Section 230 Again Preempts Suit Against Facebook for Supporting Terrorists–Force v. Facebook

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

This is one of the many cases against social media sites for allegedly providing material support to terrorists. In May 2017, the court dismissed this case without prejudice on Section 230 grounds. The plaintiffs then asked the court (1) to reconsider the ruling and (2) for permission to file a second amended complaint. The court rejects both requests, describing the requests with adjectives like “completely disingenuous” and “mendacious.”

Due to the nature of the plaintiffs’ requests, the opinion is a little disjointed and hard to summarize. Instead of a well-flowing blog post, perhaps the best I can do is present some highlights from this whack-an-argument opinion:

* “While Plaintiffs now seek to distinguish between “making [Facebook’s] system available to terrorists and a terrorist organization” and “provid[ing] [ ] terrorists with valuable services” through such access, this is a distinction without a difference: the “valuable services” at issue are part and parcel of access to a Facebook account, and so imposing liability on that basis would again effectively turn on “Facebook’s choices as to who may use its platform.” ”

* “The court sees no reason to conclude that the ATA impliedly abrogated Section 230, as each statute can be enforced without depriving the other of “any meaning at all.”… the ATA’s general cause of action for victims of international terrorism cannot be said to “expressly contradict[ ]” the CDA, nor does the Section 230’s limitation on certain theories of liability deprive the ATA of “any meaning at all.”…the two acts can be read without any conflict: Section 230 provides a limited defense to a specific subset of defendants against the liability imposed by the ATA.”

* “the application of Section 230’s affirmative defense to Israeli claims is sensible under the circumstances, as it avoids the perverse result that plaintiffs could bring claims in American courts under foreign law that would be barred if brought under federal or state law”

* “the “enforcement” of “Federal criminal statutes” [for Section 230’s exclusion] was intended only to extend to enforcement by means of a criminal proceeding”

* “Facebook’s decision to keep its platform as an open forum, available for registration and posting without prior approval from Facebook, is itself an exercise of editorial discretion”

* “Plaintiffs’ new allegations that these policies allow users to join Facebook’s platform and to “self-publish” without Facebook’s prior approval do not alter the conclusion that Facebook’s decisions regarding the structure of its platform fall within the traditional functions of a publisher and so that Plaintiffs’ theory relies only on a “duty … derive[d] from [Facebook’s] status or conduct as a ‘publisher or speaker.’ ””

* “their theory that Facebook makes “personnel” available to Hamas depends on the content of communications on Facebook’s website: Plaintiffs seek to hold Facebook liable for providing a publication forum for Hamas and its leaders, operatives, and recruits, “to conspire, plan, prepare, and carry out terrorist activity.”  This is fundamentally no different than Plaintiffs’ prior argument that “Facebook contributed to their harm by allowing Hamas to use its platform to post particular offensive content.” Likewise, both the “personnel” and “expert services” allegations appear to rest in large part on allegations that Facebook’s networking algorithms recommend content to account holders. However, as Facebook points out, “the features of Facebook that [P]laintiffs criticize operate solely in conjunction with … content posted by Facebook users.””

* “Plaintiffs also contend, however, that Facebook’s statements in the Community Standards “conceal” acts by Hamas members and supporters that provide material support to Hamas using Facebook’s platform….unlike the other theories of liability proposed by Plaintiffs, the “concealment” claim does not seek to hold Facebook liable for failing to prevent Hamas and its affiliates from obtaining accounts or posting offensive content…. the court concludes that Plaintiffs fail to set forth a plausible claim that Facebook “concealed” or “disguised” the use of its platform by Hamas and its member and supporters”

I’m a little confused about where this ruling leaves the case. The court dismissed the first amended complaint without prejudice, but denied the plaintiffs the right to file a second amended complaint–and did so with prejudice. It seems like this should mean the case is over in the district court, and the plaintiffs can turn to the appeals court if they choose to do so (which they most likely will do). The Fields appeal has already been argued at the Ninth Circuit, so it’s highly likely we’ll get the Fields Ninth Circuit ruling before this case reaches an appeal. Assuming the plaintiffs lose the Fields case (which seems likely given the tenor of oral arguments), an appeal in this case will likely have to overcome adverse precedent in a different circuit.

Case citation: Force v. Facebook, Inc., 2018 WL 472807 (E.D.N.Y. Jan. 18, 2018)

Related Blog Posts:

* Fourth Judge Says Social Media Sites Aren’t Liable for Supporting Terrorists–Pennie v. Twitter
* Another Court Rejects ‘Material Support To Terrorists’ Claims Against Social Media Sites–Gonzalez v. Google
* Facebook Defeats Lawsuit Over Material Support for Terrorists–Cohen v. Facebook
* Twitter Defeats ISIS “Material Support” Lawsuit Again–Fields v. Twitter
* Section 230 Immunizes Twitter From Liability For ISIS’s Terrorist Activities–Fields v. Twitter