We've written a few times about an unfortunate case out of Wisconsin. Someone used the Armslist platform to find a gun to buy and then killed people with it. This led to a lawsuit against Armslist seeking to hold it liable for this terrible crime, which then led to a ruling by the Wisconsin Court of Appeals that ignored two decades of Section 230 precedent to allow the lawsuit to go forward. Last year the Copia Institute filed an amicus brief urging the Wisconsin Supreme Court to review the Court of Appeals decision, and, after it granted that review, this year we filed another brief urging it to reverse the decision. This week it did.
The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. 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, 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. [p. 2-3]
The decision was lengthy, and referenced a litany of cases interpreting Section 230, nearly all of which the Court of Appeals had earlier discounted. Like this one, Section 230 cases are often tough cases. Terrible things have happened, and there can be a tremendous, and completely reasonable, temptation by courts to find some way to provide a remedy. Even if it means trying to hold an Internet platform liable, and even if Section 230 should prevent them from doing so.
But as we pointed out in our briefs, there is always more at stake than just the case at hand. Whittling away at Section 230's important protection because one plaintiff may be worthy leaves all the other worthy online speech we value vulnerable. It is protected only when platforms are protected. When their protection is compromised, so is all the speech they carry. Which is why it is so important for courts to resist the emotion stirred by instant facts and clinically apply the law as it was written, so that instead of helping just one person it will help everyone.
Which is what the Wisconsin Supreme Court has now done. As we recently saw recently with the Herrick v. Grindr case, another case with grotesque facts but claims that fell easily within Section 230's intended purview, plaintiffs often try to "artfully plead" around Section 230 to make their complaint seem like something other than trying to hold a platform liable for what another has said online. And like the Second Circuit did there, here the Wisconsin Supreme Court also refused to allow Section 230 to be circumvented.
"[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."). [p. 24]
Ultimately this decision joins nearly all the other major Section 230 decisions over the years where courts have been able to remain focused on that bottom line and recognize that Section 230 prevents these lawsuits. In fact, as part of its decision the Wisconsin Supreme Court even called out a sister state supreme court that had not.
More importantly, [in J.S. v. Village Voice Media Holdings] 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 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). [p. 27-28]
Unlike the Supreme Court in Washington, the Supreme Court in Wisconsin could see how the bigger picture required it not to read extra requirements into Section 230 that Congress had not put there. And so it has now joined most other courts that have let Section 230 do its job ensuring online speech can remain protected.
