Does the Communications Decency Act (CDA) provide immunity to a website against allegations that its design and operation enabled a third party to buy a gun, which the third party then used as a murder weapon? In Daniel v. Armslist, the Wisconsin Supreme Court said “yes,” reversed the intermediate court of appeals, and reinstated an order dismissing all claims against the website (Armslist) at the pleadings stage.
While the CDA grants broad immunity to websites for publishing information provided by third parties, it does not grant immunity for a website’s own statements or conduct. Thus, a frequently-litigated question in cases in which a website asserts a CDA defense is whether the plaintiff’s claims are based on content the website created or developed, or instead are based on content provided by a user. Plaintiffs in such a case may argue that the defendant company designed its website so as to elicit unlawful content, thereby taking a direct role in developing that content, so that CDA immunity does not apply. The plaintiff made that argument in Daniel v. Armslist, but the Wisconsin Supreme Court rejected it, holding that the website’s design choices did not materially contribute to third-party users’ content. (Reed Smith represented Armslist in connection with its successful petition for discretionary review in that Court.)
Armslist is a website that allows buyers and sellers of firearms to exchange information and contact one another. It allows buyers to search for private sellers, which need not conduct background checks. An estranged husband went in search of a gun, allegedly found a private seller on Armslist, contacted him, and later purchased a gun from the private seller in a local parking lot (not through the website). The purchase was illegal; Wisconsin law prohibited the husband from purchasing a gun because he was the subject of a restraining order. The husband used the gun to kill his wife and other victims. The administrator of the decedent’s estate sued Armslist, alleging that it had negligently or intentionally designed and operated its website to facilitate unlawful transactions in firearms, with the foreseeable result that an unlawful purchaser would use a gun to harm someone else.
The Wisconsin Supreme Court held that each of Armslist’s design features could be used for a lawful purpose, and so did not contribute to or develop unlawful content or conduct. The fact that a user could choose to use a website feature for unlawful ends did not cause the website to lose CDA immunity, even if the operator knew that some users might misuse it. The Court summarized its bright-line rule as follows: “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.”
Justice Bradley, dissenting, would have allowed the plaintiff’s claims against Armslist to proceed because “design itself is content”—namely, Armslist’s content. On this theory, Armslist could be held liable for tort claims on the ground that its website design and search features were a substantial factor in causing unlawful conduct. The problem with this theory is that it fails to account for the source of the duty that Armslist allegedly breached. The website chose to create a search function, but a search function by itself does not create any risk of harm. The alleged risk of harm arose from the third-party content that Armslist published—private offers to sell firearms—and the plaintiff sought to impose liability on the website because it published that third-party information. A search function enables a user to find content, but so does the very existence of the website, which the CDA allows and encourages.
The majority’s bright-line rule should help courts and litigants evaluate whether an aspect of the website’s design materially contributed to allegedly illegal third-party content or conduct. Under its test, a website does not lose CDA immunity for publishing third-party information unless an aspect of its design had no lawful purpose and therefore directly caused or contributed to the illegality of the third-party information. While the Wisconsin Supreme Court’s decision is binding only in Wisconsin, its synthesis of federal authorities may prove persuasive in federal courts as well.