We have reached a point in America at which mass shootings happen so often that the country sometimes only has a few days — sometimes only a few hours — to catch its breath in between. When the shooter is white and male, as mass shooters so often are, the narrative of the “lone wolf” quickly becomes dominant. Anti-gun control ideologues, from the National Rifle Association to Republican lawmakers, assure us that the shooter was a monstrous singularity, just one bad guy who happened to have a gun.
But it takes a village to unleash a mass shooting. It is never solely the result of one person’s evil intentions. Many mass shootings could never have taken place without the fuel of racist and misogynist propaganda, or the help of unscrupulous purveyors of the weapons of war, or the failure of public venues to implement effective security measures.
The last factor was highlighted in the Oct. 3 announcement that MGM International would be paying roughly $800 million to settle lawsuits filed by victims of the 2017 Las Vegas shooting. MGM International owns the Mandalay Bay Hotel, where bullets were fired from the 32nd floor onto thousands attending a country music festival in October 2017. When it was over, 58 people were dead and hundreds were injured, in the deadliest mass shooting in United States history. Victims alleged that lax security at the hotel, where the shooter was able to bring more than 20 suitcases full of firearms and ammunition to his room over several days, made MGM partly responsible for the killings.
The MGM settlement illustrates the principle of collective responsibility, under which third parties can be considered responsible for harmful acts they did not cause but did not do enough to prevent. Collective responsibility, or secondary liability, is a common theme in the law. Bartenders who serve alcohol to obviously inebriated patrons can be sued if those patrons cause car accidents; grocery stores can be held accountable for failing to clean up spills that lead to injuries; employers can be liable for failing to respond to reports of sexual harassment. Such entities are often said to have breached a “duty of care,” and imposing liability is intended to give them incentive to be more careful in the future.
As MGM learned, the denial of collective responsibility can spark outrage. In July 2018, before it entered settlement negotiations with the Mandalay Bay victims, MGM tried to argue that it should be immune from liability. To advance this claim, the company took the unusual step of suing more than a thousand victims of the shooting — seeking not money, but a ruling that the victims could not hold the company liable. The company’s basis for the suit was an obscure law passed in the wake of the Sept. 11 attacks, the Support Antiterrorism by Fostering Effective Technologies (SAFETY) Act. Under that law, certified manufacturers of security products and providers of security services are granted immunity from liability if they fail to prevent an act of terrorism. Arguing that the shooting was an act of terrorism, and pointing out that MGM had hired a company certified by the Department of Homeland Security to provide security for the concert, MGM claimed that the SAFETY Act shielded the company from liability.
The public response was swift and negative. A few months later, after a federal court rejected MGM’s attempt to have the cases consolidated in one court, MGM dropped its attempt to escape liability and entered mediation with the victims.
The outrage over MGM’s attempt to evade responsibility for failing to keep its premises safe, and its subsequent decision to accept such responsibility, should be an object lesson to those who run online businesses. For far too long, online intermediaries have sought, and been granted, near-total immunity for harmful uses of their products, services or platforms. Section 230 of the 1996 Communications Decency Act has been interpreted to provide sweeping immunity to websites and social media platforms for violent propaganda and the facilitation of illegal arms sales.
The Christchurch, New Zealand, shooter used Facebook Live to broadcast the massacre in real time and Twitter to advertise his racist manifestoes; the El Paso shooter posted his anti-immigrant screed on the message board 8chan, a site infamous for promoting virulent misogyny and white supremacy. But when the owner of 8chan, James Watkins, was called before the congressional Committee on Homeland Security in September to answer questions about violent posts, he replied: “My company has no intention of deleting constitutionally protected hate speech. I feel the remedy for this type of speech is counter speech, and I’m certain that this is the view of the American justice system.”
Mr. Watkins’s feeling has proved correct in case after case attempting to hold websites and social media platforms responsible for defamatory, threatening and illegal content. Courts have very broadly interpreted Section 230’s prohibition on treating online intermediaries as “publishers or speakers” of content provided by their users. And the immunity for internet platforms hasn’t been limited to the forums where extremists congregate, proselytize and organize real-world violence. It has also been extended to websites that sell weapons.
The online firearms marketplace Armslist, which describes itself as the “largest free gun classifieds on the web,” facilitates illegal gun sales by allowing users who cannot pass a background check to find unlicensed sellers. One such user was Radcliffe Haughton, whose estranged wife, Zina, had obtained a restraining order against him. In Wisconsin, where the Haughtons resided, the restraining order prohibited Radcliffe from legally purchasing a firearm. So he turned to Armslist, where he quickly found a seller that didn’t require a background check. Armed with the gun he had purchased, Radcliffe entered the salon where Zina worked on Oct. 21, 2012, killing her and two of her co-workers in front of Zina’s daughter, Yasmeen Daniel. In April 2019, the Wisconsin Supreme Court held that Armslist was immune from liability based on Section 230.
The case is now pending review by the United States Supreme Court. It is a tremendous opportunity for the court to address the deadly dual reality created by an overzealous application of Section 230. The MGM settlement acknowledges that in 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.
Mass shootings bring to mind a popular expression often attributed to the 18th-century statesman Edmund Burke: “The only thing necessary for the triumph of evil is for good men to do nothing.” While Burke never actually said these words, he did express a similar sentiment that is perhaps even more apt for our time: “When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”
Mary Anne Franks is a professor at the University of Miami School of Law and the president of the Cyber Civil Rights Initiative. She is the author of “The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.”
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