Crosby v. Twitter, Inc.

921 F.3d 617

Earl CROSBY, et al., Plaintiffs-Appellants,

v.TWITTER, INC.; Google, LLC; Facebook, Inc., Defendants-Appellees.

No. 18-1426

United States Court of Appeals, Sixth Circuit.

Argued: January 15, 2019

Decided and Filed: April 16, 2019

ARGUED: Daniel W. Weininger, EXCOLO LAW, PLLC, Southfield, Michigan, for Appellants. Seth P. Waxman, WILMER CUTLER PICKERING HALE & DORR LLP, Washington, D.C., for Appellees. ON BRIEF: Daniel W. Weininger, Keith L. Altman, EXCOLO LAW, PLLC, Southfield, Michigan, for Appellants. Seth P. Waxman, Patrick J. Carome, Ari Holtzblatt, WILMER CUTLER PICKERING HALE & DORR LLP, Washington, D.C., Brian M. Willen, WILSON SONSINI GOODRICH & ROSATI, P.C., New York, New York, Kristin A. Linsley, Joseph A. Gorman, GIBSON, DUNN & CRUTCHER LLP, San Francisco, California, for Appellees. Aaron Mackey, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Curiae.

Before: MERRITT, GIBBONS, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge.

This case follows the tragic mass shooting at the Pulse Night Club in Orlando, Florida. In June 2016, Omar Mateen entered the club and opened fire, killing forty-nine people and injuring another fifty-three. Many victims and family members of deceased victims brought this lawsuit seeking damages for their senseless losses. But they did not sue Mateen, the lone terrorist responsible for the shooting. Nor did they sue ISIS, the international terrorist organization that allegedly motivated Mateen through social media. Instead, Plaintiffs filed claims against social media giants Twitter, Facebook, and Google under the Anti-Terrorism Act ("ATA"). According to Plaintiffs, ISIS used Defendants’ social media platforms to post propaganda and "virtually recruit" Americans to commit terrorist attacks. This worked on Mateen: he allegedly viewed ISIS-related material online, became "self-radicalized," and carried out the Pulse Night Club shooting. Following the attack, ISIS claimed responsibility. Thus, according to Plaintiffs, Defendants are responsible for Mateen’s act of terrorism.

We sympathize with Plaintiffs—they suffered through one of the worst terrorist attacks in American history. "But not everything is redressable in a court." Kemper v. Deutsche Bank AG , 911 F.3d 383, 386 (7th Cir. 2018). And terrorist attacks present unique difficulties for those injured because the terrorists "directly responsible may be beyond the reach of the court." Id. This is one such case. But the absence of Mateen and the inability to hold ISIS responsible cannot create liability elsewhere. Plaintiffs’ complaint includes no allegations that Twitter, Facebook, or Google had any direct connection to Mateen or his heinous act. And Plaintiffs do not suggest that Defendants provided "material support" to Mateen. Without these connections, Plaintiffs cannot state a viable claim under the ATA. As a result, we affirm the district court’s dismissal of Plaintiffs’ claims.

I.

Plaintiffs’ Amended Complaint controls our analysis. And it starts with details on how the terrorist group, the Islamic State of Iraq and Syria¹ ("ISIS"), uses social media. (See Am. Compl., R. 33.) Starting in 2010, ISIS began using Twitter, Facebook, and Google to spread its propaganda and messages of hate. Defendants’ platforms allow ISIS to reach a global audience, attracting new recruits and inspiring "lone actor attacks." As of 2014, ISIS has seen success, especially on Twitter—with an estimated 70,000 accounts—and some with as many as 20,000 followers. Plaintiffs provide many examples of ISIS’s posts on Defendants’ websites—and allege that these posts successfully recruited more than 30,000 foreigners to join ISIS. At the same time, Plaintiffs allege these posts allowed ISIS to spread propaganda and fear. (Id. ¶¶ 61–74 (including gruesome photos and videos of attacks, beheadings, and messages to kill Americans "wherever you are").)

Plaintiffs also explain how ISIS uses social media to fund its terrorism. For example, through a Twitter campaign to "[p]articipate in Jihad with your money," ISIS received almost $ 7,000 in donations. (Id. ¶ 57.) Plaintiffs also allege that Defendants profit from ISIS’s use of their social media platforms. This occurs by ISIS using Defendants’ tools to create targeted ads, or by sharing revenue with ISIS when individuals view content or watch videos. But to be sure, this form of advertising is generally available to any user. And Plaintiffs admit that "Defendants have not created [ISIS’s] posting nor have they created the advertisement[s]." (Id. ¶ 203.)

Next, Plaintiffs explain how Defendants know that ISIS uses their social media platforms. Plaintiffs rely on news articles from various outlets—such as the New York Times, CNN, Business Insider, and the BBC—to show that ISIS’s use of Twitter, Facebook, and YouTube are "widely reported." And despite this knowledge, Plaintiffs allege, Defendants ignore requests to block ISIS and fail to prevent ISIS from using its services. Plaintiffs’ main complaint seems to be that Twitter does not take a more proactive approach to find and remove ISIS accounts. For example, Twitter "does not proactively monitor content and ... reviews only that content which is reported by other users as violating its rules." (Id. ¶ 113.) And "[e]ven when Defendants shut down an ISIS-linked account, they do nothing to stop it from springing right back up." (Id. ¶ 116.) Instead, Plaintiffs complain that Defendants allow ISIS to use a "simplistic renaming scheme" to create a new account as soon as Twitter bans the old account. (Id. ¶¶ 116–119.) The "scheme" is like a game of whack-a-mole: Twitter bans an ISIS account named "DriftOne00146"—but the next day the same ISIS account is back as "DriftOne00147." Twitter then bans the new account—but the next week the same ISIS account appears as "DriftOne150." Apparently, the number in the username reflects how many times Twitter has taken the account down, which has occurred to "DriftOne" more than 150 times. Plaintiffs allege that Twitter could use "a content-neutral algorithm" to stop this practice and prevent ISIS from "rapidly connect[ing] and reconnect[ing]" with its supporters. (Id. ¶¶ 126–131.) But because Defendants choose not to use the algorithm, Plaintiffs allege that Defendants "knowing[ly] and reckless[ly] provide[ ] material support to ISIS." (Id. ¶ 131.)

Plaintiffs finally mention Mateen in Paragraph 148 of the Amended Complaint. Mateen entered the Pulse Night Club, killed forty-nine people, and injured another fifty-three. Shortly before the attack, Mateen pledged allegiance to ISIS on Facebook and used "ISIS talking points" from Twitter. The FBI determined that Mateen was "self-radicalized on the Internet and social media." (Id. ¶ 193.) This self-radicalization, however, occurred "over a period of several years and [Mateen] decided only recently before the attack to embrace [ISIS]." (Id. ¶ 177.) Mateen also "had never been directly in contact with ISIS." (Id. ¶ 195.) Still, Mateen watched jihadist speeches online and downloaded jihadist videos and materials to his laptop.

Plaintiffs allege that ISIS’s content on Defendants’ websites radicalized Mateen and "contribut[ed] to his decision to launch [the] Orlando attack and murder[ ] Plaintiffs’ decedents and injur[e] other Plaintiffs." (Id. ¶¶ 194, 198.) Plaintiffs claim that this is part of ISIS’s plan: to radicalize individuals through social media and to incite terrorist attacks around the world "without the necessity of sending its own operatives." (Id. ¶¶ 206–07.) Thus, according to Plaintiffs, an attack by Mateen (or by any individual who views ISIS content online) becomes a de facto attack by ISIS. After the attack, ISIS praised Mateen and announced that the Pulse Night Club shooting "was carried out by an Islamic State fighter." (Id. ¶¶ 174–75.) ISIS’s social media accounts also recognized Mateen by posting his picture and pictures of the attack. In sum, the substance of the complaint was that Defendants’ platforms were so poorly policed as to afford Mateen encouragement and assistance.

II.

Plaintiffs filed several claims against Defendants, including (1) aiding and abetting international terrorism under 18 U.S.C. § 2333 ; (2) conspiracy in furtherance of terrorism; (3) providing material support to terrorists under 18 U.S.C. § 2339A ; (4) providing material support and resources to terrorists under 18 U.S.C. § 2339B(a)(1) ; (5) negligent infliction of emotional distress; and (6) wrongful death. The district court dismissed the entire Amended Complaint. On appeal, Plaintiffs abandon claims two and three.

The district court gave several reasons for dismissal. First, the district court explained that the Pulse Night Club shooting was not an "act of international terrorism." (Corrected Op., R. 58 at 10.) Mateen’s "self-radicalization" and "conduct in carrying out the attack" did not have "any transnational component." (Id. at 12.) And there are no pleaded facts to show that ISIS—or their online content—"had anything at all directly to do [with Mateen and] the shooting." (Id. at 11.) Instead, this "violent and tragic ... event" was a domestic event: a shooting within the United States, with American victims, and an American shooter. This defeated the federal claims.

Still, the district court analyzed the aiding and abetting claim (also known as "secondary liability"), which extends liability to anyone helping "the person who committed [ ] an act of international terrorism." (Id. at 13 (quoting 18 U.S.C. § 2333(d) ).) If the Pulse Night Club shooting was an act of international terrorism, Plaintiffs’ claims still failed because there were no plausible allegations that ISIS "committed" the shooting—or that Defendants had "any tangible connection" to Mateen. For the same reasons, the district court dismissed the conspiracy claim and the "material support" claims.

The district court concluded its analysis with causation. Disregarding Plaintiffs’ other...