The federal Communications Decency Act of 1996, in what is commonly referred to as “Section 230,” absolves from liability the “provider” of “an interactive computer service” when the plaintiff uses a theory of liability that “treat[s]” the provider “as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) and (e)(3) (Oct. 1998). The law in this area has been evolving, but, as at least one commentator has noted, operators of websites with online classifieds have been relatively successful with their use of Section 230 as a shield from liability.

Daniel v. Armslist, No. 2017AP344 (Wis. Ct. App. Apr. 19, 2018), a recent decision issued by District I of the Wisconsin Court of Appeals, written by Judge Brian Blanchard of District IV, is a notable exception. The court held that the defendant Armslist LLC, which operated Armslist.com, a website with classifieds for private-firearms sales, could be held liable for tort claims filed by the family of a mass-shooting victim. Section 230, according to the court, did not “protect a website operator from liability that arises from its own conduct in facilitating user activity.” Id. ¶ 3.

The case stems from a tragic mass shooting at a salon in Brookfield, Wisconsin. The shooter, Radcliffe Houghton, who was prohibited from possessing a firearm by a state-court order, allegedly purchased the firearm and ammunition by conducting a search on Armslist.com “that allowed him to exclude licensed dealers” and by responding to a classified ad that appeared on the website. Id. ¶¶ 1, 19.

The Milwaukee County Circuit Court dismissed the complaint, holding that the claims were barred by Section 230. In its view, the complaint allegedly only that Armslist.com “‘passively displays content that [was] created entirely by third parties’ and ‘simply maintain[ed] neutral policies prohibiting or eliminating certain content.’” Id. ¶ 2. The court of appeals reversed and remanded in a published opinion.

What motivated the court of appeals was its belief that a plain-meaning interpretation of Section 230 did not comport with Armslist’s broad reading and that Section 230’s preemption of state tort law should be presumed to be narrow. The court of appeals was further motivated by a number of allegations in the plaintiffs’ complaint, which, according to the plaintiffs, “affirmatively ‘encouraged’ transactions in which prohibited purchasers acquired firearms.’” Id. ¶ 13. The court quoted the following examples from the complaint in paragraph 13 of its opinion:

  • “Potential buyers were allowed to identify preferences for private sellers and to limit their search results to private sellers.”
  • While the website allegedly allowed users to “flag” ads for review by Armslist, “the website expressly prevented users from flagging content as purportedly criminal or illegal.”
  • “Armslist.com contained a warning that users must obey the law” and asked for a certification to that effect, but “it provided no guidance on specific laws governing firearms sales.”
  • “Users were not required to ‘register’ . . . ‘thereby encouraging anonymity.’”
  • The website did “not contain any restrictions for prospective buyers,” and it was, according to the plaintiffs, “designed to enable buyers to evade state waiting periods and other legal requirements.”

All this, according to the court of appeals, was sufficient for it to conclude that the plaintiffs’ complaint sought to hold Armslist liable “for its own alleged actions in designing and operating its website”—not merely for “publishing another’s information content.” Id. ¶ 52.

This issue was one of first impression in Wisconsin, and one commentator has described the court of appeals’ decision as an outlier. A petition for review has been filed, and we wouldn’t be surprised if the Wisconsin Supreme Court decides to grant it.