In 2012, Zina Daniel Haughton obtained a restraining order against her husband after he threatened to kill her. This restraining order prohibited the husband from possessing a firearm. Nonetheless, a few days later he posted a want ad on armslist.com seeking to buy a gun. He found a willing seller, arranged a meeting in a parking lot, and purchased the gun. The next day, he took the gun to Zina’s workplace and used it to murder Zina and two others before turning the gun on himself. Zina’s daughter, Yasmeen Daniel, sued Armslist for allowing the sale to occur, and has now asked the Supreme Court to review the Wisconsin Supreme Court’s unfavorable ruling.
Daniel’s lawsuit against Armslist (often called the Craigslist for guns) alleged that Armslist designed the site to easily facilitate firearms sales for otherwise prohibited possessors, like Zina’s husband. For example, she alleged that Armslist allows a prospective purchaser to filter sellers to find “private sellers” that are not required to perform background checks before selling firearms. Nor does the website require users to create accounts but instead allows them to operate anonymously. She also alleged that Armslist does not take action to delete illegal or unlawful posts.
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.
Armslist argued that Section 230 of the Communications Decency Act (“CDA”) shielded it from the plaintiff’s tort claims. “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.’” Entities like Armslist are not liable for hosting third party content, but may be held responsible for their own content. Courts typically apply a “material contribution” test to discern whether the service provider developed sufficient content to be held liable for its own role.
After an initial victory below, the Wisconsin Supreme court held that Armslist was entitled to CDA immunity because it did not materially contribute to the advertisement Zina’s husband used. And its design features were optional features the CDA allowed but did not require. In short, “[w]hether or not Armslist knew illegal content was being posted on its site, it did not materially contribute to the content’s illegality.”
Daniel’s cert petition poses the question for the Court as whether intending to facilitate tortious or illegal conduct brings the case out of the CDA’s immunity provision:
Does the Communications Decency Act, 47 U.S.C. § 230’s prohibition on treating providers of interactive computer services as publishers or speakers of third-party information posted on their sites, bar states from imposing civil liability on website owners or operators for their own design, content and conduct intended to facilitate and profit from tortious or criminal activity (as the Wisconsin Supreme Court, the First Circuit, and other courts have held), or does it bar only those claims that seek to impose liability on website owners or operators for third-party posts (like the Washington Supreme Court, and the Seventh and Ninth Circuits have held)?
There’s been some amicus activity in support of the petition, and the Court has already distributed the petition for its October 1 conference. We could know soon whether it will take up yet another case where “mass shooting victims [seek] to use tort law against someone other than the perpetrator.”