Wisconsin Supreme Court Rules for First and Second Amendments, Upholding Communications Decency Act

The Wisconsin Supreme Court has upheld a lower court's decision that Armslist's ads and tools are protected by the Communications Decency Act (CDA).  The act was designed to preserve freedom of speech on the Internet by immunizing web sites for the publishing of third party content. Armslist facilitates the communication between willing firearm sellers and buyers.  The lower court had been overturned by a Wisconsin Court of Appeals. This decision protects both First and Second Amendment rights. From fox6now.com:

Radcliffe Haughton’s wife, Zina Daniel Haughton, had taken out a restraining order against him that prohibited him from possessing a firearm. But he bought a semiautomatic pistol and ammunition from a person he met through Armslist.com, according to court documents.

His estranged wife had been granted a restraining order on 18 October.

From court records, Haughton purchased the gun from a private party, instead of trying to purchase it at a federally licensed dealer. He placed an ad to purchase a gun on 20 October. The ad was answered and he purchased a Glock .40 caliber pistol the same day, from a private party.

The next day, on the morning of 21 October, he murdered his wife and two other women, wounding others, then killing himself.

The Communications Decency Act protects First Amendment Rights on the Internet.

The lawsuit against Armslist is a direct attack against both First Amendment and Second Amendment rights. If successful, the lawsuit would have chilled the ability of websites to allow the free exchange of information on their sites by third parties.

 If successful, the lawsuit would have chilled the ability of Americans to buy and sell firearms without government permission. No website, advertiser, or even gun show or gun club would allow private parties to meet arrange private sales of firearms using their facilities without the threat of a lawsuit. If the lawsuit had been successful, such exchanges would have made them liable for the criminal actions of others.

In the famous Heller decision, Justice Scalia mentioned that it might be Constitutional to regulate commercial sales of guns. Implied is that it would not be Constitutional to regulate private sales or the manufacture of guns by individuals for their own use.  From District of Columbia v. Heller:

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The Wisconsin Supreme Court decision recognizes the intent and purpose of the CDA. The court explains the CDA does not have a "good faith" requirement. Websites only have to provide a neutral tool to their users. From Daniel v. Armslist,  courthousenews.com:

¶37 One obvious problem with Daniel's argument is that § 230(c)(1) contains no good faith requirement. Therefore, the issue is not whether Armslist knew, or should have known, that its site would be used by third parties for illegal purposes. Instead, the issue is whether Armslist was an information content provider with respect to Linn's advertisement. Armslist.com's provision of an advertising forum and the related search functions are all "neutral tools" that can be used for lawful purposes. Sales of firearms by private sellers are lawful in Wisconsin. Further, private sellers in Wisconsin are not required to conduct background checks, and private sales are not subject to any mandatory waiting period. Accordingly, the option to search for offers from private sellers is a tool that may be used for lawful purposes.

A Ninth Circuit case about the CDA buttresses the Wisconsin Supreme Court's decision by showing "intent is irrelevant" for the CDA. From Fair Housing Council v. Roommates.com:

Such close cases, we believe, must always be resolved in favor of immunity, les we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged——or at least tacitly assented to——the illegality of third parties."

It is impossible to know if Radcliffe Haughton would have been dissuaded from murdering his wife and two other women if he had been unable to obtain a firearm through Armslist. There are two many imponderables. He might have been able to obtain a firearm at a federal dealer. We know that prohibited persons are not always listed to the NICS databases immediately. He might have purchased a gun from a newspaper ad, or from a friend, or at a gun club. He might have pursued a sale on the black market. He might have used another weapon, such as gasoline and arson of his wife's place of work. These are all imponderables we cannot know.

There are other crimes that might be prevented if we eliminate First and Second Amendment freedoms. We know great harm will occur if we eliminate the Bill of Rights.

The Bill of Rights is designed to protect our inherent rights as people. It has served us very well.  It would be foolish to discard these protections in the hope the government could then prevent a few more crimes.

Homicide rates are not affected by the ownership of firearms. Homicides committed with firearms may be affected, but not overall homicide rates.

Those who push for perfect safety in protection by the government are pursuing a chimera. Perfection does not exist. Give a government too much power, and hundreds of thousands, or millions are likely to suffer, as we often saw in the 20th century.


©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.


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