926 N.W.2d 710
Wis.2019Background
- In 2012 Radcliffe Haughton was subject to a restraining order that barred firearm possession; in October 2012 he used Armslist.com to contact a private seller, Devin Linn, and purchased a handgun. The next day he murdered Zina Haughton and others; Yasmeen Daniel (Zina’s daughter) sued Armslist among others.
- Armslist.com is a classified firearm marketplace that allows buyers/sellers to post ads, filter for private sellers (who are not required to run background checks), and use an internal contact tool; it does not require accounts or verify purchasers and lacks a flag-for-illegality feature. Armslist earns advertising revenue and does not itself sell firearms.
- Daniel pleaded causes of action against Armslist including negligence, negligence per se, aiding and abetting, public nuisance, civil conspiracy, negligent infliction of emotional distress, and wrongful death, alleging Armslist designed its site to facilitate illegal gun sales to prohibited purchasers.
- Armslist moved to dismiss under Wis. Stat. § 802.06(2)(a)6 and invoked 47 U.S.C. § 230(c)(1) (the Communications Decency Act, CDA) for immunity as an interactive computer service provider hosting third-party content.
- The circuit court granted dismissal, holding the CDA bars claims that treat Armslist as the publisher/speaker of third-party content; the court of appeals reversed, but the Wisconsin Supreme Court reversed the court of appeals and affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Armslist is an "information content provider" for the third-party ad (i.e., developed the content) | Daniel: Armslist’s site design/features (private-seller filter, lack of verification, anonymity) materially contributed to/developed illegal content, so Armslist is not immune. | Armslist: Its features are neutral tools that merely provide a forum; it did not create or materially contribute to Linn’s ad content, so § 230 applies. | Held: Armslist is not an information content provider for Linn’s ad; its features are neutral tools and did not materially contribute to the ad’s illegality. |
| Whether claims require treating Armslist as the publisher/speaker of third-party content (CDA §230(c)(1) bar) | Daniel: Claims are about Armslist’s own conduct (design/operation), not its publication of third-party content, so § 230(c)(1) does not apply. | Armslist: The asserted duties derive from its role as a publisher of third-party ads (hosting and failing to screen), so claims are barred by § 230(c)(1). | Held: The court treats the alleged duties as deriving from Armslist’s role as publisher/speaker of third-party content; all claims are barred by § 230(c)(1). |
| Whether allegations of intent or knowledge defeat § 230 immunity | Daniel: Allegations that Armslist intended or knew its design would facilitate illegal sales remove immunity. | Armslist: § 230 contains no good-faith/intent exception; knowledge or intent does not negate immunity absent material contribution. | Held: Intent/knowledge do not defeat § 230 immunity; only material contribution to development of unlawful content does. |
| Whether state-law torts pleaded (negligence, negligence per se, aiding/abetting, nuisance, conspiracy, wrongful death) survive § 230 | Daniel: These state-law claims rest on Armslist’s operational choices, not on publishing third-party content. | Armslist: Each claim effectively treats Armslist as the publisher/speaker of third-party ads; CDA preempts inconsistent state-law liability. | Held: All claims depend on treating Armslist as publisher/speaker of third-party content and are precluded by § 230(c)(1); complaint dismissed. |
Key Cases Cited
- Zeran v. America Online, 129 F.3d 327 (4th Cir.) (CDA bars treating interactive service as publisher of third-party content)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir.) (material-contribution test; distinguishing neutral tools from required design that develops unlawful content)
- Chicago Lawyers’ Comm. for Civil Rights Under Law v. Craigslist, 519 F.3d 666 (7th Cir.) (CDA immunity where site merely provides forum; hosting ≠ material contribution)
- Jane Doe No. 1 v. Backpage.com, 817 F.3d 12 (1st Cir.) (claims alleging site design to facilitate wrongdoing still barred when liability depends on third-party content)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.) (focus on whether duty alleged derives from defendant’s role as publisher/speaker)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir.) (neutral tools immunity even when operator aware of misuse)
- FTC v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir.) (no CDA immunity where defendant materially contributed to deceptive content)
- Doe v. Myspace, Inc., 528 F.3d 413 (5th Cir.) (claims based on alleged failures to implement safety measures treated as claims about publishing third-party content)