11th CCOAs: Twitter, Facebook & YouTube aided & abetted Mateen because of ISIS content posted on the sites. NOT LIABLE

In some respects the 11CCOAs Ruling isn’t surprising —it does open the CDA-230 discussion because the 11thCCOAs held social media companies are not liable for the content re ATA.

Pulse Nightclub Massacre

I would highly recommend you read the DOJ’s After-Action Report concerning what was considered America’s most deadly shooting. Sadly other more recent mass shootings dropped the Pulse Nightclub Massacre down in ranking of lethality, per Time Magazine’s April 2021 Info-Graphic

RESCUE, RESPONSE, AND RESILIENCE

A critical incident review of the Orlando public safety response to the attack on the Pulse nightclub…

On September 27, 2021 in a Published Opinion the 11thCCOAs held;

We affirm the district court’s dismissal of the ATA aiding-and-abetting claims because the plaintiffs have not sufficiently alleged that the Pulse massacre “transcended national boundaries” as required by § 2333(1)(C), the last part of the ATA definition of “international terrorism.”

Unlike previous lawsuits, the Plaintiffs alleged that social media companies bore some responsibility for Mateen’s radicalization. That the violent content and advertisements they sold amounted to the Social Media Companies “aiding and abetting” —as the investigation grew, Federal Law Enforcement would conclude that Mateen had “self radicalized” —meaning Mateen proactively sought out Isis Propaganda and therefore he was “self radicalized” largely because Mateen had never made successful contact with anyone in Isis.

The way I read the 11thCCOAs Ruling - because the plaintiffs were unable to articulate an actual nexus between Mateen and Isis —their claim was essentially embargoed by the plain language of the ATA. On a side note —it’s nice to see the Court express remorse for the lives lost and the injuries sustained by the survivors… but intellectually I understand and respect the ruling. Conversely on the emotional spectrum this is absolutely disheartening for the Pulse Nightclub victims. At the end of this article I articulate in my closing three paragraphs why the plaintiffs frustration is well grounded…

• aided and abetted Mr. Mateen in violation of the Anti-Terrorism Act, 18 U.S.C. §§ 2333(a) & (d)(2)

• Omar Mateen entered Pulse, an LGBT nightclub in Orlando, Florida armed with a SIG-Sauer MCX semi￾automatic rifle and a 9mm Glock semi-automatic pistol.

• During a 911 call Mateen stated he was an Islamic Solider…

• After the Pulse Nightclub’s deadly massacre, Isis then claimed credit

  

The relevance of what Mateen stated to Law Enforcement, pledging his alligence to Isis and then the delay in Isis claiming credit —That represents a pretty high hurdle for the Plaintiffs because they are required to articulate a nexus between Mateen and Isis and that the two had planned the attack together…

Unleashing a hail of gunfire, he murdered 49 people and injured 53 others. He then barricaded himself in a bathroom, called 911, and—referring to himself as an “Islamic soldier”—declared allegiance to The Islamic State of Iraq and Syria (ISIS), a designated foreign terrorist organization (FTO).

The 11thCCOAs Held: (and this is important)

Following oral argument, we affirm. We are deeply saddened by the deaths and injuries caused by Mr. Mateen’s rampage, but we agree with the district court that the plaintiffs failed to make out a plausible claim that the Pulse massacre was an act of “international terrorism” as that term is defined in the ATA

..without such an act of “international terrorism,” the social media companies—no matter what we may think of their alleged conduct—cannot be liable for aiding and abetting under the ATA. As for the state-law claims, the plaintiffs have failed to adequately brief proximate cause under Florida law, and have therefore abandoned their challenge to the district court’s ruling.

18 USCS §2331 defines international terrorism:

“international terrorism" means activities that…

• (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

• B) appear to be intended--

  • (i) to intimidate or coerce a civilian population;

  • (ii) to influence the policy of a government by intimidation or coercion; or

  • (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and

• (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.

Also in case you’re unaware “de novo review” is also known as a plenary review -both terms/phrases essentially mean that the US Circuit Court of Appeals reviews said case “like it’s the first time” —Some people are confused by this but hopefully by expounding on “what does that legalese mean” gives you a more fulsome understanding.

Because the Plaintiffs only sought review of the Lower (District) Court’s dismissal of their ATA aiding & abetting claims, and their Florida-law tort claims… the 11thCCOAs review was sequestered to those arguments.

18 U.S.C. § 2333(a) - Offers a civil remedy - the ATA provides:

“any national of the United States injured in his or her person . . . by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”

Like him or not —and I do understand that former FBI Director Comey is a very polarizing individual. Yet on on Isis —my preliminary research shows that (former) FBI Director Comey as early as 2014 and additional in 2015 Comey started sounding the alarm about how effective Isis crafted their social media presence. Stating in part;

• Isis has “perfected its use of social media use of Twitter, Facebook, and YouTube… to inspire small-scale individual attacks…to crowdsource terrorism, and to sell murder…”

• since 2013, ISIS has recruited more than 30,000 foreigners, including 4,500 Westerners and 250 Americans.

  On July 14, 2016 the House Homeland Security Committee held a hearing WORLDWIDE THREATS TO THE HOMELAND: ISIS AND THE NEW WAVE OF TERROR

  • Director Nicholas Rasmussen testimony "Worldwide Threats to the Homeland: ISIS and the New Wave of Terror." Written Testimony found here

  • Oral and Written Testimony of Dir Comey

• FBI Vault - Pulse Nightclub Shooting Part 01 of 01

• FBI Vault - Pulse Nightclub Shooting Part 02 of 02 -which is largely 148 pages of what appears to be DOJ & FBI internal communications, specifically with the OPA —but I haven’t read each and every page/

Proximate cause is a bedeviling concept in tort law…

Because duh it is and it’s largely subjective and frankly the splits within the USCA circuit is also incredibly problematic. Notwithstanding under the ATA -the plaintiffs are required to show:

…defendant’s acts were a “substantial factor” in the sequence of events leading to her injuries and that those injuries were “reasonably foreseeable or anticipated” as a natural consequence of the defendant’s conduct ¹… ²

…substantial factor/reasonable foreseeability analysis and holding that…under the ATA “a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant’s acts” - also the fact that the Plaintiffs were almost entirely silent on the Florida Tort Claims and failed to article a direct causation…

And sure you can try and nitpick the 11thCCOAs ruling but then you’d be forced to reconcile the fact that it appears the plaintiffs all but abandoned their argument that the Lower Court had mistakenly dismissed their Florida tort claims for failure to sufficiently plead proximate causation.

And while I understand the notion that Social Media Companies are not only profiting off Isis-like content, but between the inherent immunity protections via CDA-230. Coupled with the plain text of the ATA and the subsequent definitions of “act of international terrorism” —sadly the Courts have no other choice than to hand down rulings that in some respects further immunizes social media companies.

Granted I do think it way past time to reevaluate the CDA-230 protections it just seems like a miscarriage of justice for the victims and their families. It’s not like they can sue the gun or ammunition manufacturers for the murder or grave bodily injury sustained by Pulse Nightclub patrons. Because one thing I know for sure - the social media companies are mainly reactive to their platforms being misappropriated by Foreign and Domestic Terrorist.

And all of that that could change (for the better) if Congress steps up and re-evaluates the ubiquitous immunity built in the CDA-230 ³ —to be clear yes my opinion is the moment Twitter, Facebook, Instagram, and/or YouTube are sued for providing “material support” to designated Terror Groups —and a jury awards a massive award to a family who’s loved one was murdered by an American who was radicalized by the aforementioned social media company’s content —I’ll bet you it will only take one or two successful lawsuits for the Social Media Companies to finally take more aggressive proactive measures to clean up their platforms. But then again that’s speculation on my end and you are under no obligation to agree with me. In short I understand the frustration but the only viable remedy I see is Congress needs to repeal or refine CDA-230 otherwise victims are left with little to no legal recourse, as evident by the three separate USCA rulings discusses throughout this article… Filey

1. The 6thCCOAs Crosby v Twitter 330 F.Supp.3d at 580; 921 F.3d at 627 and it is referenced in the 11thCCOAs Ruling - via a footnote https://www.opn.ca6.uscourts.gov/opinions.pdf/19a0073p-06.pdf

2. The 9thCCOAs cited Fields v. Twitter, Inc., 881 F.3d 739, 744 (9th Cir. 2018) http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/31/16-17165.pdf

3. See Congressional Research Service - April 2021 -CDA-230 Report -last accessed on September 29, 2021 https://crsreports.congress.gov/product/pdf/R/R46751