Another Court Rejects ‘Material Support To Terrorists’ Claims Against Social Media Sites–Gonzalez v. Google
[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]
Numerous lawsuits have been filed claiming social media services “materially support” terrorists because terrorist groups disseminate their content via the services. 1-800-LAW-FIRM (I kid you not) is behind most of these lawsuits. I’ve been baffled by the proliferation of these lawsuits because they seem doomed, yet more cases have been filed even after two courts (in Fields v. Twitter and Cohen v. Facebook) have thoroughly rejected them. Now, a third court has echoed and extended the prior two dismissals, reinforcing why I think all of these lawsuits will fail.
This lawsuit involves YouTube. The plaintiffs allege that ISIS posted YouTube videos and these videos proximately caused the plaintiffs’ deaths in a terrorist attack in Paris. YouTube moved to dismiss on Section 230 grounds.
Before addressing the merits of the Section 230 defense, the court reaches three helpful preliminary conclusions:
- Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA) in 2016 to expand civil claims based on material support for terrorists. The plaintiff argued that the later-enacted JASTA repeals Section 230. The court disagrees, concluding that JASTA didn’t expressly or impliedly repeal Section 230.
- Section 230 applies to extraterritorial (i.e., international) conduct. Cite to Cohen.
- Civil claims based on federal crimes are preempted by Section 230. Cites to Cohen and Doe v. Backpage.
The court then addresses the merits of the Section 230 immunity.
Like the prior cases, the plaintiffs argued that it was suing for YouTube’s provision of accounts to ISIS, not for content published via the accounts. The court restates that the plaintiffs’ argument “essentially tries to divorce ISIS’s offensive content from the ability to post such content.” The court is unpersuaded:
The SAC is replete with detailed descriptions of the actual content that ISIS has posted on YouTube in furtherance of its terrorist activity, including over 15 pages of allegations of “ISIS’s extensive use of Google’s services” to disseminate its terrorist message. In this way, Plaintiffs’ claims are inextricably bound up with the content of ISIS’s postings, since their allegations describe a theory of liability based on the “essential” role that YouTube has played “in the rise of ISIS to become the most feared terrorist organization in the world.”…If the court were to apply Plaintiffs’ logic and ignore the content of any ISIS-related YouTube postings in construing Plaintiffs’ claims, it would be impossible to discern a causal basis for Google’s alleged responsibility for the terrorist attacks.
The court easily concludes: “Plaintiffs seek to treat Google as the publisher of ISIS’s video content.”
Riffing on the same theme, the plaintiffs claimed YouTube loses Section 230 immunity by “allowing accounts that are taken down to rapidly ‘reconstitute’ by permitting bulk friend/follow requests, and failing to take steps to minimize or mitigate ‘incremental naming’ of accounts.” Citing Roommates.com, the court responds: “Plaintiffs seek to hold Google liable for failing to adopt a strategy to defeat activity such as account reconstitution and bulk friend/follow requests; to the extent the objective of such a strategy is to control who can publish content, section 230(c)(1) immunizes Google’s decision not to adopt that strategy.”
The plaintiffs also claimed that YouTube helped develop ISIS’s content by delivering targeted ads around the videos. As the court flatly responds: “This theory finds no support in the case law.” Citing Roommates.com (again) and Jones v. DirtyWorld, the court explains:
Plaintiffs do not allege that Google “materially contribut[ed]” in any way to the actual content of ISIS’s YouTube videos. They do not claim that Google’s ads (which are themselves third-party content) are objectionable, or that the ads played any role in making ISIS’s terrorist videos unlawful.
The court also suggests that YouTube’s ad targeting algorithm is “content neutral.” Thus, “Google’s provision of neutral tools, including targeted advertising, does not equate to content development under section 230, because as currently alleged, the tools do not encourage the posting of unlawful or objectionable material….Google’s ad pairings do nothing to enhance the unlawfulness of ISIS videos, encourage the posting of ISIS videos, or make posting ISIS videos easier.”
It’s also irrelevant that YouTube may share ad revenues with ISIS, citing to Blumenthal v. Drudge and Roommates.com, and distinguishing Accusearch because YouTube didn’t actively solicit, or develop the content of, ISIS’s videos.
Out of an abundance of caution, the court gives the plaintiffs the opportunity to file a (third) amended complaint, and I’m sure the plaintiffs will try again. However, the court’s opinion leaves little room for the plaintiffs to marshal better facts that will change the result. So I expect the plaintiffs’ additional attempt will fail. Furthermore, this opinion is thoughtful and well-constructed, so it should fare well on appeal if the case gets that far.
Although this is a nice Section 230 ruling, I have a pit in my stomach about how good rulings like this could turn into a long-term strategic loss. To me, the support-to-terrorist laws closely parallel the support-to-sex-traffickers laws. Both statutory schemes have broad criminal provisions, expansive secondary liability doctrines, supporting federal civil claims, tragic and sympathetic victims, and political toxicity for any opposition. (Though I’ll note one key difference: much content published by terrorists qualifies for the First Amendment, while Backpage v. Lynch suggested that sex trafficking ads never qualify for the First Amendment). Thus, if Congress passes SESTA/the Wagner bill, it will provide a template for similar reform to exclude terrorist victim claims from Section 230. In other words, when courts resoundingly embrace Section 230 as an immunity to wipe away terrorist victim claims, it could have an unfortunate side effect of providing more fuel for statutory reform advocates.
Meanwhile, the Fields v. Twitter case is on appeal to the Ninth Circuit, which will hear oral arguments in early December. If the Ninth Circuit affirms, I’m hoping that ruling will quell the existing lawsuits against social media sites and discourage new ones. Any other result will produce a litigation fiesta.
Case citation: Gonzalez v. Google, Inc., 2017 WL 4773366 (N.D. Cal. Oct. 23, 2017)