Fourth Judge Says Social Media Sites Aren’t Liable for Supporting Terrorists–Pennie v. Twitter

December 10, 2017 · by · in Content Regulation, Derivative Liability

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

This is one of the multitudinous 1-800-LAW-FIRM lawsuits against social media services for allegedly providing material support to terrorists. It has filed at least two new cases in the last few days. This particular case involves a 2016 shooting of five Dallas police officers by Micah Johnson, who allegedly was radicalized by online content from the terrorist group Hamas.

Three prior courts have rejected the suits, principally on Section 230 grounds but also with causation concerns. See Fields v. Twitter, Cohen v. Facebook, and Gonzalez v. Facebook. Like the others, the court dismisses the claims.

Lack of Causation

Of the four rulings, this opinion is probably the clearest and most emphatic about the lack of causation. The court says: “Plaintiffs do not meaningfully allege that Hamas itself carried out the attack, or even that it intended for such an attack to occur.” Instead, the complaint tries to bridge the gap by describing “contacts between African American and Palestinian organizations with no apparent relevance to this case.” Thus, the court summarizes, “Plaintiffs seek to [impose] liability for an attack by a person who had engaged on social media with groups that arguably shared an ideological affiliation with groups that received expressions of solidarity from groups that shared an ideological affiliation with a designated foreign terrorist organization to which Defendants provided support.” (Read that sentence a few times and you might conclude the judge meant to be a little tart).

This attenuation is too much for the judge:

The complaint here does not plausibly allege that Hamas “committed, planned, or authorized” the Dallas attack, or that it was “the person who committed” the attack, within any reasonable interpretation of those terms in 18 U.S.C. § 2333(d)….Without some meaningful connection between Hamas and the attack, Defendants ‘ alleged provision of support to Hamas does not meet even Plaintiffs‘ test of proximate cause: absent plausible allegations that Hamas itself was in some way a “substantial factor” in the attack, there is no basis to conclude that any support provided by Defendants to Hamas was a substantial factor.

Section 230

The court says: “the CDA immunizes Defendants from most if not all of Plaintiffs‘ claims, because Plaintiffs‘ theory of liability rests largely on the premise that Defendants should be held responsible for content created and posted by users (here, Hamas and its affiliates) of Defendants‘ interactive computer services.” The court breaks down some detail:

  • The court says the later-enacted federal anti-terrorism statute (JASTA) doesn’t trump or repeal Section 230.
  • The complaint alleged that it wasn’t basing its claims on Hamas’ content but instead on the defendants “allowing Hamas to use their services at all.” The court rightly calls BS on this: “Plaintiffs explicitly base their claims on the content that Hamas allegedly posts, because absent offending content, there would be no basis for even the frivolous causal connection that Plaintiffs have alleged between Defendants‘ services and the Dallas attack”
  • The complaint argued that the social media services should be liable for removing an account and then having the accountholder create a new account. The court rejects this based on Section 230(c)(2) and a cite to Roommates.com that defendants may edit some content without becoming liable for all content. This is the right result, but the judge doesn’t really walk through Section 230(c)(2)’s applicability in detail.
  • Ad targeting doesn’t constitute content development in part.

The assertion that YouTube shares its ad revenue gives the court some pause. The court says “whether, or under what circumstances, the CDA immunizes payments made by interactive service providers to content developers appears to be a novel issue.” Google cited Blumenthal v. Drudge, in which Section 230 applied even though AOL paid Matt Drudge for allegedly defamatory content, but the court distinguishes Blumenthal because it “does not address the question of whether the CDA immunizes payments that otherwise could themselves give rise to liability.” In other words, the legal question isn’t paying for illegal content; it’s the legality of putting any money into these specific pockets. As the court says, “Providing money to Matt Drudge generally is legal; providing money to Hamas generally is not.” Thus, “the Court declines to resolve the question of if or how the CDA applies where an interactive service provider shares advertising revenue with a content developer that has been designated as a foreign terrorist organization.” The court instead rests its dismissal of this point on lack of causation. We can expect the plaintiff’s counsel will revisit this point in its other cases.

What’s Next?

Some predictions:

  • 1-800-LAW-FIRM will keep filing new lawsuits despite its poor track record in court and its loss here.
  • In future cases, it will zero in on social media services’ payments to terrorists. This argument doesn’t help against Twitter or Facebook, but it might give a Section 230 bypass in YouTube’s case. However, I wonder if the plaintiffs can show that YouTube “knew” the accounts were held by terrorists who could not receive payment, and how many such accounts actually got any payments.
  • Other “material support for illegal activity” claims will be litigated in parallel, such as the Dyroff v. Experience Project case involving the online sale of illegal drugs. That ruling cited heavily to the existing “material support to terrorist” opinions, and favorable ruling in the non-terrorist cases will make it even harder for the plaintiffs to win the anti-terrorism cases.
  • Once SESTA (or one of the rival versions) passes, anti-terrorist groups will be asking Congress for a new exclusion to Section 230. While SESTA is a major concern to the online community, a follow-on Section 230 exclusion related to terrorist groups absolutely would be an existential battle over the Internet.

Last week, the Ninth Circuit heard oral arguments in the Fields v. Twitter case. I haven’t heard much about the hearing. Obviously, the Ninth Circuit’s decision has important implications for this entire line of cases.

Case citation: Pennie v. Twitter, Inc., 2017 WL 5992143 (N.D. Cal. Dec. 4, 2017). The complaint.