Yasmeen Daniel, Individually, and as Special Administrator of the Estate of Zina Daniel Haughton v. Armslist, LLC, et al.
No. 2017AP344
Supreme Court of Wisconsin
April 30, 2019
2019 WI 47
CASE NO.: 2017AP344
COMPLETE TITLE: 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: April 30, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 14, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Glenn H. Yamahiro
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents (opinion filed).
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
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 curiae brief was filed on behalf of National Coalition Against Domestic Violence, End Domestic Abuse Wisconsin: The Wisconsin Coalition Against Domestic 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. Mandell, Gregory M. Jacobs, and Stafford Rosenbaum LLP, Madison.
An amicus curiae brief was filed on behalf of American Medical Association and Wisconsin Medical Society by Guy DuBeau
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, Marcus J. Berghahn, and Hurley Burish, S.C., Madison.
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,
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.
FILED
APR 30, 2019
Sheila T. Reiff
Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
No. 2017AP344
¶1 PATIENCE DRAKE ROGGENSACK, C.J. 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“). Daniel‘s tort action arose from a mass shooting in a Brookfield, Wisconsin spa that killed four people, including Daniel‘s mother Zina Daniel Haughton. Daniel alleged that the shooter, Radcliffe Haughton, illegally purchased the firearm after responding to private seller Devin Linn‘s post on Armslist‘s firearm advertising website, armslist.com. The court of appeals held that
¶2 We disagree, and conclude that § 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,4 as the publisher or speaker of
information posted by a third party on its website. 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. Background5
¶3 In October 2012, a Wisconsin court granted Zina Daniel Haughton a restraining order against her husband, Radcliffe Haughton, after he had assaulted her and
It is uncontested that Armslist is an interactive computer service provider.
up a meeting by phone. 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 is a classified advertising website similar to Craigslist. Prospective sellers may post advertisements for firearms and firearm-related products they wish to sell, prospective buyers may post “want advertisements” describing the firearms they wish to buy. Buyers and sellers may contact one another either through personal contact information they provide on the website, or by using armslist.com‘s “contact” tool. According to the 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 to buy firearms only from
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. The website also does not require buyers or sellers to create accounts, which encourages anonymity, and displays next to each advertisement whether the account is registered or unregistered.
¶7 Armslist.com allows users to flag content for a number of 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
potentially illegal firearm sales. It could have prohibited users from obtaining one another‘s contact information until Armslist confirmed their legal eligibility to buy and sell firearms. 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 infliction of emotional distress, civil conspiracy, aiding and abetting tortious conduct, public nuisance, and wrongful death.7 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
¶10 The circuit court granted Armslist‘s motion and dismissed the complaint. 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
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 within the purview of traditional publisher functions.” 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 third-party 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. Id., ¶42.
¶12 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
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. DISCUSSION
A. Standard of Review
¶13 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.” Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693 (citation omitted). “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 omitted). “Statutory interpretation and the application of a statute to a given set of facts are questions of law that we review independently,” while benefiting from the interpretations and applications of other Wisconsin court decisions. Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
B. The Communications Decency Act
¶14 The CDA is set out in
¶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. See Jones, 755 F.3d at 408.
¶16 Section 230(c)(1) addresses this problem by immunizing interactive computer service providers from liability for publishing third-party content. The subsection states: “No
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.”
¶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 could be treated as the publisher of some defamatory statements posted by third parties on 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, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230(c) ensures that as a “Good Samaritan,” an interactive computer service provider may remove some objectionable third-party content from
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 Therefore, rather than force interactive computer service providers to screen objectionable 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 third-party 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: whether they do (subsection (c)(2)) or do not (subsection (c)(1)) take precautions, there is no liability under either state or federal law.” Chi. Lawyers’ Comm., 519 F.3d at 670.
¶19 Section 230(c)(1) is the subsection central to this case. The text of subsection (c)(1) supplies three criteria that must be satisfied before the CDA bars a plaintiff‘s claims: (1) the defendant “is a ‘provider or user of an interactive computer service‘; (2) the claim is 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).
¶20 Daniel does not dispute that Armslist, LLC, as the operator of armslist.com, is an interactive computer service provider. 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. She challenges the third criterion by arguing that her claims 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.
¶21 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
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, an interactive computer service provider, such as Armslist, is not liable for publishing a third party‘s content, but may be liable for publishing its own content.
¶22 A defendant is an information content provider with regard 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.
¶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 the case that an interactive computer service provider is categorically immune
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” is responsible for developing potentially defamatory content. Roommates.com, 521 F.3d at 1169. For this reason, courts recognize that “despite the CDA, some state tort claims will lie against website operators acting in their publishing, editorial, or screening capacities.” Jones, 755 F.3d at 410.
¶24 In order to avoid these two extremes and to remain faithful to the text and purpose of § 230, courts use the “material contribution” test to determine whether a 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. Jones, 755 F.3d at 410. “Rather, it means being responsible for what makes the displayed content allegedly unlawful.” Id.
¶25 The Ninth Circuit‘s decision in Roommates.com, 521 F.3d 1157, demonstrates how the material contribution test operates. Housing website Roommates.com 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
preferences regarding these characteristics. Id. It was illegal under the Fair Housing Act and California anti-discrimination law for renters to request this information. Id. at 1161-62. After selecting their preferences, users 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 Roommates.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, but not for the required disclosures of characteristics like race and sex. Id. at 1165-67. The information posted in the “Additional Comments” section “comes entirely from subscribers and is passively displayed by Roommate.” Id. at 1174. Roommates.com did not contribute to the unlawfulness of this content, but merely provided a place for the content to be posted. In contrast, the required disclosures of protected characteristics did amount to the development of content, making Roommates.com an information content provider with respect to these disclosures. Id. at 1167-68. By requiring users to enter characteristics and preferences such as age, race, sex, and sexual orientation as a condition of using the website, and by designing its website to
hide listings from certain users based on these protected characteristics, Roommates.com materially contributed to the illegality of the content itself. Id. at 1169.
¶27 Decisions from other federal courts interpreting the CDA 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. Chi. Lawyers’ Comm., 519 F.3d at 668. Plaintiffs sued Craigslist for allegedly “causing” these Fair Housing Act violations. Id. at 671. The Seventh Circuit held that the CDA 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.” Id. at 1197. Some
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” of the third-party advertisers’ fraudulent content. Id.
¶29 The district court rejected this 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
¶30 In contrast to these cases, in which the interactive computer service provider merely made illegal content more easily available, courts have denied CDA immunity 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,
¶60
¶61 What the majority would call “artful pleading,” I would instead call the
¶62 The complaint alleges that Zina Daniel Haughton sought and received a restraining order against her husband, Radcliffe Haughton, after he assaulted her and threatened her life. Majority op., ¶3. Pursuant to the restraining order, Radcliffe was prohibited from
¶63 Within two days Radcliffe had a gun in his hands. See Majority op., ¶3. And within three days, Radcliffe went to Zina‘s place of employment, and in front of her daughter, shot and killed Zina. He also
¶64 Radcliffe quickly and easily, without undergoing the inconvenience of a federal background check, procured a gun using a website designed by Armslist. The complaint avers that Armslist designed its website with the specific purpose of skirting federal gun laws.
¶65 Nevertheless, the majority allows Armslist to hide behind the Communications
¶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 itself is the creation of content.3
Accordingly, I respectfully dissent.
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, unlicensed private sellers are not required under federal law to conduct background checks on individuals attempting to purchase firearms. See
¶69 The day after the issuance of the restraining order against him, Radcliffe took action to accomplish his goal. After seeing on Armslist an advertisement for an FNP-40 semiautomatic handgun and three high-capacity 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. Radcliffe advised Linn in a phone call that “he needed the firearm as soon as possible.”
¶70 Consistent with Radcliffe‘s desire for a fast transaction, he and Linn met the following morning. Linn handed over the gun and ammunition, no questions 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 order or whether he had been adjudicated mentally ill. He made no inquiry whatsoever.
¶71 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. The theory of liability advanced focused on Armslist‘s conduct: “the Armslist Defendants designed Armslist.com 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
¶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 that are engaged in the business of selling firearms.” In Daniel‘s estimation, Armslist breached its duty to the public by “[d]esigning Armslist.com to facilitate sales to prohibited purchasers, such as Radcliffe Haughton.”
¶73 Armslist moved to dismiss the claims against it based on CDA 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 by third parties . . . ,” entitling it to CDA immunity. Id. 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 statute at issue is the CDA,
¶77 Another nearby provision states the preemptive effect of the CDA: “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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.”
¶78 Our inquiry is limited to whether the plaintiff‘s theory of liability (that Armslist 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 appeals, subscribing to a plain language interpretation of the CDA, concluded that “Congress limited immunity to a single circumstance: when a theory of liability treats the website creator or operator ‘as the publisher or speaker of any information provided by another information content provider.’ Nothing in this language speaks more generally to website design and operation.” Daniel, 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 Armslist, and there is no language in the Act immunizing Armslist from liability based on content that it creates.” Id., ¶44.
¶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). In J.S., a victim of sex trafficking filed suit against Backpage, a website that allowed hosted advertisements offering sexual services. Id., ¶¶2-3. She alleged that the website “is not immune from suit in 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.
¶83 The J.S. court observed that its determination “turns on whether Backpage merely hosted the advertisements that featured J.S., in which case Backpage is protected 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 neutral policies prohibiting or limiting certain content.” Id., ¶12.4
Following the same mode of analysis here, Armslist is not entitled to CDA immunity.
¶85 Specifically, Daniel alleges in her complaint that “[o]ne of the most prominent features of Armslist‘s search function is the ability to search for only private 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, state-imposed waiting periods,
¶87 The majority contends that “all of Daniel‘s claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties . . . .” Majority op., ¶2. Further, the 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 unlawful third-party content published by the defendant.” Majority op., ¶43.
¶88 But the majority‘s approach requires the court to ignore the literal words used in the complaint. In its endeavor to brand Daniel‘s complaint as “artful pleading,” it ties itself in knots to avoid the actual claims Daniel makes.
¶89 Such an approach deviates from established practice that plaintiffs are the masters of their complaints. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99 (1987). Rather than applying the complaint‘s plain language, the majority manufactures an interpretation. Embarking 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 The complaint sets forth that Daniel is seeking liability against Armslist for Armslist‘s conduct only. We
Communications Decency Act, 41 Harv. J. of Law & Pub. Pol‘y 553, 587-591 (2018).
should take the complaint at face value.6
Accordingly, Armslist is not entitled to CDA immunity.
¶91 For the foregoing reasons, I respectfully dissent.