Yasmeen Daniel, Individually, and as Special Administrator of the Estate of Zina Daniel Haughton, Plaintiff-Appellant,
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
We review a decision of the court of appeals reversing the
circuit court's 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),  the federal Communications Decency Act
of 1996 (CDA), did not bar Daniel's claims against
Armslist for facilitating Radcliffe's illegal purchase.
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,  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.
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). 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.
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.
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
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
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.
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.
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. 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.
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.
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.
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.
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."
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
Communications Decency Act
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
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.
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
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) .
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.
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) .
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.
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 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
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" 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