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,
v.

Intervening Plaintiff,

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.
APPEAL NO. 2017-AP-344
Milwaukee County Case No. 15-CV-8710

 BRIEF OF AMICUS CURIAE
FLOOR64, INC D/B/A THE COPIA INSTITUTE AND THE
ELECTRONIC FRONTIER FOUNDATION
GIMBEL, REILLY, GUERIN
& BROWN LLP
Kathryn A. Keppel
(State Bar No. 1005149)
Steven C. McGaver
(State Bar No. 1051898)
330 E. Kilbourn Ave., Suite 1170
Milwaukee, WI 53202
(414) 271-1440

CATHERINE R. GELLIS, ESQ.
PO Box 2477
Sausalito, CA 94966
cathy@cgcounsel.com
(202) 642-2849

Counsel for Amicus Curiae Floor64, Inc., d/b/a The Copia Institute
and the Electronic Frontier Foundation

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 TABLE OF CONTENTS
Page
INTRODUCTION ........................................................................... 1
ARGUMENT ................................................................................... 2
I. If the Decision Stands, It Will Chill Online Speech and
Innovation. ............................................................................ 2
A. This Is a Case about Holding Platforms Liable for
User Speech, Which Section 230 Forbids. ...................... 2
B. Online Speech and Innovation Depend on Internet
Platforms Being Able to Depend on Robust
Section 230 Protection. .................................................... 4
II. The Court of Appeals Erred in Refusing to Apply
Section 230 to Armslist......................................................... 6
A. Congress Intended Section 230 to Apply to All
Internet Platforms, Including Those Like Armslist ...... 6
B. Congress Pre-Empted States from Interfering
with the Application of Section 230 to Internet
Platforms, Including Those Like Armslist. .................... 8
CONCLUSION .............................................................................. 11
CERTIFICATIONS ....................................................................... 13
CERTIFICATE OF SERVICE ...................................................... 14

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 TABLE OF AUTHORITIES
Cases

Page

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003),
cert. denied 541 U.S. 1085 (2004) ................................................. 8
Barnes v. Yahoo, 570 F. 3d 1096 (9th Cir. 2009) .......................... 4
Doe 14 v. Internet Brands, 824 F. 3d 846 (9th Cir. 2016) ............ 4
Fair Housing Council of San Fernando Valley
v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) ............. 3
Homeaway.com v. City of Santa Monica, No. 18-55367 (9th Cir.)

Brief of Amicus Curie for Chris Cox and NetChoice
filed Apr. 25, 2018)...................................................................... 6-8

Reno v. ACLU, 521 U.S. 844, 870 (1997) ....................................... 6
Stratton Oakmont v. Prodigy Servs. Co., 1995 WL 323710

(N.Y. Sup. Ct. May 24, 1995) ..................................................... 6, 7

Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997) .................................. 5
Statutes

Page

17 U.S.C. §512(c)(1)(C) ...................................................................5
47 U.S.C. §230 ....................................................................... passim
47 U.S.C. §230(a) ......................................................................... 10

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 47 U.S.C. §230(b)(1) ..................................................................... 10
Page
47 U.S.C. §230(c)(1) ................................................................... 3, 9
47 U.S.C. §230(c)(2) ........................................................................9
47 U.S.C. §230(e)(2) ........................................................................5
47 U.S.C. §230(e)(3) ........................................................................9
47 U.S.C. §230(e)(5) ........................................................................8
Pub. L. 115–164, § 2, Apr. 11, 2018, 132 Stat. 1255 .................... 8
Other Authorities

Page

Anupam Chander & Uyên P. Lê, Free Speech,
100 IOWA L. REV. 501, 514 (2015) .................................................5
Mike Masnick, SESTA's First Victim: Craigslist Shuts Down
Personals Section, TECHDIRT.COM, Mar. 23, 2018 ........................8

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 INTRODUCTION
Tragic events like the one at the heart of this case
often challenge the proper adjudication of litigation brought
against Internet platforms. Justice would seem to call for a
remedy, and if it appears that some twenty-year old federal
statute is all that prevents a worthy plaintiff from obtaining
one, it is tempting for courts to ignore it in order to find a
way to give them that remedy.
The problem is, in cases like this one, there is more at
stake than just the plaintiff’s interest. This case is not a gun
policy case, or even a negligence case. It is a speech case,
and the laws that protect speech exist for good reason. They
are ignored at our peril, because doing so imperils all the
important expression they exist to protect.
But that is what the Court of Appeals has done. In its
efforts to provide the plaintiff a remedy, the court ignored
the prohibitions imposed by a key federal statute limiting
the court’s ability to extract that remedy from an Internet
platform like defendant-respondent-petitioner Armslist
LLC.
The statute in question, 47 U.S.C. §230
("Section 230"), precludes a cause of action from proceeding
against an Internet platform for liability arising from
content created by a user. It further prohibits states from
imposing law inconsistent with this immunity provision. It
does so because long ago Congress realized the only way the
Internet could thrive as a place for innovative speech and
services would be for platforms such as Armslist to be
immune from suits arising from the user expression it
enabled. In finding that Section 230 does not apply to
Armslist, however, the Court of Appeals flouted these
provisions and in doing so undermined all that Congress had
sought to protect with it.

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 Thus, there are two interrelated reasons why this
Court should review the Court of Appeals’ decision.
One relates to the mechanics of Section 230. The
Court of Appeals misread it as one of narrow applicability
that did not reach the claims at hand. It so concluded despite
the pre-emption provision barring states from imposing
their own law in ways that conflict with the statute’s
essential operation.
Which leads to the other reason: in deciding that
Section 230 could not reach Armslist, the decision inherently
conflicts with that operation. In doing so it jeopardizes all
the online speech and innovation that the statute was
designed to protect, not just on topics related to gun sales,
and not just for Internet businesses and users in Wisconsin.
It is a decision the effect of which will be felt far beyond
Wisconsin’s borders, and with far greater deleterious impact
on all sorts of valuable speech and innovation than the Court
of Appeals likely anticipated. Review by this Court is
therefore necessary and appropriate.
ARGUMENT
I.

If the Decision Stands, It Will Chill Online
Speech and Innovation.
A.

This Is a Case about Holding Platforms
Liable for User Speech, Which Section 230
Forbids.

This case presents as a gun policy and negligence case,
but the core legal question raised is whether an Internet
platform can be held liable for the consequences of speech a
user expressed through its services. In this case, the speech
in question is the speech offering the sale of the gun. All
questions of liability flow from this speech because had it not

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 been made then the gun would not have been sold to the
shooter.
But, crucially, the case is not about holding a speaker
liable for the consequences of his or her speech, which
Section 230 permits. Rather, this case is about a plaintiff
attempting to hold a platform liable for the consequences of
its user’s speech, which Section 230 expressly forbids. 47
U.S.C. §230(c)(1) (“No 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.”).
As Armlist’s Petition notes, there is plenty of case law
affirming this prohibition. Pet. 14. There can often be
negative consequences to speech, but courts have been clear
that Section 230 prevents holding the intermediating
platforms liable for them, even in cases where the types of
speech a platform attracts may be more likely to have
negative consequences. See id. at 16-17.
When courts have found potential liability for Internet
platforms, those cases have had key differences from this
one. One such difference is when there is a question as to
who created the potentially wrongful expression, the
platform or the user. Fair Housing Council of San Fernando
Valley v. Roommates.com, LLC, 521 F.3d 1157, 1166-67 (9th
Cir. 2008). Here, however, there is no allegation that the
Armslist platform created the content offering the sale of the
gun; it was the seller who did. Furthermore, unlike in
Roommates where the court found the platform had helped
give the content its wrongful quality, it appears that under
Wisconsin law the speech offering the gun sale by an
unlicensed dealer was not illegal. Op. ¶9.
Other cases where courts have allowed claims to
proceed against platforms have been those where they found

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 a platform's potential culpability had nothing to do with its
facilitation of user speech. For instance, in Barnes v. Yahoo,
the Ninth Circuit affirmed that Section 230 would have
applied to Yahoo's intermediation of the user speech in
question. 570 F. 3d 1096, 1105-06 (9th Cir. 2009). Instead,
it only found the possibility of promissory estoppel liability
for the separate action of having promised to delete the
content and then not. Id. at 1109. Meanwhile in Doe 14 v.
Internet Brands, the theory of liability against it duty to
warn) was also found to be separate from any of its speech
intermediation activities. 824 F. 3d 846, 851 (9th Cir. 2016).
In this case, however, the entire theory of liability is
predicated on dissatisfaction with how Armslist handled its
user’s speech. Op. ¶17. Neither Barnes nor Internet Brands
supports such a finding of liability. Nor does twenty-plus
years of jurisprudence interpreting Section 230. Thus,
review by this Court is warranted to reverse the Court of
Appeals error.
B.

Online Speech and Innovation Depend on
Internet Platforms Being Able to Depend on
Robust Section 230 Protection.

For Section 230 to function at all, the judicial
temptation to whittle away at its protection must be
resisted. As described further in Section II.A, the statutory
language allows few exemptions to its coverage. But there
is plenty of evidence that when platforms do face potential
liability for user speech, the result is chilling to all online
expression.
A notable illustration of this dynamic is the censoring
effect that results from claims alleging violations of
intellectual property rights. One of the few exemptions
written into Section 230 is that it provides no liability
protection to platforms hosting user content that may violate

4

 these rights. 47 U.S.C. §230(e)(2). As a result, when claims
are made alleging that user content is infringing, platforms
find themselves having to censor that content pre-emptively,
without any adjudication as to whether it was truly
See, e.g., 17 U.S.C. §512(c)(1)(C)
infringing or not.
(conditioning platform liability protection on the "removal"
of allegedly infringing content upon being notified of its
presence on the platform, not its ultimate adjudication).
When there is no protection from liability for user
expression, the choice for a platform is stark: censor, or
potentially be obliterated by the enormous costs of even
litigating liability over user content. “Faced with potential
liability for each message republished by their services,
interactive computer service providers might choose to
severely restrict the number and type of messages posted.”
Zeran v. AOL, 129 F.3d 327, 331 (4th Cir. 1997).
If platforms had to fear liability for their users’
content, the resulting Internet would inevitably include far
less speech, if not also far fewer platforms altogether.
Because it is not just the Armslists of the world that can find
themselves at these cross-roads. Platforms of all types
depend on the immunity Section 230 provides. Internet
platforms such as social media websites, blogging platforms,
video-sharing services, and web-hosting companies—
platforms that are the essential architecture of today’s
Internet—depend on it. These platforms are often the
primary way in which the majority of people engage with one
another online. They are the “vehicle for the speech of
others,” Anupam Chander & Uyên P. Lê, Free Speech, 100
IOWA L. REV. 501, 514 (2015), hosting a wide range of diverse
ideas that can be presented and received all over the world.
Internet platforms enable anyone, even those with minimal
resources and technical expertise, to become “a
pamphleteer” or “a town crier with a voice that resonates

5

 farther than it could from any soapbox.” Reno v. ACLU, 521
U.S. 844, 870 (1997).
But platforms can only afford to provide these services
when they can be protected from liability arising from all the
speech they enable. Thus, any efforts to weaken Section 230
weaken the ability for others to speak online. Review by this
Court is therefore warranted in order not to invite this
chilling effect.
II.

The Court of Appeals Erred in Refusing to Apply
Section 230 to Armslist.
A.

Congress Intended Section 230 to Apply to All
Internet Platforms, Including Those Like
Armslist.

In reading Section 230 more narrowly than the text
supports, the Court of Appeals ignored the Congressional
intent behind the statute. Section 230 was not a solution to
a hypothetical problem: in 1995 a New York state court had
found Prodigy, an early online communications service,
liable for $200 million in damages from a user's defamatory
speech. Stratton Oakmont v. Prodigy Servs. Co., 1995 WL
323710 (N.Y. Sup. Ct. May 24, 1995). Damage awards like
these can wipe technologies off the map. If platforms had to
fear the crippling effect that even just one award, arising
from just one user, could have on their developing online
services, it would force them to monitor all the expression
they facilitate to ensure none could tempt such trouble. Br.
amicus curiae for Chris Cox and NetChoice at 15,
Homeaway.com v. City of Santa Monica, No. 18-55367 (9th
Cir. filed Apr. 25, 2018) (“Cox Brief”), available at
https://tdrt.io/gPJ ("The inevitable consequence of attaching
platform liability to user-generated content is to force

6

 intermediaries to monitor everything posted on their
sites.").1
Given the sheer amount of expression they handle,
however, such monitoring would be an impossible task. Id.
at 2 (“While the volume of users [in 1995] was only in the
millions, not the billions as today, it was evident […] even
then that no group of human beings would ever be able to
keep pace with the growth of user-generated content on the
Web.”). Platforms would thus be forced to either over-censor
broad swaths of legitimate expression pre-emptively, or
cease to be platforms at all. Id. at 26 (“[Platforms], facing
massive exposure to potential liability if they do not monitor
user content and take responsibility for third parties’ legal
compliance, would encounter significant obstacles to capital
formation.”).
Congress passed Section 230 to relieve
platforms of this monitoring burden and its speechinhibiting decisions. Id. at 12 (“All of the unique benefits the
Internet provides are dependent upon platforms being able
to facilitate communication among vast numbers of people
without being required to review those communications
individually.”).

Stratton Oakmont notably was a defamation case.

Congress could have limited Section 230 only to liability for
defamation, or only to the sorts of platforms that might face
that sort of liability. But it chose broader language, because
if all Section 230 spared platforms from was defamation
The Court does not need to guess how Congress intended Section 230
to work: earlier this year former member of Congress Chris Cox, the
statute’s co-author, submitted an amicus brief in a similar case where
a lower court had denied Section 230 applicability to certain types of
1

platforms. In it, he explained that Congress intended Section 230
to apply broadly, because it was only by being broad that it could
have any effect achieving Congress's goal of fostering the growth
of the Internet while most effectively limiting its downsides. Cox
Brief 11-12.

7

 liability they would still need to monitor content for all other
possible sources of liability, and little would have been
accomplished. Furthermore, as much as Congress wanted to
protect platforms' ability to promote discourse, id. at 12, it
also wanted to advance e-commerce, which required treating
platforms equally. Id. at 15; 23-24. See also Batzel v. Smith,
333 F.3d 1018, 1028 (9th Cir. 2003), cert. denied 541 U.S.
1085 (2004).
Congress is certainly capable of narrowing Section 230
should it desire. It recently added a new exemption to its
coverage explicitly allowing platform liability for user speech
connected with human trafficking. Pub. L. 115–164, § 2,
Apr. 11, 2018, 132 Stat. 1255, codified at 47 U.S.C.
§230(e)(5). Congress could similarly narrow Section 230
further by creating an exemption for online gun sales. But
when Section 230 is limited, platforms have a perverse
incentive to limit online speech and services that are
otherwise legitimate and valuable. See, e.g., Mike Masnick,

SESTA's First Victim: Craigslist Shuts Down Personals
Section, TECHDIRT.COM, Mar. 23, 2018, https://tdrt.io/gIw.

This Court should therefore review the appeals court
decision to ensure Wisconsin jurisprudence does not invite
the speech-limiting consequences Congress had sought to
avoid.
B.

Congress Pre-empted States from Interfering
with the Application of Section 230 to Internet
Platforms, Including Those Like Armslist.

In 1996 when Section 230 was codified, Congress could
not know what the Internet would become. So Congress
drew Section 230 broadly and in accordance with a general
policy principle: encourage the most good online expression,
and the least bad. It achieved this policy goal with a
regulatory approach that both protected against liability for

8

 carrying speech, 47 U.S.C. §230(c)(1), and against liability
for removing it. 47 U.S.C. §230(c)(2). By removing the
threat of sanction, platforms would be able to facilitate the
most beneficial speech and allocate their resources most
efficiently to minimize the most undesirable.
But imposing liability on platforms distorts this
balance and undermines both objectives. It co-opts resources
that could be better spent optimizing speech intermediation
faculties and pressures sites to reject more content, even
content that may be perfectly legitimate, because, as
discussed above, it may be prohibitively expensive, if not also
impractical or even impossible, to weed out the acceptable
from the problematic.
Of course, the Internet inherently transcends state
boundaries, meaning platforms could be exposed to
regulators in each one they reach. Cox Brief 27 (“A website
[…] is immediately and uninterruptedly exposed to billions
of Internet users in every U.S. jurisdiction and around the
planet. This makes Internet commerce uniquely vulnerable
to regulatory burdens in thousands of jurisdictions.”).
Congress worried that state and local authorities would be
tempted to impose liability on platforms, and in doing so
interfere with the operation of the Internet by separately
creating the very monitoring obligations Section 230 was
intended to avoid. Id. at 25 (“While one monitoring
requirement in one city may seem a tractable compliance
burden, myriad similar-but-not-identical regulations could
easily damage or shut down Internet platforms.”).
The pre-emption provision of Section 230 was
supposed to forestall this result. 47 U.S.C. §230(e)(3) (“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.”). It was particularly needed because not
every jurisdiction will agree on what the best policy should

9

 be for imposing liability on certain kinds of expression. But
if one jurisdiction can effectively chill certain types of speech
facilitation with the threat of potential liability, it will chill
it for every jurisdiction everywhere, regardless of whether
these other places agree with the policy choice or not. So
while here it may seem desirable for Wisconsin to take the
regulatory lead with regard to online gun sales, if the Court
of Appeals’ decision were to stand, its disregard for the preemption provision could easily prompt other states to
similarly disregard it and impose its policy preference to
shape what speech may be available online, even in
Wisconsin, which may not share the same policy preferences.
The Court of Appeals thus misunderstood the purpose
of Section 230’s pre-emption provision. The purpose was not
to pre-empt any particular policy “domain” normally left to
the states. Op. ¶33. Instead, Congress used its commerce
powers to pre-empt the “field” of Internet platform
regulation itself. “To ensure the quintessentially interstate
commerce of the Internet would be governed by a uniform
national policy[,]” sparing platforms the need to monitor the
expression they facilitate, Congress deliberately foreclosed
the ability of state and local authorities to interfere with that
policy. Cox Brief 10. Congress did so because without this
provision, the statute would be useless. Cox Brief 13 (“Were
every state and municipality free to adopt its own policy
concerning when an Internet platform must assume duties
in connection with content created by third party users, not
only would compliance become oppressive, but the federal
policy itself could quickly be undone.”).
When it comes to online speech, the only policy that is
supposed to be favored is the one Congress originally chose,
“to promote the continued development of the Internet and
other interactive computer services and other interactive
media,” 47 U.S.C. §230(b)(1), and all that these services
offer. See 47 U.S.C. §230(a) (enumerating the many of

10

 benefits of these services). The only way to give that policy
the effect Congress intended is to ensure local regulatory
efforts cannot distort the careful balance Congress codified
to achieve it. This Court therefore should review the Court
of Appeals’ decision, which threatens that fundamental
balance.
CONCLUSION
The Court of Appeals’ erroneous interpretation of
Section 230 and its refusal to apply the statute to the
Internet platform Armslist will chill speech and innovation.
Therefore, this Court should grant the petition for review.
Dated this 7th day of June, 2018.
Respectfully submitted,
GIMBEL, REILLY, GUERIN & BROWN LLP
By:

_____________________________
KATHRYN A. KEPPEL
State Bar No. 1005149
kkeppel@grgblaw.com
STEVEN C. MCGAVER
State Bar No. 1051898
smcgaver@grgblaw.com
330 East Kilbourn Avenue, Suite 1170
Milwaukee, Wisconsin 53202
Telephone: 414/271-1440

Local Counsel for Amicus Curiae
Floor64, Inc., d/b/a The Copia Institute
and the Electronic Frontier Foundation

11

 Catherine R. Gellis, Esq.
cathy@cgcounsel.com
PO Box 2477
Sausalito, CA 94966
(202) 642-2849

Counsel for Amicus Curiae
Floor64, Inc., d/b/a The Copia Institute
and the Electronic Frontier Foundation

12

 FORM AND LENGTH CERTIFICATION
I hereby certify that this brief conforms to the rules
contained in Wis. Stat. §§ 809.19(8)(b) and (c) as to form and
length for a non-party brief produced with a proportional
serif font. The length of this brief, including footnotes, is
2,966 words.

KATHRYN A. KEPPEL

CERTIFICATION REGARDING
ELECTRONIC BRIEF
I hereby certify that I have submitted an electronic
copy of this brief which complies with the requirements of
Wis. Stat. §809.19(12). I further certify that the text of the
electronic copy of the brief is identical to the text of the paper
copy of the brief filed as of this date.

KATHRYN A. KEPPEL

13

 CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of June, 2018, I caused one
copy of this brief supporting the petition for review to be served
upon each of the following persons via U.S. Mail, First Class:
QUARLES & BRADY LLP
Joshua D. Maggard
Eric J. Van Schyndle
James Goldschmidt
411 East Wisconsin Avenue
Suite 2400
Milwaukee, WI 53202

BRADY CENTER TO PREVENT
GUN VIOLENCE LEGAL
ACTION PROJECT
Jonathan E. Lowy
Alla Lefkowitz
840 First Street, NE, Suite 400
Washington, D.C. 20002

REED SMITH LLP
Brian A. Sutherland
101 Second Street,
Suite 1800
San Francisco, CA 94105

CANNON & DUNPHY
Patrick O. Dunphy
Brett A. Eckstein
594 North Barker Road
P.O. Box 1750
Brookfield, WI 53008

MANATT, PHELPS &
PHILLIPS, LLP
Jacqueline C. Wolff
Arunabha Bhoumik
Samantha J. Katz
7 Times Square
New York, NY 10036

CHAPIN & ASSOCIATES
John A. Griner
13935 Bishops Dr., Suite 250
Brookfield, WI 53005
DEVINE HAHN SC
Thomas M. Devine
Anthony P. Hahn
840 Lake Ave., Ste. 300
Racine, WI 53403

FUCHS & BOYLE SC
John F. Fuchs
13500 Watertown Plank Rd.,
Ste. 100
Elm Grove, WI 53122

Dated: June 7, 2018
KATHRYN A. KEPPEL

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