Twitter Defeats ISIS “Material Support” Lawsuit Again–Fields v. Twitter

As you may recall, this lawsuit relates to two American contractors in Jordan killed in a terrorist attack claimed by ISIS. The plaintiffs sued Twitter for providing material support to ISIS. In August, the judge dismissed the lawsuit on Section 230 grounds but allowed the plaintiffs to file another amended complaint. The plaintiffs tried again, but the court dismisses the suit again because “no amount of careful pleading can change the fact that, in substance, plaintiffs aim to hold Twitter liable as a publisher or speaker of ISIS’s hateful rhetoric, and that such liability is barred by the CDA.”

The “Provision of Accounts” Theory

The plaintiffs tried to get around Section 230 by asserting they sued Twitter for providing accounts to ISIS, and account provision isn’t “publishing” for purposes of Section 230’s immunity. This is an obviously nonsensical argument; the court says “providing accounts to ISIS is publishing activity, just like monitoring, reviewing, and editing content.” The plaintiffs responded that a “content-neutral decision about whether to provide someone with a tool is not publishing activity.” The court doesn’t understand how Twitter banning ISIS accounts would be “content neutral,” and as I’ve protested many times, Section 230 doesn’t and cannot turn on “neutrality,” whatever that means. (Another conundrum of the plaintiff’s theory: here, the plaintiffs allege Section 230 doesn’t protect “neutral” tools, while cases like suggested that Section 230 might be limited only to “neutral tools”). The whole discussion about content-neutrality is a baffling but unwelcome tangent.

The provision-of-accounts theory fails for other reasons. The court again cites the First Circuit’s Doe v. Backpage ruling protecting Section 230 for “decisions about the structure and operation of a website.” Also, “although plaintiffs have carefully restructured their SAC to focus on their provision of accounts theory of liability, at their core, plaintiffs’ allegations are still that Twitter knowingly failed to prevent ISIS from disseminating content through the Twitter platform, not its mere provision of accounts to ISIS.”

The court again distinguishes the Ninth Circuit’s Internet Brands “failure-to-warn” case:

Plaintiffs’ provision of accounts theory, on the other hand, has nothing to do with information Twitter itself should have posted online. Moreover, it would significantly affect Twitter’s monitoring and publication of third-party content by effectively requiring Twitter to police and restrict its provision of Twitter accounts.

The court summarizes the futility of the plaintiffs’ provision-of-accounts argument:

It is no surprise that plaintiffs have struggled to excise their content-based allegations; their claims are inherently tied up with ISIS’s objectionable use of Twitter, not its mere acquisition of accounts. Though plaintiffs allege that Twitter should not have provided accounts to ISIS, the unspoken end to that allegation is the rationale behind it: namely, that Twitter should not have provided accounts to ISIS because ISIS would and has used those accounts to post objectionable content.

Proximate Causation

The court revisits the proximate causation problem in the plaintiffs’ lawsuit, i.e., how did Twitter’s alleged support of ISIS contribute to the deaths of the two American contractors? It remains unclear if the court sees the lack of proximate causation as support for a Section 230 immunity or as a failure of the lawsuit on the prima facie elements. Either way, it’s lacking here:

the allegations in the SAC do not support a plausible inference of proximate causation between Twitter’s provision of accounts to ISIS and the deaths of Fields and Creach. Plaintiffs allege no connection between the shooter, Abu Zaid, and Twitter. There are no facts indicating that Abu Zaid’s attack was in any way impacted, helped by, or the result of ISIS’s presence on the social network. Instead they insist they have adequately pleaded proximate causation because they have alleged “(1) that Twitter provided fungible material support to ISIS, and (2) that ISIS was responsible for the attack in which Lloyd Fields, Jr. and James Damon Creach were killed.” Id. at 13. Under such an expansive proximate cause theory, any plaintiff could hold Twitter liable for any ISIS-related injury without alleging any connection between a particular terrorist act and Twitter’s provision of accounts. And, since plaintiffs allege that Twitter has already provided ISIS with material support, Twitter’s liability would theoretically persist indefinitely and attach to any and all future ISIS attacks. Such a standard cannot be and is not the law.

The “Direct Messaging” Theory

To get around Section 230, the plaintiffs also argued that ISIS used Twitter’s direct message tool and Twitter doesn’t publish those messages. The court says Congress adopted the defamation meaning of “publication” (i.e., publication = communicating to a third person) and used that definition for both defamation and non-defamation claims. Further, as it pointed out in the prior ruling, “a number of courts have applied the CDA to bar claims predicated on a defendant’s transmission of nonpublic messages, and have done so without questioning whether the CDA applies in such circumstances.”

The Public Policy Argument

As a last-ditch, the plaintiffs argue that “Congress surely did not intend to promote speech that aids designated terrorist organizations.” The court responds that judges can’t trump Congress’ rules, plus the argument is “incoherent” because:

If the goal of the CDA is to “encourage the unfettered and unregulated development of free speech,” any policy that requires interactive computer service providers to remove or filter particular content undermines this purpose. Such a policy would require companies like Twitter to institute (1) expensive and likely imperfect content-specific controls or (2) broad content neutral restrictions that suppress content across the board. If content-specific controls are expensive enough to institute, and the penalties for failure to adequately control objectionable content are sufficiently severe, companies like Twitter will be encouraged to reduce their services or stop offering them all together. There is no debate that pro – ISIS content is objectionable but that does not mean that a carve out is consistent with the CDA’s purpose. The exact opposite is true. Shielding interactive computer service providers from publisher liability for all content encourages these companies to create “platform[s] . . . allow[ing] for the freedom of expression [of] hundreds of millions of people around the world,” SAC ¶ 35, just as the CDA intended….

Twitter provides its services to the public indiscriminately. It does not actively provide material support to terrorists. A policy holding Twitter liable for allowing ISIS to use its services would require it to institute new procedures and policies for screening and vetting accounts before they are opened; identify and suspend the accounts of users posting pro-ISIS content; and even identify and suspend the accounts of users promoting terrorism through the direct messaging feature. These are not minor obligations, as they would require Twitter to fundamentally change certain aspects of its services and overturn its hands-off content-neutral approach. That plaintiffs seek to hold Twitter liable for allowing only one type of content – content that supports terrorism – does not make this a minor exception to the CDA’s protections. Requiring Twitter to make any content-based publishing decisions would require them to create and implement filtering procedures that they do not currently have. The difference between treating them as a publisher for one type of content, as compared to no content, is substantial.



The court’s reasoning is strong. It relies principally on Section 230, but it implies lack of proximate causation is a substantial alternative defense. I think this ruling casts a long shadow on the other lawsuits pending against social networking services for allegedly providing material support to terrorists. Those cases should be equally meritless, and perhaps the mini-fad of suing online services for materially supporting terrorists will quickly fade.

Meanwhile, I assume the plaintiffs plan to appeal this ruling to the Ninth Circuit. The opinion’s solid construction should do well on appeal, but the Ninth Circuit is notorious for taking easy Section 230 cases and making them unnecessarily difficult, so who knows?

Case citation: Fields v. Twitter, Inc., 2016 WL 6822065 (N.D. Cal. Nov. 18, 2016)

Case library:

* Opinion dismissing Second Amended Complaint. Associated blog post.
* Twitter’s Reply to Plaintiffs’ Opposition to Twitter’s motion to dismiss the Second Amended Complaint
* Plaintiffs’ opposition to Twitter’s motion to dismiss the Second Amended Complaint
* Twitter’s motion to dismiss the Second Amended Complaint
* Second Amended Complaint
* Opinion dismissing First Amended Complaint. Associated blog post.
* Twitter’s answer
* Initial complaint