Argued: January 15, 2019
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:16-cv-14406-David M.
Lawson, District Judge.
W. Weininger, EXCOLO LAW, PLLC, Southfield, Michigan, for
P. Waxman, WILMER CUTLER PICKERING HALE & DORR LLP,
Washington, D.C., for Appellees.
W. Weininger, Keith L. Altman, EXCOLO LAW, PLLC, Southfield,
Michigan, for Appellants.
P. Waxman, Patrick J. Carome, Ari Holtzblatt, WILMER CUTLER
PICKERING HALE & DORR LLP, Washington, D.C., Brian M.
Willen, WILSON SONSINI GOODRICH & ROSATI, P.C., New York,
New York, Kristin A. Linsley, Joseph A. Gorman, GIBSON, DUNN
& CRUTCHER LLP, San Francisco, California, for Appellees.
Mackey, ELECTRONIC FRONTIER FOUNDATION, San Francisco,
California, for Amicus Curiae.
Before: MERRITT, GIBBONS, and NALBANDIAN, Circuit Judges.
NALBANDIAN, CIRCUIT JUDGE.
case follows the tragic mass shooting at the Pulse Night Club
in Orlando, Florida. In June 2016, Omar Mateen entered the
club and opened fire, killing forty-nine people and injuring
another fifty-three. Many victims and family members of
deceased victims brought this lawsuit seeking damages for
their senseless losses. But they did not sue Mateen, the lone
terrorist responsible for the shooting. Nor did they sue
ISIS, the international terrorist organization that allegedly
motivated Mateen through social media. Instead, Plaintiffs
filed claims against social media giants Twitter, Facebook,
and Google under the Anti-Terrorism Act ("ATA").
According to Plaintiffs, ISIS used Defendants' social
media platforms to post propaganda and "virtually
recruit" Americans to commit terrorist attacks. This
worked on Mateen: he allegedly viewed ISIS-related material
online, became "self-radicalized," and carried out
the Pulse Night Club shooting. Following the attack, ISIS
claimed responsibility. Thus, according to Plaintiffs,
Defendants are responsible for Mateen's act of terrorism.
sympathize with Plaintiffs-they suffered through one of the
worst terrorist attacks in American history. "But not
everything is redressable in a court." Kemper v.
Deutsche Bank AG, 911 F.3d 383, 386 (7th Cir. 2018). And
terrorist attacks present unique difficulties for those
injured because the terrorists "directly responsible may
be beyond the reach of the court." Id. This is
one such case. But the absence of Mateen and the inability to
hold ISIS responsible cannot create liability elsewhere.
Plaintiffs' complaint includes no allegations that
Twitter, Facebook, or Google had any direct connection to
Mateen or his heinous act. And Plaintiffs do not suggest that
Defendants provided "material support" to Mateen.
Without these connections, Plaintiffs cannot state a viable
claim under the ATA. As a result, we affirm the district
court's dismissal of Plaintiffs' claims.
Amended Complaint controls our analysis. And it starts with
details on how the terrorist group, the Islamic State of Iraq
and Syria ("ISIS"), uses social media.
(See Am. Compl., R. 33.) Starting in 2010, ISIS
began using Twitter, Facebook, and Google to spread its
propaganda and messages of hate. Defendants' platforms
allow ISIS to reach a global audience, attracting new
recruits and inspiring "lone actor attacks." As of
2014, ISIS has seen success, especially on Twitter-with an
estimated 70, 000 accounts-and some with as many as 20, 000
followers. Plaintiffs provide many examples of ISIS's
posts on Defendants' websites-and allege that these posts
successfully recruited more than 30, 000 foreigners to join
ISIS. At the same time, Plaintiffs allege these posts allowed
ISIS to spread propaganda and fear. (Id.
¶¶ 61- 74 (including gruesome photos and videos of
attacks, beheadings, and messages to kill Americans
"wherever you are").)
also explain how ISIS uses social media to fund its
terrorism. For example, through a Twitter campaign to
"[p]articipate in Jihad with your money," ISIS
received almost $7, 000 in donations. (Id. ¶
57.) Plaintiffs also allege that Defendants profit from
ISIS's use of their social media platforms. This occurs
by ISIS using Defendants' tools to create targeted ads,
or by sharing revenue with ISIS when individuals view content
or watch videos. But to be sure, this form of advertising is
generally available to any user. And Plaintiffs admit that
"Defendants have not created [ISIS's] posting nor
have they created the advertisement[s]." (Id.
Plaintiffs explain how Defendants know that ISIS uses their
social media platforms. Plaintiffs rely on news articles from
various outlets-such as the New York Times, CNN, Business
Insider, and the BBC-to show that ISIS's use of Twitter,
Facebook, and YouTube are "widely reported." And
despite this knowledge, Plaintiffs allege, Defendants ignore
requests to block ISIS and fail to prevent ISIS from using
its services. Plaintiffs' main complaint seems to be that
Twitter does not take a more proactive approach to find and
remove ISIS accounts. For example, Twitter "does not
proactively monitor content and . . . reviews only that
content which is reported by other users as violating its
rules." (Id. ¶ 113.) And "[e]ven when
Defendants shut down an ISIS-linked account, they do nothing
to stop it from springing right back up." (Id.
¶ 116.) Instead, Plaintiffs complain that Defendants
allow ISIS to use a "simplistic renaming scheme" to
create a new account as soon as Twitter bans the old account.
(Id. ¶¶ 116-119.) The "scheme"
is like a game of whack-a-mole: Twitter bans an ISIS account
named "DriftOne00146"-but the next day the same
ISIS account is back as "DriftOne00147." Twitter
then bans the new account-but the next week the same ISIS
account appears as "DriftOne150." Apparently, the
number in the username reflects how many times Twitter has
taken the account down, which has occurred to
"DriftOne" more than 150 times. Plaintiffs allege
that Twitter could use "a content-neutral
algorithm" to stop this practice and prevent ISIS from
"rapidly connect[ing] and reconnect[ing]" with its
supporters. (Id. ¶¶ 126-131.) But because
Defendants choose not to use the algorithm, Plaintiffs allege
that Defendants "knowing[ly] and reckless[ly] provide
material support to ISIS." (Id. ¶ 131.)
finally mention Mateen in Paragraph 148 of the Amended
Complaint. Mateen entered the Pulse Night Club, killed
forty-nine people, and injured another fifty-three. Shortly
before the attack, Mateen pledged allegiance to ISIS on
Facebook and used "ISIS talking points" from
Twitter. The FBI determined that Mateen was
"self-radicalized on the Internet and social
media." (Id. ¶ 193.) This
self-radicalization, however, occurred "over a period of
several years and [Mateen] decided only recently before the
attack to embrace [ISIS]." (Id. ¶ 177.)
Mateen also "had never been directly in contact with
ISIS." (Id. ¶ 195.) Still, Mateen watched
jihadist speeches online and downloaded jihadist videos and
materials to his laptop.
allege that ISIS's content on Defendants' websites
radicalized Mateen and "contribut[ed] to his decision to
launch [the] Orlando attack and murder[ ] Plaintiffs'
decedents and injur[e] other Plaintiffs." (Id.
¶¶ 194, 198.) Plaintiffs claim that this is part of
ISIS's plan: to radicalize individuals through social
media and to incite terrorist attacks around the world
"without the necessity of sending its own
operatives." (Id. ¶¶ 206-07.) Thus,
according to Plaintiffs, an attack by Mateen (or by any
individual who views ISIS content online) becomes a de facto
attack by ISIS. After the attack, ISIS praised Mateen and
announced that the Pulse Night Club shooting "was
carried out by an Islamic State fighter." (Id.
¶¶ 174-75.) ISIS's social media accounts also