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Daniel v. Armslist, LLC

Supreme Court of Wisconsin

April 30, 2019

Yasmeen Daniel, Individually, and as Special Administrator of the Estate of Zina Daniel Haughton, Plaintiff-Appellant,
v.
Armslist, LLC, an Oklahoma Limited Liability Company, Brian Mancini and Jonathan Gibbon, Defendants-Respondents-Petitioners, Travelers Indemnity Company of Connecticut, as Subrogee for Jalisco's LLC, Intervening Plaintiff, 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.

          Submitted on Briefs: Oral Argument: February 14, 2 019

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d 24l, N.W.2d 211

          Circuit Court Milwaukee county (L.C. No. 2015CV8710) Glenn H. Yamahiro Judge. REVIEW of a decision of the Court of Appeals.

          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 0. 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 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, Marcus J. Berghahn, and Hurley Burish, S.C., Madison.

          PATIENCE DRAKE ROGGENSACK, C.J.

         ¶1 We review a decision of the court of appeals[1] reversing the circuit court's[2] 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 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 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. Background[5]

         ¶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 threatened to kill her. Pursuant to the restraining order, Radcliffe was prohibited by law from possessing a firearm for four years. See Wis.Stat. § 941.29(lm)(f) (2017-18).[6] Despite this court order, Radcliffe posted a "want to buy" advertisement on armslist.com and stated that he was seeking to buy a handgun with a high-capacity magazine "asap." 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. The two exchanged phone numbers and set 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 illegal firearm sales to dangerous prohibited purchasers. Daniel alleges that Armslist could have required buyers to create accounts and provide information such as their name, address, and phone number. In states similar to Wisconsin, where there is online access to an individual's criminal history, Armslist could have required potential buyers to upload their criminal history before their accounts were approved. She alleges Armslist could have allowed users to flag 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 Wis.Stat. § 802.06 (2) (a)6.

         ¶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 forum for third parties to post content. Id., ¶¶48-49. 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');">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 47 U.S.C. § 230. The CDA was enacted in large part to "to preserve 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. 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." § 230(c)(1). The act also preempts any state tort claims: "[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." § 230(e) (3) . Section 230(c) (1) therefore prevents the specter of tort liability from undermining an interactive computer 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 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.

         C. Information Content Provider

         ¶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 development[8]" of the content. Section 230(f) (3) . Courts have recognized that the word "development" cannot be read too broadly or too narrowly. 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 ...


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