MADISON, Wis. (CN) – The Wisconsin Supreme Court grappled with the potential liability of a website that brokers gun sales between third parties in oral arguments Thursday, considering whether or not it is negligent for the website to facilitate possibly illegal gun sales without directly publishing the ads for those gun sales itself.
The case is connected to a 2012 shooting at the Azana Spa and Salon in Brookfield, a town roughly 10 miles west of Milwaukee. The shooter, Radcliffe Haughton, entered the salon and opened fire, killing two bystanders, himself and his estranged wife, Zina Daniel Haughton.
An investigation of that shooting turned up that Haughton purchased the gun he used on Armslist, a gun sales brokerage website that facilitates firearm sales between third-party buyers and sellers.
Haughton, however, was prohibited from gun ownership by both state and federal law because of a prior domestic violence conviction.
While federally-licensed firearm dealers are required by law to run background checks on potential buyers, unlicensed private sellers are not. Armslist ostensibly finds its niche relative to this private-seller realm, providing a platform for sales between private sellers.
When Yasmeen Daniel, Zina Daniel Haughton’s daughter, filed multiple tort claims against Armslist, Milwaukee County Circuit Judge Glenn Yamahiro dismissed her claim, finding that “interactive computer services” like Armslist’s are protected by the Communications Decency Act, or CDA.
The state Court of Appeals reversed that dismissal, finding that the website’s design facilitates unlawful gun sales in light of the plain language of the CDA.
In his argument Thursday, James Goldschmidt, an attorney with Milwaukee firm Quarles & Brady representing Armslist, stated that “the Court of Appeals had a very narrowing view of the statutory language,” and that Armslist should be exempt from liability because it was not technically the publisher of the ad to which Haughton responded.
Justice Daniel Kelly asked early on what it takes for a website to be considered a “publisher or a speaker,” which became a central focus of the arguments going forward. Justice Kelly noted that telephone companies benefit from protections similar to those in the CDA in the way they handle third-party information and transactions.
Goldschmidt answered that the website “needs to be disseminating information to the public” to be a publisher or a speaker, but that it also has to create the content being disseminated, which Armslist had not.
“You can’t point to a neutral tool for a claim of CDA liability,” Goldschmidt said, stressing that there is no need for good faith intent with third-party facilitators when applying the CDA to the letter.
Jonathan Lowy, a representative with the Brady Center to Prevent Gun Violence, spoke on the plaintiff’s behalf, arguing that Armslist “engaged in conduct and produced content,” forgoing the aforementioned CDA protections.
Lowy listed content like the website’s terms of service, which states Armslist will not investigate any illegal conduct, which “tells illegal gun transactors that it’s a safe place.”
“Publishing the ad cannot be the basis for immunity,” Lowy stated. He also claimed that the website’s design is flawed in that “One can flag overpriced gun sales, but not illegal gun sales.”
Chief Justice Patience Roggensack resisted this characterization of Armslist’s non-neutrality.
“I don’t think anyone can argue Armslist created the ad for this illegal gun sale,” leaving them safe as only a facilitator of ready-made content.
Justice Annette Ziegler agreed, bringing up the operating procedures of social media giants like Facebook.
Facebook’s platform and design features, Ziegler stated, is used for illegal conduct, but “Is Facebook liable for that?”
“Can we adopt the rule you are asking us to adopt without having all social media liable?” for all the third-party content it facilitates, Ziegler questioned.
Lowy maintained that the website’s terms of service, data fields and interface predate third-party posts, which is enough to claim negligence in the 2012 shooting.
In his rebuttal, Goldschmidt pointed out that “these tools also have lawful uses,” driving home the idea of tools like Armslist being neutral in these cases.
Both Lowy and Goldschmidt could not immediately be reached for comment Thursday.
There is no timetable for the court’s decision.