                                                               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,

      v.

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

                                                    4
                                                                             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

                                             5
                                                                     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.



                                           6
                                                                          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.

                                              7
                                                                      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

                                              9
                                                                        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

                                             10
                                                                               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).

                                             11
                                                                           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

                                              12
                                                                     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.



                                          13
                                                                            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

                                               14
                                                                                    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

                                                15
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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

                                              16
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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,

                                          17
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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
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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
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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
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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
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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
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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

                                                   6
                                                                               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.



                                                   7
                                                                  No.   2017AP344.awb


     ¶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.


                                          8
                                                                       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)
                               9
                                                                               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).


                                               10
                                                   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.


                                11
    No.   2017AP344.awb




1
