(CN) — Victims of a jihadist attack at the Pulse nightclub in Florida have turned to the 11th Circuit to revive their claims that YouTube is liable for allowing Islamic extremist videos to spread on its website in the time leading up to the massacre.
Forty-nine people were murdered in the June 2016 attack at the popular Orlando gay club. The shooting was perpetrated by a U.S.-born extremist who was an avid viewer of Islamic State propaganda videos on online platforms including YouTube, an FBI investigation found.
During the massacre, he pledged allegiance to the Islamic State and proclaimed he was acting in retaliation for U.S. airstrikes in the Middle East. He was killed at the club in a standoff with law enforcement.
The Islamic State later claimed responsibility for the attack and hailed the shooter as a martyr.
Victims sued YouTube, Twitter and Facebook in Florida federal court in 2018, claiming the companies' failure to police extremist content allowed the Islamic State to wage a massive propaganda campaign that reached the shooter and other terrorists-in-the-making across the globe.
The case included counts against the tech giants for negligence and violations of the Anti-Terrorism Act.
Several estates of those fatally injured in the attack joined the litigation before a judge in the Middle District of Florida dismissed the lawsuit in March 2020. He wrote that the shooter, Omar Mateen, was self-radicalized and that the plaintiffs fell short of showing the tech companies' alleged inaction caused the attack.
On appeal Wednesday, U.S. Circuit Judge Andrew Brasher questioned YouTube and its parent company Google about the plaintiffs' allegations that YouTube ran paid ads on Islamic extremist videos and potentially shared the proceeds -- however unintentionally -- with those who uploaded the videos.
Brasher, a Donald Trump appointee, pointed to screenshots the plaintiffs put into the court record, purporting to show an "example of Google placing targeted ads in conjunction with an ISIS video on YouTube."
Attorney Lauren White responded on behalf of the tech giant.
"In this voluminous complaint, there is a single paragraph that vaguely refers to a known ISIS account and alleges that in connection with a single video . . . there theoretically could have been ad revenue shared with the user [of] the account," White said.
She added, "It's certainly not an actual allegation, much less a plausible allegation, that YouTube knew that the user who posted that video was associated with ISIS."
White argued the plaintiffs have no evidence to show that the supposed financial compensation from YouTube to ISIS directly assisted in the Pulse shooting. That kind of specific showing would be required to hold YouTube liable under the aiding-and-abetting provision of the Anti-Terrorism Act, she argued.
On behalf of the plaintiffs, attorney Keith Altman argued Wednesday that without enablement by YouTube, Twitter and Facebook, the terrorist organization would likely be little more than "50 guys in the desert jumping around a campfire."
"Our analogy is that the defendants handed the gun … to put in the schoolyard, by allowing [the Islamic State] to reach out and find someone to execute upon their wishes," Altman argued.
Altman meanwhile disputed that the plaintiffs are legally required to show that the defendant companies had to have direct, advance knowledge of the Pulse attack in order to be held liable.
He urged the appeals panel to overturn the lower court's ruling that the Pulse shooting did not meet the definition of "international terrorism" under the Anti-Terrorism Act. According to his brief, the ruling stands to limit the scope of the act such that it would not be enforced against many individuals radicalized solely through internet propaganda.
The law assigns liability to anyone who knowingly provides substantial assistance to an act of international terrorism "committed, planned, or authorized” by a designated foreign terrorist organization.
At the end of the Wednesday hearing, U.S. Circuit Judge Adalberto Jordan, a Barack Obama appointee, asked Altman whether there was any evidence that the Islamic State planned the attack alongside Mateen.
Altman conceded that the FBI investigation did not turn up evidence of planning between Mateen and ISIS.
Earlier in the hearing, Altman stated, however: "We plausibly alleged that Omar Mateen pledged allegiance during the attack to [ISIS leader Abu Bakr al-Baghdadi], and that ISIS claimed responsibility for the attack. Certainly they weren't going to claim responsibility before the attack."
Brasher and Jordan were joined on the panel by Senior U.S. Circuit Judge Julie Carnes, another Obama appointee.
In a similar case filed by Pulse shooting victims against Google, Twitter and Facebook in Michigan federal court, the claims were dismissed with prejudice. The decision was upheld in the Sixth Circuit in Crosby v. Twitter.
"If we accepted plaintiffs’ argument, defendants would become liable for seemingly endless acts of modern violence simply because the individual viewed relevant social media content before deciding to commit the violence," U.S. Circuit Judge John Baylor Nalbandian wrote for the Sixth Circuit.
The federal judge who initially fielded the Florida incarnation of the claims noted that they were filed in the Sunshine State five days after the Michigan federal court's dismissal order.
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