In a disappointing turn of events, SCOTUS declined to look at section 230 in the case at hand that stems from the same ISIS attack in Paris as the one that gave rise to the Twitter v. Taamneh case. The family of a victim killed in the attack sued Google under 18 U. S. C. §§2333(a) and (d)(2) alleged that Google was both directly and secondarily liable for the terrorist attack that killed Gonzalez through aiding, abetting and conspiring with ISIS.
The District Court dismissed plaintiffs’ complaint for failure to state a claim, though it offered plaintiffs leave to amend their complaint. Plaintiffs didn’t amend their claim and appealed. The Ninth Circuit confirmed the first judgment in a consolidated opinion that also addressed Twitter, Inc. v. Taamneh, U. S. (2023). 2 F. 4th 871 (2021). With respect to the Gonzales case, the Ninth Circuit held that most of the plaintiffs’ claims were barred by §230 of the Communications Decency Act of 1996, 110 Stat. 137, 47 U. S. C. §230(c)(1). The sole exceptions were plaintiffs’ direct and secondary liability claims based on allegations that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue-sharing system. The Ninth Circuit held that these potential claims were not barred by §230.
Plaintiffs did not seek review of the Ninth Circuit’s holdings regarding their revenue-sharing claims. As for the Secondary Liability Claims (that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue-sharing system) the Ninth Circuit held that plaintiffs didn’t plausibly allege that “Google reached an agreement with ISIS,” as required for conspiracy liability, nor that Google’s acts were “intended to intimidate or coerce a civilian population, or to influence or affect a government,” as required for a direct liability claim under §2333(a). The Ninth Circuit held that these potential claims were not barred by §230, but that plaintiffs’ allegations failed to state a viable claim in any event. The Supreme Court granted certiorari to review the Ninth Circuit’s analysis of §230 and declined to address the application of §230.
I am highlighting the above paragraph, because it gives us a hint on the degree and quality of evidence that it takes to make out direct liability and conspiracy under the Antiterrorism Act, so as to bypass the pesky §230. The bar is extremely high for direct liability. However, in terms of conspiracy liability, revenue-sharing with ISIS is already a form of agreement with ISIS. I wonder if the allegations could be drafted differently to reflect it.
In my previous post, I commented on Twitter v. Taamneh where the Supreme Court offers an in-depth look at 18 U. S. C. §§2333(d)(2).