(CN) — The 11th Circuit on Monday rejected an appeal from victims of the Pulse nightclub massacre who were looking to hold YouTube, Facebook and Twitter liable for hosting terrorist propaganda that purportedly contributed to the killer's radicalization.
A three-judge panel for the appeals court ruled that the Anti-Terrorism Act — the federal law under which the victims were suing — provides no relief because the 2016 Orlando club shooting did not amount to "international terrorism."
Forty-nine victims died in the attack at Pulse, a popular destination for the Orlando gay community. At the time, it was the deadliest mass shooting in modern U.S. history. The shooter, Omar Mateen, professed allegiance to the Islamic State at the club before he was killed in a standoff with law enforcement.
"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 [Anti-Terrorism Act]," U.S. Circuit Judge Adalberto Jordan, a Barack Obama appointee, wrote in the 31-page ruling.
In the aftermath of the attack, the Islamic State called Mateen a martyr and portrayed him as a soldier of its caliphate. An FBI investigation revealed that Mateen, a U.S.-born security guard of Afghan descent, avidly consumed the group's jihadist propaganda videos online in the time leading up to the attack.
The plaintiffs — some of the individuals who were injured in the attack along with the estates of some of the victims — sued Facebook, Twitter and Google, YouTube's parent company, in federal court in 2018. They alleged that the tech giants violated the aiding and abetting provision of the Anti-Terrorism Act by allowing the Islamic State to spread propaganda on the companies' platforms, contributing to the radicalization of Mateen and countless others across the globe.
Affirming a federal judge's dismissal of the case, the appeals court on Monday noted that lawsuits brought under the Anti-Terrorism Act must show that the crime in question was "committed, planned or authorized" by a designated foreign terrorist organization.
The court ruled that the plaintiffs fell short, failing to establish that the Islamic State plotted the attack alongside Mateen or knew of it in advance.
During a round of oral arguments last May, plaintiffs' appellate attorney Keith Altman argued that without YouTube, Twitter and Facebook, the terrorist organization would likely be little more than "50 guys in the desert jumping around a campfire." The plaintiffs' legal team pointed to the Islamic State's use of YouTube to disseminate beheading footage and recruitment videos that helped the group bring thousands of foreigners into its ranks. Though social media companies frequently deleted accounts associated with terrorist organizations, the groups were able to readily regenerate their content with a simple user-name change, the plaintiffs claimed.
Altman added that YouTube had allowed third-party ads to run on some Islamic extremist propaganda videos. The company's ad system would then permit the marketing revenue to be automatically shared with jihadists who posted the videos, he argued.
The 11th Circuit on Monday found, however, that the argument skirted the localized nature of the attack: Mateen was a Florida resident who carried out an assault in his home state with no direct assistance from outside the U.S., in the judges' view.
Jordan wrote that the Islamic State's "after-the-fact assertion of responsibility is insufficient" ground to argue that the incident was an international terrorist attack.
Jordan was joined on the panel by Senior U.S. Circuit Judge Julie Carnes and U.S. Circuit Judge Andrew Brasher.
The appeals court also affirmed dismissal of the plaintiffs' negligence claims against the tech giants under state law. The court noted that counsel did not produce enough case law to resolve vagueness in Florida's negligence standard as it applied to the case.
The 11th Circuit's decision is the latest in a set of federal appellate opinions declining to hold social media companies liable for stateside murders carried out by extremists allegedly radicalized on the companies' platforms.
The Ninth Circuit this past June declined to hold Google, Twitter and Facebook liable under the Anti-Terrorism Act in connection with the 2015 San Bernardino, California, shooting in which U.S.-born Syed Rizwan Farook and his wife, Pakistani green card holder Tashfeen Malik, killed 14 people. The pair opened fire at the Inland Regional Center, murdering employees of the county health department where Farook was also employed.
The Ninth Circuit found that although the Islamic State claimed responsibility for the San Bernardino attack after-the-fact — and Farook had previously met with potential terrorists — the plaintiffs lacked evidence to show that the group planned or authorized the assault alongside Farook and Malik.
In a separate case filed by Pulse shooting victims against Google, Twitter and Facebook, the Sixth Circuit likewise affirmed a Michigan court's dismissal of various claims under the Anti-Terrorism Act.
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