Facebook Defeats Lawsuit Over Material Support for Terrorists–Cohen v. Facebook

We’ve seen a cluster of lawsuits against social media sites based on their alleged provision of material support to terrorists. The first substantive ruling–in Fields v. Twitter, now on appeal to the Ninth Circuit–was a decisive plaintiff loss, casting a dark shadow on all of the other cases. The second substantive ruling, in the Cohen and Force v. Facebook cases, also is a decisive plaintiff loss. As courts keep explaining to plaintiffs why these lawsuits aren’t meritorious, when will we see this litigation cluster fade away?

The Cohen case involves 20,000 Israeli citizens who “have been and continue to be targeted by” attacks by Palestinian terrorist organizations.” The Force case involves “victims, estates, and family members of victims of terrorist attacks in Israel.” In both suits, the plaintiffs allege that Palestinian terrorists “use Facebook’s social media platform and communications services to incite, enlist, organize, and dispatch would-be killers to ‘slaughter Jews.'” The complaints also allege that Facebook’s algorithms help the terrorist messages reach sympathetic audiences, and that Facebook knows of accounts held by terrorists and failed to take action. The plaintiffs sued for violations of federal anti-terrorism laws, various other U.S. laws, and Israeli law. The Cohen plaintiffs only sought injunctive relief, while the Force plaintiffs sought $1B in compensatory damages (trebled pursuant to the anti-terrorism laws) and more.

Subject Matter Jurisdiction. The Cohen plaintiffs are dismissed for lack of subject matter jurisdiction:

the Cohen Plaintiffs do not seek redress for past actions but instead seek prospective, injunctiye relief based on their allegation that Facebook’s actions increase their risk of harm from future terrorist attacks. This claimed harm relies on multiple conjectural leaps, most significantly its central assumption that the Cohen Plaintiffs will be among the victims of an as-yet unknown terrorist attack by independent actors not before the court. The Cohen Complaint contains no factual allegation that could form a basis to conclude that those individuals in particular are at any “substantial” or “certainly impending” risk of future harm. At most, the Complaint shows a general risk of harm to residents of Israel and impliedly asks the court to extract a risk of harm to the Cohen Plaintiffs based on this risk. Without further allegations, however, the court sees no basis to conclude that the Cohen Plaintiffs “specifically will be the target of any future, let alone imminent, terrorist attack.”

Nor can the Cohen Plaintiffs rescue their claims by arguing that they suffer a present harm resulting from their fear of such attacks, as “allegations of a subjective [fear] are not an adequate substitute for a claim of specific present objective harm or threat of a specific future harm.” While the court does not question the sincerity of the Cohen Plaintiffs’ anxieties, their subjective fears cannot confer standing absent a sufficient showing of the risk of future harm.

In a footnote, the court says that the alleged statutory violations of Israeli law do not confer standing per Spokeo.

Section 230. The court’s Section 230 ruling is plain and clear: “even the most generous reading of their allegations places them squarely within the coverage of Section 230(c)(l)’s grant of immunity.”

The court runs through the familiar three-pronged immunity analysis:

* social media sites generally, and Facebook in particular, are providers of interactive computer services. Cites to Klayman and Doe v. MySpace.
* The plaintiffs’ claims are based on third party content. The court says the Klayman district court ruling “recently rejected an argument that Facebook fell afoul of this standard by using data collected from users to suggest other content and users, stating that ‘the manipulation of information provided by third parties does not automatically convert interactive service providers into information content providers.'”
* Oddly, the plaintiffs chose to make their stand on the publisher/speaker prong, and it goes about as well as expected. The court says the Second Circuit’s LeadClick ruling “emphasizes that Section 230(c)(1) is implicated not only by claims that explicitly point to third party content but also by claims which, though artfully pleaded to avoid direct reference, implicitly require recourse to that content to establish liability or implicate a defendant’s role, broadly defined, in publishing or excluding third party communications” (with cites to Doe v. Backpage and Manchanda v. Google). Thus, “decisions as to whether existing content should be removed from a website fall within the editorial prerogative.” Applying this standard to Facebook, “Facebook’s choices as to who may use its platform are inherently bound up in its decisions as to what may be said on its platform, and so liability imposed based on its failure to remove users would equally ‘derive[] from [Facebook’s] status or conduct as a ‘publisher or speaker.’…it is clear that Section 230(c)(1) prevents the necessarily antecedent editorial decision to allow certain parties to post on a given platform, as that decision cannot be meaningfully separated from ‘choices about what [third party] content can appear on [the platform] and in what form.'” The court continues:

the Force Plaintiffs claim that Facebook contributed to their harm by allowing Hamas to use its platform to post particular offensive content that incited or encouraged those attacks. Facebook’s role in publishing that content is thus an essential causal element of the claims in the Force Complaint, and allowing liability to be imposed on that basis would “inherently require[] the court to treat the defendant as the publisher or speaker of content provided by” Hamas.

The court’s arguments unquestionably reject the key arguments being made on appeal by plaintiffs in the Fields v. Twitter case. If the Ninth Circuit finds this ruling persuasive, the Fields plaintiffs’ appeal is definitely doomed (I think it’s doomed no matter what, but this opinion reinforces that).

The plaintiffs tried to take advantage of Section 230’s exclusion for federal crimes. The court responds:

While, read most favorably, this section could be interpreted to inhibit immunity as to civil liability predicated on federal criminal statutes, such as the ATA provisions at issue here, this reading has been rejected by most courts that have examined it. [cites to Backpage, MA v. Village Voice, Doe v. Bates, and Obado v. Magedson; there are others] The court concludes that this subsection does not limit Section 230(c)(1) immunity in civil actions based on criminal statutes but rather extends only to criminal prosecutions.

The plaintiffs also argued that Section 230 cannot apply extra-territorially to their Israeli law claims. I cannot recall seeing a plaintiff make this argument before, so I think it’s a novel effort to work around Section 230. Surprisingly, the opinion doesn’t address the SPEECH Act, which made it pretty clear that Congress wanted to restrict foreign law end-runs around Section 230. Nevertheless, the court concludes that Section 230 sought to limit defendants’ liability, so it applies where redress is sought, not where the claims arise, and thus is fairly applied by a New York court to Israeli residents.

Finally, the plaintiffs argued that Section 230 does not apply to foreign law. Section 230(e) enumerates some limits of the immunity, and foreign law isn’t referenced. The court says “because there is no listed exception for foreign law claims, those claims remain subject to the limitations on liability provided by Section 230(c)(1).”

Perhaps this looks like a routine Section 230 opinion, but the stakes in these cases make any win noteworthy. The plaintiffs essentially sought to treat Facebook as the financial guarantor of all terrorist-caused harms to all victims, regardless of what role Facebook played in causing those harms. Such an unbounded financial exposure could dwarf Facebook’s market capitalization, meaning that the theories behind these lawsuits pose an existential threat to Facebook, other social media sites, and possibly the entire Internet. Thus, the judge’s well-reasoned and clear rejection of the plaintiff’s claim is a big win for Facebook and the Internet.

Gossipy note: this is the case where, in September 2016, the judge went apoplectic that a junior associate appeared in court for Facebook, and the judge felt like Facebook wasn’t taking this seriously enough, e.g., “You tell your folks back at Kirkland & Ellis that I don’t much like the idea that they think so little of this court that they didn’t send a partner here to talk about this kind of a problem which implicates international terrorism and the murder of innocent people in Israel and other places.” Facebook responded by sending (among others) former magistrate judge and now deputy GC Paul Grewal (who, if I recall correctly, was in the first week of his new job), and a little in-court bromance ensued. As this ruling shows, Facebook sufficiently quelled any of the judge’s reservations about Facebook’s priorities.

Case citation: Cohen v. Facebook, Inc., 2017 WL 2192621 (E.D.N.Y. May 18, 2017). The Cohen complaint. The Force complaint.