With three tragic mass shootings dominating the headlines in as many weeks, it brought to mind a recent federal court decision which didn’t seem to get much play in the media at the time.
Many of these shooters feed their radical, hateful ideologies from content on Internet websites and especially social media. But should those social media platforms bear any responsibility when these guys act out their hate on the innocent public?
The Sixth Circuit Court of Appeals, it what may be one of the few cases addressing the question, said no.
The 2016 shooting at the Pulse Nightclub in Orlando killed 49 and injured 53 more, at the time the worst mass shooting in American history. It’s a sad statement on our times that the event has already faded from public memory since being eclipsed by yet more mass-casualty shootings in the intervening years.
The Orlando shooter, Omar Mateen, was reportedly radicalized by ISIS and other jihadist propaganda through Facebook, Google (YouTube’s owner), and particularly Twitter. Shooting survivors and family members of some of the slain victims brought a federal lawsuit against the three social media giants under the Anti-Terrorism Act (ATA), claiming that by providing a platform for ISIS and other radical groups to reach and recruit lone actors like Mateen, they aided and abetted an act of international terrorism and provided “material support and resources to terrorists.” (Crosby v. Twitter, No. 18-1426, 6th Cir. 2019)
Needles in a haystack?
Now why would Twitter even allow this type of content on their platform? It makes more sense once you understand Twitter has “hundreds of millions of users” and “over 500 million tweets per day (6,000 tweets per second).”
Individual ISIS operatives were apparently creating hundreds of Twitter accounts under different user names, which would immediately resurface under new names as soon as they were taken down by the site’s administrators. Twitter doesn’t police any of its content unless other users report it as violating the platform's rules.
The Crosby plaintiffs argued that in spite of this, Twitter could have used “a content-neutral algorithm” to thwart the practice and prevent ISIS from “rapidly reconnecting” with its supporters. Because it chose not to use the algorithm, the plaintiffs argued that Twitter “knowingly and recklessly” provided support to the terrorist organization.
The lower federal court threw out the lawsuit on the grounds that the plaintiffs failed to show that Twitter and the others actually caused the Orlando shooting by hosting these ISIS-related accounts. Further, because the Pulse shooting was not an “act of international terrorism” but instead a domestic crime taking place within the United States, with American victims and an American perpetrator, the Anti-Terrorism Act could not apply. And regardless, there were no plausible allegations that ISIS itself committed the shooting or that the social media companies had any tangible connection to Mateen.
No direct connection
In rejecting the plaintiffs’ appeal in a decision released last April, the Sixth Circuit reiterated that the plaintiffs failed to connect Mateen’s actions to the defendants’ conduct. While the defendants allowed ISIS to use their platforms, there was no evidence that this fact itself caused the attack.
The appellate court pointed out that the plaintiffs hadn’t sued ISIS, and hadn’t alleged a direct connection between the social media defendants and Mateen or his crime, which is necessary to bring an action under ATA.
Mateen became self-radicalized “over a period of several years and decided only recently before the attack to embrace ISIS,” and had never been in direct contact with the organization. Without more than a very general connection between him and Twitter and the other defendants, or between ISIS and the Pulse shooting, there could be no direct liability for the tragedy on the part of the social media companies.
If that weren’t the case, the court reasoned, then Twitter, Facebook and every other social media platform “would become liable for seemingly endless acts of modern violence simply because [an] individual viewed relevant social media content before deciding to commit the violence.” The companies cannot foresee how every viewer will react to third party content on their platforms.
This makes sense when one considers how many of these lone gunmen have been inspired by white nationalist and nihilistic propaganda on the Web and social media.
“It was not foreseeable that Defendants’ conduct would lead to the Pulse Night Club shooting, nor did it have any direct link to Mateen’s appalling act,” the court said.
In their opinion, the Sixth Circuit judges added that while they sympathized with the plaintiffs and their ordeal, the fact that Mateen and ISIS were both out of reach of American courts could not “create liability where it doesn’t exist.”