Case Summary and Outcome

The Supreme Court of Wisconsin held that a website hosting advertisements for firearm-related sales was not liable for its interactive-functions which facilitated the illegal purchase of firearms used in a mass shooting. The daughter of one of the victims had brought a number of claims against the website arguing that the ability to limit searches to advertisements from private sellers (who are not required to conduct background checks on purchasers in Wisconsin) made the website liable for the deaths caused by the shooting. The Circuit Court ruled that section 230(c)(1) of the Communications Decency Act, 1996 applied to bar the claims on the grounds that an interactive computer service provider cannot be held liable for the content of material posted by third parties. The Court of Appeals reversed that decision, but the Supreme Court held that the Act did apply and granted the website’s application to dismiss the claims. The Court held that if a function of the website can be used for lawful purposes – such as the search function on this website – that website cannot be held liable for the consequences of its unlawful use.

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Facts

In October 2012, Zina Daniel Haughton successfully obtained a restraining order against her husband, Radcliffe Haughton, after he assaulted her and threatened to kill her. As one of the conditions of the restraining order Haughton was prohibited from possessing a firearm for four years. Notwithstanding that condition, the day after the issuance of the restraining order Haughton posted an advertisement on armslist.com (Armslist) stating that he wanted to “buy a handgun with a high-capacity magazine ‘asap’.” [para. 3]. Armslist is a “classified advertising website similar to Craigslist” through which prospective buyers and sellers of firearm-related products can advertise and contact each through the “contact tool” or through personal details shared in the advertisement. Armslist.com receives its revenue through advertising. It does not receive revenue from the sales of the products, nor does not participate in the actual sale and purchase of the goods. [para. 5]

Haughton viewed a sales advertisement on armslist.com posted by Devin Linn and used Armslist’s contact function to contact Linn and arrange the purchase. On October 20, 2012 Haughton purchased the firearm (with ammunition) from Linn for $500.

On October 21, 2012 Haughton walked into the Azana Spa in Brookfield, Wisconsin, where Zina Daniel Haughton worked and shot and killed her and two others, injured four other people and then shot and killed himself. Yaseen Daniel, Zina Daniel Haughton’s daughter, was at the Spa and witnessed the shooting.

Daniel  sought to bring claims against Armslist for negligence, negligence per se, negligent infliction of emotional distress, civil conspiracy, aiding and abetting tortious conduct, public nuisance, and wrongful death. Armslist brought an application for the dismissal of all Daniel’s claims on the grounds that the Communications Decency Act, 1996 (CDA) barred her claims. Section 230(c)(1) of the CDA states that “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 providers”, and subsection (e)(3) prevents the bringing of any cause of action and imposition of liability in such cases.

The Circuit Court granted Armslist’s application to dismiss Daniel’s motion, holding that the CDA “immunizes an interactive computer service provider from liability for passively displaying content created by their parties, even when the operator exercised ‘traditional publisher functions’ by deciding ‘what content can appear on the website and in what form.’” [para. 10] Accordingly, the Circuit Court found that the design of the website reflected choices made about what and how the content can appear and there had therefore been “editorial choices that fall within the purview of traditional publisher functions” which meant that the CDA therefore immunized Armslist from liability. [para. 10] Daniel appealed this decision.

The Court of Appeals reversed the decision of the Circuit Court and held that section did not bar Daniel’s claim against Armslist for facilitating Radcliffe’s illegal purchase of the firearm. The Court of Appeals held that the design features “could be characterized as ‘content’ created by Armslist.” [para. 11] The Court of Appeals dismissed federal jurisprudence which had interpreted the CDA as providing immunity and concluded that those cases had “ ‘read into the Act language that is not present’ and rejected them all as unpersuasive.” [para. 12]

Armslist applied to the Supreme Court of Wisconsin for a review of the decision of the Court of Appeals.

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Decision Overview

Chief Justice Roggensack delivered the judgment of the Supreme Court of Wisconsin. The central issue for the Court to determine was whether the CDA operated to bar Daniel’s claims brought against Armslist.

Daniel argued that Haughton had chosen Armslist because the website’s design features made it easier for prohibited purchasers like him to illegally purchase firearms as it allowed buyers to search exclusively for private sellers. Private sellers – unlike federally licensed gun dealers – are not required to conduct background checks in Wisconsin. Daniel submitted that Armslist could have taken a number of simple measures to reduce the risk of illegal firearm sales to prohibited purchasers by requiring that users create accounts and provide their personal information and criminal record before that account is approved, by allowing users to flag potentially illegal sales and preventing the accessing of personal communication information until individuals’ accounts had been approved. [para. 8] She submitted 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.” [para. 9]

Armslist argued that the CDA immunized it from liability for the information posted by third parties and that Daniel’s claims should therefore be dismissed.

The Court stated that the objectives of the CDA were 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” and that Congress had found that the internet had “flourished, to the benefit of all Americans, with a minimum of government regulation.” [para. 14] With reference to Jones v Dirty World Entm’t Recordings LLC, 755 F. 3d 398, 407 (6^th Cir. 2014), the Court commented that “[l]imiting interference from federal and state laws includes protecting interactive computer service provides who operate forums for third-party speech from the ‘specter of tort liability’ for hosting third-party content.” [para 15] It added that imposing tort liability would have an “obvious chilling effect” because it would deter those interactive computer service providers from hosting third-party content and it was section 230 that sought to prevent this. The Court also recognised that, as Stratton Oakmont Inc v. Prodigy Servs.Co.1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995 (unpublished)) had noted, section 230(c)(2) protects against liability for any actions “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” which ensures that service providers are not discouraged from voluntarily taking action to screen unlawful third-party content. The Court referred to Chi. Lawyers’ Comm. For Civil Rights under Law Inc v. Craigslist 519 F.3d 666, 669-70 (7^th Cir. 2008) and described this section as allowing a “Good Samaritan” interactive computer service provider to remove objectionable third-party content “without fear of subjecting itself to liability for objectionable content it does not remove.” [para. 17] The CDA therefore ensures that there will be no liability for third-party content whether a service provider does or does not take precautions against unlawful posted content.

The Court emphasized that section 230(c) is the focus of this case, and referred to Jane Doe No. 1 v. Backpage.com LLC 817 F.3d 12, 19 (1^st Cir. 2016) in noting that the provision creates three criteria for the CDA to apply and bar a plaintiff’s claims: the defendant must be the “provider or user of an interactive computer service”; the claim must be based on “information provided by another information content provider”; and the claim must treat the defendant as “the publisher or speaker of the information.”

Daniel accepted that Armslist was an interactive computer service provider and so the Court was only required to determine the second and third criteria – that is, whether the information was information provided by another information content provider and whether the claim did treat Armslist as the publisher. In respect of the second criterion, Daniel argued that Armslist had “helped to develop the content of the firearm advertisement” and, in respect of the third criterion, that her claim was not based on whether or not Armslist had published the content but rather that Armslist had facilitated and encouraged illegal firearm sales by third parties. The Court stressed that if Daniel does not require that Armslist be treated as a publisher then the CDA does not bar her claims [para. 20].

In ascertaining whether Armslist was an information content provider itself or whether the information on the website had been provided by another content provider, the Court made reference to the CDA definition of an information content provider as “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.” The Court held, with reference to the Jones case and Fair Hous. Council of San Fernando Valley v. Roommates.com LLC 521 F.3d 1157 (9^th Cir. 2008) that a website can be a service provider and content provider simultaneously. The effect of this is that a website will not be liable for publishing a third party’s content but may be liable for publishing its own content. Therefore, to determine whether the information is the website’s own or a third party the CDA requires that an information content provider be “responsible, in whole or in part, for the creation or development” of that information. The Court noted that the word “development” must not be read too broadly – which would, as the Court in the Roommates.com case noted, “swallow” up the immunity conferred by the CDA – or too narrow – which would ignore the phrase “in whole or in part.” [paras. 22-23]

The Court recognized that in order to strike a balance between a potentially overly-broad or overly-narrow interpretation, courts have applied the “material contribution” test to determine the responsibility for the development of content. This test, as set out in the Roommates and Jones cases had held that making a material contribution “does not mean merely taking action that is necessary to the display of allegedly illegal content” but it means “being responsible for what makes the displayed content allegedly unlawful.” [para. 24] The Court undertook a survey of the jurisprudence on this issue, and emphasized that Courts had applied the concept of “neutral tools” to ascertain whether the website’s design features do contribute materially to the third-party’s content’s unlawfulness. The Court defined “neutral tool” as a “feature provided by an interactive computer service provider that can ‘be utilized for proper or improper purposes’,” and noted that if a website uses such a neutral tool it will “generally not be considered to have contributed to the content’s unlawfulness.” [para. 32] The key aspect is that these tools can be used for lawful purposes and so the Court noted that the CDA “immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.” [para. 33] The Court referred to Carafano v. Metrosplash.com Inc. 339 F. 3d. 1119 (9^th Cir. 2003) in finding that this principle holds “even when an interactive computer service provider knows, or should know, that its neutral tools are being used for illegal purposes.” [para. 34] With reference to the Roommates.com case the Court stressed that that the important question is whether a website’s design features can be used for lawful purposes: if they can, then the CDA immunizes the website operator from liability.

The Court held that as Armslist did not develop the advertisement to which Haughton responded, it was not the information content provider in respect of that advertisement

The Court rejected Daniel’s argument that Armslist “should have known, actually knew or even intended that its website would facilitate illegal firearm sales to dangerous persons” [para. 36] on the grounds that section 230(c)(1) contains no good faith requirement and so it is irrelevant what Armslist knew or should have known. [para. 37] The Court held that as sales from private arms dealers are lawful in Wisconsin and that as private dealers are not required to conduct background checks on firearm purchasers the feature on Armslist that allowed buyers to search for private dealers was a neutral tool which could be used for lawful purposes. It added that the other features Daniel argued should have been present – such as the ability to flag potential illegal activity – would be merely “voluntary precautions that the CDA permits but does not require.” [para. 38] The Court held that “[w]hether or not Armslist knew illegal content was being posted on its site, it did not materially contribute to the content’s illegality.” [para. 38] The Court stressed, with reference to the Backpage.com and Roommates.com cases that the intention of the website does not affect the application of the CDA and noted that “allowing plaintiffs to escape the CDA by arguing that an interactive computer service provider intended its neutral tools to be used for unlawful purposes would significantly diminish the protections offered by s. 230 (c)(1).” [para. 40]

In examining the third criterion that the plaintiff’s claims must treat the interactive computer service provider as a publisher, the Court stressed that this criterion turns on how the Court interprets the nature of the service provider and not how the plaintiff describes the defendant so as to avoid “artful pleading” [para. 43]. The Court dismissed the reasoning in J.S. v Vill. Voice Media Holdings LLC 359 P. 3d 714 (Wash. 2015) on the grounds that the Washington Supreme Court had ignored jurisprudence by inserting an intent exception into section 230(c)(1) and transforming a “neutral tool” to a “material contribution” through the examination of intent.

The Court held that all of Daniel’s claims required that Armslist be treated as a publisher and that the claims are “precisely the type of claim that is prohibited by s 230(c)(1), no matter how artfully pled.” [para. 51]

Accordingly, the Court dismissed Daniel’s negligence and negligence per se claims on the grounds that section 230(c)(1) does not include a good faith requirement (and so courts cannot look at questions of intent of knowledge) and that Armslist had to be treated as a publisher. The Court also dismissed Daniel’s claims for aiding and abetting tortious conduct, public nuisance and civil conspiracy on the grounds that as there was no allegation that Armslist served as anything more than a forum for Linn’s advertisement, Armslist must be treated as the publisher. The Court held that as the claims for negligent infliction of emotional distress, wrongful death and piercing the corporate veil were dependent on the other claims they also had to be dismissed.

Accordingly, the Court held that the Circuit Court was correct in granting Armslist’s motion to dismiss and reversed the decision of the Court of Appeals. [paras. 57-58] It held that as section 230(c)(1) prohibits any claims that treat Armslist as a publisher and as all Daniel’s claims did require that Armslist be treated as a publisher section 230(c)(1) operates to bar her claims against Armslist.

Judge Ann Walsh Bradley delivered a dissenting judgment. This judgment focused on the characterisation of Daniel’s claim as “artful pleading” and stated that it would have referred to what the majority called “artful pleading” as “the plain language of the complaint.” [para. 61] Describing the case as presenting “a discrete question of statutory interpretation” [para. 75], it stated that the majority’s error was in interpreting the CDA “by basing its decision not on the actual claims pled in the complaint but on its own manufactured interpretation of those claims” and that this meant that it failed to “recognize that here the design itself is the creation of content.” [para. 66]

The dissenting judgment noted that “[a]llowing and encouraging prohibited purchasers like Radcliffe to circumvent the laws governing licensed firearm dealers, Armslist incorporated a search function that allows potential gun buyers to exclude licensed dealers from their queries.” [para. 68] The Court referred to the Roommates.com case which had stressed that although the CDA did create immunity it ‘was not meant to create a lawless no-man’s-land on the Internet.’” [para. 77]

This judgment agreed with the Court of Appeals’ finding that the content for which Daniel sought liability was not the information provided by another content provider but rather the content created by Armslist itself. It noted that Daniel’s claim was not seeking to hold Armslist liable for the advertisements but for the “design and search functionality” of the website itself – that is, Armlist’s own content. [para. 80] The judgment noted that Daniel’s claim was solely based on the fact that Armlist’s search function allows users to eliminate sellers of firearms who are not required to conduct background checks and that Armslist is solely responsible for this feature of the website. It stressed that a complaint should be taken at face value – here, that Daniel was seeking liability against Armslist for Armslist’s conduct – and commented that the majority “ties itself in knots” by attempting to characterise Daniel’s claim as “artful pleading.” [para. 88] The judgment concluded that the majority “fails to recognize that here the design itself is content and ignores the distinction between first-party created content and third-party created content.” [para. 89]

The dissenting judgment would have found that the J.S. case was applicable in the present case and would have come to the same conclusion as the Court in that case that the website “did more than simply maintain, neutral policies prohibiting or limiting certain content” and so was not entitled to the immunity the CDA offers. [para. 84] The dissenting judgment commented that the majority was incorrect in holding that the J.S. case had established an “intent exception” to the CDA as it had “merely recognized a distinction that is manifest in the CDA’s text: the distinction between first-party created content and third-party created content.” [footnote 4]

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