While it’s understandable to desire someone be held responsible for brutal acts of terrorism, the responsibility for those actions lies with those who committed them. That’s hardly satisfying because it can be almost impossible to extract anything from the terrorists themselves, other than the limited recompense of seeing them arrested and jailed.
And that’s something that rarely happens. Many terrorist acts are suicidal, allowing perpetrators to exit the world as self-proclaimed martyrs, rather than the abhorrent murderers they actually are.
So, I understand the desire to sue social media companies whose platforms have been used by terrorist groups to recruit members and spread propaganda. The thing is, social media services aren’t complicit with these actions and, in most cases, are doing what they can to prevent this sort of content from being posted and shared.
What I can’t understand is the motivation of law firms like Excolo Law and (yes, this is its name) 1-800-LAW-FIRM to bring further misery to victims of terrorism by pretending there’s an actionable claim to be made in court against companies like Twitter and Facebook. This pretense — that has yet to hold up in court — allows these questionable legal firms to pretend they’re the Davids going up against these Goliaths, exploiting people that now have to relive these horrible experiences by becoming plaintiffs in lawsuits that cannot realistically expect to win.
The losses just keep mounting. The legal theories pushed by these firms have yet to secure a single win. And in just four pages, the Ninth Circuit Appeals Court has handed [PDF] these plaintiffs and their legal reps another three losses. (via Courthouse News Service)
This decision consolidates three appeals all stemming from dismissals with prejudice by lower courts. All three plaintiffs (all represented by the same two law firms listed above) sued Google, Twitter, and Facebook under the theory that the mere appearance of terrorist content on their platforms amounts to material support for terrorism or, at the very least, were negligent in their moderation efforts.
None of that works. It didn’t work at the lower level and the appeals court sees no reason to expend any more words than necessary to affirm these dismissals. This single paragraph is half the decision (not including footnotes) and it makes it extremely clear these arguments will never work in this circuit, or indeed, anywhere else in the federal judiciary, thanks to its brief citation of two overriding Supreme Court decisions.
The court concludes de novo that amending the operative complaints would be futile. See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). Plaintiffs-Appellants fail to allege the third element for aiding and abetting liability under 18 U.S.C. § 2333(d), that Defendants-Appellees “gave such knowing and substantial assistance to ISIS that they culpably participated” in the terrorist acts, Taamneh, 598 U.S. at 497 (applying the legal framework set forth in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983)). Each district court properly considered this dispositive third element. See id. at 503–07. Plaintiffs-Appellants proffer no arguments that any of the district courts either erred in dismissing claims or abused its discretion in denying leave to amend.
The law firms behind these lawsuits are exploiting tragedies and the people who survived them to extend the distance between the victims and closure. And it has happened over and over and over again. Mandy Palmucci is one of the plaintiffs affected by this decision. Here’s what the lower court said when it dismissed her case:
Following the Fields decisions, materially similar direct liability claims have been rejected by numerous judges in this District and elsewhere. See Clayborn v. Twitter, Inc., 17-CV-06894- LB, 2018 WL 6839754 (N.D. Cal. Dec. 31, 2018); Copeland v. Twitter, Inc., 352 F. Supp. 3d 965, 17-CV-5851-WHO (N.D. Cal. 2018); Taamneh v. Twitter, Inc., 343 F. Supp. 3d 904, 17-CV04107-EMC (N.D. Cal. 2018); Cain v. Twitter Inc., 17-CV-02506-JD, 2018 WL 4657275 (N.D. Cal. Sept. 24, 2018); Gonzalez v. Google, Inc., 335 F. Supp. 3d 1156, 16-CV-03282-DMR (N.D. Cal. 2018) (Gonzalez II); Gonzalez v. Google, Inc., 282 F. Supp. 3d 1150 (N.D. Cal. Oct. 23, 2017) (Gonzalez I); Pennie v. Twitter, Inc., 281 F. Supp. 3d 874, 17-CV-00230-JCS (N.D. Cal. Dec. 4, 2017); see also Crosby v. Twitter, Inc., 303 F. Supp. 3d 564 (E.D. Mich. March 30, 2018).
The lawyers handling these cases know these are losing causes. But they keep doing the same thing over and over again when they should be telling these clients these are cases that can’t be won. These firms present themselves as crusaders against Big Tech but all they’re really doing is taking advantage of people who’ve already been subjected to the worst things this world has to offer. This track record would be inexcusable if it were the result of hallucinating AI. There’s not even a word that capably describes what this is when there’s actual living, breathing, law license-holding humans behind it.
