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CraigsList Not Liable for Shooting That Used a Gun Sold Via a Craigslist Ad:

That's the conclusion of Monday's Gibson v. Craigslist, Inc. (S.D.N.Y.), applying the service provider immunity of 47 U.S.C. § 230: Craigslist isn't liable for the ad, even if the ad itself is tortious:

Plaintiff seeks to hold [Craigslist] liable for its alleged failure to block, screen, or otherwise prevent the dissemination of a third party's content, i.e., the gun advertisement in question, alleging, among other things, that Defendant "failed to monitor, regulate, properly maintain and police the merchandise being bought and sold on its ... website" and "is either unable or unwilling to allocate the necessary resources to monitor, police, maintain and properly supervise the good and services sold on its ... website." It is clear that Plaintiff's claims are directed toward Craigslist as a "publisher" of third party content and "Section 230 specifically proscribes liability in such circumstances."

I don't think that Craigslist should be liable even under normal state tort law: I don't think it's negligent for Craigslist not to police its ads, given the high costs of reading each ad and then trying to figure out whether it offers an illegal transaction or is likely to lead to injury. What's more, while I couldn't find a quote of the ad itself -- if any of you can point me to it, I'd love to see it -- the plaintiff's own motion (p. 7) says that "the content of the ad placed upon defendant's website was not, in itself, objectionable," and that it didn't say things like "'Illegal handguns for sale' or 'Shoot your neighbor.'" The plaintiff's argument therefore seems to be not just that Craigslist should look at every ad (or perhaps at all ads that contain certain keywords), but that it should further investigate the circumstances of the ad to see whether the proposed transaction is illegal (or poses unreasonable dangers) even when the illegality or unreasonable danger is not obvious from the ad's face.

But negligence law is quite mushy and unpredictable in many ways, and even if it doesn't lead to liability, it can lead to a long and very expensive legal fight. 47 U.S.C. § 230, as interpreted by courts, has been considerably more clear and protective, and can often be used to throw out lawsuits very early in the process. So I'm particularly happy (but not at all surprised, given the text of the statute and past caselaw interpreting it) that the court decided the case on § 230 grounds.

Special bonus from reading the plaintiff's opposition to the motion to dismiss (p. 3): "[Craigslist's] only concern is the bottom line, the public be darned." Never quite heard that way of putting it (though I can see why the lawyer didn't want to say "damned").

The next sentence, on the other hand, is less amusing: "For public policy concerns, [Craigslist] must be immediately regulated or shut down." It's also probably a poor way of arguing the case, given that the whole premise of 47 U.S.C. § 230 is that service providers shouldn't be "regulated" or "shut down" by fear of liability; if you're arguing that § 230 doesn't apply, you should probably argue that you're calling for a very modest and narrow sort of liability -- for instance, the liability imposed on newspapers, which one would hardly call "regulat[ing]" or "shut[ting] down" the newspaper -- rather than for regulation or shutdown.

Thanks to Prof. Michael Krauss for the pointer. As I noted above, if any of you can point me to the text of the ad, which I couldn't find in any of the Pacer-accessible documents (the Complaint, for some reason, isn't on Pacer), that would be great -- it's not relevant under the court's 47 U.S.C. § 230 approach, but it might nonetheless be helpful for discussing the broader issues.

Malvolio:
Doesn't the plaintiff's counsel have some kind of responsibility for refusing to file a lawsuit unless there is some non-zero chance of success?
6.17.2009 12:45pm
J. Aldridge:
Wouldn't that be like holding GM responsible for bank robbery because they sold the robber the GM truck they used?
6.17.2009 12:54pm
J. Aldridge:
^^^ I meant, "GM dealer."
6.17.2009 12:54pm
road2serfdom:
I think it would be more like holding the local newspaper responsible for the bank robbery because the GM Dealer who sold the truck to the robber advertises in the newspaper.
6.17.2009 1:03pm
David M. Nieporent (www):
Malvolio, in theory, of course. In practice -- and why anti-tort reformers are so disingenuous -- courts are virtually never willing to declare a lawsuit frivolous.

I respond to your point only because I was thinking something similar as I read it: there's got to be some point where trial lawyers stop trying to plead their way around § 230, and just admit that deep pockets don't automatically equal liability, on the internet.


Road2serfdom: the sad thing is, if it's published in the newspaper rather than online, the CDA doesn't apply; that hypothetical suit could go forward.
6.17.2009 1:13pm
Seamus (mail):

Doesn't the plaintiff's counsel have some kind of responsibility for refusing to file a lawsuit unless there is some non-zero chance of success?



Rule 11 requires the plaintiff not to make frivolous legal arguments. I'm sure the lawyer in this case would say that he was making a good faith effort to extend tort law by establishing a rule of strict liability for inherently evil products (analogous to the rule of strict liability for inherently dangerous activities). Because guns are inherently evil, the theory would go, anyone who has anything to do with a gun is liable for any and all damage caused by that gun. (Trucks are different because they aren't inherently evil (unless, of course, they burn gasoline or diesel fuel and emit carbon dioxide).)
6.17.2009 2:09pm
Brett Bellmore:

I'm sure the lawyer in this case would say that he was making a good faith effort to extend tort law by establishing a rule of strict liability for inherently evil products


I'm sure, but wouldn't the Lawful Commerce act have made that frivolous, even granting only for the sake of argument that it wasn't frivolous otherwise? And Heller, too?

Kinda like trying to extend tort law on the theory that printing presses are inherently evil products...
6.17.2009 2:34pm
Malvolio:
In practice -- and why anti-tort reformers are so disingenuous -- courts are virtually never willing to declare a lawsuit frivolous.
Hmmmm, suppose each judge rated each lawsuit on a spectrum from 0 meaning completely frivolous to 100 meaning the opposing side was completely frivolous for not settling. At the end of each year, the worst, say, 1% attorneys are summarily disbarred.
6.17.2009 2:50pm
zippypinhead:
"For public policy concerns, [Craigslist] must be immediately regulated or shut down."
Wow, so in addition to disregarding the Second Amendment, we can also disregard the First...

But seriously, when I read that line, my hunch that there might be a Rule 11(c) sanctions motion to defend in plaintiff's future got even stronger. This is simply NOT the sort of argument responsible counsel (or even a rational pro se litigant) would ever make. And even more so given that plaintiff itself unsuccessfully sought Rule 11 sanctions against CL for moving to dismiss in reliance on the Communications Decency Act. Section 230 of the CDA obviously bars this type of suit, and defending the motion to dismiss by arguing that the defendant needs the corporate version of the death penalty for running an ad that is "not, in itself, objectionable," cannot be "warranted by existing law or by a nonfrivolous argument for extending . . . existing law . . ." Fed.R.Civ.P. 11(b)(2).

It appears the ad in question was on its face a legal offer to sell a legal product. Even without the §230 bar, the only way I could see this suit not being labeled frivolous under general tort law principles (tho it would still not survive a Rule 12(b)(6) motion to dismiss) would be if the plaintiff alleged: (1) CL voluntarily assumed a duty toward third parties by adopting a no-firearms ad rule; (2) CL negligently breached the duty, and (3) as a proximate result of CL's breach, a third party who relied on the voluntarily assumed duty was harmed. But those aren't the facts.
6.17.2009 2:50pm
David Schwartz (mail):
Somehow, a client with some real deep-seated hatred for Craigslist managed to find a lawyer with a similar irrational hate. Perhaps Craigslist ate a few of the laywer's children or something.
6.18.2009 1:04am
LarryA (mail) (www):
Somehow, a client with some real deep-seated hatred for Craigslist managed to find a lawyer with a similar irrational hate. Perhaps Craigslist ate a few of the lawyer’s children or something.
Or a hatred of firearms. “Strict liability” has been a gun control tactic since about 1988.
6.18.2009 1:19pm
altysin (mail) (www):

road2serfdom:
I think it would be more like holding the local newspaper responsible for the bank robbery because the Federal Government who sold the truck to the robber advertises in the newspaper.


Fixed.
6.18.2009 3:12pm

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