”); see also Doe v. Bates, 2006 WL 3813758, at *4 (E.D. Tex. Dec. 27, 2006) (writing that “Plaintiffs have not shown that Congress intended the question of immunity to turn on how the internet service provider earns its revenue.”).
16
Daniel v. Armslist, LLC, 926 N.W.2d 710 (Wis. 2019), cert denied, 140 S.Ct. 562 (2019); Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), cert denied, 580 U.S. 1083 (2017).
17
129 F.3d 327, 328 (4th Cir. 1997).
18
Id. at 330.
19
Id. at 331.
20
Id. at 333 (“If computer service providers were subject to distributor liability … [e]ach notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information.”).
21
Brief for Electronic Frontier Foundation as Amici Curiae, Daniel v. Armslist, LLC, 926 N.W.2d 710 (Wis. 2019).
22
Id. (“Congress recognized the Internet’s power to sustain and promote robust individual speech, a value rooted in the First Amendment.”).
23
Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008).
24
Id. at 672.
25
Id. (“[G]iven § 230(c)(1) [the plaintiff] cannot sue the messenger [Craigslist] just because the message reveals a third party’s plan to engage in unlawful discrimination.”).
26
F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1199 (10th Cir. 2009) (“[O]ne is not ‘responsible’ for the development of offensive content if one’s conduct was neutral with respect to the offensiveness of the content”).
27
Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 410 (6th Cir. 2014).
28
Id.
29
See Mary Anne Franks, Opinion: Our Collective Responsibility for Mass Shootings, The New York Times (Oct. 9, 2019), https://www.nytimes.com/2019/10/09/opinion/mass-shooting-responsibility.html (“[I]n physical spaces, individuals or businesses that fail to ‘take care’ that their products, services or premises are not used to commit wrongdoing can be held accountable for that failure. It is no less important that this duty to take care be honored in virtual spaces.”); but see John Samples, Armslist and Bias Against Conservatives Online, Cato Inst.: Cato at Liberty Blog (May 14, 2019), https://www.cato.org/blog/armslist-bias-against-conservatives-online (“The imposition of broad liability on services that help to coordinate legal activities would burden and perhaps preclude Americans’ right to sell and buy firearms, a legal activity.”).
30
Daniel v. Arsmlist, LLC, 926 N.W.2d at 717.
31
Brief for the Cyber Civil Rights Initiative and Legal Scholars et al. as Amici Curiae Supporting Petitioners, Daniel v. Armslist, LLC, 140 S. Ct. 562 (2019) (No. 19-153); see also Danielle Keats Citron & Benjamin Wittes, The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, 86 Fordham L. Rev. 401, 403 (2017) (writing that the maximalist approach leads to “outlandishly broad interpretations that have served to immunize platforms dedicated to abuse and others that deliberately host users’ illegal activities.”).
32
Selyukh, supra note 10.
33
Id.
34
47 U.S.C. § 230(c)(2)(A).
35
Citron & Wittes, supra note 31, at 403 (“Extending immunity to Bad Samaritans undermines § 230’s mission by eliminating incentives for better behavior by those in the best position to minimize harm.”); see also Brief for the Cyber Civil Rights Initiative and Legal Scholars et al. as Amici Curiae Supporting Petitioners, Daniel v. Armslist, LLC, 140 S. Ct. 562 (2019) (No. 19-153) (citing Citron & Wittes, supra note 31).
36
Id. (“As an example, the owner of a brick-and-mortar bookseller is potentially liable for unlawful material in her store once she is made aware of it, whereas an online bookseller remains immune from liability in the same circumstances.”).
37
United States v. Stevens, 559 U.S. 460, 468–9 (2010) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)).
38
Id.
39
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).
40
Id. at 502 (“[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”).
41
Id.
42
47 U.S.C. § 230(b)(5).
43
47 U.S.C. § 230(b)(4).
44
Unchecked: An Investigation of the Online Firearm Marketplace, Everytown Rsch. & Pol’y (Feb. 1, 2021) https://everytownresearch.org/report/unchecked-an-investigation-of-the-online-firearm-marketplace.
45
Lecher & Campbell, supra note 1.
46
Stokinger v. Armslist, LLC, Case No. 23-cv-428-PB-TSM, 2024 WL 3411108, at *1 (D.N.H. July 15, 2024).
47
Id.
48
Id.; see also Final Rule: Definition of ‘Engaged in the Business’ as a Dealer in Firearms (Jun. 13, 2024), ATF, https://www.atf.gov/firearms/final-rule-definition-engaged-business-dealer-firearms (requiring individuals who sell guns “predominantly to earn a profit” to possess a federal firearms license and conduct background checks.”).
49
Lecher & Campbell, supra note 1.
50
140 S.Ct. 562 (2019).
51
Daniel v. Arsmlist, LLC, 926 N.W.2d at 721 (“A defendant who provides a neutral tool that is subsequently used by a third party to create unlawful content will generally not be considered to have contributed to the content’s unlawfulness.”).
52
Id. (citing Fair Hous. Council of San Fernando Valley, 521 F.3d at 1172).
53
The Firearm Owners’ Protection Act (“FOPA”) prohibits the transfer or possession of machine guns. Pub. L. No. 99-308, 100 Stat. 449 (1986) (codified as amended in scattered sections of 18 U.S.C.).
54
Fair Hous. Council of San Fernando Valley, 521 F.3d at 1174-75 (applying this statement to find that immunity should be stripped from Roommates.com with regards to its questions, answers, and resulting profile page, because it encouraged and facilitated discrimination by third parties in violation of the Fair Housing Act).
55
Id.
56
Daniel v. Arsmlist, LLC, 926 N.W.2d at 728-729 (Walsh Bradley, J., dissenting) (“the Armslist Defendants designed Armslist.com specifically to exploit and profit from the background check exception for private sellers, to enable the sale of firearms to prohibited and otherwise dangerous people, and to enable illegal firearm sales, including sales that avoid restrictions on interstate transfers, state-imposed waiting periods, and state-specific assault weapon restrictions.”).
57
Unchecked: An Investigation of the Online Firearm Marketplace, supra note 44.
58
Id.
59
Id.
60
Auto sears are a component part that can be added to a handgun to turn the weapon fully automatic.
61
Firearm Owners’ Protection Act of 1986 Pub. L. No. 99-308, 100 Stat. 449 (1986) (codified as amended in scattered sections of 18 U.S.C.).
62
Terms of Use, DEFCAD (last updated Nov. 24, 2020), https://defcad.com/terms.
63
Lecher & Campbell, supra note 1.
64
The Communications Decency Act was co-sponsored by Ron Wyden, a Democrat from Oregon, and Christopher Cox, a Republican from California.
65
See Gonzalez v. Google, 598 U.S. 617, 622 (2023) and Twitter, Inc. v. Taamneh, 598 U.S. 471, 506 (2023) (holding that allegations did not sufficiently establish that Google and Twitter aided-and-abetted international terrorism by supplying algorithms and platforms that allowed terrorists to execute terrorist attacks. In so holding, the Supreme Court reiterated that websites that merely host third-party content cannot be held liable for the actions of its users.).
66
Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020). (“We cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet.”).
67
47 U.S.C. § 230(c).
68
Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020).
69
Id.
70
Gopal Ratnam, Carr’s FCC plan heading for ‘buzz saw’ of Big Tech opposition, Roll Call (Nov. 19, 2024), https://rollcall.com/2024/11/19/carrs-fcc-plan-heading-for-buzz-saw-of-big-tech-opposition.
71
Anthony v. Yahoo, 421 F.Supp.2d 1257, 1262-63 (N.D. Cal. 2006) (finding that when plaintiff is not seeking to hold a third-party liable for content, the platform is not “immunized … from allegations that it created tortious content” via other means).
72
Bauer v. Armslist, LLC, 572 F.Supp.3d 641, 648 (E.D. Wis. 2021).
73
Id.
74
Id. at 650.
75
Id. at 651-52. The plaintiffs cited numerous studies, including one conducted by The Trace and The Verge, that showed how unlicensed sellers were using Armslist to sell firearms, including illegal firearms, to people who were otherwise prohibited from possessing said weapons.
76
Id. at 655.
77
Id.
78
Id. at 663.
79
Id. A similar strategy was deployed successfully in the 7th Circuit in City of Chicago v. Stubhub!, 624 F.3d 363, 364-66 (7th Cir. 2010). Stubhub! attempted to invoke the CDA in response to an action brought by the city of Chicago to collect and remit taxes for tickets sold. The Court held that §230(c)(1) did not apply because Chicago was not seeking to hold Stubhub! liable as a publisher or speaker of information via a traditional defamation, obscenity, or copyright infringement suit.
80
Webber v. Armslist LLC, 70 F.4th 945 (7th Cir. 2023).
81
Id. at 962 (citing Cefalu v. Cont’l W. Ins. Co., 285 Wis.2d 766 (Wis. App. 2005) (under Wisconsin law, plaintiffs must establish that the defendant’s negligence was “actively operating at the time of the accident which produced the plaintiff’s injury.”).
82
Id. at 957.
83
545 U.S. 913, 919 (2005).
84
See, for example, Vesely v. Armslist, 762 F.3d 661 (7th Cir. 2014), an example where a gun purchased on Armslist by someone otherwise prohibited to own a gun later used the weapon to perpetrate intimate partner violence; Scott Glover, et al., Cop convicted of illegal gun dealing sold weapon used in murder, CNN (May 2, 2018), https://www.cnn.com/2018/05/02/us/dc-cop-unlicensed-gun-dealer/index.html, an example of an Armslist weapon sale to a person who failed a background check at a physical retailer who later used the weapon to kill himself; Jason Meisner, 3 men charged with trafficking dozens of guns bought over Armslist.com to Chicago gang members, Chicago Tribune (May 23, 2019), https://www.chicagotribune.com/2018/05/15/3-men-charged-with-trafficking-dozens-of-guns-bought-over-armslistcom-to-chicago-gang-members, an example of guns purchased via a seller on Armslist that were later trafficked to gang members; and Reuters, Chattanooga shooting suspect sent text containing Islamic verse before attack, The Guardian (Jul. 18, 2015), https://www.theguardian.com/us-news/2015/jul/18/chattanooga-shooting-suspect-text-islamic-verse, an example of guns purchased via Armslist.com being used in a mass shooting; here the shooting killed five U.S. servicemen on a military base in Chattanooga, Tennessee.
85
47 U.S.C. § 230(b)(2).