CINCINNATI (CN) – Victims and family members of those killed during the 2016 shooting at the Pulse nightclub in Orlando argued before a Sixth Circuit panel Tuesday to revive wrongful death and Anti-Terrorism Act claims against Twitter and other social media platforms.
The shooting left 49 dead and 53 others wounded. It was carried out by Omar Mateen, a member of the Islamic State group, also called ISIS, described by FBI analysts as “self-radicalized.”
The surviving victims of the shooting claimed in their 2016 federal lawsuit that “but for ISIS’ postings using defendants’ social media platforms, Mateen would not have engaged in his attack on the Pulse nightclub.”
They alleged Twitter, Google and Facebook knew their sites and platforms were being used by terrorist organizations to raise money and recruit new members, but did nothing to curb or end the activity.
U.S. District Judge David Lawson in Michigan sided with the social media giants, however, and granted their motion to dismiss in March 2018.
Judge Lawson found the victims and family members failed to meet the statutory requirements of claims brought under the federal Anti-Terrorism Act – specifically, that the shooting occurred outside the borders of the United States or “transcend[ed] national boundaries in terms of the means by which [it] was accomplished.”
“The only allegations of the complaint,” Lawson wrote, “even hinting at some trans-national connection are those concerning Mateen’s viewing of videos and internet content that the plaintiffs contend were posted by agents of ISIS.”
The judge continued, “But the complaint fails to assert any facts plausibly suggesting that the substance of those videos and other messages, or posting of them, had anything at all directly to do with the shooting, other than the principles espoused in them motivated Mateen to carry out the dreadful act.”
The victims argued that a “cat’s paw” theory applied to Mateen, and that he was directed by an outside actor, in this case ISIS, to perform the act. The theory is generally used in employment case, and is named after one of Aesop’s fables in which a monkey tricks a cat into pulling chestnuts from a fire.
Judge Lawson remained unconvinced, writing that “those statements suggest, at most, nothing more than that ISIS posts information on the internet, which might be communicated over international borders.”
The victims’ conspiracy claims were similarly tossed out by the judge, who cited a lack of compelling evidence.
“‘Naked assertions of conspiracy,’” he wrote, “are all the plaintiffs have offered; and, as to any common plan or scheme between the defendants and Mateen, they have not even offered that. Instead, they simply allege isolated facts, leaving to the court to imagine what conspiratorial scheme may have animated them.”
Attorney Dan Weininger argued on behalf of the victims Tuesday, telling the Sixth Circuit panel that his clients’ appeal concerns two acts of international terrorism – the first of which is “defendants’ material support provided to ISIS.”
He said the terrorist group is using American social media platforms “for command and control,” and to communicate and push propaganda.
Senior U.S. Circuit Judge Gilbert Merritt asked about the difference between posts on social media sites and news organizations such as the New York Times publishing information about the terrorist organization.
Weininger responded that news organizations do not post videos of beheadings on their websites, and that Twitter, Facebook and other social media platforms are used for direct fundraising.
He focused his argument on the idea that the social media platforms did not need to have direct knowledge of the Pulse nightclub attack to be held liable.
The attorney cited the 2018 Second Circuit case Linde v. Arab Bank, in which a jury held a bank liable for damages sustained by the families of victims of a Hamas terrorist attack.
Weininger told the panel that if the defendants were “generally aware” of the terrorist group’s activity, they can be held liable under the Anti-Terrorism Act.
Attorney Seth Waxman argued on behalf of Twitter, Google and Facebook, and told the panel that his clients had no relationship with Mateen.
“There is no link,” he said, “between the way Google, Facebook and Twitter operate their websites and the attack itself.”
U.S. Circuit Judge John Nalbandian asked why the court shouldn’t accept the victims’ allegations as true and allow the case to proceed to discovery.
“The Supreme Court has made utterly clear,” Waxman replied, “[that] conclusory allegations do not satisfy the pleading standard.”
“Forget direct liability,” the attorney added, saying the plaintiffs’ complaint contains “so many countless hypotheticals.”
“ISIS didn’t know anything about this man. … He was a lone wolf,” Waxman said.
Judge Nalbandian persisted, and asked if Waxman’s clients knew that terrorists post videos and recruitment info on their sites.
Waxman admitted they did, but defended his clients’ actions and efforts to purge such material from their sites.
“Every year,” he said, “[my] clients are blocking and taking down millions, literally, millions of accounts and posts.”
In his rebuttal, Weininger urged the panel to remand the case.
He reminded them that “Mateen swore his allegiance to ISIS,” a piece of information he claimed is significant enough to impose liability on the social media platforms.
U.S. Circuit Judge Julia Smith Gibbons rounded out the panel.
No timetable has been set for the court’s decision.