DEMETRICK PENNIE, et al. v. TWITTER, INC., et al.
Case No. 17-cv-00230-JCS
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
December 4,
JOSEPH C. SPERO, Chief Magistrate Judge
ORDER GRANTING MOTION TO DISMISS; Re: Dkt. No. 43
ORDER GRANTING MOTION TO DISMISS
I. INTRODUCTION
This сase arises from a July 7, 2016 mass shooting in which Micah Johnson ambushed and killed five police officers in Dallas, Texas. Plaintiffs are Rick Zamarripa, the father of one of the deceased officers, and Demetrick Pennie, another Dallas police officer who was one of the first responders to the attack.
The loss and suffering caused by Johnson‘s horrific act of violence are not in doubt. The only issue before this Court, however, is whether Plaintiffs state a claim for relief against the particular defendants named in this case. Plaintiffs seek to hold Defendants Twitter, Inc., Google Inc., and Facebook, Inc. liable for providing material support to Hamas, a Palestinian entity designated as a foreign terrorist organization, primarily in the form of access to Defendants‘ online social media platforms. Defendants move to dismiss for failure to state a claim pursuant to
II. BACKGROUND
A. Procedural History and Allegations of the First Amended Complaint
Plaintiffs filed this action on January 17, 2017. See Compl. (dkt. 2). Defendants moved to dismiss for failure to state a claim, see dkt. 40, and on June 9, 2017, Plaintiffs filed their operative First Amended Complaint in lieu of opposing the motion. See 1st Am. Compl. (―FAC,‖ dkt. 41). The Court denied the first motion to dismiss as moot in light of the amended complaint. See Order (dkt. 42). Defendants now once again move to dismiss. See Mot. (dkt. 43).
Hamas, founded during the First Intifada in 1987 as an offshoot of the Muslim Brotherhood, is a militant Palestinian organization that has ―carried out thousands of terrorist attacks in Israel, the West Bank, and Gaza, murdering hundreds of Israeli and U.S. citizens . . . and wounding thousands more.‖ Id. ¶¶ 15–20, 24. The United States has designated Hamas as a ―Foreign Terrorist Organization‖ pursuant to
Plaintiffs allege that ―[w]ithout Defendants Twitter, Facebook, and Google (YouTube), HAMAS‘ ability to radicalize and influence individuals to conduct terrorist operations outside the Middle East would not have been possible.‖ Id. ¶ 2. Hamas operates an official English-language Twitter account with more than 37,000 followers, and an Arabic-language account with 281,000 followers, among other accounts, and ―has used Google (YouTube) and Facebook in a similar manner.‖ Id. ¶¶ 3–6. As reported by various government officials, news outlets, and other commentators, Hamas and other terrorist groups use Defendants‘ products—including direct messaging features—to recruit members, solicit funds, and ―spread propaganda and incite fear.‖ Id. ¶¶ 25–59. All Defendants place advertisements on (and thus derive revenue from) Hamas postings, and because Google shares revenue with the creators of some videos posted to YouTube, Plaintiffs allege that Google has provided funds to Hamas. Id. ¶¶ 90–102. Plaintiffs assert liability on the grounds that Defendants provide ―infrastructure‖ to Hamas, profit from Hamas‘s use of their service and ―create uniquе content‖ by placing ads on Hamas‘s posts, and, in the case of Google, share advertising revenue with Hamas. Id. ¶ 7.
Although Plaintiffs‘ theory of how Defendants support Hamas is relatively clear, the connection between that support and the Dallas shooting is not. Plaintiffs assert in a conclusory fashion that, ―[o]n information and belief, Micah Johnson was radicalized, in part, by reviewing postings of HAMAS and other terrorist groups on the internet and Defendants‘ social media sites.‖ Id. ¶ 129; see also, e.g., id. ¶ 132 (―Micah Johnson was radicalized by HAMAS‘s and other Black Separatist Hate Groups‘ use of Defendants‘ tools to conduct
The crux of Plaintiffs‘ complaint is instead that Hamas is connected to various purported ―black separatist hate groups‖ that in turn influenced Johnson to shoot police officers. See id. ¶¶ 103–22. To connect Hamas to such ―groups,‖ Plaintiffs identify a scattershot of statements from social media users whom Plaintiffs characterize as ―HAMAS sympathizers and members‖ expressing solidarity with what Plaintiffs characterize as ―the uprising in Ferguson,‖ Missouri, including statements that ―[t]he oppressed stands with the oppressed‖ and advice for how to mitigate the effects of tear gas. Id. ¶ 105. Plaintiffs also allege that a photograph purportedly showing a member of Hamas beheading a prisoner has been edited by ―black separatist hate groups‖ to show the beheading of a police officer and has been shared by those groups on Defendants‘ social media platforms. Id. ¶¶ 106–07. Casting a wider net, Plaintiffs allege connections between African American protest groups and other Palestinian or pro-Palestinian groups besides Hamas, including: (1) statements by the ―BDS movement‖ (i.e., supporters of boycotts, divestment, and sanctions targeting Israel), a leader of the Council on American-Islamic Relations, and ―Khalilah Sabra, another Islamic leader‖ in solidarity with ―BLM‖ (i.e., ―Black Lives Mattеr‖) protestors; (2) a YouTube video ―uploaded by a user named Black-Palestinian Solidarity‖; and (3) a 2015 visit ―to the occupied Palestinian Territories and Israel‖ by ―Black journalists, artists and organizers representing Ferguson, Black Lives Matter, Black Youth Project 100 (BYP100), and more,‖ which included participating ―in a weekly riot‖ in the West Bank to throw stones at Israeli soldiers and police officers. Id. ¶¶ 108–11, 113, 119–20. Plaintiffs also note that ―[i]n 2016, Pro-Palestinian David Sheen completed a whirlwind tour to ISM3 and BLM leftist groups across the U.S. receiving housing and support from well-known anarchists and other radicals.‖ Id. ¶ 112.
Next in the chain of causation, Plaintiffs allege statements by so-called ―black separatist hate groups‖ supporting violence against police officers. Id. ¶¶ 113–18. Plaintiffs cite, for example, ―demonstrators apparently calling for the deaths of police officers‖ during December 2014 protests in New York City—more specifically, a video on YouTube showing ―a few dozen protestors marching down Fifth Avenue . . . apparently yelling out in unison ‗Whаt do we want? Dead cops. When do we want it? Now.‘‖ Id. ¶ 115. During another demonstration, Plaintiffs allege that ―Austin rotesters hant [sic4] ‗What‘s Better Than 12 Dead Cops? 13 Dead Cops.‘‖ Id. ¶ 116. During a 2016 Black Lives Matter protest, Plaintiffs allege that a speaker encouraged demonstrators to ―pull your pistol out and . . . bust that‖ if confronted by police officers. Id. ¶ 118. As noted above, Plaintiffs also allege that social media users shared the image of a police officer being beheaded (edited from an original image of an alleged Hamas beheading), among other posts calling for violence towards police officers. Id. ¶ 117.
Aside from the conclusory assertion that ―Johnson was radicalized, in part, by reviewing postings of HAMAS and other terrorist groups,‖ id. ¶ 129, the only specific allegations regarding Johnson‘s use of Defendants‘ products are that he ―‗liked‘ the
Plaintiffs bring five claims for relief: (1) liability under
B. Similar Cases
1. Fields v. Twitter
Judge Orrick considered allegations similar to those presented here in Fields v. Twitter, case number 16-cv-00213-WHO (N.D. Cal.). The plaintiffs in that case were family members of United States government contractors killed in Jordan by a Jordanian police offiсer, Anwar Abu Zaid, in an attack for which the designated foreign terrorist organization ISIS5 later claimed credit. Fields v. Twitter (―Fields I‖), 200 F. Supp. 3d 964, 966 (N.D. Cal. 2016). Although the plaintiffs in that case did ―not allege that ISIS recruited or communicated with Abu Zaid over Twitter, that ISIS or Abu Zaid used Twitter to plan, carry out, or raise funds for the attack, or that Abu Zaid ever viewed ISIS-related content on Twitter or even had a Twitter account,‖ they sought to hold Twitter liable for the attack under
Twitter moved to dismiss based on the Communications Decency Act (the ―CDA‖), which provides in relevant part that ―[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.‖
The plaintiffs amended their complaint in an attempt to remedy the deficiencies identified in Fields I, but as in their initial complaint, the plaintiffs still did not allege that ISIS interacted with Abu Zaid using Twitter or that Abu Zaid had a Twitter account. Fields v. Twitter, Inc. (―Fields II‖), 217 F. Supp. 3d 1116, 1118 (N.D. Cal. 2016). In other words, ―[t]here [was] no connection between Abu Zaid and Twitter alleged.‖ Id. Although the plaintiffs again argued that their claim was based on providing accounts, rather than regulation of content, Judge Orrick held that any policy of denying accounts to members of ISIS would require regulation of content—i.e., whatever content in a user name, profile picture, or twеets might identify a user as affiliated with ISIS—and thus fell within Twitter‘s role as a publisher and within the protection of
The similarities between Fields and the present case extend beyond merely raising similar issues. Although Fields was brought by different plaintiffs represented by different counsel, the complaint in this case borrows many of its allegations verbatim
2. Gonzalez v. Google
The allegations in this case also overlap significantly with those of Gonzalez v. Google, Inc., No. 16-cv-3282-DMR (N.D. Cal.), another case filed after Fields and brought by plaintiffs represented by the same counsel as Plaintiffs here, in that case based on a 2015 shooting attack in Paris allegedly caused by Twitter, Google, and Facebook‘s support of ISIS. One paragraph of the present First Amended Complaint, for example, is copied from Gonzalez without alteration: ―The services and support that Defendants . . . provided to ISIS constitute material support to the preparation and carrying out of international terrorism, including the attack in which Nohemi Gonzalez was killed.‖ FAC ¶ 164.
In a decision issued after the hearing in this case, Judge Ryu granted Googlе‘s motion to dismiss in Gonzalez, holding that the CDA barred all of the plaintiffs‘ claims. Gonzalez v. Google, Inc., __ F. Supp. 3d __, No. 16-cv-03282-DMR, 2017 WL 4773366 (N.D. Cal. Oct. 23, 2017). Judge Ryu rejected the plaintiffs‘ argument that the 2016 Justice Against Sponsors of Terrorism Act (―JASTA‖) repealed the CDA‘s immunity provision for claims related to terrorism, as well as an argument that applying the CDA to the plaintiffs‘ claims would be an improper extraterritorial application of United States law. Id. at *5–9. Like Judge Orrick‘s decision in Fields, Judge Ryu also rejected the plaintiffs‘ distinction between a claim based on published content and a claim based on providing ISIS with accounts, and thus ―access to powerful tools and equipment to publish their own content,‖ holding that the plaintiffs‘ claims were ―inextricably bound up with the content of ISIS‘s postings.‖ Id. at *10–11 (emphasis added). Judge Ryu further held that the plaintiffs could not establish liability based on Google‘s imperfect efforts to remove offensive content—specifically, the fact that accounts removed by Google allegedly were able to ―reconstitute‖ themselves easily by using similar names and ―bulk friend/follow requests‖—relying on the Ninth Circuit‘s decision in Fair Housing Council оf San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), which recognized that Congress enacted the CDA to allow interactive computer service providers to police user-generated content on their platforms without becoming liable for any such content that the provider failed to remove. Gonzalez, 2017 WL 4773366, at *11–12.
Judge Ryu also addressed the plaintiffs‘ arguments that Google, rather than its users, should be treated as the creator of content related to ISIS. Id. at *12–15. With respect to targeted advertisements that Google allegedly paired with ISIS‘s YouTube videos, Judge Ryu noted that the plaintiffs did not allege that any of the advertisements themselves promoted terrorism or were otherwise objectionable, and held that Google did not become the creator of the videos merely by displaying advertisements alongside them, distinguishing a Northern District of Texas case where a service provider supplemented user-generated content with titles and headings that were themselves defamatory. Id. at *12–14 (distinguishing MCW, Inc. v. Badbusinessbureau.com, L.L.C., No. Civ.A.3:02-CV-2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004)). To the contrary, the plaintiffs did not ―suggest that Google‘s targeted ad algorithm is anything but content neutral,‖ and the Ninth Circuit has ―held that held that a search engine‘s provision of ‗neutral tools to carry out what may be unlawful or illicit searches does not amount to [content] ―development‖ for purposes of the immunity exception.‘‖ Id. at *13 (quoting Roommates.com, 521 F.3d at 1169). Finally, Judge Ryu rejected an argument the plaintiffs raised at the hearing that Google‘s sharing of advertising revenue provides a basis for liability, holding that the complaint did not plead that theory, and that the plaintiffs failed to allege that Google actually shared revenue with ISIS or that any such revenue was connected to the terrorist attack at issue. Id. at *14.
C. Parties’ Arguments
1. Defendants’ Motion
Defendants move to dismiss on a number of grounds. First, they argue that, as in Fields, the CDA bars all of Plaintiffs‘ claims, because Defendants are providers of ―interactive computer services‖ and acted as publishers of third-party content with respect to all of Plaintiffs‘ allegations. Mot. at 8–15. According to Defendants, the allegations that they placed targeted advertisements alongside the content at issue and derived revenue from those advertisements do not change the analysis, id. at 10–12, nor does Plaintiffs‘ characterization of the claim as based on providing accounts or ―infrastructure‖ rather than publishing content, id. at 13–15. Defendants also contend that the alleged causal chain between allowing Hamas and its members or supporters to post content and the Dallas shooting does not satisfy either a ―direct relation‖ or ―substantial factor‖ test of proximate cause, id. at 15–19, that the Dallas shooting was not an ―act of international terrorism‖ within the meaning of
2. Plaintiffs’ Opposition
In their opposition brief, Plaintiffs contend that statements of purpose and intent in JASTA appearing as notes to
Assume that ―Smith‖ gave a loaded gun to ―Jones‖. Smith has knowledge that Jones is engaged in illegal, violent activity and although he does not have knowledge of what Jones might do with the gun, Smith is aware that Jones uses guns to commit violent, illegal acts. Jones places the loaded gun in a schoolyard hoping that a child will find the gun and shoot someone with the gun. Subsequently, ―Tommy‖ finds the gun and shoots ―Billy‖.
First, even though Jones did not specifically know that Tommy would find the gun and shoot Billy, Jones would have liability for Billy‘s shooting. See Auto Club Prop.-Cas. Ins. Co. v. B.T., 596 F. App‘x 409, 410 (6th Cir. 2015). ―Evidence that a defendant left a loaded gun in a place which he knew or should have known to be accessible to a child too immature or indiscreet to exercise the required care in the control of such an instrument has frequently been held to raise a jury question as to the defendant‘s responsibility for injuries caused by a child with a gun so left.‖; See also United States v. May, 430 F. App‘x 520, 526 (6th Cir. 2011).
Unlike the two cases cited above, our hypothetical Jones intended someone to find the gun. Auto Club and May found liability for mere negligence. Liability would thus certainly attach here because Jones intended that someone would find the gun and engage in a violent act even though Jones never knew of Tommy or Billy. So too would liability for Smith.
The above example is what we have here. Each Defendant plays the role of Smith. HAMAS is Jones. Micah Johnson is Billy. Each victim is Tommy. Defendants allow HAMAS to conduct terrorist operations using their tools. FAC ¶ 1. While Defendants do not directly participate in any of HAMAS‘ activities, they are aware that HAMAS is a terrorist
organization and that HAMAS uses their tools to conduct terrorist operations. FAC ¶¶ 1, 178-183. Dеfendants provide content-neutral functionality within their platforms which enables HAMAS to raise funds, recruit, and radicalize individuals hoping those individuals will commit terrorist acts outside of HAMAS‘ direct sphere of influence such as the United States. FAC ¶¶ 1, 30-34, 123-138. Micah Johnson was radicalized by HAMAS‘ content, FAC ¶¶ 142-143, and conducted the attack on the Dallas Police. Id. Specifically, in the context of material support to terrorism, there is a strong precedent for holding Defendants liable for providing material support to HAMAS even without a direct awareness of Johnson and his terroristic plans. See Boim, 549 F.3d 685, 693. Since HAMAS ―placed the gun in the schoolyard‖ by radicalizing Johnson, HAMAS is in part responsible for the Dallas attack even if HAMAS and Johnson had never been in contact or whether [sic] HAMAS had direct knowledge about the Dallas attack.
Id. at 16–18. According to Plaintiffs, ―there is a direct causal connection between Defendants‘ actions and the Dallas attack.‖ Id. at 18.
Turning to Defendants‘ argument that they are immune under the CDA, Plaintiffs contend that the broad stаtement of purpose in JASTA, recently enacted in 2016, trumps immunity under
Finally, Plaintiffs argue that Pennie can establish a cognizable injury due to his close relationship with fellow officers in the Dallas Police Department and his emotional distress while acting as a first responder. Id. at 24–25.
3. Defendants’ Reply
In their reply, Defendants continue to argue that they are immune under
Defendants reiterate their position that Plaintiffs have not alleged a sufficient causal connection between Hamas‘s use of Defendants‘ sеrvices and the Dallas attack, id. at 7–8, and that Plaintiffs have not established: (1) that the Dallas shooting
III. ANALYSIS
A. Legal Standard
A complaint may be dismissed for failure to state a claim on which relief can be granted under
In ruling on a motion to dismiss under
Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that would support a valid theory. Balistreri v. Pacifica Police Dep‘t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint must ―contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). ―A рleading that offers ‗labels and conclusions‘ or ‗a formulaic recitation of the elements of a cause of action will not do.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). ―[C]ourts ‗are not bound to accept as true a legal conclusion couched as a factual allegation.‘‖ Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). ―Nor does a complaint suffice if it tenders ‗naked assertion[s]‘ devoid of ‗further factual enhancement.‘‖ Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (alteration in original). Rather, the claim must
B. The First Amended Complaint Does Not Establish Proximate Cause
The parties dispute the appropriate test of proximate cause for Plaintiffs‘ claims. Defendants argue that in light of
Among the more permissive decisions on this issue is Boim, in which the Seventh Circuit held that although
Whatever relationship Defendants‘ alleged provision of social media services to Hamas might have to Hаmas‘s own operations, the clearest break in the causal chain here lies between Hamas and the Dallas attack. Aside from conclusory assertions that do not meet the Iqbal and Twombly standard for factual allegations, e.g., FAC ¶¶ 129, 132–34,8 Plaintiffs do not
Boim and similar decisions stand for a rule that a defendant who has provided funds to a terrorist organization can be held liable for any subsequent attack by that organization, without need to trace the defendant‘s funds to the particular attack. Here, Plaintiffs seek to extend that rule to encompass liability for an attack by a person who had engaged on social media with groups that arguаbly shared an ideological affiliation with groups that received expressions of solidarity from groups that shared an ideological affiliation with a designated foreign terrorist organization to which Defendants provided support. Plaintiffs‘ gun-in-a-schoolyard analogy notwithstanding, see Opp‘n at 16–18, Plaintiffs cite no case where liability has been based on such a tenuous connection between an attack and the foreign terrorist group that a defendant allegedly supported.
Plaintiffs also allege that an unspecified ―black separatist hate group‖ edited a photograph purportedly depicting a member of Hamas beheading a prisoner to instead show a masked person beheading a police officer and subsequently circulated that image through Defendants‘ services, but do not allege that Hamas played any role in repurposing that image to express anti-police sentiment, or that Johnson ever saw the image in question. See FAC ¶¶ 106–07.
The complaint here does not plausibly allege that Hamas ―committed, planned, or authorized‖ the Dallas attack, or that it was ―the person who committed‖
Without some meaningful connection between Hamas and the attack, Defendants‘ alleged provision of support to Hamas does not meet even Plaintiffs‘ test of proximate cause: absent plausible allegations that Hamas itself was in some way a ―substantial factor‖ in the attack, there is no basis to conclude that any support provided by Defendants to Hamas was a substantial factor. Cf. Strauss, 925 F. Supp. 2d at 432. Because all of Plaintiffs‘ claims are basеd on Defendants‘ alleged support of Hamas, the failure to allege a plausible causal connection between Hamas and the Dallas attack warrants dismissal of all claims.
Plaintiffs have not identified any allegations that they could add to their complaint to cure the failure to establish a meaningful connection between Hamas and the Dallas attack. In response to the Court‘s concerns about the lack of such a connection, Plaintiffs‘ counsel suggested at the hearing that Plaintiffs could amend their complaint to allege that groups Johnson ―liked‖ on Facebook had contact with Hamas. See Tr. (dkt. 54) at 15:3–16:23. But Plaintiffs concede that Hamas never directly communicated with Johnson, and that they do not know whether Johnson ever viewed Hamas social media content. Id. at 4:22–25, 14:8–9. Plaintiffs have not suggested that they could allege that Hamas instructed or encouraged groups like the New Black Panther Party to foment the sort of attack that Johnson committed, nor that Johnson viewed material from those groups calling for such an attack. An amended allegation that Hamas at some point communicated with radical groups that Johnson ―liked‖ on Facebook would not establish that Hamas was responsible for Johnson‘s attack on police officers in Dallas. The Court concludes that amendment would be futile.
C. The CDA Bars Most if Not All of Plaintiffs’ Claims
In addition to the defect of causation discussed above, the CDA immunizes Defendants from most if not all of Plaintiffs‘ claims, because Plaintiffs‘ theory of liability rests largely on the premise that Defendants should be held responsible for content created and posted by users (here, Hamas and its affiliates) of Defendants‘ interactive computer services. The CDA states in relevant part that ―[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.‖
As a starting point, JASTA does not implicitly repeal the CDA with respect to foreign terrorist organizations‘ use of interactive computer services. ―‗[R]epeals by imрlication are not favored‘ and will not be presumed unless the ‗intention of the legislature to repeal [is] clear and manifest.‘‖ Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662 (2007) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)) (second alteration in original). For a later-enacted statute to amend or repeal an earlier statute not explicitly referenced therein, it must ―‗expressly contradict‘‖ the earlier statute or be so incompatible that inferring amendment or repeal is ―‗is absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at all.‘‖ Id. (quoting Traynor v. Turnage, 485 U.S. 535, 548 (1988)) (alterations in original). No clear legislative intent to repeal or amend the CDA is apparent in JASTA, which explicitly modifies a separate immunity not at issue here—the Foreign Sovereign Immunities Act—but does not discuss the CDA or its subject matter. See JASTA § 3(a), Pub. L. No. 114-222, 130 Stat. 852, 853 (2016) (codifying
Aside from their argument based on JASTA, Plaintiffs argue that the CDA does not apply here because they do not seek to hold Defendants liable as publishers or speakers of other people‘s content. Opp‘n at 19–23. Plaintiffs contend that their claims ―do not depend upon the content that HAMAS or its operatives post,‖ but instead on Defendants allowing Hamas to use their services at all, arguing that ―[s]ince Defendants are prohibited by federal criminal law from providing support to HAMAS, they have no discretion to permit the use of their resources by HAMAS,‖ and need not exercise any editorial discretion to comply with the laws barring material support to terrorist organizations. Id. at 19–20. First, this characterization of Plaintiffs‘ claims is false: Plaintiffs explicitly base their claims on the content that Hamas allegedly posts, because absent offending
Plaintiffs also argue that Defendants can be held liable for ―allowing an account that has been taken down to reconstitute,‖ on the basis that by voluntarily removing an account from their services, ―Defendants have scienter of the violative nature of the account and has [sic] assumed responsibility not to allow that account to reconstitute.‖ Opp‘n at 20–21. This argument is foreclosed by the Ninth Circuit‘s recognition that, under the CDA, good faith efforts to remove objectionable content cannot create liability for service providers‘ failure to remove all such content, and that the statute instead ―allow[s] them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn‘t edit or delete.‖ Roommates.com, 521 F.3d at 1174; see also
Next, Plaintiffs contend that Defendants can be held liable as creators of content, rather than merely interactive service providers, because Defendants select advertisements to pair with content on their services—allegedly including content posted by Hamas—―based on what is known about the viewer and what the viewer is looking at.‖ Opp‘n at 21–23 (citing, e.g., Roommates.com, 521 F.3d at 1163, 1166–67, 1171). An ―entity that is responsible, in whole or in part, for the creation or development of information‖ is not immune under the CDA for liability related to the publication of that information. See
Plaintiffs do not allege that [Defendants] ―materiаlly contribut[ed]‖ in any way to the actual content of [Hamas social media posts]. They do not claim that [Defendants‘] ads (which are themselves third-party content) are objectionable, or that the ads played any role in making [Hamas‘s content] unlawful. For example, Plaintiffs do not allege that any ads paired with [Hamas]-related content offered tools or instructions on how to carry out [Hamas‘s] threats, or otherwise encouraged individuals to commit acts of terrorism. The [First Amended Complaint] contains [four] screenshot
example[s] of an alleged targeted ad next to [a Hamas] video on YouTube . . . . [FAC ¶¶ 42, 96.] Plaintiffs do not make any allegations about the relationship between [the products advertised9] and terrorism. See, e.g., Jones [v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 416–17 (6th Cir. 2014)] (holding interactive service provider was not information content provider as to allegedly defamatory third party posts; even though provider appended his own comments to the posts, the plaintiff did not allege that the provider‘s comments were themselves defamatory).
See Gonzalez, 2017 WL 4773366, at *13 (second alteration in original). Like in Gonzalez, Defendants‘ ―provision of neutral tools, including targeted advertising, does not equate to content development under section 230, because . . . the tools do not encourage the posting of unlawful or objectionable material.‖ Id.; cf. Roommates.com, 521 F.3d at 1165–67 (holding that the defendant engaged in content development outside the scope of the CDA‘s immunity provision by creating a system that required users to disclose whether they were members of certain protected classes and allowed other users to screen housing applicants based on that information).
Finally, Plaintiffs argue that Google‘s alleged sharing of advertising revenue with Hamas is not protected by the CDA. Opp‘n at 23–24. The question of whether, or under what circumstances, the CDA immunizes payments made by interactive service providers to content developers appears to be a novel issue.10 Google relies on the District Court for the District of Columbia‘s decision in Blumenthal v. Drudge, which held that an internet provider‘s contract for payment to ―gossip and rumor‖ writer Matt Drudge did not affect the scope of the provider‘s immunity under the CDA for content written by Drudge. Blumenthal, 992 F. Supp. 44, 50–53 (D.D.C. 1998); Reply at 6 & n.5. Assuming for the sake of argument that this Court would follow Blumenthal‘s holding that CDA immunity applied to user-generated content even where a service provider paid for that content, Blumenthal does not address the question of whether the CDA immunizes payments that otherwise could themselves give rise to liability. Providing money to Matt Drudge generally is legal; providing money to Hamas generally is not. See Boim, 549 F.3d at 693–94. Because Plaintiffs‘ failure to allege a causal connection between Hamas and the Dallas shooting is reason enough to dismiss all claims, the Court declines to resolve the question of if or how the CDA applies where an interactive service provider shares advertising revenue with a content developer that has been designated as a foreign terrorist organization. With respect to all other theories of liability against Google, however, as well as all claims against Defendants Twitter and Facebook,
IV. CONCLUSION
As discussed above, Plaintiffs do not plausibly allege a connection between Hamas and the Dallas shooting, and thus fail to establish that Defendants‘ alleged suрport of Hamas was a proximate cause of Plaintiffs‘ injuries. At the hearing, Plaintiffs were not able to identify additional factual allegations they could make to resolve this deficiency if given leave to amend. Most if not all of Plaintiffs‘ claims are also barred by the CDA. Defendants‘ motion is therefore GRANTED, and the action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: December 4, 2017
JOSEPH C. SPERO
Chief Magistrate Judge