Crosby v. Twitter, Inc.
921 F.3d 617
6th Cir.2019Background
- 2016 Pulse Night Club mass shooting by Omar Mateen killed 49 and injured 53; plaintiffs are victims and victims’ families suing Twitter, Facebook, and Google under the Anti‑Terrorism Act (ATA).
- Plaintiffs allege ISIS used defendants’ platforms to post propaganda, recruit and radicalize individuals, and that Mateen viewed ISIS content online and was "self‑radicalized."
- Complaint alleges defendants knew ISIS used their services, profited from use, and failed to remove or prevent recurring ISIS accounts ("whack‑a‑mole" recidivism); plaintiffs claim this amounted to providing material support.
- Plaintiffs asserted ATA claims for direct material support (18 U.S.C. § 2339B) and secondary liability (aiding and abetting under 18 U.S.C. § 2333(d)(2)), plus state tort claims; district court dismissed with prejudice for failure to plausibly connect defendants to Mateen or to show proximate causation.
- On appeal, plaintiffs abandoned some claims; the Sixth Circuit affirmed dismissal, holding plaintiffs failed to plead proximate cause and failed statutory prerequisites for secondary liability (ISIS did not "commit, plan, or authorize" the attack).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants can be held directly liable under ATA for providing social‑media platforms to ISIS | Provision of platforms foreseeably enabled ISIS propaganda and recruitment that "self‑radicalized" Mateen, so defendants proximately caused injuries | Mere availability of third‑party content is too remote; proximate causation and substantial directness are required | Dismissed: plaintiffs failed to plead proximate cause between defendants’ conduct and the shooting |
| Whether defendants are secondarily liable (aiding and abetting) under § 2333(d)(2) | Hosting ISIS content aided ISIS and thus aided attacks like Orlando | Secondary liability requires that a foreign terrorist organization committed, planned, or authorized the attack and that defendants aided the perpetrator; ISIS did not do so here | Dismissed: ISIS did not commit/authorize the attack; Mateen acted independently and plaintiffs allege no direct assistance to Mateen |
| Whether proximate cause under the ATA is satisfied by foreseeability alone | Plaintiffs urge a foreseeability‑focused, lower causation standard | Defendants urge a requirement of direct relation/substantial factor; foreseeability alone is insufficient | Court: proximate cause requires flexible inquiry (directness, foreseeability, substantiality); foreseeability alone insufficient here |
| Whether district court abused discretion by dismissing with prejudice without granting leave to amend | Plaintiffs requested leave in opposition and argued they could fix defects | Defendants and district court noted plaintiffs never filed a formal motion or proposed amended complaint | No abuse: plaintiffs failed to file a motion or proposed amendment, so dismissal with prejudice was not an abuse of discretion |
Key Cases Cited
- Kemper v. Deutsche Bank AG, 911 F.3d 383 (7th Cir. 2018) (ATA is tort‑like and requires proximate cause)
- Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018) (proximate cause required for ATA liability; example where the terrorist actor was directly linked to defendant)
- Owens v. BNP Paribas, S.A., 897 F.3d 266 (D.C. Cir. 2018) (adopts substantial‑factor/foreseeability framework for ATA proximate cause)
- Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir. 2018) (rejecting boundless liability based on foreseeability and remote internet effects)
- Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) (substantial‑factor/directness test for proximate cause under ATA)
- Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (proximate cause is flexible; emphasize direct relation between conduct and injury)
- Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258 (1992) (statutory language "by reason of" requires proximate cause)
- CSX Transp., Inc. v. McBride, 564 U.S. 685 (2011) (proximate cause limits legal liability for remote causes)
- Paroline v. United States, 572 U.S. 434 (2014) (discussion of limits on causation and recovery)
- Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (secondary liability requires knowing, substantial assistance)
- Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (discussed but clarified that proximate cause remains necessary)