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
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.
3020 Bridgeway, #247
Sausalito, CA 94965
cathy@cgcounsel.com
(202) 642-2849

Counsel for Amicus Curiae Floor64, Inc., d/b/a The Copia Institute

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................... ii
INTRODUCTION ........................................................................... 1
ARGUMENT ................................................................................... 3
I. The Court of Appeals Erred in Refusing to Apply
Section 230 to Armslist....................................................... 3
A. Congress Intended Section 230 to Apply to All
Internet Platforms, Including Those Like Armslist. ... 3
B. Congress Pre-empted States From Interfering With
the Application of Section 230 to Internet Platforms,
Including Those Like Armslist. ..................................... 6
II. If the Decision Stands, It Will Chill Online Speech and
Innovation ............................................................................. 9
A. This Is a Case About Holding Platforms Liable for
User Speech, Which Section 230 Forbids ..................... 9
B. Online Speech and Innovation Depend on Internet
Platforms Being Able to Depend on Robust
Section 230 Protection. ................................................ 11
C. Amicus Copia Institute Exemplifies the Sort of
Speaker, Speech, and Speech-intermediating
Platform That Will be Hurt by the Erosion of
Section 230’s Protection if the Decision Stands ......... 13
CONCLUSION .............................................................................. 17
CERTIFICATIONS ....................................................................... 18
CERTIFICATE OF SERVICE ...................................................... 19

-i-

 TABLE OF AUTHORITIES
Cases

Page

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003),
cert. denied 541 U.S. 1085 (2004) ................................................. 5
Barnes v. Yahoo, 570 F.3d 1096 (9th Cir. 2009) .................... 10,11
Daniel v. Armslist, LLC, 2018 WI App. 32, ¶33, 382 Wis. 2d

241, 913 N.W.2d 211 ........................................................... 8,10,11

Doe 14 v. Internet Brands, 824 F.3d 846 (9th Cir. 2016) ...... 10-11
Fair Housing Council of San Fernando Valley
v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) ........... 10
Gentry v. eBay, Inc., 121 Cal.Rptr.2d 703 (Cal. Ct. App. 2002)... 5
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), https://tdrt.io/gPJ .......... 3,4,5,7,8

Reno v. ACLU, 521 U.S. 844 (1997) ............................................. 12
Stratton Oakmont v. Prodigy Servs. Co., 1995 WL 323710

(N.Y. Sup. Ct. May 24, 1995) ................................................... 3,4,7

Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997) ................................ 12
Statutes

Page

17 U.S.C. §512(c)(1)(C) ................................................................ 11

-ii-

 Page
47 U.S.C. §230 ....................................................................... passim
47 U.S.C. §230(a) ............................................................................9
47 U.S.C. §230(a-b) .........................................................................6
47 U.S.C. §230(b)(1) ........................................................................9
47 U.S.C. §230(c)(1) ................................................................. 5,6,9
47 U.S.C. §230(c)(2) ........................................................................6
47 U.S.C. §230(e)(2) ..................................................................... 11
47 U.S.C. §230(e)(3) ........................................................................7
47 U.S.C. §230(e)(5) ........................................................................5
47 U.S.C. §230(f)(2) .........................................................................5
Pub. L. 115–164, § 2, Apr. 11, 2018, 132 Stat. 1255 .....................5
Other Authorities

Page

Anupam Chander & Uyên P. Lê, Free Speech,
100 IOWA L. REV. 501 (2015) ...................................................... 12
https://www.techdirt.com/search.php?q=funniest&search
=Search&edition=&tid=Techdirt&aid=&searchin=stories. ..... 13
Mike Masnick, SESTA’s First Victim: Craigslist Shuts Down
Personals Section, TECHDIRT.COM, Mar. 23, 2018,
https://tdrt.io/gIw ..........................................................................6

-iii-

 Page
Mike Masnick, Techdirt 2018: The Stats, TECHDIRT.COM,
Mar. 23, 2018, https://tdrt.io/h8h .............................................. 13
Mike Masnick, Case Dismissed: Judge Throws Out Shiva
Ayyadurai’s Defamation Lawsuit Against Techdirt,
Techdirt.com, Sep.6, 2017, https://tdrt.io/goU.......................... 14

-iv-

 INTRODUCTION
Tragic events like the one at the heart of this case can
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 stands between a worthy plaintiff and a
remedy, it can be tempting for courts to ignore it in order to
find a way to grant that relief.
The problem is, as in cases like this one, there is more
at stake than just the plaintiff’s interest. This case may look
like a domestic violence case, a gun policy case, or even a
negligence case, but it is actually a speech case. Laws that
protect speech, such as the one at issue in this appeal, are on
the books for good reason. They are ignored at our peril,
because doing so imperils all the important expression they
are designed to protect.
Yet 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 this key federal statute, 47
U.S.C. §230 (“Section 230”), which purposefully limited the
court’s ability to extract that remedy from an Internet
platform like defendant-respondent-petitioner Armslist
LLC. And in so ignoring these limitations, the court has
placed at risk all the online activity and innovation that
statute was intended to foster.
The plain text of Section 230 pointedly prohibits a
cause of action from proceeding against an Internet platform
for liability arising from content created by a user. The user
may potentially be liable for it – the statute in no way
prevents such a finding – but Section 230 makes clear that
the platform itself cannot be held liable for the content this
third party created.

1

 The statute so limits liability for platforms because
long ago Congress realized the only way the Internet could
thrive as a place for vibrant speech and innovative services
would be if Internet platforms, of which Armslist is one of
countless, could be immune from suits arising from the user
expression they enabled.
By denying Armslist this
immunity, however, the Court of Appeals opened the door to
other platforms being denied the immunity as well and, as a
result, undermined all that Congress had sought to foster
with this law.
Thus, there are two interrelated reasons why this
Court should reverse the Court of Appeals’ decision.
One relates to the basic mechanics of Section 230. The
Court of Appeals simply erred in construing the statute as
one of narrow applicability that did not reach the claims
brought against Armslist. It further erred by misconstruing
the statute’s pre-emption provision, which purposefully bars
states from imposing their own law in ways that deny
Internet platforms the protection that the statute is
designed to afford them. This Court should reverse in order
that Wisconsin jurisprudence be consistent with the plain
language and the substantial body of established precedent.
The other reason is that if this decision were to stand
as is – in conflict with that established precedent, the plain
language of the statute, as well as Congress’s clear intent –
the consequences will be far-reaching and destructive. For
it is not just platforms in Wisconsin that are affected by the
Court of Appeals’ decision; in deciding that Section 230 could
not reach Armslist, the Court of Appeals effectively denied
Section 230’s protection to every Internet platform
everywhere. And in doing so, it jeopardized all the online
speech and services that depend on Section 230 in order to
exist. It is a decision whose impact will be felt far beyond
Wisconsin’s borders, and with far greater deleterious effect

2

 on far more sorts of valuable innovation and expression than
the Court of Appeals likely anticipated. This Court should
therefore reverse this decision in order not to invite this
chilling result.
ARGUMENT
I.

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 arising from a user’s
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
intermediaries to monitor everything posted on their
sites.”). 1
The Court does not need to guess how Congress intended Section 230
to work: last year former member of Congress Chris Cox, the statute’s

1

3

 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 the speechinhibiting decisions it would force them to make. 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.”).
The problem with the user speech in Stratton
Oakmont was that it was found to be defamatory. Yet even
though Section 230 was in large part passed in response to
this case, it was not limited to providing platforms immunity
only for liability arising from user speech alleged to be
defamatory, or only to the sorts of platforms that might tend
to facilitate speech tempting that sort of liability. Congress
instead chose broader language, because if all Section 230
spared platforms from was defamation liability they would
still need to monitor content for all other possible sources of
liability, and little would have been accomplished.
co-author, submitted an amicus brief in a similar case where a lower
court had denied Section 230 applicability to certain types of 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.

4

 Furthermore, as much as Congress wanted to protect
platforms’ ability to promote discourse, id. at 12, it also
wanted to advance e-commerce. Id. at 16; 23-24. See also
Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003), cert.
denied 541 U.S. 1085 (2004). This legislative goal required
treating all platforms equally, even those that tended to host
speech in furtherance of commercial transactions. Cox Brief
10. See also Gentry v. eBay, Inc., 121 Cal.Rptr.2d 703, 716
(Cal. Ct. App. 2002) (finding a platform hosting
transactional user speech eligible for Section 230
protection). 2 Thus Congress chose to apply immunity to any
“provider … of an interactive computer service.” 47 U.S.C.
§ 230(c)(1). 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.” 47 U.S.C. § 230(f)(2).
As long as the platform meets that broad definition, which
Armslist does, Section 230 immunity should apply,
regardless of the type of interactive computer service it
offers.
Congress is certainly capable of narrowing Section 230
should it desire a different result. 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 find
themselves faced with the perverse incentive to limit online
Armslist is one such platform. Although the type of speech it enables
is fairly narrow – allowing sellers to announce their wares for sale –
these offers are still speech, and speech that the Court of Appeals would
have platform Armslist potentially be liable for as a result of having
intermediated it.
2

5

 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. See discussion II.B.
This Court should therefore reverse the Court of
Appeals’ decision to ensure that Wisconsin jurisprudence
does not run afoul of the legislative goals and language
Congress had carefully enshrined in the statute.
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 grow to become. But it
did know that without platform immunity all of its potential
stood to go unrealized. See 47 U.S.C. § 230(a-b) (articulating
that potential and the policy goal of fostering it). To ensure
the Internet would have the space to continue to develop,
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 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. It even
pressures sites to delete content that may be perfectly
lawful, because, as discussed above, it may be prohibitively

6

 expensive, if not also impractical or even impossible, to weed
out the acceptable from the problematic.
Because the Internet inherently transcends state
boundaries, without this immunity 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, on a local level, 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-butnot-identical regulations could easily damage or shut down
Internet platforms.”). Indeed it was hardly an idle concern,
given that Stratton Oakmont itself was a case where a state
court, interpreting state law, had done just that.
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
be for imposing liability on certain kinds of expression. Yet
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 might seem desirable for Wisconsin to
take the regulatory lead with regard to platform liability for
online gun sales, if the Court of Appeals’ decision were to

7

 stand, it would not just be online gun sales that would be
affected, nor would it just be Wisconsin affecting what can
appear online. After all, if Wisconsin can disregard the preemption provision to impose liability on platforms, then so
can any other state. Indeed, such a precedent could easily
prompt other states to threaten platforms with liability to
force them to curtail whatever speech and services they
facilitate that these jurisdictions found objectionable,
regardless of whether all other state and local jurisdictions
would also share that concern. The problem is, though, if
any jurisdiction can cause platforms to reduce speech and
services to mitigate their potential liability exposure in one
jurisdiction, that reduction is likely to be felt in every other
one, including Wisconsin, where the public and policymakers
might have preferred for this speech and these services to
have remained available.
In nevertheless finding itself unbound by Section 230’s
pre-emption provision, the Court of Appeals evidently
misunderstood its critical purpose. The purpose was not to
pre-empt any particular policy “domain” normally left to the
states. Daniel v. Armslist, LLC, 2018 WI App. 32, ¶33, 382
Wis. 2d 241, 913 N.W.2d 211. 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.”).

8

 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 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 reverse the Court of
Appeals’ decision, which threatens that fundamental
equilibrium.
II.

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.

There are many facets to this case: it is a case about a
tragic instance of domestic violence, a case highlighting the
issues surrounding gun policy, as well as a standard
negligence case. But despite these other attributes, the core
legal question raised by this appeal 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
been made, then the gun would not have been sold to the
shooter.
Crucially, however, this 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

9

 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 brief notes, there is plenty of case law
affirming this prohibition. Br. 13-19. There can often be
negative consequences to user speech, but courts have been
clear, and nearly uniform, in determining 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 18-19.
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 even illegal. Daniel at ¶9.
Other cases where courts have allowed claims to
proceed against platforms have been those where they found
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.

10

 Internet Brands, the theory of liability against it was based

on a duty to warn, which was 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. Daniel at ¶17. Neither Barnes nor Internet
Brands supports such a finding of liability. Nor does twentyplus years of jurisprudence interpreting Section 230. Thus
this Court should reverse the Court of Appeals error.
B.

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

In order to achieve Congress’s objective of fostering
online speech and services, it is important not to erode the
critical protection Section 230 affords the Internet platforms
that facilitate this speech and these services. 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. While, as discussed above,
Section 230’s liability protection is purposefully exhaustive
in the types of user-created liability it insulates platforms
from, the statute does contain a specific limitation: when it
comes to liability for potential violations of intellectual
property rights, Section 230’s immunity does not apply to
those claims. 47 U.S.C. §230(e)(2). As a result, when
allegations are made that user content is infringing,
platforms find themselves having to censor that content preemptively, without any adjudication as to whether it is truly
See, e.g., 17 U.S.C. §512(c)(1)(C)
infringing or not.
(conditioning a separate and more limited form of platform

11

 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[s] for the speech of
others,” Anupam Chander & Uyên P. Lê, Free Speech, 100
IOWA L. REV. 501, 514 (2015), and host 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
farther than it could from any soapbox.” Reno v. ACLU, 521
U.S. 844, 870 (1997).
But platforms can only afford to facilitate this
expressive activity when they can be protected from liability
arising from all the expression they enable. Thus, any

12

 efforts to weaken Section 230 weaken the ability for others
to express themselves online. Reversal by this Court is
therefore warranted in order not to invite this chilling effect.
C.

Amicus Copia Institute Exemplifies the
Sort of Speaker, Speech, and Speechintermediating Platform That Will be Hurt
by the Erosion of Section 230’s Protection if
the Decision Stands.

Amicus Copia Institute depends on Section 230. The
business of the Copia Institute is to examine the law and
policy surrounding innovation, which it does in large part
through its online publication Techdirt.com. Section 230
makes it possible for it to engage in these activities in several
ways.
First, it is because of Section 230 that the Copia
Institute can foster robust discourse on these subjects on the
Techdirt site. Each article invites readers to post comments,
and the resulting discussion is often enriching. In fact, every
weekend Techdirt publishes a post synthesizing the most
insightful and most humorous comments from the week
before. 3 So insightful is this discourse that Techdirt has
even added to its staff someone who had regularly
contributed to the discussion in the comment section.
Techdirt is committed to fostering this community of
contributors to the discourse it stimulates and regularly
celebrates its success. 4

These posts are collected at
https://www.techdirt.com/search.php?q=funniest&search
=Search&edition=&tid=Techdirt&aid=&searchin=stories.
4 Mike Masnick, Techdirt 2018: The Stats, TECHDIRT.COM, Mar. 23,
2018, https://tdrt.io/h8h (noting the top commenters with the most
valuable contributions from 2018).
3

13

 But none of this discourse would be possible without
Section 230 shielding Techdirt from liability for what these
commenters say. If Techdirt had to worry about the
potential liability that could arise from each and every
comment, it would not be able to enable its readers to
comment freely. Far less discussion and discovery would
result, including on controversial topics where productive
discourse depends on attracting substantive insights.
Without the protection Section 230 affords, people who
object to certain ideas would be able to use the threat of
liability to pressure Techdirt to delete those they found
distasteful, no matter how legitimate and important that
user contribution might have been. The threat of litigation
by parties unhappy with expression found on Techdirt pages
is a very real one. 5 It is only Section 230 that makes it
possible for online media sites – be they large, corporate
publications or smaller, independent media sites like
Techdirt – to resist the censorial demands that would seek
to squelch this online discussion.
As a small business, the Copia Institute also depends
on Section 230 to generate revenue. In addition to the
comment section, where any reader can contribute, the
company also provides private forums where subscribers
who pay for additional content and features can interact.
Furthermore, like many other online publications, Techdirt
posts contain ads. As is often the case for online media
outlets, ads are provided by third-party services. Section 230
is what makes this sort of funding model possible. Without
it, sites like Techdirt would have to spend their limited
resources vetting each and every ad appearing on any of
See Mike Masnick, Case Dismissed: Judge Throws Out Shiva
Ayyadurai’s Defamation Lawsuit Against Techdirt, Techdirt.com,
Sep.6, 2017, available at https://tdrt.io/goU (chronicling the dismissal
of an unmeritorious lawsuit brought against Techdirt by someone
objecting to critical, and truthful, coverage, including by third-party
speakers in the comments).
5

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 their pages. Techdirt is more than twenty years old and thus
has more than 70,000 posts. Not only have these thousands
of posts collected thousands of comments, but there are also
thousands of ads appearing on these pages. It would be an
impossible task to muster the enormous amount of attention
and expertise required to vet them all. But without Section
230 shielding sites like Techdirt from this burden, they
would need to. Running third-party ads would no longer be
a viable way of generating revenue, and sites that depend on
them to be financially stable, as well as the services that
provide them, would disappear.
The Copia Institute also relies upon Section 230 as a
speaker. Not only does it depend on social media to share its
Techdirt posts and other work among the widest audience
possible, but it also uses payment providers, email providers,
and other services to organize, advocate, and influence policy
around the issues of its expertise, as well as sustain itself
financially to pursue these efforts. These various services
that the Copia Institute uses, services whose business is to
in some way facilitate content supplied by others, all depend
on Section 230 to fulfill this mission. Without the benefit of
this statute they would either cease to provide these
services, or they would offer them only at the prohibitive cost
necessary to underwrite the massive amount of extra
manpower they would need to deploy in order to monitor the
myriad and voluminous third-party user activity they
facilitate – if not also subsidize the direct cost of having to
defend themselves, even potentially successfully, for what
lawsuits that might arise from any of it.
The Copia Institute is obviously different from
Armslist in several ways: it is a different sort of entity, with
different business purpose, making use of Section 230 in
different ways, and with regard to different subject matter.
But all of these Internet platforms – Armslist, Techdirt, and
the services the Copia Institute uses – are part of an online

15

 ecosystem that depends on a robust and functional Section
230 being available to them all. The plain text of the statute,
as well as two decades of jurisprudence, has made clear that
all are equally entitled to its protection, including with
respect to the sort of potential negligence liability as present
in this case. It is that reliability, ubiquity, and durability of
this statutory protection that has made it possible for all
these platforms, and all the speakers and services they
enable, to enrich the world. Whittling away at its coverage
now in order to reach any particular platform – such as
Armslist – would mean ripping it away from them all.
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 reverse.
Dated this 17th day of January, 2019.
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

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 Catherine R. Gellis, Esq.
cathy@cgcounsel.com
3020 Bridgeway, #247
Sausalito, CA 94965
(202) 642-2849

Counsel for Amicus Curiae
Floor64, Inc., d/b/a The Copia Institute

17

 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
4,610 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

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 CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of January, 2019, I caused
three copies of this amicus brief 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 53202-4426

BRADY CENTER TO PREVENT
GUN VIOLENCE LEGAL
ACTION PROJECT
Jonathan E. Lowy
Alla Lefkowitz
840 First Street, N.E., Suite 400
Washington, D.C. 20002-8040

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 53008-1750

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 53005-6623
DEVINE HAHN SC
Thomas M. Devine
Anthony P. Hahn
840 Lake Avenue, Suite 300
Racine, WI 53403-1566

FUCHS & BOYLE SC
John F. Fuchs
13500 Watertown Plank Rd.,
Ste. 100
Elm Grove, WI 53122-2200

KRAVIT, HOVEL & KRAWCZYK
SC
Brian T. Fahl
825 N. Jefferson Street, 5th Floor
Milwaukee, WI 53202-3737

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 MENN LAW FIRM LTD.
Crystal Abbey
2501 E. Enterprise Avenue
P.O. Box 785
Appleton, WI 54912-0785

KRAMER LEVIN
Karen S. Kennedy
Michael J. Dell
1177 Avenue of the Americas
New York, NY 10036-2714

SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
Anthony J. Dreyer
Elizabeth A. Hellman
Naomi S. Solomon
4 Times Square
New York, NY 10036

PERKINS COIE LLP
Andrew Thomas Dufresne
1 E. Main Street, Suite 201
Madison, WI 53703-3373

STAFFORD ROSENBAUM LLP
Gregory Matthew Jacobs
Jeffrey A. Mandell
222 W. Washington Avenue,
Suite 900
P.O. Box 1784
Madison, WI 53701-1784

PETERSON, BERK & CROSS S.C.
John C. Peterson
Emily I. Lonergan
200 E. College Avenue
P.O. Box 2700
Appleton, WI 54912-2700
Dated: January 17, 2019
KATHRYN A. KEPPEL

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