Yasmeen Daniel v. Armslist, LLC

2019 WI 47

SUPREME COURT OF WISCONSIN
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.
2
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.

3
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,

Armslist, LLC, an Oklahoma Limited Liability
FILED
Company, Brian Mancini and Jonathan Gibbon,
APR 30, 2019
Defendants-Respondents-Petitioners,
Sheila T. Reiff
Clerk of Supreme Court
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 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 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

1
Daniel v. Armslist, LLC, 2018 WI App 32, 382 Wis. 2d 241,
913 N.W.2d 211.
2
The Honorable Glenn H. Yamahiro of Milwaukee County
presided.
3
All references to federal statutes are to the 2018 version
unless otherwise noted.
4
An "interactive computer service" is "any information
service, system, or access software provider that provides or
enables computer access by multiple users to a computer server,
including specifically a service or system that provides access
to the Internet and such systems operated or services offered by
libraries or educational institutions." 47 U.S.C. § 230(f)(2).
(continued)
2
No. 2017AP344

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 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(1m)(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

It is uncontested that Armslist is an interactive computer
service provider.
5
Because we review defendant Armslist, LLC's motion to
dismiss, we accept all of the factual allegations in Daniel's
complaint as true. See Data Key Partners v. Permira Advisers
LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693.
6
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.

3
No. 2017AP344

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

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No. 2017AP344

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

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No. 2017AP344

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

7
The complaint also asserts causes of action against Devin
Linn and the Radcliffe Haughton Estate that are not at issue
here.

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No. 2017AP344

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.

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No. 2017AP344

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.

8
No. 2017AP344

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

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No. 2017AP344

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

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No. 2017AP344

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).

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No. 2017AP344

¶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

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No. 2017AP344

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. 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 otherwise provides," effectively writing § 230(c)(1)'s
immunity provision out of the statute. Roommates.com, 521 F.3d
at 1167.
¶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

8 Linn, not Armslist, created the firearm advertisement.
The issue in this case is whether Armslist helped to "develop"
the content of the advertisement.

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No. 2017AP344

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 required renters to list their roommate

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No. 2017AP344

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 Roomates.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

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No. 2017AP344

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

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No. 2017AP344

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 could be utilized for
proper or improper purposes." Id. (quoting Roommates.com, 521
F.3d at 1172). Additionally, there is no good faith requirement

in § 230(c)(1). Therefore, an interactive computer service
provider will not be liable for providing neutral tools "even if
a service provider knows that third parties are using such tools
to create illegal content." Id. at 1198 (citations omitted).
¶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,

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and included false and misleading information such as fake
customer reviews. Id. at 164-65. LeadClick's employees

directed affiliates to make specific edits to advertisements in
order to avoid being "crazy [misleading]." For example, a
LeadClick employee told an affiliate to make a false
advertisement appear "more 'realistic'" by lowering the amount
of falsely claimed weight loss. Id. at 176.
¶31 The Federal Trade Commission brought an action for
deceptive trade practices, and the Second Circuit held that the
CDA did not immunize LeadClick. Id. LeadClick "developed" the
unlawful advertisements by materially contributing to the
illegality of the deceptive content, making it an information

content provider of the content at issue. Id. For this reason,
the claim was not based on content provided by another
information content provider, and accordingly, there was no CDA
immunity. Id.
¶32 The concept of "neutral tools" provides a helpful
analytical framework for figuring out whether a website's design
features materially contribute to the unlawfulness of third-
party content. A "neutral tool" in the CDA context is a feature
provided by an interactive computer service provider that can
"be utilized for proper or improper purposes." Goddard, 640
F. Sup. 2d at 1197 (citing Roommates.com, 521 F.3d at 1172). A
defendant who provides a neutral tool that is subsequently used
by a third party to create unlawful content will generally not
be considered to have contributed to the content's unlawfulness.
See Roommates.com, 521 F.3d at 1169. See also Herrick v.

18
No. 2017AP344

Grindr, LLC, 306 F. Supp. 3d 579, 589 (S.D.N.Y. 2018) ("An

[interactive computer service provider] may not be held liable
for so-called 'neutral assistance,' or tools and functionality
that are available equally to bad actors and the app's intended
users") (citations omitted).
¶33 Examples of such neutral tools include a blank text
box for users to describe what they are looking for in a
roommate, Roommates.com, 521 F.3d at 1173, a rating system that
allows consumers to award businesses between one and five stars
and write reviews, Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270
(9th Cir. 2016), and a social media website that allows groups
to create profile pages and invite members. Klayman v.

Zuckerberg, 753 F.3d at 1358. All of these features can be used
for lawful purposes, so the CDA immunizes interactive computer
service providers from liability when these neutral tools are
used for unlawful purposes. See § 230(c)(1).
¶34 This is true even when an interactive computer service
provider knows, or should know, that its neutral tools are being
used for illegal purposes. In Carafano v. Metrosplash.com,
Inc., 339 F.3d 1119 (9th Cir. 2003), for example, an actress
sued a dating website after a third party created a dating
profile in her name and posted her address. Id. at 1121. She
asked the website operator to remove the post and the operator
initially refused, although it was later taken down. Id. at
1122. Despite the operator's awareness of the unlawful content,
the operator was immune under the CDA because it was not
responsible for developing the content. Id. at 1125. Instead,

19
No. 2017AP344

it merely provided a neutral tool that could be used for lawful
or unlawful purposes. Id.; see also Roommates.com, 521 F.3d at

1171 (explaining that in Carafano, "the website provided neutral
tools, which the anonymous dastard used to publish the libel").
¶35 Finally, the Ninth Circuit clarified in Roommates.com
that the difference between a neutral design feature and the
development of unlawful content is the potential for lawful use.
If a dating website had required users to enter their race, sex,
and sexual orientation through the same drop-down menus as used
by Roommates.com, and filtered results based on those
characteristics, the dating website would retain its CDA
immunity. Id. at 1169. This is because "[i]t is perfectly
legal to discriminate along those lines in dating." Id. at 1169
n.23. In contrast, filters based on these characteristics have
no lawful use in the housing context, so they are not "neutral
tools" in the housing context. Stated otherwise, the filters
can be used only for unlawful purposes in a housing context.
Therefore, if a website's design features can be used for lawful
purposes, the CDA immunizes the website operator from liability
when third parties use them for unlawful purposes.
¶36 In this case, Armslist did not develop the content of
Linn's firearm advertisement, so Armslist is not an information
content provider with respect to the advertisement.9 Daniel's

9 To the extent Daniel argues that some of her claims are
not based on the content of the advertisement at all, this
argument is addressed in Section II. D.

20
No. 2017AP344

argument is based primarily on the assertion that Armslist's
design features make it easier for prohibited purchasers to
illegally obtain firearms. She asserts that Armslist should
have known, actually knew, or even intended that its website
would facilitate illegal firearm sales to dangerous persons.
¶37 One obvious problem with Daniel's argument is that
§ 230(c)(1) contains no good faith requirement. Therefore, the
issue is not whether Armslist knew, or should have known, that
its site would be used by third parties for illegal purposes.
Instead, the issue is whether Armslist was an information
content provider with respect to Linn's advertisement.
Armslist.com's provision of an advertising forum and the related

search functions are all "neutral tools" that can be used for
lawful purposes. Sales of firearms by private sellers are
lawful in Wisconsin. Further, private sellers in Wisconsin are
not required to conduct background checks, and private sales are
not subject to any mandatory waiting period. Accordingly, the
option to search for offers from private sellers is a tool that

may be used for lawful purposes.
¶38 The remainder of the design features referenced in
Daniel's complaint——lack of a "flag" option for illegal
activity, failing to require users to create an account, failure
to create restrictions on who may post or view advertisements,
and failing to provide sufficient legal guidance to sellers——are
voluntary precautions that the CDA permits but does not require.
See, e.g., Cohen v. Facebook, Inc., 252 F. Supp. 3d 140, 158
(E.D.N.Y. 2017) (suit against Facebook for failure to adequately

21
No. 2017AP344

screen terrorist activity was barred by the CDA); Chi. Lawyers'

Comm., 519 F.3d at 670 (explaining that the CDA allows an
interactive computer service provider to be "indifferent" to the
content of third-party posts). Whether or not Armslist knew
illegal content was being posted on its site, it did not
materially contribute to the content's illegality.
¶39 Daniel attempts to evade the CDA by asserting that
creators of armslist.com intended for the website to make
illegal firearm sales easier. This is an attempt to distinguish
this case from the litany of cases dismissing suits against
website operators who failed to screen unlawful content. As the
First Circuit has recognized, however, the allegation of intent

is "a distinction without a difference" and does not affect CDA
immunity. Backpage.com, 817 F.3d at 21.
¶40 The Ninth Circuit in Roommates.com explained the
dangers of allowing allegations of intent or implied
encouragement to defeat motions to dismiss in CDA cases:

[T]here will always be close cases where a clever
lawyer could argue that something the website operator
did encouraged the illegality. Such close cases, we
believe, must be resolved in favor of immunity, lest
we cut the heart out of section 230 by forcing
websites to face death by ten thousand duck-bites,
fighting off claims that they promoted or encouraged——
or at least tacitly assented to——the illegality of
third parties. Where it is very clear that the
website directly participates in developing the
alleged illegality . . . immunity will be lost. But
in cases of enhancement by implication or development
by inference . . . section 230 must be interpreted to
protect websites not merely from ultimate liability,
but from having to fight costly and protracted legal
battles.

22
No. 2017AP344

Roommates.com, 521 F.3d at 1174-75. Therefore, 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 § 230(c)(1).
¶41 The text and purpose of the CDA require us to reject
Daniel's intent argument. Again, § 230(c)(1) contains no good
faith requirement; we analyze only whether Armslist materially
contributed to the unlawfulness of third-party content such that
it "developed" the content as provided in § 230(f)(3). Because
it did not, it is not an information content provider with
respect to the content; therefore, Daniel's claims depend on

content provided only by third parties.
D. Treatment as Publisher or Speaker
¶42 Section 230(c)(1) of the CDA prohibits only those
claims that would treat the interactive computer service
provider as the "publisher or speaker" of third-party content.
See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107 (9th Cir.
2009) (concluding that the CDA did not bar a plaintiff's
promissory estoppel claim against an interactive computer
service provider who had promised to remove unlawful third-party
content and then failed to do so, as the claim was not based on
its publication of unlawful content, but on a promise that
induced reliance and was not kept). If a plaintiff's claims do
not require the interactive computer service provider to be
treated as a publisher or speaker, then the CDA does not
immunize the interactive computer service provider from suit.

23
No. 2017AP344

¶43 However, courts do not merely ask whether the
plaintiff's complaint calls the defendant a "publisher" or
"speaker." "[W]hat matters is not the name of the cause of
action . . . what matters is whether the cause of action
inherently requires the court to treat the defendant as the
'publisher or speaker' of content provided by another." Barnes,

570 F.3d at 1101-02. In other words, "courts must ask whether
the duty that the plaintiff alleges the defendant violated
derives from the defendant's status or conduct as a 'publisher
or speaker.'" Id. at 1102. This rule 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. Universal Commc'n Sys.,
Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); see also
Kimzey, 836 F.3d at 1266 ("[w]e decline to open the door to such
artful skirting of the CDA's safe harbor provision.").
¶44 In Doe v. Myspace, Inc., 528 F.3d 413 (5th Cir. 2008),
for example, a child was sexually assaulted after creating a
profile on social media website myspace.com and using the site
to arrange a meeting with her assailant. Id. at 416. The
plaintiffs sued Myspace, asserting that their claims were not
based on Myspace's publication of third-party content, but only
on its "failure to implement basic safety measures to protect
minors." Id. at 419. The Fifth Circuit rejected the
plaintiffs' attempt to artfully plead their claims only in terms
of Myspace's own actions: "[t]heir allegations are merely

24
No. 2017AP344

another way of claiming that MySpace was liable for publishing
the communications and they speak to MySpace's role as a
publisher of online third-party-generated content." Id. at 420.

Stated otherwise, the duty that MySpace allegedly violated——the
duty to implement safety measures to protect minors——derived
from the defendant's status as the publisher or speaker of
content provided by another.
¶45 The First Circuit came to a similar conclusion in
Backpage.com, LLC, 817 F.3d 12. Backpage.com was a classified
advertising website similar to Craigslist, allowing third-party
users to post goods or services for sale in different
categories. Id. at 16. Three minors became victims of sex

trafficking after third parties advertised them on
backpage.com's "Adult Entertainment" section. Id. at 17. The
plaintiffs sued Backpage.com for "a course of conduct that
allegedly amounts to participation in sex trafficking," in
violation of the Trafficking Victims Protection Reauthorization
Act of 2008 (TVPRA). Id. at 18. The claims were based on the
design features of backpage.com, such as the lack of phone or
email verification, the stripping of metadata from uploaded
photographs, and the failure of the website's automated
filtering system to sufficiently block prohibited terms. Id. at
17, 20. The plaintiffs attempted to distinguish cases such as
Myspace by alleging that Backpage.com deliberately designed its
website to make sex trafficking easier. Backpage.com, LLC, 817
F.3d at 17, 21.

25
No. 2017AP344

¶46 The First Circuit held that the CDA barred the
plaintiffs' claims as a matter of law. Id. at 24. Despite the

plaintiffs' efforts to plead their claims only in terms of
Backpage.com's acts, third-party content was "an essential
component of each and all of the appellants' TVPRA claims." Id.
at 22. In other words, the duty Backpage.com allegedly violated
derived from its role as a publisher. It did not affect the
First Circuit's analysis that Backpage.com was alleged to have
deliberately designed its website to facilitate sex trafficking.
As mentioned earlier, § 230(c)(1) contains no good faith
requirement, so "[s]howing that a website operates through a
meretricious business model is not enough to strip away [the

CDA's] protections." Id. at 29.
¶47 The court of appeals relied heavily on J.S. v. Vill.
Voice Media Holdings, L.L.C., 359 P.3d 714 (Wash. 2015). In
J.S., which involved claims against the operator of backpage.com
on substantially the same facts as in Jane Doe No. 1 v.
Backpage.com, LLC, the plaintiffs made the same argument as the
Jane Doe No. 1 plaintiffs, asserting that backpage.com was
deliberately designed to facilitate sex trafficking. The
Washington Supreme Court concluded that the plaintiffs'
allegation of intent was enough to escape the reach of the CDA.
J.S., 359 P.3d at 718.
¶48 J.S. is unpersuasive for two reasons. First,
Washington's pleading standard is much different than
Wisconsin's. Under Washington law, a complaint may be dismissed
for failure to state a claim "only if it appears beyond a

26
No. 2017AP344

reasonable doubt that no facts exist that would justify
recovery." Id. at 716 (citation omitted). Washington courts

may consider "hypothetical facts" that were not pled.
Therefore, a complaint may not be dismissed "if any set of facts
could exist that would justify recovery," whether such facts
were pled in the complaint or not. Hoffer v. State, 755 P.2d
781, 785 (Wash. 1988). For this reason, Washington courts may
grant motions to dismiss "only in the unusual case in which
plaintiff includes allegations that show on the face of the
complaint that there is some insuperable bar to relief." J.S.,
359 P.3d at 716. This pleading standard is inconsistent with
Wisconsin's pleading standard. See Data Key Partners, 356

Wis. 2d. 665, ¶21 ("a complaint must plead facts, which if true,
would entitle the plaintiff to relief.").
¶49 More importantly, the Washington Supreme Court ignored
the text of the CDA, and the overwhelming majority of cases
interpreting it, by inserting an intent exception into
§ 230(c)(1). The Washington Supreme Court opined that "[i]t is
important to ascertain whether in fact Backpage designed its
posting rules to induce sex trafficking . . . because 'a website
helps to develop unlawful content, and thus falls within the
exception to section 230, if it contributes materially to the
alleged illegality of the conduct.'" J.S., 359 P.3d at 718
(citing Roommates.com, 521 F.3d at 1168). Underlying this
statement is the implicit assumption that a website operator's
subjective knowledge or intent may transform what would
otherwise be a neutral tool into a "material contribution" to

27
No. 2017AP344

the unlawfulness of third-party content. As explained in
Section II. C., however, this assumption has no basis in the
text of § 230(c)(1). The relevant inquiry, regardless of
foreseeability or intent, is "whether the cause of action
necessarily requires that the defendant be treated as the
publisher or speaker of content provided by another."
Backpage.com, LLC, 817 F.3d at 19 (citing Barnes, 570 F.3d at

1101-02).
¶50 In this case, all of Daniel's claims against Armslist
require the court to treat Armslist as the publisher or speaker
of third-party content. Daniel's negligence claim asserts that
Armslist had a duty to exercise "reasonable care" in

"facilitating" the sale of guns, and had a duty to employ
"sufficient questioning and screening" to reduce the risk of
foreseeable injury to others. The complaint alleges that
Armslist breached this duty by designing armslist.com to
"facilitate" illegal gun sales, as well as by failing to
implement sufficient safety measures to prevent the unlawful use
of its website.
¶51 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. The complaint alleges that Armslist
breached its duty of care by designing a website that could be

used to facilitate illegal sales, failing to provide proper
legal guidance to users, and failing to adequately screen
unlawful content. Restated, it alleges that Armslist provided

28
No. 2017AP344

an online forum for third-party content and failed to adequately
monitor that content. The duty Armslist is alleged to have
violated derives from its role as a publisher of firearm
advertisements. This is precisely the type of claim that is
prohibited by § 230(c)(1), no matter how artfully pled.
¶52 That Armslist may have known that its site could
facilitate illegal gun sales does not change the result.
Because § 230(c)(1) contains no good faith requirement, courts
do not allow allegations of intent or knowledge to defeat a
motion to dismiss. See, e.g., Roommates.com, 521 F.3d at 1174-

75. Regardless of Armslist's knowledge or intent, the relevant
question is whether Daniel's claim necessarily requires Armslist

to be treated as the publisher or speaker of third-party
content. Because it does, the negligence claim must be
dismissed.
¶53 The negligence per se claim is dismissed for the same
reason. Daniel alleges that Armslist "violated federal, state,
and local statutes, regulations, and ordinances" by facilitating
Haughton's purchase of a firearm. It is true that in Wisconsin,
"'one who violates a criminal statute must be held negligent per
se in a civil action for damages based on such violation.'"
Bennett v. Larsen Co., 118 Wis. 2d 681, 692-93, 348 N.W.2d 540
(1984). As with the negligence claim, however, Daniel's only
basis for alleging that Armslist violated any statute,
regulation, or ordinance requires Armslist to be treated as the
publisher or speaker of Linn's post.

29
No. 2017AP344

¶54 Similarly, the aiding and abetting tortious conduct
claim asserts that Armslist "aided, abetted, encouraged, urged,
and acquiesced in" Linn's illegal sale to Radcliffe by
"brokering" the transaction. However, there is no allegation
that Armslist's participation in the transaction went beyond
creating a forum for Linn's advertisement and failing to
prohibit Radcliffe from viewing the advertisement. This claim
would therefore require Armslist to be treated as the publisher
of the advertisement and must be dismissed.
¶55 The public nuisance claim is dismissed for the same
reason. Daniel asserts that Armslist "negligently, recklessly,
and/or intentionally facilitate[ed] the sale of vast quantities

of guns" to prohibited purchasers, resulting in a "substantial
and unreasonable interference with the public's health, safety,
convenience, comfort, peace, and use of public property and/or
private property." The act or omission alleged to have created
the nuisance is Armslist's provision of a forum for third
parties to post and view firearms advertisements. In other

words, the duty Armslist is alleged to have violated derives
from its role as a publisher of third-party content.
Accordingly, the public nuisance claim is dismissed.
¶56 Daniel's civil conspiracy claim does not allege that
Armslist conspired with Linn to sell a firearm to a known
prohibited purchaser; rather, it alleges that Armslist, LLC's
members conspired with one another to create a marketplace for
illegal firearm sales, and "advised, encouraged, or assisted"
Armslist, LLC in facilitating unlawful firearm sales. Again,

30
No. 2017AP344

the complaint does not allege that Armslist's role in
facilitating these illegal transactions went beyond creating a
forum on which third parties could post and view firearm
advertisements. As with the claims discussed above, the civil
conspiracy claim is another way of stating that Armslist is
liable for publishing third-party content. The civil conspiracy
claim is therefore dismissed.
¶57 All of Daniel's remaining claims——negligent infliction
of emotional distress, wrongful death and piercing the corporate
veil——are dependent on the claims we have discussed above.
Because all of those claims have been dismissed, Daniel's claims
for negligent infliction of emotional distress, wrongful death

and piercing the corporate veil are dismissed as well.
Accordingly, the circuit court did not err when it granted
Armslist's motion to dismiss
III. CONCLUSION
¶58 We conclude that 47 U.S.C. § 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.

31
No. 2017AP344

By the Court.—The decision of the court of appeals is
reversed.
¶59 SHIRLEY S. ABRAHAMSON, J., withdrew from participation
before oral argument.

32
No. 2017AP344.awb

¶60 ANN WALSH BRADLEY, J. (dissenting). The majority
views Daniel's complaint as merely "artful pleading," disguising
her true claims against Armslist. By using the phrase "artful
pleading," the majority implicitly acknowledges that the
language of the complaint states a claim. In essence, it
posits, "I know that's what it says, but that's not what it
really means."
¶61 What the majority would call "artful pleading," I
would instead call the plain language of the complaint——which at

this stage of the proceedings, the law mandates we accept as
true.1
¶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 owning a firearm for a period of four years.
Id.; see Wis. Stat. § 941.29(1m)(f).2

¶63 Within two days Radcliffe had a gun in his hands. See
Majority op., ¶3. And within three days, Radcliffe went to

1 For purposes of our review, we must accept the allegations
of Daniel's complaint as true. PRN Assocs. LLC v. State, DOA,
2009 WI 53, ¶27, 317 Wis. 2d 656, 766 N.W.2d 559; see Meyers v.
Bayer AG, Bayer Corp., 2007 WI 99, ¶81, 303 Wis. 2d 295, 735
N.W.2d 448 (Roggensack, J., dissenting) (citation omitted).
2 Wis. Stat. § 941.29(1m)(f) provides that a person who
possesses a firearm is guilty of a Class G felony if "[t]he
person is subject to an injunction issued under s. 813.12 or
813.122 . . . that includes notice to the respondent that he or
she is subject to the requirements and penalties under this
section and that has been filed under s. 813.128(3g)."

1
No. 2017AP344.awb

Zina's place of employment, and in front of her daughter, shot
and killed Zina. He also murdered two other people, injured
four others, and then shot and killed himself. Id., ¶4.

¶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 Decency Act (CDA), which affords
immunity to websites if a plaintiff's claims treat the website
"as the publisher or speaker of any information provided by
another information content provider." 47 U.S.C. § 230(c)(1).
The allegations here, however, assert liability for Armslist not
based on content provided by another. Rather, the allegations
assert liability based on design content Armslist alone created.
¶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.

3Examples of design content are ubiquitous. One need look
no further than the design content of algorithms, used to
influence everything from where we shop to the sentencing of
criminals. See State v. Loomis, 2016 WI 68, 371 Wis. 2d 235,
881 N.W.2d 749. The parameters of "content" extend beyond
simply words on a page.

2
No. 2017AP344.awb

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 18 U.S.C.

§§ 922(t); 18 U.S.C. § 923(a). Allowing 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.
¶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

3
No. 2017AP344.awb

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 transfers,
state-imposed waiting periods, and state-specific assault weapon
restrictions."
¶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

4
No. 2017AP344.awb

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, 47 U.S.C.
§ 230(c)(1), which provides: "No provider or user of an
interactive computer service shall be treated as the publisher

5
No. 2017AP344.awb

or speaker of any information provided by another information
content provider."
¶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." 47 U.S.C. § 230(e)(3).
The CDA is a purveyor of immunity, but it "was not meant to

create a lawless no-man's-land on the Internet." Fair Hous.

Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1164 (9th Cir. 2008).
¶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

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No. 2017AP344.awb

Armslist, and there is no language in the Act immunizing
Armslist from liability based on content that it creates." Id.,

¶44.
¶80 I agree with the court of appeals' unanimous
determination. A close reading of Daniel's complaint indicates
that the complaint is not seeking to hold Armslist liable for
any content created by a third party. The complaint does not
allege that Armslist is liable due to the advertisements posted
by Radcliffe and Linn. Instead, it alleges that Armslist is

liable for its own content, i.e. the design and search

functionality of its website.
¶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.

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¶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.

4 The majority's attempt to distinguish and dismiss J.S. is
unpersuasive. See majority op., ¶¶48-49. First, the majority
fails to explain how using Wisconsin's pleading standard instead
of Washington's would change the result. Contrary to the
majority's assertion, the J.S. court did not base its
determination on any "hypothetical facts." Rather, it took the
allegations of the complaint as true, just as we do in
Wisconsin. See J.S. v. Village Voice Media Holdings, LLC, 359
P.3d 714, ¶12 (Wash. 2015) ("Viewing J.S.'s allegations in the
light most favorable to J.S., as we must at this stage, J.S.
alleged facts that, if proved true . . . "); Data Key Partners
v. Permira Advisers LLC, 2014 WI 86, ¶18, 356 Wis. 2d 665, 849
N.W.2d 693 ("When we review a motion to dismiss, factual
allegations in the complaint are accepted as true for purposes
of our review.").

Second, the J.S. court did not establish an "intent
exception" to CDA immunity as the majority claims, but merely
recognized a distinction that is manifest in the CDA's text:
the distinction between first-party created content and third-
party created content. See majority op., ¶49.

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No. 2017AP344.awb

¶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, and state-specific assault weapon
restrictions." Again, no one but Armslist is alleged to be
responsible for this design.5

5Justice Wiggins's concurrence in J.S. is particularly
insightful in examining the facts alleged in Daniel's complaint
in this case. Narrowly interpreting the CDA, Justice Wiggins
wrote:

Plaintiffs do not argue that Backpage.com necessarily
induces the posting of unlawful content by merely
providing an escort services category. Instead,
plaintiffs allege that Backpage.com deliberately
designed its posting rules in a manner that would
enable pimps to engage in sex trafficking, including
in the trafficking of minors, and to avoid law
enforcement. These factual allegations do not suggest
that Backpage.com is being treated as a "publisher or
speaker."

J.S. v. Village Voice Media Holdings, 359 P.3d 714, ¶30
(Wash. 2015) (Wiggins, J., concurring); see also Mary Graw
Leary, The Indecency and Injustice of Section 230 of the
(continued)
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No. 2017AP344.awb

¶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).

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No. 2017AP344.awb

should take the complaint at face value.6 Accordingly, Armslist
is not entitled to CDA immunity.
¶91 For the foregoing reasons, I respectfully dissent.

6 Further, I observe that my conclusion is not at odds with
the bulk of CDA jurisprudence. For example, in Zeran v. America
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), a seminal CDA
case, the Fourth Circuit determined that "§ 230 precludes courts
from entertaining claims that would place a computer service
provider in a publisher's role. Thus, lawsuits seeking to hold
a service provider liable for its exercise of a publisher's
traditional editorial functions——such as deciding whether to
publish, withdraw, postpone or alter content——are barred."

Zeran and its progeny are not disturbed by my conclusion.
My analysis and Zeran peacefully coexist because they deal with
different factual allegations——liability for third party content
vs. liability for first party content.

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