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Crosby v. Twitter, Inc.

United States District Court, E.D. Michigan, Southern Division

March 30, 2018

EARL CROSBY, individually and as successor-in-interest of the ESTATE OF TEVIN EUGENE CROSBY, LISA CROSBY, SHENETRA PARKER-HARRIS, CHAVIS CROSBY, CELIA RUIZ, individually and as successor-in-interest of the ESTATE OF JUAN RAMON GUERRERO, JR., JUAN RAMON GUERRERO, MAYA GUERRERO, ARYAM GUERRERO, OSVALDO VAZQUEZ, YAZMIN REYES, individually and as successor-in-interest of the ESTATE OF JAVIER JORGE-REYES, PEDRO JORGE DIAZ, IRIS REYES SANTIAGO, PEDRO JORGE REYES, GABRIEL JORGE REYES, and LIZ M. JORGE-REYES, CHRIS LITTLESTAR, MARIA C. SANFELIZ-MENDOZA, individually and as successor-in-interest of the ESTATE OF CHRISTOPHER JOSEPH SANFELIZ, NICHOLAS PEREZ, ANGEL MENDEZ, CHRISTINE LEINONEN, individually and as Successor-in-interest of the ESTATE OF CHRISTOPHER LEINONEN, JILLIAN AMADOR, STANLEY ALMODOVAR, individually and as successor-in-interest of the ESTATE OF STANLEY ALMODOVAR, III, ASAEL ABAD, LYDIA PEREZ, individually and as successor-in-interest of the ESTATE OF JEAN CARLOS MENDEZ PEREZ, ALVIN MENDEZ, JOSE LUIS VIELMA, individually and as successor-in-interest of the ESTATE OF LUIS SERGIO VIELMA, JACKSON J. JOSAPHAT, individually and as successor-in-interest of the ESTATE OF JASON B. JOSAPHAT, and CARLOS SANFELIZ, individually and as successor-in-interest of the ESTATE OF CHRISTOPHER JOSEPH SANFELIZ, Plaintiffs,
v.
TWITTER, INC., GOOGLE, INC., and FACEBOOK, INC., Defendants.

          CORRECTED OPINION AND ORDER GRANTING MOTION TO DISMISS AND DISMISSING CASE WITH PREJUDICE

          DAVID M. LAWSON United States District Judge

         The plaintiffs in this case are victims and family members of deceased victims of the mass shooting at the Pulse Night Club in Orlando, Florida perpetrated by Omar Mateen on June 12, 2016. They have sued the three defendants, which provide social media platforms used by terrorist groups to spread their messages of violence and hatred. The plaintiffs believe that the access that the defendants furnished to the Islamic State of Iraq and Syria (ISIS), which apparently allowed Mateen to hear its messages via the Internet and become radicalized, triggers liability for the shooting. The plaintiffs bring claims under federal statutes that create causes of action for aiding acts of international terrorism and providing material support to terrorists and foreign terrorist organizations. They also have alleged claims under state law.

         The defendants have filed a joint motion to dismiss, arguing that the claims are barred by the immunity granted to online service providers under the Communications Decency Act, 42 U.S.C. § 230, and that the pleaded facts do not support the causes of action. There are many conclusions that can be drawn from the facts alleged in the amended complaint about the ethics and moral responsibility of those maintaining social media sites, including the defendants. But because the plaintiffs have not pleaded facts that plausibly establish legal claims for which relief can be granted, the Court will grant the motion and dismiss the case.

         I.

         The facts are taken from the amended complaint, as read favorably to the plaintiffs for this motion to dismiss.

         Omar Mateen killed 49 people and injured 53 during the June 12, 2016 shooting at the Pulse Night Club. The plaintiffs (and their decedents) are included in those numbers. They posit that the defendants are accountable for those deaths and injuries under the civil remedy allowances Congress added to the federal Anti-Terrorism Act (ATA), found in Chapter 113B of the federal criminal code. In particular, 18 U.S.C. § 2333(a) establishes a cause of action for damages for “[a]ny national of the United States” who is killed or injured by “an act of international terrorism.” Liability extends to “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” Id. § 2333(d). The plaintiffs assert claims against these defendants under that section, and also for providing material support to international terrorists, 18 U.S.C. § 2339A, and for providing material support to international terrorist organizations, 18 U.S.C. § 2339B.

         The plaintiffs contend that by allowing ISIS to post proselytizing videos on their sites, and by deriving revenue from targeted advertising on those sites, the defendants have engaged in conduct subjecting them to liability for Mateen’s terrorist act. Although certain organizations, most notably banks, occasionally have been found liable under these federal statutes for aiding international terrorists, see, e.g., In re Terrorist Attacks on Sept. 11, 2001, 718 F.Supp.2d 456, 489 (S.D.N.Y. 2010), aff’d on other grounds, 714 F.3d 109 (2d Cir. 2013), there is not a single case in which social media providers have been held responsible. And in several other cases, attempts to make out such a case have failed. See Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir. 2018); Pennie v. Twitter, Inc., 281 F.Supp.3d 874, 2017 WL 5992143 (N.D. Cal. 2017).

         To establish their claims, the plaintiffs must plead facts that plausibly suggest the likelihood that the Orlando night club shooting was “an act of international terrorism,” and that the defendants aided and abetted or conspired to commit that act, or that they provided material support directly to Mateen, or material support to ISIS and that ISIS perpetrated the attack. Here is what they allege in their amended complaint.

         A. ISIS

         The amended complaint devotes considerable space to general allegations describing the well-known public persona of the organization popularly known as ISIS, and in particular its heavy use of the Internet and various social media facilities, including those maintained by the defendants, to spread the organization’s message promoting the establishment of an Islamic State governed by Sharia law. See Am. Compl. ¶¶ 1-103. The defendants do not appear seriously to contest those general background allegations, mostly coming from published news reports, suggesting that elements of ISIS operate (or have operated) numerous Internet accounts on the defendants’ services, some with thousands or tens of thousands of followers, which actively publish media and messages encouraging those who might view them to commit violent acts of terrorism, and which also publish messages claiming responsibility for violent terrorist acts around the world. The amended complaint also alleges that ISIS uses the defendants’ platforms actively to solicit sympathetic funders to donate to its cause. It appears to be undisputed that as far back as December 2004, the United States designated ISIS as a Foreign Terrorist Organization.

         The plaintiffs allege that all of the defendants place targeted ads on web pages featuring content posted by ISIS accounts, and that they derive revenue from views of those ads. Additionally, defendant Google, Inc., through its YouTube platform, places ads on pages where ISIS videos are displayed and shares revenue from those ads with the account holders who post videos. That results in direct payments to the ISIS affiliates that operate those accounts. Am. Compl. ¶¶ 59-60, 137-42. Despite public appeals to the defendants to take action to disable known ISIS-affiliated accounts on their services, the defendants have been unable or unwilling to do so. Id. ¶¶ 104-133. Any ISIS accounts that the defendants do disable rapidly reappear within hours or days under simple reiterations of the same formulaic account handles used by previous accounts that were banned (e.g., accounts named “DriftOne00147” through “DriftOne00151” serially created, posting substantially the same messages, after accounts “DriftOne00146” through “DriftOne00150” were deleted). Am. Compl. ¶¶ 121-24.

         B. The Orlando Night Club Shooting

         On Friday, June 12, 2016, Omar Mateen entered the Pulse Night Club in Orlando, Florida, and began shooting. By the time Mateen’s shooting rampage ended, 49 persons attending the club that night were dead, and 53 were injured. The attack was widely reported by local, national, and international news outlets.

         The plaintiffs allege that, shortly after the shooting, the ISIS official news agency, known as “Amaq,” issued a “flash bulletin” stating that, “The attack that targeted a nightclub for homosexuals in Orlando, Florida, and left more than one hundred dead and wounded was carried out by an Islamic State fighter.” The ISIS official radio station, al-Bayan, also reported on the shooting with a statement as follows:

Allah has enabled brother Omar Mateen, one of the soldiers of the Caliphate in America, to carry out a raid where he was able to infiltrate a Crusaders’ gathering at a gay nightclub in Orlando, Florida. Allah enabled him to inflict heavy casualties amongst the filthy Crusaders. He killed and injured over a hundred of them. This is the biggest raid to be carried [out] in America after the raid of Manhattan 16 years ago.

Am. Compl. ¶ 175. During the investigation of the shooting, FBI analysts concluded that Mateen viewed Internet sites over several years and became “self-radicalized.” But he decided only recently before the attack to embrace the Islamic State. Mateen supposedly watched online “jihadist sermons” since 2012. He also had downloaded “jihadist material” to his computer, which included videos of beheadings of militants’ captives. Omar Mateen’s spouse, Noor Salman, was arrested.

         During the arrest, the FBI learned that Mateen viewed ISIS YouTube videos, which presumably contributed to his recruitment and radicalization. (Noor Salman was charged with providing material support to an international terrorist organization and obstruction of justice in connection with the Orlando shooting, and was acquitted by a jury earlier today.)

         The plaintiffs allege that the Orlando night club shooting was an act of “international terrorism,” based on the following chain of inferences, as set forth in the amended complaint:

One of the state[d] goals of ISIS is to use social media including Defendants platforms to radicalize individuals to conduct attacks throughout the world, including the United States.
By radicalizing individuals through social media, this allowed ISIS to exert its influence without the necessity of direct physical contact with these individuals. Furthermore, this allows ISIS to incite or participate in attacks without the necessity of sending its own operatives.
Thus, an attack in the United States to which ISIS’ use of social media caused or contributed is an action by ISIS. Given that ISIS has been declared an international terrorist organization, such an action is an act of international terrorism.
Omar Mateen was radicalized by ISIS’ use of social media. This was the stated goal of ISIS. Mateen then carried out the deadly attacks in Orlando. Conducting terrorist acts via radicalized individuals is a stated goal of ISIS.
Mateen’s attack on the Pulse nightclub was a violent act causing death and injury and constitutes numerous criminal acts under the laws of the United States.
ISIS intended to intimidate and coerce western populations and governments through a pattern of intimidation and coercion as discussed throughout ...

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