Daniel v. Armslist, LLC (Communications Decency Act Liability)

In Daniel v. Armslist, LLC (2019 WI 47), the Wisconsin Supreme Court held that the federal Communications Decency Act (CDA) prohibited liability claims against a website for publishing a third-party seller’s advertisement.

The underlying claim is against Armslist.com, which connects arms buyers and sellers with each other. Radcliffe Haughton, who had been legally prohibited from firearm ownership, obtained a firearm via an ad posted on Armslist by a third-party seller and used the gun to kill four people. Yasmeen Daniel, the daughter of one of the victims, filed several state tort claims against Armslist. Armslist argued the CDA blocks Daniel’s claims.

The CDA states (§230(c)(1)) three criteria for a third-party host website like Armslist to be immune from claims against its content:

  1. The defendant is an “interactive computer service” that passively displays third-party sellers’ information.
  2. The claim is based on content provided by someone other than the defendant. The defendant must have “materially contributed” to the content in order for the claim to proceed.
  3. The claim would treat the defendant as a “publisher or speaker of” the content.

It was undisputed that Armslist is an interactive computer service, so the Supreme Court’s decision was based on the second and third criteria.

On the second criterion, Daniel argued the design and operation of Armslist meant it helped develop the content of the advertisement in question. However, the court determined Armslist is a “neutral tool” that can be used both for legal and illegal transactions. The CDA does hold interactive computer services liable for providing such neutral tools, even if the defendant knows the tools may be used illegally, and does not require services to implement proactive cautionary measures against illegal use. Since Armslist did not create the firearm advertisement at issue here, and instead just provided a neutral tool for third-party user transactions, it did not materially contribute to the content, barring Daniel’s claims.

On the third criterion, Daniel argued Armslist wasn’t a publisher or speaker of the content, but facilitated and encouraged illegal firearm sales. However, the court determined that Daniel’s claims all require the court to treat Armslist as a publisher or speaker. “Facilitating” the illegal sale is just a restatement of “publishing” the third-party advertisement.

Because Armslist is an interactive computer service that did not develop the content of the firearms advertisement at issue here, and because all the plaintiff’s claims require the court to treat Armslist as a publisher, the CDA blocks the plaintiff’s claims.

Justice Walsh Bradley’s dissent argues that the court misunderstands the complaint. According to the dissent, Daniel’s claim seeks to hold Armslist liable for the overall structure of its website, specifically a search function that allows users to filter out licensed dealers. Whereas Armslist would not be liable for the third-party firearm advertisement under the CDA, the dissent argues Armslist is a liable content provider with respect to the “content” of its site’s general structure.