Seventh Different Lawsuit Against Social Media Providers for “Material Support to Terrorists” Fails–Taamneh v. Twitter

By my count, this is the seventh different lawsuit concluding that social media providers are not liable for materially supporting terrorists (Cain, Crosby, Fields, Force/Cohen, Gonzalez, Pennie, Taamneh). [If I’m missing any, please let me know.] This is an impressive display of legal futility; it’s not easy to find this much consensus among judges. At some point, the law becomes clear beyond a doubt. Also, I admire the dogged determination (stubbornness?) of the plaintiffs’ lawyers (almost all cases are by Excolo and 1-800 LAW FIRM) for bringing this many cases plus the many others in queue, but I question their legal acumen and business judgment.

Doctrinally, the latest ruling doesn’t break a lot of new ground. Applying the 9th Circuit’s Fields v. Twitter ruling (binding precedent on this court), the judge says that the plaintiffs have not adequately alleged proximate causation between the social media defendants and the terrorist attacks. To get around this, the plaintiffs alleged that the terrorist actor was “radicalized by ISIS’s use of social media.” The court says that allegation, without further supporting evidence, was not enough to survive dismissal:

Plaintiffs do not allege that Mr. Masharipov ever saw any specific content on social media related to ISIS. Nor are there even any factual allegations that Mr. Masharipov maintained a Facebook, YouTube, and/or Twitter account. Furthermore, there are allegations in the complaint suggesting that there were other sources of radicalization for Mr. Masharipov….Finally, a direct relationship is highly questionable in light of allegations suggestive of intervening or superseding causes – in particular, Plaintiffs have alleged that, after becoming radicalized, Mr. Masharipov would have a “year-long communication and coordination [with] Islamic State emir Abu Shuhada” to carry out the Reina attack. Moreover, Plaintiffs fail to allege any clear or direct linkage between Defendants’ platforms and the Reina attack

(plus a cite to Pennie).

As for the defendants’ indirect liability, the court says “Congress chose to refer to aiding/abetting or conspiring with a person who committed ‘an act of international terrorism,’ not aiding and abetting or conspiring with a foreign terrorist organization.” Thus, it’s not enough for the plaintiffs to show that the social media providers had ties to ISIS or other terrorist groups; the evidence would need to connect the social media defendants to the specific attack.

The court also says the complaint did not sufficiently allege the defendants’ intent:

There is no allegation, for example, that Defendants knew that ISIS members had previously used Defendants’ platforms to communicate specific plans to carry out terrorist attacks. Defendants’ purported knowledge that ISIS previously recruited, raised funds, or spread propaganda through Defendants’ platforms that is more akin to providing material support to a foreign terrorist organization than assuming a role in terrorist activities.

Also, the court says the complaint didn’t sufficiently allege that the defendants provided “substantial assistance” to the attacks. Instead, “there is no real dispute that the relationship between Defendants and ISIS is an arms’-length one – a market relationship at best.” The state law claims failed on proximate causation grounds too. The court dismissed all of the claims with prejudice, teeing up this case for its inevitable appeal to the Ninth Circuit.

It’s noteworthy what the court didn’t discuss. The decision was based on the lack of proximate causation and the elements of the plaintiffs’ prima facie case. The opinion didn’t mention Section 230 or the First Amendment. It also didn’t mention some of the arguments that Excolo/1-800 LAW FIRM have invented to get around Section 230, including: the defendants are infrastructure providers, not publishers of terrorist content; the defendants create content by combining terrorist content with their ads; the defendants profit from terrorist content by serving ads around it; or YouTube shares ad revenues with terrorist organizations that uploaded videos. These plaintiff arguments have captured the interest of some media reporters and many Section 230 opponents. They have not found the support of any judges, however.

Case citation: Taamneh v. Twitter, Inc.2018 WL 5729232 (N.D. Cal. Oct. 29, 2018)

Another Social Media “Material Support to Terrorists” Lawsuit Fails–Cain v. Twitter
“Material Support for Terrorists” Lawsuit Against YouTube Fails Again–Gonzalez v. Google
Fifth Court Rejects ‘Material Support for Terrorism’ Claims Against Social Media Sites–Crosby v. Twitter
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