[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]
The Ninth Circuit issued its ruling in Fields v. Twitter, the first appellate ruling to address if and when social media services like Twitter, Facebook, and YouTube can be liable for terrorist acts committed by terrorist organizations (or individuals inspired by them) who have accounts on their services. The lower court issued a decisive ruling in favor of Twitter; that ruling made my list of top 10 Section 230 cases of all time.
Perhaps disappointingly, the Ninth Circuit completely sidestepped Section 230, leaving it applicability for another day and another court. Instead, the court ruled against the plaintiffs solely on causation grounds. While I would have preferred this opinion decisively applied Section 230, this ruling is still a strong win for defendants in these cases because plaintiffs may never have the facts to satisfy the court’s causation standard. Accordingly, I think this ruling will accelerate the demise of the growing number of cases trying to hold social media sites liable for terrorist attacks.
The Court’s Holding
The court plainly states that Anti-Terrorism Act (ATA) cases require proximate causation, not just but-for causation or foreseesability: “to satisfy the ATA’s “by reason of” requirement, a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant’s acts.” If you’re not sure what “direct relationship” means, join the club.
The court offers up some policy justifications for a higher proximate causation standard:
Not requiring that this provision of support have some direct relation to a plaintiff’s injuries (1) would make it extremely difficult to attribute damages to the provision of material support as distinct from other intervening factors, (2) would force courts to develop complicated damages-apportionment rules to avoid multiple recoveries, and (3) would create these difficulties needlessly, because victims injured more directly by the provision of material support would not be prevented from recovery by a “direct relation” requirement….
Communication services and equipment are highly interconnected in modern economic and social life, such that the provision of these services and equipment to terrorists could be expected to cause ripples of harm to flow far beyond the defendant’s misconduct. Nothing in § 2333 indicates that Congress intended to provide a remedy to every person reached by these ripples; instead, Congress intentionally used the “by reason of” language to limit recovery. Moreover, we are troubled by the seemingly boundless litigation risks that would be posed by extending the ATA’s bounds as far as foreseeability may reach.
The court says the plaintiffs didn’t allege sufficient causation against Twitter:
At most, the SAC establishes that Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts. But the SAC does not articulate any connection between Twitter’s provision of this aid and Plaintiffs-Appellants’ injuries….Though we do not diminish the tragedy of the events that led to this lawsuit, we hold that Plaintiffs-Appellants have not pleaded that Twitter’s provision of accounts and messaging services to ISIS had any direct relation to the injuries Plaintiffs-Appellants suffered.
Further Proceedings. If I were the plaintiffs, I would seek a rehearing en banc and, if that didn’t work, then appeal to the Supreme Court. Judges have very different views about causation. I personally doubt that the plaintiffs will find a more receptive audience in further proceedings, but I’d be surprised if they don’t try. There’s way too much money on the table.
Consequences for Other Cases. I haven’t carefully scrutinized all of the similar lawsuits (there are probably a couple dozen by now). However, of the complaints I have read, I believe most of them effectively only allege that the defendant’s “provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts” and thus will fail to satisfy the standards articulated in this case. I’m skeptical any of the plaintiffs can show that the social media sites had a “direct relationship” to the terrorist attacks. What would that look like? Maybe if the terrorist cell swapped planning messages discussing the specific attack on a social media site? However, I don’t recall seeing cases alleging those facts. Furthermore, if the facts did, Section 230 would so clearly apply that a court can’t or won’t sidestep it. So I believe the court’s requirements for proximate causation makes it impossible for terrorism victims to win their cases against social media sites. Perhaps that will accelerate the demise of this litigation trend.
Service Provider Response. In parallel with the litigation, most social media sites have dramatically ramped up their anti-terrorist efforts. At the same time, it’s worth noting that much of the content they are deleting is covered by the First Amendment. While I defend the social media sites’ discretion to deny services to folks they consider terrorists, we should also acknowledge that those efforts are not wholly voluntary (i.e., they’re done at the behest of and under pressure from governments) and result in the deletion of socially legitimate and valuable content too.
Further Congressional Response? After Congress amends Section 230 to create a sex trafficking exception, it’s widely expected to turn its attention to the Section 230/anti-terrorism interplay. Interestingly, because this opinion doesn’t depend on Section 230, an anti-terrorism exception would not necessarily affect this ruling. Indeed, given the court’s requirement of proximate causation, Congress (if it were so inclined) would have to give careful thought about how it could draft a different statute to reach a different legal outcome.
Case citation: Fields v. Twitter, Inc., No. 16-17165 (9th Cir. Jan. 31, 2018)
* 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
Source: Eric Goldman Legal