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

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.

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

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  • icon
    ECA (profile), 1 Feb 2018 @ 1:30pm


    I love those that protest, "Im right you are wrong" attitude.
    Terrorism is bad, this is bad, thats bad, YOU ARE BAD..

    How many people have looked into WHy much of this is happening? At least go back to the 1980's in Afghanistan..
    Much of this is NOT about religion.
    The parts THAT ARE about religion, tend to be as bad or worse then Christians/Jews/Pentecostal/others went thru in Europe.
    Many do not even know WHY the King James bible was CREATED...yes it was CREATED.. Even most Christians dont know WHEN the New Testament was Found, Translated, then Added to the bible(not that long ago).
    Who wants to live by the Old testament(Tanakh) compared to the books of the life of Christ?
    There is little we can do, except to lock down the middle east and FORCE those in the Muslim religion to DECIDE what/WHO to believe of THEIR OWN RELIGION.. And get them OUT of the OLD TRIBAL RULES..

    As to WHAT the WHITE/EU based man, has done in the past to those in the middle east and many other countries.. ASK what we did that was GOOD.. Think about the American Indian, and multiply it by 10.. The Standard Corp mentality has ALWAYS been..."If it isnt illegal, we can do it"..and when we went to other countries THEY PRACTICED THIS WHOLEHEARTEDLY.,.It may be illegal in their Home country but NOT in the others.. And many countries remember what WE have done, even in recent history, WE HAVE NOT BEEN FAIR/EQAUL in what we do in other nations.

    reply to this | link to this | view in chronology ]

    • icon
      Richard M (profile), 1 Feb 2018 @ 3:03pm

      Re: wHY?

      The US screwing up the Middle East really goes back to 1953 when the US and UK overthrew a democratically elected Govt and installed a dictator in order to keep the cheap oil running.

      In 1951 Mohammad Mosaddegh was elected as the Prime Minister until 1953 when his government was overthrown in a coup d'état backed by the US and UK who installed Mohammad Reza as Shah.

      Is there any wonder that Iranians do not like the US? We basically killed democracy and handed them over to a brutal dictator for close to 30 years.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2018 @ 1:43pm

    Thanks for your love, I needed it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2018 @ 3:19pm

    Is Facebook an Iranian company? I know a lot of hi-tech U.S. companies are started and/or managed by immigrants, but I didn't remember Facebook as being one of them.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 1 Feb 2018 @ 5:37pm


      ever wonder WHY we only see...Products proclaiming USA USA..
      Even after being made in other countries??
      All parts made ELSEWHERE..Installed/Put together in the USA..
      Even NEt sites..

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2018 @ 5:29pm


    mendacious: untruthful, lying
    I learnt a new word today.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2018 @ 8:00pm

    Oh, boy. out_of_the_blue is really not going to like this at all.

    reply to this | link to this | view in chronology ]

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