Fifth Court Rejects ‘Material Support for Terrorism’ Claims Against Social Media Sites–Crosby v. Twitter

[Just a reminder that Section 230’s evisceration will happen upon Pres. Trump’s signature]

Victims of the 2016 Pulse Nightclub shooting in Orlando, aided by the indefatigable 1-800-LAWFIRM and Excolo Law, sued social media providers. They alleged that the shooter was inspired by ISIS, ISIS published content on social media, and therefore the social media providers should be legally accountable for the shooting. Similar lawsuits have gone nowhere in court, and this one doesn’t either. However, in this case, the judge doesn’t rely on Section 230 to dismiss the complaint. Instead, the lawsuit discusses and rejects four prima facie elements before addressing the problems with causation.

1) No international act of terrorism. The court says:

Those statements suggest, at most, nothing more than that ISIS posts information on the Internet, which might be communicated over international borders. But nothing in those statements points to any element of Mateen’s conduct in carrying out the attack that had any transnational component. And the terminal allegation is nothing more than an unsupported legal conclusion, devoid of any specific factual support. Together, the allegations merely assert that because some acts of ISIS are “international,” and because Mateen may have viewed Internet postings or videos sympathetic to ISIS’s cause, Mateen is an “international terrorist,” and any violent act he committed therefore comprised “international terrorism.”

There are no pleaded facts that tend to show that Mateen carried out this act under ISIS’s express direction. To be sure, even ISIS never claimed that it had any contact with Mateen or instructed him to shoot up the Pulse Night Club.

2) Aiding and Abetting. The court says:

What have the plaintiffs pleaded here? That the defendants maintained social media platforms that enabled ISIS to spread its radicalizing message of violence and hatred of western cultures, and that those platforms allowed ISIS’s message to reach Mateen….

There are no facts that suggest that the defendants “encouraged” Mateen to commit his crimes. Likewise, the plaintiffs do not allege that the defendants provided him with any assistance, such as instructions on how to build a bomb or obtain an assault rifle. Certainly, no one suggests that any of the defendants’ representatives were present at the scene, that they had any “relationship” with Mateen, or that they were of a mind to see this horrible event take place….Here, the plaintiffs have not pointed to any tortious act committed by any of the defendants while handling Internet postings to their social media services that was taken “in concert with” Mateen’s attack….it appears to be undisputed that none of the defendants, or any of their employees or agents, knew anything at all about Mateen or his plans before he carried out the horrific attack in Florida

3) Conspiracy. The court says:

The only conduct involved with the attacks that is described with any particularity is Mateen’s, which, so far as the allegations of the amended complaint suggest, he undertook in isolation, when he “self-radicalized” by perusing Internet postings, and then acted on his self-informed radical sentiments by carrying out a shooting rampage at a crowded night club.

4) Material Support for Terrorists. The court says:

Nothing in the amended complaint plausibly suggests either (1) that the defendants knew that any “services” they provided to ISIS were destined to aid the person responsible for the Orlando attack (Mateen), or (2) that the defendants knew of any terrorist activities of ISIS that could be facilitated by the specific use of their services by any identified member or affiliate of ISIS….

although the plaintiffs have alleged that the defendants provided routine social media services to ISIS, they have not pointed to any individual or cognizable entity that the defendants plausibly knew to be facilitating or carrying out any acts of terrorism, and to whom the defendants nevertheless knowingly continued to provide services or support to in any form

It’s helpful that the court implicitly declares that providing “routine social media services to ISIS” is not enough to constitute material support of ISIS.

5) Causation. Finally, the court addresses the causation problem. The court says:

the allegations that Mateen viewed some literature and videos produced by ISIS is not sufficient to sustain any inference that either the defendants, or ISIS, or any individual or entity directly associated with ISIS, had any discernible direct involvement in the Orlando attack. Instead, the complaint suggests, at most, that the defendants merely were aware of a generalized risk that persons associated with or sympathetic to ISIS’s cause could, at some point, derive some benefit from their services, and that, at some point (by all accounts only after the attack) ISIS became aware of and expressed its approval of the attack. Those tenuous connections do not suffice to sustain the required inference of proximate cause

To plead proximate cause, the plaintiffs must point to facts that tend to establish that (1) ISIS perpetrated the attack that injured them, and (2) the defendants’ furnishing their social media platforms to ISIS caused the attack.

…the only communications between anyone that could have remotely involved the defendants’ services and that even arguably related directly to the shooting were claims of responsibility by ISIS news sources after the attack was completed; nothing in the amended complaint even alludes to any contacts or communications between anyone — let alone between ISIS and Mateen — that directly concerned the attack beforehand.


While it would be doctrinally preferable for the court to say that Section 230 preempts these lawsuits, this ruling is actually a helpful precedent for future defendants. Combined with the Ninth Circuit’s conclusion on lack of causation and the other cases’ reliance on Section 230, this case proves there is a third independent reason (failure of the prima facie elements) why these lawsuits against social media providers should fail.

Will that stop 1-800-LAWFIRM from filing more lawsuits? Of course not; they filed another one yesterday despite this ruling. I admire the lawyers’ doggedness even as I question their substantive and procedural expertise.

As an added bonus, because courts are not relying exclusively on Section 230, it will be harder for Congress to “fix” these cases if it so desired. At minimum, it would be meaningless to exclude the material-support-for-terrorists claims from Section 230 because that amendment would not automatically enable cases like this. Furthermore, though the courts haven’t directly ruled on the issue yet, any efforts by Congress to expand liability for social media sites for publishing terrorism content should encounter strict First Amendment limits.

Case citation: Crosby v. Twitter, Inc., 303 F. Supp. 3d 564 (E.D. Mich. April 2, 2018). The complaint.

Related posts:

Twitter Didn’t Cause ISIS-Inspired Terrorism–Fields v. Twitter
Section 230 Again Preempts Suit Against Facebook for Supporting Terrorists–Force v. Facebook
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