Daniel v. Armslist, LLC
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The Supreme Court affirmed the circuit court's dismissal of Plaintiff's complaint against Armslist, LLC, holding that because all of Plaintiff's claims for relief required Armslist to be treated as the publisher or speaker of information posted by third parties on Armslist's firearm advertising website, armslist.com, the circuit court properly dismissed Plaintiff's complaint.
This tort action arose from a mass shooting in a Wisconsin spa that killed four people, including Plaintiff's motion. In her action, Plaintiff alleged that the shooter illegally purchased the firearm used in the shooting after responding to a private seller's post on armslist.com. The circuit court dismissed the complaint, concluding that the federal Communications Decency Act (CDA), 47 U.S.C. 230, barred all of Plaintiff's claims against Armslist. The court of appeals reversed, holding that the CDA does not protect a website operator from liability for its own actions in designing and operating its website. The Supreme Court reversed, holding that section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website, and therefore, Plaintiff's claims are barred by section 230(c)(1).
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2019 WI 47 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2017AP344 Yasmeen Daniel, Individually, and as Special Administrator of the Estate of Zina Daniel Haughton, Plaintiff-Appellant, Travelers Indemnity Company of Connecticut, as Subrogee for Jalisco's LLC, Intervening Plaintiff, v. Armslist, LLC, an Oklahoma Limited Liability Company, Brian Mancini and Jonathan Gibbon, Defendants-Respondents-Petitioners, Broc Elmore, ABC Insurance Co., the fictitious name for an unknown insurance company, DEF Insurance Co., the fictitious name for an unknown insurance company and Estate of Radcliffe Haughton, by his Special Administrator Jennifer Valenti, Defendants, Progressive Universal Insurance Company, Intervening Defendant. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis. 2d 241,N.W.2d 211 PDC No:2018 WI APP 32 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 14, 2019 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Glenn H. Yamahiro JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: A.W. BRADLEY, J. dissents (opinion filed). ABRAHAMSON, J. did not participate. April 30, 2019 ATTORNEYS: For the defendants-respondents-petitioners, there were briefs filed by Eric J. Van Schyndle, Joshua D. Maggard, James E. Goldschmidt, and Quarles & Brady LLP, Milwaukee. There was an oral argument by James E. Goldschmidt. For the plaintiff-appellant, there was a brief filed by Patrick O. Dunphy, Brett A. Eckstein, and Cannon & Dunphy, s.c., Brookfield. With whom on the brief were Jacqueline C. Wolfe, Samantha J. Katze, and Manatt, Phelps & Phillips, LLP, New York, New York; along with Jonathan E. Lowy and Brady Center To Prevent Gun Violence, Washington, D.C. There was an oral argument by Jonathan E. Lowy. An amicus Coalition curiae brief was Against Wisconsin: The Domestic Wisconsin filed on behalf of National Violence, End Coalition Against Domestic Domestic Abuse Violence, Legal Momentum, Et al. by Brian T. Fahl and Kravit, Hovel & Krawczyk, S.C., Milwaukee. With whom on the brief were Anthony J. Dreyer and Skadded, Arps, Slate, Meagher & Flom LLP, New York, New York. An amicus curiae brief was filed on behalf of Everytown for Gun Safety by Crystal N. Abbey and Menn Law Firm, LTD., Appleton. With whom on the brief were Michael J. Dell, Karen S. Kennedy, and Kramer Levin Naftalis & Frankel LLP, New York, New York. An amicus curiae brief was filed on behalf of Floor64, Inc., D/B/A The Copia Institute by Kathryn A. Keppel, Steven C. McGaver, and Gimbel, Reilly, Guerin, & Brown LLP, Milwaukee. With whom on the brief was Catherine R. Gellis, Esq., Sausalito, California. An amicus curiae brief was filed on behalf of Cyber Civil Right Initiative and Legal Scholars by Jeffrey A. Gregory M. Jacobs, and Stafford Rosenbaum LLP, Madison. 2 Mandell, An amicus curiae brief was filed on behalf of American Medical Association and Wisconsin Medical Society by Guy DuBeau and Axley Brynelson, LLP, Madison. With whom on the brief were Leonard A. Nelson, Erin G. Sutton, and American Medical Association, Chicago, Illinois. An amicus curiae brief was filed on behalf of Computer and Communications Industry Association by Andrew T. Dufresne and Perkins Coie LLP, Madison. With whom on the brief were Brian M. Willen, Jason B. Mollick, and Wilson Sonsini Goodirch & Rosati Professional Corporation, New York, New York. An amicus curiae brief was filed on behalf of Members of the United States Congress on the Meaning of the Communications Decency Act by Emily Lonergan, John C. Peterson, and Peterson, Berk, & Cross, S.C., Appleton. With whom on the brief were Gregory M. Dicknson and Harter Secrest & Emery LLP, Rochester, New York. An amicus curiae brief was filed on behalf of Electronic Frontier Foundation by Peyton B. Engel, Hurley Burish, S.C., Madison. 3 Marcus J. Berghahn, and 2019 WI 47 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP344 (L.C. No. 2015CV8710) STATE OF WISCONSIN : IN SUPREME COURT Yasmeen Daniel, Individually, and as Special Administrator of the Estate of Zina Daniel Haughton, Plaintiff-Appellant, Travelers Indemnity Company of Connecticut, as Subrogee for Jalisco's LLC, Intervening Plaintiff, v. Armslist, LLC, an Oklahoma Limited Liability Company, Brian Mancini and Jonathan Gibbon, FILED APR 30, 2019 Defendants-Respondents-Petitioners, Broc Elmore, ABC Insurance Co., the fictitious name for an unknown insurance company, DEF Insurance Co., the fictitious name for an unknown insurance company and Estate of Radcliffe Haughton, by his Special Administrator Jennifer Valenti, Sheila T. Reiff Clerk of Supreme Court Defendants, Progressive Universal Insurance Company, Intervening Defendant. REVIEW of a decision of the Court of Appeals. Reversed. No. ¶1 PATIENCE DRAKE ROGGENSACK, C.J. 2017AP344 We review a decision of the court of appeals1 reversing the circuit court's2 dismissal of Yasmeen Daniel's complaint against Brian Mancini, Jonathan Gibbon, and Armslist, LLC (collectively "Armslist"). tort action arose from a mass shooting in a Daniel's Brookfield, Wisconsin spa that killed four people, including Daniel's mother Zina Daniel Radcliffe Haughton. Haughton, Daniel illegally alleged purchased that the the shooter, firearm after responding to private seller Devin Linn's post on Armslist's firearm advertising website, armslist.com. The court of appeals held that 47 U.S.C. § 230 (2018),3 the federal Communications Decency Act of 1996 (CDA), did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. ¶2 to We disagree, and conclude that § 230(c)(1) requires us dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider,4 as the publisher or speaker of 1 Daniel v. Armslist, LLC, 2018 WI App 32, 382 Wis. 2d 241, 913 N.W.2d 211. 2 The presided. Honorable Glenn H. Yamahiro of Milwaukee County 3 All references to federal statutes are to the 2018 version unless otherwise noted. 4 An "interactive computer service" is "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." 47 U.S.C. § 230(f)(2). (continued) 2 No. information posted by a third party on its website. 2017AP344 Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint. I. ¶3 Haughton Background5 In October 2012, a Wisconsin court granted Zina Daniel a restraining order against her husband, Radcliffe Haughton, after he had assaulted her and threatened to kill her. Pursuant to the restraining order, Radcliffe was prohibited by law from possessing a firearm for four years. § 941.29(1m)(f) (2017-18).6 See Wis. Stat. Despite this court order, Radcliffe posted a "want to buy" advertisement on armslist.com and stated that he was seeking magazine "asap." to buy a handgun with a high-capacity He then viewed an offer of sale posted by Devin Linn on armslist.com for a semiautomatic handgun. Using armslist.com's "contact" function, he emailed Linn to arrange to purchase the handgun. It is uncontested service provider. The two exchanged phone numbers and set that Armslist is an interactive computer 5 Because we review defendant Armslist, LLC's motion to dismiss, we accept all of the factual allegations in Daniel's complaint as true. See Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693. 6 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 3 No. up a meeting by phone. 2017AP344 On October 20, they met in a McDonald's parking lot in Germantown, Wisconsin. Linn sold Radcliffe the gun, along with ammunition, for $500. ¶4 On October 21, one day after Radcliffe had purchased the handgun from Linn, he carried it into the Azana Spa and Salon in Brookfield, Wisconsin, where Zina worked. He fatally shot Zina and two other people, injured four others, and shot and killed himself. Yasmeen Daniel was inside the building at the time and witnessed the shooting. ¶5 Armslist.com similar to is a Craigslist. advertisements for classified advertising Prospective firearms sellers and firearm-related website may post products they wish to sell, prospective buyers may post "want advertisements" describing the firearms they wish to buy. may contact information one another either they provide on armslist.com's "contact" through the tool. Buyers and sellers personal website, According to or the contact by using complaint, Armslist receives revenue through advertising on armslist.com; there is no allegation that Armslist itself participates in the purchase and sale of firearms beyond allowing users to post and view advertisements and contact information on armslist.com. ¶6 According to Daniel's allegations, Radcliffe shopped for the murder weapon exclusively on armslist.com because he recognized that the website's design features made it easier for prohibited purchasers like him to illegally purchase firearms. Armslist.com allows potential buyers to use a "seller" search filter to specify that they want 4 to buy firearms only from No. 2017AP344 private sellers, rather than from federally licensed dealers. Private sellers, as opposed to federally licensed gun dealers, are not required to conduct background checks in Wisconsin. website also does not require buyers or sellers to The create accounts, which encourages anonymity, and displays next to each advertisement whether the account is registered or unregistered. ¶7 of Armslist.com allows users to flag content for a number different reasons, including "scam," "miscategorized," and "overpriced," and uses these flags to delete certain posts. However, it does not allow users to flag content as "criminal" or "illegal" and does not take action to delete illegal content. The website contains no restrictions on who may create an account, or who may view or publish firearm advertisements using its website. The website's lack of restrictions allows buyers to avoid state-mandated waiting periods and other requirements. Armslist does not provide private sellers with legal guidance as to federal and state laws governing the sale of firearms. ¶8 Daniel's complaint also suggests several simple measures Armslist could have taken in order to reduce the known risk of purchasers. illegal firearm sales to dangerous prohibited Daniel alleges that Armslist could have required buyers to create accounts and provide information such as their name, address, Wisconsin, where and phone there is number. online In access states to an similar to individual's criminal history, Armslist could have required potential buyers to upload approved. their criminal history before their accounts were She alleges Armslist could have allowed users to flag 5 No. potentially illegal firearm sales. users from Armslist obtaining confirmed firearms. one their It could have prohibited another's legal 2017AP344 contact eligibility information to buy until and sell According to the complaint, all these measures would have reduced the risk of firearm sales to persons prohibited from owning a firearm. ¶9 Based on all these features and omissions, Daniel's complaint alleges that Armslist knew or should have known that its website would put firearms in the hands of dangerous, prohibited purchasers, and that Armslist specifically designed its website to facilitate illegal transactions. The causes of action asserted against Armslist are negligence, negligence per se, negligent conspiracy, infliction aiding and of emotional abetting nuisance, and wrongful death.7 tortious distress, conduct, civil public Armslist argued that the CDA immunizes it from liability for the information posted by third parties on armslist.com, and moved to dismiss Daniel's complaint for failure to state a claim upon which relief can be granted pursuant to Wis. Stat. § 802.06(2)(a)6. ¶10 The circuit court dismissed the complaint. granted Armslist's motion and The circuit court explained that the relevant question under the CDA is not whether the complaint calls the defendant a publisher, but whether the cause of action 7 The complaint also asserts causes of action against Devin Linn and the Radcliffe Haughton Estate that are not at issue here. 6 No. 2017AP344 requires the court to treat the defendant as the publisher of third-party content. The CDA immunizes an interactive computer service provider from liability for passively displaying content created by third parties, even when the operator exercises "traditional publisher functions" by deciding "what content can appear on the website and in what form." Armslist.com's design features "reflect choices about what content can appear on the website and in what form," and are therefore "editorial choices that fall functions." within the purview of traditional publisher For this reason, the circuit court concluded that the CDA bars all of Daniel's claims against Armslist. ¶11 The court of appeals reversed. Daniel v. Armslist, LLC, 2018 WI App 32, ¶5, 382 Wis. 2d 241, 913 N.W.2d 211. The court of appeals held that the CDA does not protect a website operator from liability for its own actions in designing and operating its website. Id., ¶42. According to the court of appeals, armslist.com's design features could be characterized as "content" created by Armslist, so Daniel's claims did not require the court to treat Armslist as the publisher of thirdparty content. Id., ¶44. Additionally, holding Armslist liable for its own operation of its website did not require treating it as a publisher or speaker of third-party content. ¶12 Id., ¶42. The court of appeals acknowledged that a large body of federal case law has interpreted the CDA as providing immunity when an interactive computer service provider exercises a publisher's "traditional editorial functions," such as providing a forum for third parties to post 7 content. Id., ¶¶48-49. No. 2017AP344 However, the court of appeals concluded that all of these cases "read[] into the Act language that is not present" and rejected them all as unpersuasive. Id. ¶¶48-50. We granted Armslist's petition for review, and now reverse the decision of the court of appeals. II. A. ¶13 DISCUSSION Standard of Review We review a motion to dismiss for failure to state a claim upon which relief may be granted, and in so doing we must interpret and apply a statute. "Whether a complaint states a claim upon which relief can be granted is a question of law for our independent review; however, we benefit from discussions of the court of appeals and circuit court." Permira Advisers LLC, 2014 N.W.2d 693 (citation WI 86, omitted). Data Key Partners v. ¶17, 356 Wis. 2d 665, 849 "When we review a motion to dismiss, factual allegations in the complaint are accepted as true for purposes of our review. However, legal conclusions asserted in a complaint are not accepted, and legal conclusions are insufficient to withstand a motion to dismiss." Id., ¶18 (citations and omitted). "Statutory interpretation the application of a statute to a given set of facts are questions of law that we review independently," while benefiting from the interpretations decisions. and applications of other Wisconsin court Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110. 8 No. B. ¶14 The Communications Decency Act The CDA is set out in 47 U.S.C. § 230. enacted in large 2017AP344 part to "to preserve The CDA was the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." § 230(b)(2). Congress found that the internet had "flourished, to the benefit of all Americans, with a minimum of government regulation." § 230(a)(4). For this reason, Congress sought to prevent state and federal laws from interfering with the free exchange of information over the internet. ¶15 Limiting interference from federal and state laws includes protecting interactive computer service providers who operate forums for third-party speech from the "specter of tort liability" for hosting third-party content. Jones v. Dirty World Entm't Recordings LLC, 755 F.3d 398, 407 (6th Cir. 2014) (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)). The imposition of tort liability for hosting third- party content would have an "obvious chilling effect" on the free exchange of information over the internet, Jones, 755 F.3d at 407 (citing Zeran, 129 F.3d at 331), as it would deter interactive computer service providers from hosting third-party content. This would significantly impede the free exchange of information over the internet. ¶16 See Jones, 755 F.3d at 408. Section 230(c)(1) addresses this problem by immunizing interactive publishing computer third-party service providers content. 9 The from liability subsection states: for "No No. 2017AP344 provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." also preempts any state tort claims: § 230(c)(1). The act "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Section 230(c)(1) liability from therefore undermining prevents an the § 230(e)(3). specter interactive of computer tort service provider's willingness to host third-party content. ¶17 At the same time, however, Congress did not want to discourage interactive computer service providers from voluntarily screening obscene or unlawful third-party content, as some state courts had done. See, e.g., Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (unpublished) (holding that an interactive computer service provider defamatory could statements be treated posted by as third the publisher parties on of some its site because it had voluntarily deleted other offensive third-party posts). Section 230(c)(2) addresses this concern by 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, harassing, lewd, or lascivious, otherwise filthy, objectionable, material is constitutionally protected." that as a "Good Samaritan," an excessively whether or violent, not such Section 230(c) ensures interactive computer service provider may remove some objectionable third-party content from 10 No. 2017AP344 its website without fear of subjecting itself to liability for objectionable content it does not remove. Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 669-70 (7th Cir. 2008). ¶18 service Therefore, providers rather to than screen force interactive objectionable computer content, Congress chose to simply remove disincentives for screening such content voluntarily. See, e.g., id. at 670 (explaining that Congress chose to deal with the problem of liability for hosting thirdparty content "not with a sword but with a safety net."); see also Zeran, 129 F.3d at 331. Together, § 230(c)(1) & (2) allow interactive computer service providers to be "indifferent to the content of information they host or transmit: (subsection (c)(2)) or do not whether they do (subsection (c)(1)) take precautions, there is no liability under either state or federal law." Chi. Lawyers' Comm., 519 F.3d at 670. ¶19 case. that Section 230(c)(1) is the subsection central to this The text of subsection (c)(1) supplies three criteria must claims: be satisfied (1) the interactive before defendant computer "is service'; the a CDA bars 'provider (2) the a or claim plaintiff's user is of an based on 'information provided by another information content provider'; and (3) the claim would treat [the defendant] 'as the publisher or speaker' of" the information. Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir. 2016) (citations omitted); see also Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). 11 No. ¶20 operator provider. 2017AP344 Daniel does not dispute that Armslist, LLC, as the of armslist.com, is an interactive computer service Her arguments involve the second and third criteria of § 230(c)(1). She challenges the second criterion by arguing that Armslist, through the design and operation of its website, helped to develop the content of the firearm advertisement such that the information was not exclusively provided by Linn. This would make Armslist an information content provider with respect to the advertisement; and therefore, place it outside of the CDA's protection. that her claims She challenges the third criterion by arguing are not based on Armslist's publication of content at all, but are instead based on Armslist's facilitation and encouragement of illegal firearm sales by third parties. If Daniel's claims do not require Armslist to be treated as the publisher or speaker of Linn's advertisement, then the CDA does not bar her claims. C. ¶21 Information Content Provider Regarding the second criterion of Section 230(c)(1), CDA immunity exists only when the plaintiff's claims are based on content provided by another information content provider. If a defendant is an "information content provider" for the content at issue, then the defendant is not entitled to CDA immunity. § 230(c)(1); Jones, 755 F.3d at 408. An information content provider is "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." § 230(f)(3). "A website operator can simultaneously 12 No. 2017AP344 act as both a service provider and content provider." Jones, 755 F.3d at 408; see also Fair Hous. Council of San Fernandino Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). In short, as an interactive computer service provider, such Armslist, is not liable for publishing a third party's content, but may be liable for publishing its own content. ¶22 regard A defendant is an information content provider with to content published on the internet only if the defendant is "responsible, in whole or in part, for the creation or development8" of the content. recognized that the word broadly or too narrowly. Section 230(f)(3). "development" cannot Courts have be read too On one hand, an overly broad reading could render an interactive service provider "responsible for the development of content created by a third party merely by displaying or allowing access to it." Jones, 755 F.3d at 409. This would "swallow[] up every bit of the immunity that the section otherwise provides," effectively writing § 230(c)(1)'s immunity provision out of the statute. Roommates.com, 521 F.3d at 1167. ¶23 On the other hand, an overly narrow reading of the word "development" risks ignoring the phrase "in whole or in part." See § 230(f)(3). It cannot be interactive computer service provider is 8 the case that an categorically immune Linn, not Armslist, created the firearm advertisement. The issue in this case is whether Armslist helped to "develop" the content of the advertisement. 13 No. 2017AP344 from liability for any exercise of its publishing, editorial, and screening functions; a website operator who removes the word "not" from a third party's post stating that "[Name] did not steal the artwork" defamatory content. is responsible for developing potentially Roommates.com, 521 F.3d at 1169. For this reason, courts recognize that "despite the CDA, some state tort claims will publishing, lie against editorial, website or operators screening acting capacities." in their Jones, 755 F.3d at 410. ¶24 faithful "material In order to avoid these two extremes and to remain to the text and contribution" purpose test to of § 230, determine courts whether use a the website operator is responsible for the "development" of content. "[A] website helps to develop unlawful content, and thus falls within [Section 230(f)(3)], if it contributes materially to the alleged illegality of the conduct." Roommates.com, 521 F.3d at 1168. A material contribution "does not mean merely taking action that is necessary to the display of allegedly illegal content," such as providing a forum for third-party posts. 410. "Rather, it means being responsible for what makes the displayed content allegedly unlawful." ¶25 F.3d Jones, 755 F.3d at The 1157, operates. Ninth Circuit's demonstrates Housing how website Id. decision the in material Roommates.com Roommates.com, 521 contribution test required users to disclose their sex, race, sexual orientation, and whether they will bring children to the household in order to use the site. Id. at 1161. It also required renters to list their roommate 14 No. preferences illegal regarding under the these Fair characteristics. Housing Act and 2017AP344 Id. It California was anti- discrimination law for renters to request this information. at 1161-62. After selecting their preferences, users Id. could access the "Additional Comments" section, a blank text box for users to "describe [themselves] and what [they] are looking for in a roommate." Id. at 1173. Some renters posted discriminatory preferences in this text box, such as "prefer white Male roommates" or "NOT looking for black [M]uslims." Id. The Fair Housing Council sued Roomates.com for violating the Fair Housing Act and state anti-discrimination laws. Id. at 1162. ¶26 The Ninth Circuit concluded that the CDA immunized Roommates.com from liability for the content of the "Additional Comments" section, characteristics but like not race for and the required sex. Id. at disclosures 1165-67. of The information posted in the "Additional Comments" section "comes entirely from Roommate." subscribers Id. at 1174. and is passively displayed by Roommates.com did not contribute to the unlawfulness of this content, but merely provided a place for the content to be disclosures of protected development of content, content 1167-68. posted. requiring contrast, characteristics making provider with respect By In Roommates.com to users did to these enter the amount an required to the information disclosures. Id. at characteristics and preferences such as age, race, sex, and sexual orientation as a condition of using the website, and by designing its website to 15 No. hide listings from characteristics, certain users Roommates.com CDA on materially illegality of the content itself. ¶27 based 2017AP344 these protected contributed to the Id. at 1169. Decisions from other federal courts interpreting the are helpful in distinguishing when a defendant has materially contributed to the illegality of third-party content from when a defendant has merely published content created by someone else. In Chi. Lawyers' Comm., owners of apartment buildings posted discriminatory advertisements on Craigslist's housing section in violation of the Fair Housing Act. Lawyers' Comm., 519 F.3d at 668. Plaintiffs sued Craigslist for allegedly "causing" these Fair Housing Act violations. 671. The Seventh Circuit Chi. held that the CDA Id. at barred the plaintiffs' claims, explaining that "[o]ne might as well say that people who save money 'cause' bank robbery." Id. While Craigslist was responsible for the illegal content "in the sense that no one could post a discriminatory ad if [C]raigslist did not offer a forum," id., Craigslist did not materially contribute to the illegality of the content. ¶28 Similarly, in Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009), a class of plaintiffs alleged that Google materially contributed to the illegality of fraudulent advertisements posted by Google's advertising customers. The claims were based on Google's "Keyword Tool," which suggested specific keywords to Google's advertising customers. If an advertiser entered the word "ringtone," for example, the tool suggested the phrase "free ringtone." 16 Id. at 1197. Some No. 2017AP344 advertisers using this tool falsely advertised their ringtones as "free," resulting in unauthorized charges to consumers. Id. The plaintiffs argued that Keyword Tool's suggestion made Google a "developer" content. Id. ¶29 The of the district third-party court advertisers' rejected this fraudulent argument. Even assuming that Google was aware its Keyword Tool was being used to create illegal content, the Keycite Tool was a "neutral tool" much like the additional comments section in Roommates.com: it "merely provide[d] a framework that that could be utilized for proper or improper purposes." F.3d at 1172). in Id. (quoting Roommates.com, 521 Additionally, there is no good faith requirement § 230(c)(1). Therefore, an interactive computer service provider will not be liable for providing neutral tools "even if a service provider knows that third parties are using such tools to create illegal content." ¶30 Id. at 1198 (citations omitted). computer In contrast to these cases, in which the interactive easily service available, provider courts merely have made denied illegal CDA content immunity more when an interactive computer service provider materially contributes to the illegality of the content itself. FTC v. LeadClick Media, LLC, 838 F.3d 158 (2nd Cir. 2016), provides an example of a material contribution. LeadClick was an affiliate-marketing business that connected its clients to third-party publishers (affiliates), who then published the clients' advertisements on the internet. Some of LeadClick's affiliates used fake news websites to advertise a LeadClick client's weight loss products, 17 No. and included customer false and reviews. misleading Id. at information 164-65. 2017AP344 such as LeadClick's fake employees directed affiliates to make specific edits to advertisements in order to avoid LeadClick being employee "crazy told [misleading]." an affiliate For to example, make a a false advertisement appear "more 'realistic'" by lowering the amount of falsely claimed weight loss. ¶31 The Federal Trade Id. at 176. Commission brought an action for deceptive trade practices, and the Second Circuit held that the CDA did not immunize LeadClick. unlawful advertisements by Id. LeadClick "developed" the materially contributing to the illegality of the deceptive content, making it an information content provider of the content at issue. Id. the provided claim was not based on content For this reason, by another information content provider, and accordingly, there was no CDA immunity. ¶32 Id. The concept of "neutral tools" provides a helpful analytical framework for figuring out whether a website's design features materially party content. contribute to the unlawfulness of third- A "neutral tool" in the CDA context is a feature provided by an interactive computer service provider that can "be utilized for proper or improper purposes." Goddard, 640 F. Sup. 2d at 1197 (citing Roommates.com, 521 F.3d at 1172). 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. See Roommates.com, 521 F.3d at 18 1169. See also Herrick v. No. Grindr, LLC, 306 F. Supp. 3d 579, 589 (S.D.N.Y. 2017AP344 2018) ("An [interactive computer service provider] may not be held liable for so-called 'neutral assistance,' or tools and functionality that are available equally to bad actors and the app's intended users") (citations omitted). box ¶33 Examples of such neutral tools include a blank text for users to describe what they are looking for in a roommate, Roommates.com, 521 F.3d at 1173, a rating system that allows consumers to award businesses between one and five stars and write reviews, Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270 (9th Cir. 2016), and a social media website that allows groups to create profile pages and Zuckerberg, 753 F.3d at 1358. invite members. Klayman v. All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes. ¶34 See § 230(c)(1). This is true even when an interactive computer service provider knows, or should know, that its neutral tools are being used for illegal purposes. In Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003), for example, an actress sued a dating website after a third party profile in her name and posted her address. created a dating Id. at 1121. She asked the website operator to remove the post and the operator initially refused, although it was later taken down. 1122. the Id. at Despite the operator's awareness of the unlawful content, operator was immune under the CDA responsible for developing the content. 19 because it Id. at 1125. was not Instead, No. 2017AP344 it merely provided a neutral tool that could be used for lawful or unlawful purposes. Id.; see also Roommates.com, 521 F.3d at 1171 (explaining that in Carafano, "the website provided neutral tools, which the anonymous dastard used to publish the libel"). ¶35 Finally, the Ninth Circuit clarified in Roommates.com that the difference between a neutral design feature and the development of unlawful content is the potential for lawful use. If a dating website had required users to enter their race, sex, and sexual orientation through the same drop-down menus as used by Roommates.com, characteristics, immunity. the and filtered dating Id. at 1169. results website would based retain its those CDA This is because "[i]t is perfectly legal to discriminate along those lines in dating." n.23. on Id. at 1169 In contrast, filters based on these characteristics have no lawful use in the housing context, so they are not "neutral tools" in the housing context. Stated otherwise, the filters can be used only for unlawful purposes in a housing context. Therefore, if a website's design features can be used for lawful purposes, the CDA immunizes the website operator from liability when third parties use them for unlawful purposes. ¶36 In this case, Armslist did not develop the content of Linn's firearm advertisement, so Armslist is not an information content provider with respect to the advertisement.9 9 Daniel's To the extent Daniel argues that some of her claims are not based on the content of the advertisement at all, this argument is addressed in Section II. D. 20 No. 2017AP344 argument is based primarily on the assertion that Armslist's design features make it easier illegally obtain firearms. for prohibited purchasers to She asserts that Armslist should have known, actually knew, or even intended that its website would facilitate illegal firearm sales to dangerous persons. ¶37 One obvious problem with Daniel's argument § 230(c)(1) contains no good faith requirement. is that 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 content provider is whether with Armslist respect to was an Linn's information 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 lawful in Wisconsin. of firearms by private sellers are 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. ¶38 Daniel's The remainder of complaint——lack the of design a features "flag" option referenced for in illegal activity, failing to require users to create an account, failure to create restrictions on who may post or view advertisements, and failing to provide sufficient legal guidance to sellers——are voluntary precautions that the CDA permits but does not require. See, e.g., Cohen v. Facebook, Inc., 252 F. Supp. 3d 140, 158 (E.D.N.Y. 2017) (suit against Facebook for failure to adequately 21 No. 2017AP344 screen terrorist activity was barred by the CDA); Chi. Lawyers' Comm., 519 F.3d at 670 (explaining that the CDA allows an interactive computer service provider to be "indifferent" to the content of third-party posts). illegal content was being Whether or not Armslist knew posted on its site, it did not materially contribute to the content's illegality. ¶39 creators Daniel attempts to evade the CDA by asserting that of armslist.com intended illegal firearm sales easier. this case from the litany of for the website to make This is an attempt to distinguish cases dismissing suits against website operators who failed to screen unlawful content. As the First Circuit has recognized, however, the allegation of intent is "a distinction without a difference" and does not affect CDA immunity. ¶40 dangers Backpage.com, 817 F.3d at 21. The Ninth Circuit of allowing in Roommates.com allegations of intent explained or implied encouragement to defeat motions to dismiss in CDA cases: [T]here will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest 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. Where it is very clear that the website directly participates in developing the alleged illegality . . . immunity will be lost. But in cases of enhancement by implication or development by inference . . . section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles. 22 the Roommates.com, 521 F.3d at plaintiffs to escape the 1174-75. CDA by arguing No. 2017AP344 Therefore, allowing that an interactive computer service provider intended its neutral tools to be used for unlawful purposes would significantly diminish the protections offered by § 230(c)(1). ¶41 The text and purpose of the CDA require us to reject Daniel's intent argument. Again, § 230(c)(1) contains no good faith requirement; we analyze only whether Armslist materially contributed to the unlawfulness of third-party content such that it "developed" the content as provided in § 230(f)(3). it did not, it is not an information content Because provider with respect to the content; therefore, Daniel's claims depend on content provided only by third parties. D. ¶42 claims Treatment as Publisher or Speaker Section that 230(c)(1) would treat of the the CDA prohibits interactive only computer those service provider as the "publisher or speaker" of third-party content. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107 (9th Cir. 2009) (concluding promissory that estoppel the claim CDA did against not an bar a plaintiff's interactive computer service provider who had promised to remove unlawful third-party content and then failed to do so, as the claim was not based on its publication of unlawful content, induced reliance and was not kept). not require treated as the a interactive publisher or but on a promise that If a plaintiff's claims do computer service speaker, then the provider CDA to does immunize the interactive computer service provider from suit. 23 be not No. ¶43 However, courts do inherently requires the court to the treat the "publisher" the "[W]hat matters is not the name of the cause of whether a whether "speaker." is defendant ask complaint matters the merely plaintiff's action . . . what calls not 2017AP344 cause of defendant 'publisher or speaker' of content provided by another." 570 F.3d at 1101-02. the duty that the or action as the Barnes, In other words, "courts must ask whether plaintiff alleges the defendant violated derives from the defendant's status or conduct as a 'publisher or speaker.'" Id. at 1102. This rule prevents plaintiffs from using "artful pleading" to state their claims only in terms of the interactive computer service provider's own actions, when the underlying basis for liability is content published by the defendant. unlawful third-party Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); see also Kimzey, 836 F.3d at 1266 ("[w]e decline to open the door to such artful skirting of the CDA's safe harbor provision."). ¶44 In Doe v. Myspace, Inc., 528 F.3d 413 (5th Cir. 2008), for example, a child was sexually assaulted after creating a profile on social media website myspace.com and using the site to arrange a meeting with her assailant. Id. at 416. The plaintiffs sued Myspace, asserting that their claims were not based on Myspace's publication of third-party content, but only on its "failure to implement basic safety measures to protect minors." Id. at 419. The Fifth Circuit rejected the plaintiffs' attempt to artfully plead their claims only in terms of Myspace's own actions: "[t]heir 24 allegations are merely No. 2017AP344 another way of claiming that MySpace was liable for publishing the communications and they speak to MySpace's role publisher of online third-party-generated content." as a Id. at 420. Stated otherwise, the duty that MySpace allegedly violated——the duty to from the implement safety defendant's measures status as to the protect minors——derived publisher or speaker of conclusion in content provided by another. ¶45 The First Circuit came Backpage.com, LLC, 817 F.3d 12. to a similar Backpage.com was a classified advertising website similar to Craigslist, allowing third-party users to post goods or categories. Id. at 16. trafficking after services for sale in different Three minors became victims of sex them on backpage.com's "Adult Entertainment" section. Id. at 17. The plaintiffs of allegedly sued third Backpage.com amounts to parties for advertised "a participation course in sex conduct that trafficking," in violation of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). Id. at 18. The claims were based on the design features of backpage.com, such as the lack of phone or email verification, photographs, and the the stripping failure of of metadata the from website's uploaded automated filtering system to sufficiently block prohibited terms. 17, 20. Id. at The plaintiffs attempted to distinguish cases such as Myspace by alleging that Backpage.com deliberately designed its website to make sex trafficking easier. F.3d at 17, 21. 25 Backpage.com, LLC, 817 No. ¶46 The First Circuit held that plaintiffs' claims as a matter of law. plaintiffs' efforts Backpage.com's to acts, plead their third-party the CDA barred Id. at 24. claims content only was 2017AP344 the Despite the in "an terms essential component of each and all of the appellants' TVPRA claims." at 22. of Id. In other words, the duty Backpage.com allegedly violated derived from its role as a publisher. It did not affect the First Circuit's analysis that Backpage.com was alleged to have deliberately designed its website to facilitate sex trafficking. As mentioned earlier, § 230(c)(1) contains no good faith requirement, so "[s]howing that a website operates through a meretricious business model is not enough to strip away [the CDA's] protections." ¶47 Id. at 29. The court of appeals relied heavily on J.S. v. Vill. Voice Media Holdings, L.L.C., 359 P.3d 714 (Wash. 2015). In J.S., which involved claims against the operator of backpage.com on substantially the same facts as in Jane Doe No. 1 v. Backpage.com, LLC, the plaintiffs made the same argument as the Jane Doe No. deliberately Washington 1 plaintiffs, designed Supreme to asserting facilitate Court concluded that sex backpage.com trafficking. that the was The plaintiffs' allegation of intent was enough to escape the reach of the CDA. J.S., 359 P.3d at 718. ¶48 J.S. Washington's Wisconsin's. for failure is unpersuasive pleading for standard is two reasons. much First, different than Under Washington law, a complaint may be dismissed to state a claim "only 26 if it appears beyond a No. reasonable doubt recovery." may that no facts exist that Id. at 716 (citation omitted). consider "hypothetical facts" 2017AP344 would justify Washington courts that were not pled. Therefore, a complaint may not be dismissed "if any set of facts could exist that would justify recovery," whether such facts were pled in the complaint or not. 781, 785 (Wash. 1988). Hoffer v. State, 755 P.2d For this reason, Washington courts may grant motions to dismiss "only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." 359 P.3d at 716. Wisconsin's J.S., This pleading standard is inconsistent with pleading standard. See Data Key Partners, 356 Wis. 2d. 665, ¶21 ("a complaint must plead facts, which if true, would entitle the plaintiff to relief."). ¶49 More importantly, the Washington Supreme Court ignored the text of the CDA, and the overwhelming majority of cases interpreting it, by inserting an intent exception into § 230(c)(1). The Washington Supreme Court opined that "[i]t is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking . . . because 'a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.'" (citing Roommates.com, 521 F.3d at J.S., 359 P.3d at 718 1168). Underlying this statement is the implicit assumption that a website operator's subjective knowledge or intent may transform what would otherwise be a neutral tool into a "material contribution" to 27 No. the unlawfulness of third-party content. As 2017AP344 explained in Section II. C., however, this assumption has no basis in the text of § 230(c)(1). foreseeability necessarily publisher or intent, requires or The is that speaker relevant "whether the of inquiry, the defendant content regardless cause be of treated provided by of action as the another." Backpage.com, LLC, 817 F.3d at 19 (citing Barnes, 570 F.3d at 1101-02). ¶50 In this case, all of Daniel's claims against Armslist require the court to treat Armslist as the publisher or speaker of third-party content. Daniel's negligence claim asserts that Armslist to had a "facilitating" the duty sale exercise of guns, and "reasonable care" had to a duty in employ "sufficient questioning and screening" to reduce the risk of foreseeable Armslist injury breached "facilitate" to others. this illegal duty gun The by sales, complaint designing as well alleges that armslist.com as by failing to to implement sufficient safety measures to prevent the unlawful use of its website. ¶51 claiming Daniel's that negligence Armslist is claim liable is for simply another publishing way of third-party firearm advertisements and for failing to properly screen who may access this content. The complaint alleges that Armslist breached its duty of care by designing a website that could be used legal to facilitate guidance to unlawful content. illegal users, sales, and failing failing to to provide proper adequately screen Restated, it alleges that Armslist provided 28 No. 2017AP344 an online forum for third-party content and failed to adequately monitor that content. The duty Armslist is alleged to have violated its derives advertisements. from role as a publisher of firearm This is precisely the type of claim that is prohibited by § 230(c)(1), no matter how artfully pled. ¶52 That facilitate Armslist illegal gun may have sales known does not that its change site the could result. Because § 230(c)(1) contains no good faith requirement, courts do not allow allegations of intent or knowledge to defeat a motion to dismiss. 75. See, e.g., Roommates.com, 521 F.3d at 1174- Regardless of Armslist's knowledge or intent, the relevant question is whether Daniel's claim necessarily requires Armslist to be treated content. as the Because it publisher does, or the speaker negligence of third-party claim must be dismissed. ¶53 reason. The negligence per se claim is dismissed for the same Daniel alleges that Armslist "violated federal, state, and local statutes, regulations, and ordinances" by facilitating Haughton's purchase of a firearm. It is true that in Wisconsin, "'one who violates a criminal statute must be held negligent per se in a civil action for damages based on such violation.'" Bennett v. Larsen Co., 118 Wis. 2d 681, 692-93, 348 N.W.2d 540 (1984). basis As with the negligence claim, however, Daniel's only for alleging that Armslist violated any statute, regulation, or ordinance requires Armslist to be treated as the publisher or speaker of Linn's post. 29 No. ¶54 Similarly, the aiding and abetting 2017AP344 tortious conduct claim asserts that Armslist "aided, abetted, encouraged, urged, and acquiesced in" Linn's illegal sale to Radcliffe by "brokering" the transaction. However, there is no allegation that in Armslist's creating a participation forum for Linn's the transaction advertisement and went beyond failing prohibit Radcliffe from viewing the advertisement. to This claim would therefore require Armslist to be treated as the publisher of the advertisement and must be dismissed. ¶55 reason. The public nuisance claim is dismissed for the same Daniel asserts that Armslist "negligently, recklessly, and/or intentionally facilitate[ed] the sale of vast quantities of guns" to prohibited purchasers, resulting in a "substantial and unreasonable interference with the public's health, safety, convenience, comfort, peace, and use of public property and/or private property." the nuisance parties to is The act or omission alleged to have created Armslist's post and view provision firearms of a forum for advertisements. third In other words, the duty Armslist is alleged to have violated derives from its role as a publisher of third-party content. Accordingly, the public nuisance claim is dismissed. ¶56 Armslist Daniel's civil conspiracy claim does not allege that conspired with Linn to sell a firearm to a known prohibited purchaser; rather, it alleges that Armslist, LLC's members conspired with one another to create a marketplace for illegal firearm sales, and "advised, encouraged, or assisted" Armslist, LLC in facilitating unlawful firearm sales. 30 Again, No. the complaint does not allege that 2017AP344 Armslist's role in facilitating these illegal transactions went beyond creating a forum on which third advertisements. parties could post and view firearm As with the claims discussed above, the civil conspiracy claim is another way of stating that liable for publishing third-party content. Armslist is The civil conspiracy claim is therefore dismissed. ¶57 All of Daniel's remaining claims——negligent infliction of emotional distress, wrongful death and piercing the corporate veil——are dependent on the claims we have discussed above. Because all of those claims have been dismissed, Daniel's claims for negligent infliction of emotional distress, wrongful death and piercing Accordingly, the the corporate circuit veil court are did not dismissed err when as it well. granted Armslist's motion to dismiss III. ¶58 CONCLUSION We conclude that 47 U.S.C. § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. claims for relief require Armslist Because all of Daniel's to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals and affirm the circuit court's dismissal of Daniel's complaint. 31 No. By the Court.—The decision of the court of 2017AP344 appeals is reversed. ¶59 SHIRLEY S. ABRAHAMSON, J., withdrew from participation before oral argument. 32 No. ¶60 ANN WALSH BRADLEY, J. 2017AP344.awb The (dissenting). majority views Daniel's complaint as merely "artful pleading," disguising her true claims against Armslist. pleading," language the of majority the By using the phrase "artful implicitly complaint states a acknowledges claim. In that the essence, it posits, "I know that's what it says, but that's not what it really means." ¶61 What the majority would call "artful pleading," I would instead call the plain language of the complaint——which at this stage of the proceedings, the law mandates we accept as true.1 ¶62 The complaint alleges that Zina Daniel Haughton sought and received a restraining order against her husband, Radcliffe Haughton, after he Majority op., ¶3. assaulted her and threatened her life. Pursuant to the restraining order, Radcliffe was prohibited from owning a firearm for a period of four years. Id.; see Wis. Stat. § 941.29(1m)(f).2 ¶63 Within two days Radcliffe had a gun in his hands. Majority op., ¶3. See And within three days, Radcliffe went to 1 For purposes of our review, we must accept the allegations of Daniel's complaint as true. PRN Assocs. LLC v. State, DOA, 2009 WI 53, ¶27, 317 Wis. 2d 656, 766 N.W.2d 559; see Meyers v. Bayer AG, Bayer Corp., 2007 WI 99, ¶81, 303 Wis. 2d 295, 735 N.W.2d 448 (Roggensack, J., dissenting) (citation omitted). 2 Wis. Stat. § 941.29(1m)(f) provides that a person who possesses a firearm is guilty of a Class G felony if "[t]he person is subject to an injunction issued under s. 813.12 or 813.122 . . . that includes notice to the respondent that he or she is subject to the requirements and penalties under this section and that has been filed under s. 813.128(3g)." 1 No. 2017AP344.awb Zina's place of employment, and in front of her daughter, shot and killed Zina. He also murdered two other people, injured four others, and then shot and killed himself. ¶64 Id., ¶4. Radcliffe quickly and easily, without undergoing the inconvenience of a federal background using a website designed by Armslist. Armslist designed its website check, procured a gun The complaint avers that with the specific purpose of skirting federal gun laws. ¶65 behind Nevertheless, the the Communications majority Decency allows Act Armslist (CDA), which to hide affords immunity to websites if a plaintiff's claims treat the website "as the publisher or speaker of any information provided another information content provider." by 47 U.S.C. § 230(c)(1). The allegations here, however, assert liability for Armslist not based on content provided by another. Rather, the allegations assert liability based on design content Armslist alone created. ¶66 In my view, the majority errs in its interpretation of the CDA by basing its decision not on the actual claims pled in the complaint but on its own manufactured interpretation of those claims. As a result, it fails to recognize that here the design is itself the creation of content.3 Accordingly, I respectfully dissent. 3 Examples of design content are ubiquitous. One need look no further than the design content of algorithms, used to influence everything from where we shop to the sentencing of criminals. See State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749. The parameters of "content" extend beyond simply words on a page. 2 No. 2017AP344.awb I ¶67 The complaint alleges that Radcliffe was hastily able to procure this gun by using Armslist.com, a website that serves as an online marketplace for firearms. Majority op., ¶¶1, 3. He focused his search for a gun exclusively on Armslist "because he knew that he could not acquire a firearm from a licensed dealer or from a private seller in his community who knew him, and that any contact with a legitimate seller could result in his plan of illegally purchasing a firearm being revealed to law enforcement authorities." ¶68 Importantly, required under unlicensed federal law to individuals attempting to §§ 922(t); 18 § 923(a). prohibited purchasers governing search U.S.C. licensed function conduct purchase like sellers background firearms. Allowing to dealers, Armslist allows potential See and Radcliffe firearm that private not checks on 18 U.S.C. encouraging circumvent gun are the laws incorporated buyers to a exclude licensed dealers from their queries. ¶69 against After The day after the issuance of the restraining order him, seeing semiautomatic Radcliffe on took Armslist handgun and action an to accomplish advertisement three for high-capacity his an goal. FNP-40 magazines of ammunition, Radcliffe contacted the seller of the items, Devin Linn, using Armslist's "contact" function. The gun was listed for $500, a cost higher than what would have been paid by a legitimate buyer for the same weapon and ammunition. 3 Radcliffe No. 2017AP344.awb advised Linn in a phone call that "he needed the firearm as soon as possible." ¶70 Consistent with Radcliffe's desire for transaction, he and Linn met the following morning. over the gun and ammunition, no questions a fast Linn handed asked. Despite erratic behavior on Radcliffe's part, Linn sold Radcliffe the weapon without determining whether he was a felon, whether he was subject to a restraining adjudicated mentally ill. ¶71 order or whether he had been He made no inquiry whatsoever. After Radcliffe took the weapon he purchased from Linn and used it to kill Zina and two other people, Zina's daughter Yasmeen Daniel brought this lawsuit. advanced focused Defendants on designed Armslist's Armslist.com The theory of liability conduct: "the specifically to Armslist 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 federal restrictions on interstate transfers, state-imposed waiting periods, and state-specific assault weapon restrictions." ¶72 Daniel further alleged that "[t]he Armslist Defendants knew, or should have known, that the design and architecture of Armslist.com creates a near-certainty that prohibited purchasers will use the marketplace to buy firearms, and that the marketplace will be used for illegal gun sales, including by unlicensed individuals selling firearms." that are engaged in the business of In Daniel's estimation, Armslist breached 4 No. its duty to facilitate the sales to public by "[d]esigning prohibited purchasers, 2017AP344.awb Armslist.com such as to Radcliffe Haughton." ¶73 on CDA Armslist moved to dismiss the claims against it based immunity. The circuit court granted the motion to dismiss and the court of appeals unanimously reversed. ¶74 Now reversing the court of appeals, the majority determines that Armslist is immune from Daniel's claims pursuant to the CDA. Majority op., ¶2. In the majority's view, "all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted parties . . . ," entitling it to CDA immunity. Id. by third It further opines that "Daniel's negligence claim is simply another way of claiming that Armslist is liable for publishing third-party firearm advertisements and for failing to properly screen who may access this content." Id., ¶51. II ¶75 This case presents a discrete question of statutory interpretation. As the court of appeals in this case correctly stated, "[t]he sole and limited issue is whether the complaint seeks to hold Armslist liable on a basis prohibited by the Act." Daniel v. Armslist, LLC, 2018 WI App 32, ¶28, 382 Wis. 2d 241, 913 N.W.2d 211. ¶76 The § 230(c)(1), statute which at issue provides: "No is the provider CDA, 47 or user U.S.C. of an interactive computer service shall be treated as the publisher 5 No. 2017AP344.awb or speaker of any information provided by another information content provider." ¶77 Another nearby provision states the preemptive effect of the CDA: prevent "Nothing in this section shall be construed to any State from enforcing consistent with this section. any State law that is No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3). The CDA is a purveyor of immunity, but it "was not meant to create a lawless no-man's-land on the Internet." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164 (9th Cir. 2008). ¶78 theory Our of inquiry liability is limited (that to Armslist whether the plaintiff's designed its website to facilitate illegal gun purchases) treats Armslist as the speaker or publisher of Linn's and Radcliffe's posted advertisements. The court of interpretation appeals, of the subscribing CDA, concluded immunity to a single circumstance: treats the website creator speaker of content provider.' generally any to or information website Nothing design to that provided and plain "Congress language limited when a theory of liability operator in a this 'as by the another language operation." publisher or information speaks Daniel, more 382 Wis. 2d 241, ¶42. ¶79 In the court of appeals' view, the content for which Daniel seeks liability "is not 'information provided by another information content provider.' Rather, it is content created by 6 No. Armslist, and there is no language in the 2017AP344.awb Act immunizing Armslist from liability based on content that it creates." Id., ¶44. ¶80 I agree determination. with the court of appeals' unanimous A close reading of Daniel's complaint indicates that the complaint is not seeking to hold Armslist liable for any content created by a third party. The complaint does not allege that Armslist is liable due to the advertisements posted by Radcliffe and Linn. liable for its own Instead, it alleges that Armslist is content, i.e. the design and search functionality of its website. ¶81 "Where it is very clear that the website directly participates in developing the alleged illegality . . . immunity will be lost." Fair Hous. Council, 521 F.3d at 1174. Such is the allegation here. ¶82 As the court of appeals observed, this conclusion is supported by the Washington Supreme Court's interpretation of the CDA in J.S. v. Village Voice Media Holdings, LLC, 359 P.3d 714 (Wash. 2015). suit against advertisements alleged that In J.S., a victim of sex trafficking filed Backpage, offering the a website sexual website "is that services. not immune allowed Id., from hosted ¶¶2-3. suit in She part because its advertisement posting rules were 'designed to help pimps develop advertisements that can evade the unwanted attention of law enforcement, while still conveying the illegal message." Id., ¶3. 7 No. ¶83 on The J.S. court observed that its determination "turns whether featured 2017AP344.awb Backpage J.S., in merely which hosted case the Backpage advertisements is protected that by CDA immunity, or whether Backpage also helped develop the content of those advertisements, in which case Backpage is not protected by CDA immunity." Id., ¶11. Backpage moved to dismiss, claiming CDA immunity, but the court allowed J.S.'s claims to proceed. ¶84 In doing so, the J.S. court examined the allegations of the complaint, and taking them as true, determined that they "would show Backpage did more than simply maintain policies prohibiting or limiting certain content." Following the same mode of analysis here, neutral Id., ¶12.4 Armslist is not entitled to CDA immunity. 4 The majority's attempt to distinguish and dismiss J.S. is unpersuasive. See majority op., ¶¶48-49. First, the majority fails to explain how using Wisconsin's pleading standard instead of Washington's would change the result. Contrary to the majority's assertion, the J.S. court did not base its determination on any "hypothetical facts." Rather, it took the allegations of the complaint as true, just as we do in Wisconsin. See J.S. v. Village Voice Media Holdings, LLC, 359 P.3d 714, ¶12 (Wash. 2015) ("Viewing J.S.'s allegations in the light most favorable to J.S., as we must at this stage, J.S. alleged facts that, if proved true . . . "); Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶18, 356 Wis. 2d 665, 849 N.W.2d 693 ("When we review a motion to dismiss, factual allegations in the complaint are accepted as true for purposes of our review."). Second, the J.S. court did not establish an "intent exception" to CDA immunity as the majority claims, but merely recognized a distinction that is manifest in the CDA's text: the distinction between first-party created content and thirdparty created content. See majority op., ¶49. 8 No. ¶85 "[o]ne Specifically, of function the most Daniel alleges prominent is the ability to in features search for her of 2017AP344.awb complaint Armslist's only private that search sellers, thereby eliminating from search results any sellers required to perform a background check." No one but Armslist is alleged to be responsible for this feature. ¶86 Daniel further asserts that this feature was intentionally created "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 federal restrictions on interstate transfers, stateimposed waiting restrictions." periods, and state-specific assault weapon Again, no one but Armslist is alleged to be responsible for this design.5 5 Justice Wiggins's concurrence in J.S. is particularly insightful in examining the facts alleged in Daniel's complaint in this case. Narrowly interpreting the CDA, Justice Wiggins wrote: Plaintiffs do not argue that Backpage.com necessarily induces the posting of unlawful content by merely providing an escort services category. Instead, plaintiffs allege that Backpage.com deliberately designed its posting rules in a manner that would enable pimps to engage in sex trafficking, including in the trafficking of minors, and to avoid law enforcement. These factual allegations do not suggest that Backpage.com is being treated as a "publisher or speaker." J.S. v. Village Voice Media Holdings, 359 P.3d 714, ¶30 (Wash. 2015) (Wiggins, J., concurring); see also Mary Graw Leary, The Indecency and Injustice of Section 230 of the (continued) 9 No. ¶87 relief 2017AP344.awb The majority contends that "all of Daniel's claims for require speaker of Majority op., Armslist to information ¶2. be treated posted Further, by the as the third publisher or parties . . . ." majority claims that its decision "prevents plaintiffs from using 'artful pleading' to state their claims only in terms of the interactive computer service provider's own actions, when the underlying basis for liability is defendant." ¶88 But unlawful third-party content published by the court to Majority op., ¶43. the majority's approach requires ignore the literal words used in the complaint. the In its endeavor to brand Daniel's complaint as "artful pleading," it ties itself in knots to avoid the actual claims Daniel makes. ¶89 that Such an approach plaintiffs Caterpillar, Rather than majority Inc. are v. the masters Williams, applying manufactures deviates the an of 482 from established their U.S. complaint's complaints. 386, plain interpretation. practice 398-99 (1987). language, Embarking See the upon a legally unsupportable approach, it fails to recognize that here the design itself is content and ignores the distinction between first-party created content and third-party created content. ¶90 liability The complaint against sets Armslist forth for that Armslist's Daniel conduct is seeking only. Communications Decency Act, 41 Harv. J. of Law & Pub. Pol'y 553, 587-591 (2018). 10 We No. should take the complaint at face value.6 2017AP344.awb Accordingly, Armslist is not entitled to CDA immunity. ¶91 For the foregoing reasons, I respectfully dissent. 6 Further, I observe that my conclusion is not at odds with the bulk of CDA jurisprudence. For example, in Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), a seminal CDA case, the Fourth Circuit determined that "§ 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions——such as deciding whether to publish, withdraw, postpone or alter content——are barred." Zeran and its progeny are not disturbed by my conclusion. My analysis and Zeran peacefully coexist because they deal with different factual allegations——liability for third party content vs. liability for first party content. 11 No. 1 2017AP344.awb
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