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Federal Appeals Court Misses Opportunity to Rule that Section 230 Bars Claims Against Online Platforms for Hosting Terrorist Content

DEEPLINKS BLOG
February 2, 2018

Federal Appeals Court Misses Opportunity to Rule that Section 230 Bars Claims Against Online Platforms for Hosting Terrorist Content

Although a federal appeals court this week agreed to dismiss a case alleging that Twitter provided material support for terrorists in the form of accounts and direct messaging services, the court left the door open for similar lawsuits to proceed in the future. This is troubling because the threat of liability created by these types of cases may lead platforms further filter and censor users’ speech.

The decision by the U.S. Court of Appeals for the Ninth Circuit in Fields v. Twitter is good news inasmuch as it ends the case. But the court failed to rule on whether 47 U.S.C. § 230 (known as “Section 230”) applied and barred the plaintiffs’ claims.

That’s disappointing. The Ninth Circuit missed an opportunity to rule that one of the Internet’s most important laws bars these types of cases. Section 230 provides online platforms with broad immunity from liability that flows from user speech. By limiting intermediary liability for user-generated content, Congress sought to incentivize innovation in online products and services and thereby create new avenues for online discourse and engagement. Section 230’s value has taken on increasing importance as the current Congress considers substantially weakening the statute.

The plaintiffs in Fields filed their lawsuit in an attempt to hold Twitter liable for the deaths of two Americans killed in a 2015 attack in Jordan for which ISIS had taken credit. The plaintiffs claimed that by providing accounts and messaging services to ISIS members and sympathizers, Twitter had provided material support to terrorists in violation of U.S. law.

The trial court dismissed the claims, ruling that Section 230 barred the claims. The court also ruled that the plaintiffs had not shown that Twitter played a direct role in the Jordan attack.

When the plaintiffs appealed, EFF filed a brief in support of Twitter. First, we argued that extending such material support liability to online platforms would threaten Internet users because those platforms would become incentivized to over-censor user content or severely curtail the creation of accounts (or even new products and services) in the first place. Second, we argued that such material support liability would violate online platforms’ First Amendment rights. Finally, we argued that the claims undercut both the letter and spirit of Section 230.

The Ninth Circuit affirmed the trial court’s ruling that that plaintiffs had failed to sufficiently allege that Twitter was the “proximate cause” of the attack. This legal concept requires plaintiffs to link the harm they suffered to the actions of defendants.

The appeals court wrote that although the plaintiffs’ complaint in Fields established “Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist attacks,” the complaint failed to “articulate any connection between Twitter’s provision of this aid and Plaintiffs-Appellants’ injuries.”

After tossing out the case on the proximate cause issue, the Ninth Circuit deliberately avoided ruling on the question of whether Section 230 barred the lawsuit regardless of the causation issue. This was a missed opportunity because a definitive ruling on Section 230 would have likely shut down a handful of similar suits currently in other federal courts—or possibly being considered by other parties.

Like in Fields, these lawsuits claim that online platforms such as Twitter, Facebook, and YouTube provided material support to terrorists based on the presence of user-generated content advocating for terrorism, and that this content led to the injuries or deaths of the plaintiffs. Although the ruling in Fields should make it difficult for these cases to proceed, it’s possible that some plaintiffs could write their complaints to address the causation issue identified by the Ninth Circuit.

On the other hand, if the appeals court had ruled that Section 230 barred the claims, it would have been a clear indication that these lawsuits are not on sound legal footing—and might have been the end of the line for these types of cases. So, although we’re happy that the plaintiffs did not prevail in this case, we hope that future courts examining this issue will actually rule on Section 230 grounds.

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