Another Appellate Court Rejects “Material Support for Terrorist” Claims Against Social Media Platforms–Crosby v. Twitter

This suit involves the Pulse Nightclub shooting in Orlando, Florida. The shooter Mateen claims to have self-radicalized by consuming terrorist content on social media. After the shooting, ISIS claimed responsibility. The plaintiffs didn’t sue Mateen or ISIS but instead sued Twitter, Facebook, and YouTube. According to the court, “the substance of the complaint was that Defendants’ platforms were so poorly policed as to afford Mateen encouragement and assistance.” The Sixth Circuit dismissed the suit.

Direct Liability.  The court defines the legal baseline: to succeed on direct liability for the ATA, the plaintiffs must “show that Defendants, by providing social media platforms to ISIS, committed an act of international terrorism.” In a footnote, the court says that establishing the claim’s prima facie elements would be a “substantial hurdle.” But rather than go that route, the court–like the Ninth Circuit’s Fields ruling–relies on the lack of proximate causation:

With the “highly interconnected” nature of social media, the internet, and “modern economic and social life”—we expect Defendants’ websites to cause some “ripples of harm” that would “flow far beyond the defendant’s misconduct.” Fields, 881 F.3d at 749. But without more, Defendants do not proximately cause all these potential ripples. The content did not compel Mateen’s actions.

Indeed, if we accepted Plaintiffs’ argument, Defendants would become liable for seemingly endless acts of modern violence simply because the individual viewed relevant social media content before deciding to commit the violence….Defendants do not proximately cause everything that an individual may do after viewing this endless content. Nor can Defendants foresee how every viewer will react to third party content on their platforms. This is especially true where independent criminal acts, like Mateen’s, are involved.

Interestingly, this argument sets up the possibility that–independently from Section 230–online services can assert a proximate causation defense to a wide range of claims based on what third parties do. Arguably, all offline personal injuries spurred by online content would be eligible to make the same arguments. Perhaps hoping to limit that potential, the court tries to cabin the discussion to the facts in this case:

To be sure, this does not mean that Defendants could never proximately cause a terrorist attack through their social media platforms. But Plaintiffs allege no facts connecting Defendants to Mateen or the Pulse Night Club shooting. At most, Plaintiffs allege facts that generally connect Defendants to ISIS. But as the Amended Complaint admits, Mateen—and not ISIS—caused Plaintiffs’ injuries. Mateen became self-radicalized “over a period of several years and decided only recently before the attack to embrace [ISIS].” And Mateen “had never been directly in contact with ISIS.” Without some additional allegation connecting Mateen to Defendants—or ISIS to the Pulse Night Club shooting—Defendants’ direct liability claim must fail. Call it what you want, but it was not foreseeable that Defendants’ conduct would lead to the Pulse Night Club shooting. Nor did Defendants’ conduct play a substantial factor in, or have any direct link to, Mateen’s appalling act. As a result, Defendants did not proximately cause the Pulse Night Club shooting or Plaintiffs’ injuries.

Secondary Liability. Mateen’s actions can’t constitute the predicate direct liability because he wasn’t a foreign terrorist as required by the statute. And the plaintiffs can’t pin the attack on ISIS because Mateen was self-radicalized and ISIS claimed credit only after the fact. Reframing the claim as “aiding and abetting” doesn’t fix these facts.

State Law Claims. They fail for lack of proximate causation.

Section 230. It gets mentioned in a footnote as another “substantial hurdle” to the plaintiffs.

In all, this is an easy case for the appeals court, and they dismiss it with prejudice. I think the court’s discussion about proximate causation shows how legally unmeritorious these cases are. I thought this was the key line: “Call it what you want, but it was not foreseeable that Defendants’ conduct would lead to the Pulse Night Club shooting.” The court is basically saying it will find a way to reject the plaintiff’s claims given the overall conceptual problems with this case.

Case Citation: Crosby v. Twitter, Inc., 2019 WL 1615291 (6th Cir. April 16, 2019)

Prior Blog Posts:

* Tenth Lawsuit Against Social Media Providers for “Materially Supporting Terrorists” Fails–Sinclair v. Twitter
* Ninth Lawsuit Against Social Media Providers for “Materially Supporting Terrorists” Fails–Clayborn v. Twitter
* Eighth Lawsuit Against Social Media Providers for “Materially Supporting Terrorists” Fails–Copeland v. Twitter
* Seventh Different Lawsuit Against Social Media Providers for “Material Support to Terrorists” Fails–Taamneh v. Twitter
* 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