Court Dismisses — For A Second Time — Lawsuit Seeking To Hold Facebook Responsible For Acts Of Terrorism

Legal Issues

from the when-Plan-B-is-to-make-even-worse-arguments dept

Back in May of last year, a New York federal court tossed two lawsuits from plaintiffs attempting to hold social media companies responsible for terrorist attacks. Cohen v. Facebook and Force v. Facebook were both booted for failing to state a claim, pointing out the obvious: the fact that terrorists use social media to recruit and communicate does not somehow turn social media platforms into material support for terrorism.

Both lawsuits applied novel legal theories to internet communications in hopes of dodging the obvious problems posed by Section 230 immunity. None of those were entertained by the New York court, resulting in dismissals without prejudice for both cases.

Rather than kick their case up the ladder to the Appeals Court, the Force plaintiffs tried to get a second swing in for free. The plaintiffs filed two motions — one asking the judge to reconsider its dismissal ruling and the other for permission to file a second amended complaint.

As Eric Goldman points out on his blog, the judge’s decision to address both of these filings at once makes for difficult reading. The end result is a denial of both motions, but the trip there is bumpy and somewhat incoherent.

Once the court moves past the plaintiffs’ attempt to skirt Section 230 by re-imagining its lawsuit as an extraterritorial claim, it gets directly to the matter at hand: the application of Section 230 immunity to the lawsuit’s claims. The plaintiffs performed a hasty re-imagining of their arguments in hopes of dodging the inevitable immunity defense, but the judge has no time for bogus arguments raised hastily in the face of dismissal.

From the decision [PDF]:

As noted in the court’s original decision, the protection afforded by Section 230 applies only to claims “based on information provided by [an] information content provider” other than the defendant. (May 18 M&O at 18-19 (quoting FTC V. LeadClick Media. LLC. 838 F.3d 158,173 (2d Cir. 2016)).) Plaintiffs now maintain that their claims have, in fact, always sought to hold Facebook liable for its own content, and not that generated by another “information content provider,” i.e., Hamas and related entities, based on Facebook’s alleged role in “networking” and “brokering” links among terrorists. (Recons. Mot. at 12.)

Plaintiffs’ contention is completely disingenuous. In the current motion. Plaintiffs acknowledge in a footnote that “perhaps plaintiffs could have made their reliance on Facebook’s productive conduct clearer in their briefing” but attribute this oversight to Facebook’s supposed failure to argue that it was not a content provider. (Recons. Mot. at 12 & n.9.) Plaintiffs’ contention is flatly refuted by Facebook’s briefing on the original motion to dismiss, which clearly argued that all of the offending content cited in Plaintiffs’ complaint was “provided by another information content provider, not by Facebook itself.” (Def. Mem. in Supp. of MTD (Dkt. 35) at 17-18.) Plaintiffs did not respond to this argument at any point, and in fact began their opposition memorandum by stating that “[t]hese cases do not concern speech or content.” For Plaintiffs to now turn around and argue that its allegations are largely about content that Facebook itself created borders on mendacious.

Having expended some strong language on the plaintiffs’ disingenuous arguments, the court wraps up the case with… well, it’s difficult to say where this order leaves the Force v. Facebook lawsuit. Here’s Eric Goldman’s attempt to summarize the ruling:

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).

About all that can definitively be said is the order can be appealed. Unfortunately, there have been two dismissals at this level: one with and one without prejudice. So, there may be an opening to refile in New York but chances are the Force case will meet its final demise at the appellate level.

There have been several lawsuits filed seeking to hold social media companies directly responsible for the actions of terrorists — and another one of them was rejected on appeal this week (we’ll have more on that case soon). In many cases, these are brought by the families of victims. There’s no denying the underlying tragedies motivating these legal cases, but the targets are not the wrongdoers. Nor are they even enablers. They’re platforms for communication. And communicating is something everyone does, even terrorists. People can rightfully argue platforms’ attempts to control terrorist communications have been mostly unsuccessfully. But they can’t honestly argue platforms are directly responsible for violence committed by terrorists.

Filed Under: blame, cda 230, force v facebook, material support for terrorism, section 230, social media, terrorism
Companies: facebook