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Dismissal of Anti-Terrorism Act Lawsuit against Twitter is Affirmed by the Ninth Circuit … but not on Section 230 Immunity Grounds

On January 31, 2018, the Ninth Circuit Court of Appeals in Fields v. Twitter, Inc. ruled unanimously to uphold a lower court’s dismissal of an Anti-Terrorism Act lawsuit that had been brought against Twitter after two American contractors were killed in Jordan in 2015 in an ISIS-related attack.  The plaintiffs in the case — the families of the victims — alleged that Twitter was responsible for the deaths because it had provided “material support” to the Islamic State by “knowingly and recklessly provid[ing] ISIS with accounts on its social network” and that “[t]hrough this provision of material support, Twitter enabled ISIS to acquire the resources needed to carry out numerous terrorist attacks.”  Under federal law, “material support”  is defined statutorily to include, among other things, any “service” and “communications equipment.” 18 U.S.C. §§ 2339A(b), 2339B(g)(4).

Specifically, the plaintiffs argued that ISIS used Twitter’s Direct Messaging feature to communicate with potential recruits and “for fundraising and operational purposes.”  Also, Twitter’s platform allowed ISIS to recruit publicly, by posting “instructional guidelines and promotional videos, referred to as ‘mujatweets.’”  According to the plaintiffs, within the year preceding August 2016, Twitter allowed ISIS to attract “more than 30,000 foreign recruits,” and that ISIS used Twitter to fundraise and to “spread propaganda and incite fear by posting graphic photos and videos of its terrorist feats.”

The lower court dismissed the action on the basis that Section 230 of the Communications Decency Act provides immunity from civil liability to operators of internet sites that host user-generated content.  Although the plaintiffs had contended that Twitter “materially supported” ISIS by permitting ISIS members to sign up for Twitter accounts — conduct that had nothing to do with the content that ISIS members published on the site —  the lower court rejected this argument, stating:

“[P]laintiffs attempt to plead around the CDA by asserting that Twitter provided ISIS with material support by allowing ISIS members to sign up for accounts, not by allowing them to publish content. But no amount of careful pleading can change the fact that, in substance, plaintiffs aim to hold Twitter liable as a publisher or speaker of ISIS’s hateful rhetoric, and that such liability is barred by the CDA.”

The Ninth Circuit affirmed the dismissal of the case, but did so without reaching the question of whether Section 230 protects Twitter from liability.  Instead, the Ninth Circuit found that the plaintiffs had not pleaded that Twitter’s provision of communication equipment to ISIS, in the form of Twitter accounts and direct messaging services, had any direct relationship with the injuries that the plaintiffs suffered.  The court held that the plaintiff’s complaint

“At most … establishe[d] that Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts. But [it did] not articulate any connection between Twitter’s provision of this aid and Plaintiffs–Appellants’ injuries.”

Thus, outside of the  it still remains an open question whether Section 230 of the the CDA protects operators of internet sites that host user-generated content from liability for materially supporting terrorist activity by providing terrorist organizations with a social media platform through which they can recruit members, raise money, and spread their hateful messages.

The Fields plaintiffs have not indicated whether they will petition the Ninth Circuit for a rehearing or whether they will seek review by the Supreme Court.