Judge: Suing Social Media Post-Shootings Poses Litigation Risks

courtesy NBC News

A ruling we can get behind regarding the San Bernardino mass shooting of 2015 which killed 14 people and injured 22 others. There were multiple lawsuits in play against Facebook, Google, and Twitter claiming the sites allowed the Islamic State to flourish using their platforms. Well, a judge has ruled against the plaintiffs, saying:

“A contrary conclusion poses boundless litigation risk and is not tenable given how interconnected communication services are with modern economic and social life,” [U.S. Magistrate Judge Laurel Beeler] wrote.

Beeler dismissed the lawsuits with prejudice, meaning they cannot be filed again, citing other courts’ rejections of similar claims in other cases.

– NBC News, Judge Dismisses Suits Against Facebook, Google, Twitter in San Bernardino Shooting

Remember, our rights are interconnected, too. Allowing lawsuits against social media and web platforms following a mass shooting is a dangerous precedent to set. Good for Judge Beeler.

comments

  1. Judge Beeler was appointed to her position in 2010….. Yeah….. By ‘good old’ El Guapo hisself.

    Something else about Judge Beeler that’ll warm yer heart a touch:

    “The Trump administration provided adequate justification for its decision to end a program that reunited hundreds of immigrants from Central America with family members in the U.S., a federal judge ruled Monday (10 December 2018).

    https://www.foxnews.com/politics/judge-throws-out-most-of-lawsuit-against-trump-immigration-move

    Magistrate Judge Laurel Beeler threw out the bulk of a lawsuit that argued the termination of the Obama-era Central American Minors program was arbitrary and violated the U.S. Constitution.”

  2. avatar Chip in Florida says:

    “…claiming the sites allowed the Islamic State to flourish using their platforms”

    Those same groups may have used phones at some point so did the phone companies “Allow” the Islamic State to flourish?

    Those same groups may have used email at some point so did the email service “Allow” the Islamic State to flourish?

    Those same groups shopped for groceries to have coffee and donuts at their meetings so did the local supermarket “Allow” the Islamic State to flourish?

    Those same groups breath air so did the EPA “Allow” the Islamic State to flourish?

    1. avatar ozzallos says:

      Hard to determine the tone of your post, but i’m going to go out on a limb and point out that none of your examples have any idea if one person or another is, in fact, and Islamic terrorist while socially media can clearly determine if one is or is not by the content of their posts.

      1. avatar Chip in Florida says:

        “..while socially media can clearly determine if one is or is not by the content of their posts.”

        Which turns the question to is it illegal to be part of the “Islamic State?” Is it illegal to be a “White Supremacist?” Is it illegal to own firearms and talk about it publicly?

        I fully support this case being thrown out because it is beyond frivolous. And it crossed so many lines and had the potential to seriously threaten so many of our Rights and too few would have seen all those threats while trying to define what, exactly, is hate-speech and what, exactly, is terrorism/terrorist.

        1. avatar TrueBornSonofLiberty says:

          And more importantly, WHO defines those things? Exactly the people who have no business being the arbiters of anything. I expect the next step in labeling “Terrorists” would be anyone quoting the Founding Fathers and their abhorrence of tyranny. Those who speak about preparing to defend our Constitutional Republic against their “War of Leftist Aggression” will certainly be persecuted.

        2. avatar EWTHeckman says:

          The problem is that these platforms are not acting as mere platforms, they are acting as arbiters of what is acceptable. That they are treating ISIS/Islamic Terrorism as acceptable but not conservatives means that they are favoring a known evil over the principles upon which this country was founded. This ruling protects the “Platform” standard, while allowing them to continue acting as “Publishers.”

          That path can only lead to destruction.

        3. avatar EWTHeckman says:

          BTW, when an organization has an official “Terrorist” designation from the government, that would seem to indicate that membership in such an organization probably is illegal. (If it’s not, it certainly should be!)

        4. avatar Ardent says:

          In the US it isn’t illegal to be a white supremacist it is however illegal to be a member of ISIS. ‘White supremacist’ describes an ideology, and under the 1A basically no ideology, limited to a frame of mind or philosophical position, can be illegal. Actions can break laws, thoughts can’t. ISIS however is an officially recognized terror organization and as such membership is in fact illegal.
          Supporting white supremacy by say donating money to Der Stormer isn’t illegal, but supporting ISIS by financial donation is illegal, violating portions of the Patriot act, various laws against supporting recognized terror organizations, and potentially comprises an act of sedition or treason.

          Think about it this way: If, standing alone with no contact with any other organization, group or foreign nation, you join a club that believes in exterminating Jews, and that Aryans are a master race, which also has no connection to any other entity, your membership, dues and donations are all protected under the 1A. If, however, it’s 1944, and you know your organization is funneling money to the 3rd Reich and is carrying out attacks on US citizens, installations and infrastructure, you’d be guilty of treason, sedition, and a host of other crimes.
          This is because the hypothetical organization is providing aid and comfort to an official enemy of the US, among other crimes.

          ISIS, as an officially recognized terrorist organization, falls under the heading of official enemy of the US. Promoting them, joining them, aiding them financially and many other acts of support for them are crimes.

          Thus comparing ISIS to (generic) white supremacy is apples to oranges.

          Think of Face Book as a landlord renting out rooms. If you rent someone a room knowing they are going to use it to operate a meth lab, it explodes and people in the next room are injured, are you liable? Established law says yes, you knowing allowed a dangerous situation to exist. At the least you’d be guilty of negligence in your duty to the other renters in the building.

          Face Book is essentially renting a room…that is being used to further the financial support, organization, and recruiting aims of a known terrorist organization. It’s well established that knowingly allowing criminal use of your premises exposes you to civil and criminal liability. The relevant questions here are whether FB knew, or ought to have known that their services were being used to further criminal activity and to aid and abet an enemy of the United States, and whether such contributed to harm suffered by the plaintiffs.
          Given FB exercises oversight of use of its services extensively, I think the case could be made that they were or should have been aware of the activities in question. I also suspect one could at least potentially prove such activity contributed to harm suffered by plaintiffs. I think FB might not only be civilly liable for such negligence, but is likely to be exposed to criminal liability as a result of such negligence.

          Put another way: Enterprise would not normally be held liable if I rented a truck from them and drove it into a crowd. However, if I openly and specifically told them such was the purpose of renting the truck, I suspect they would be at least civilly liable, and could be guilty of conspiracy.
          Further, if Enterprise offered a discount on large truck rentals to members of ISIS, they would likely be guilty of violations of the Patriot Act, and several other federal laws regard support for terrorist organizations, as well as likely violating various laws governing treason and sedition.

          What FB seems to have done is knowing allow a known terror organization to utilize it’s services for a host of criminal activities. As such, I think there is a criminal case to be made against them. That they are civilly liable is at least a reasonable enough claim that the case should absolutely be heard, not only to provide relief to plaintiffs, but to examine the obligations and liabilities of social media platforms Re: extensive, obvious criminal misuse of social media.

          The judges opinion that the case cannot proceed because it is too complex and far reaching is absurd. It sounds suspiciously as if the judge is implying that FB, Twitter, et al are too big to be sued. I believe there is a strong argument to be made that It is the very size and reach of these platforms that virtually mandates this case go to trial and allow the arguments of plaintiffs to be heard.

        5. avatar Chip in Florida says:

          “…I believe there is a strong argument to be made that It is the very size and reach of these platforms that virtually mandates this case go to trial and allow the arguments of plaintiffs to be heard.”

          And I am arguing the exact opposite.

          The language of the claim is far too broad, is not stopping something the same as ‘allowing’ the thing to happen? If there are actual laws being actually broken then the argument could be made that the platform has some responsibility for not stopping it. If the thing that is not being stopped is merely undesirable then the courts have no standing to judge that which is not illegal.

          And that brings me back to my original statement, the methods of communication do (did) not ‘allow’ the criminals to do their crime. The nice folks who make bic pens did not ‘allow’ the bank robber to write the heist note. And any assertion that facebook somehow ‘allowed’ people who went on to commit a crime because they had profiles on that service is as frivolous a claim as blaming Jack Daniels for the drunk driver wrecking their car.

  3. avatar Michael Stilinovich says:

    Wait !!!!! Stop the presses, California judge is sane !!!!

  4. avatar Grammar Cop says:

    Kat,
    Please learn the difference between which and that. This isn’t high school.

    1. avatar n64456 says:

      Brilliant, on-point addition to the discussion….

    2. avatar Jonathan-Houston says:

      Where do you see an error in usage in her post? According to what standard do you judge it in error?

  5. avatar TrueBornSonofLiberty says:

    Good ruling, but I’m not convinced it’s for the right reasons. Seems everyone is lined up to protect these monopolistic factories of leftism. But I won’t look a gift horse in the mouth as I’m viewing this as a victory for free speech, including speech I find repugnant.

  6. avatar ollie says:

    When you allow grizzly bears, tigers and rattlesnakes to freely enter your home, you should not be the least bit surprised or disappointed when they kill.

    1. avatar Huntmaster says:

      I don’t think any of them are grizzly bears or tigers but they are all lower than snakes.

  7. avatar Ark says:

    First Amendment, dickbags. The problem is that we have too much policing of speech on the internet, not too little.

  8. avatar Andrew Lias says:

    Um, this is a stupid decision. The social media platforms curate content at this point and as such they have lost their neutrality. It will let Amatwittergooglebook keep reaping the benefits of carrier status while permitting their censorship. Overall a really BAD thing for conservatives in a liberally biased tech sector.

    1. avatar EWTHeckman says:

      Well said!

  9. avatar Geoff "You'll shoot your eye out, kid!" PR says:

    Off-topic, but has potential implications for gun rights :

    Justice Ruth Bader Ginsburg missing Supreme Court arguments for 1st time (EVER!)

    “WASHINGTON (AP) — Justice Ruth Bader Ginsburg is missing arguments for the first time in more than 25 years as she recuperates from cancer surgery last month, the Supreme Court said.

    Ginsburg was not on the bench as the court met Monday to hear arguments. It was not clear when she would return to the court, which will hear more cases on Tuesday and Wednesday, and again next week.”

    Interesting, don’t you think?

    *snicker* 😉

    1. avatar Jonathan-Houston says:

      I wish Justice Ginsburg a full and speedy recovery. Thereafter, she should consider resigning, as life threatening illnesses or accidents tend to be more prevalent in people of her age and condition. I would hope she spends her retirement enjoying her remaining years with friends, family and others.

      1. avatar Sam I Am says:

        If Ginsburg exits between now and Jan21, there will be no replacement (4-4 stalemate). If she leaves in 2019, McConnell will have to use the nuclear option for the second time in two years; politically very risky. If Ginsburg leaves in 2020, McConnell will be faced with “Merrick Garland”, all over again. Federal judgeships are being held in near record numbers (Demoncrat stalling) as it is. 2020 represents a watershed moment for the republic. Caution by Republicrats is most likely to prevail.

        1. avatar Andrew Lias says:

          The way the power ebbs and flows we should go for broke IMO if given the chance; It could be a real long winter quite frankly.

        2. avatar LKB says:

          Nope.

          A 4-4 “stalemate” assumes Roberts will completely cave (5-3 is more likely on most issues). Were he pull a Souter, that would then really motivate the GOP to get a conservative replacement in to neutralize him. And Roberts would not want to become the Chief in Name Only.

          One of the few things McTurtle has done right recently is on the judicial front. He got Kavanaugh across the line despite some of the most disgraceful tactics in Senate history, has eviscerated the “blue slip,” and now he has 53 votes to work with without Flake, McCain, and Corker to deal with. He can even lose 3 votes and still get nominees through. Not seeing why now he’d go wobbly.

          As far as the “Garland rule,” dream on. If there’s an opening before the summer of 2020, it’ll get filled, and you can take that to the bank. Power politics isn’t pretty, but it’s still there.

        3. avatar Sam I Am says:

          “He can even lose 3 votes and still get nominees through.”

          Then why so many judicial nominations held up? If McConnell was playing power politics, he would ram the nominations through, and stuff it up the Demoncrat noses.

        4. avatar TrueBornSonofLiberty says:

          He has been. The ONLY ones that have been derailed in the last 2 years are those where a few Repukes flaked out. Trump and McConnell have set records in the number of federal judges that have been confirmed in 2 years. The next 2 years will be more of the same, at least.

        5. avatar Sam I Am says:

          “The ONLY ones that have been derailed in the last 2 years are those where a few Repukes flaked out. ”

          Guess we aren’t looking at the same news feeds:
          https://www.politico.com/story/2019/01/02/trump-judicial-nominees-1077658

          McConnell could force these to a vote if he wanted.

        6. avatar TrueBornSonofLiberty says:

          Meh. That’s a nothinburger. They just ran out of time during the last session. The terrorists in the democrat party can’t stop these, but they do pull every procedural delay possible. They had the winter break and came back to a new Senate session. Now they’ll have to declare the new senate rules for the next 2 years. Once that’s done, those 70 will be renominatedby Trump and they’ll get pushed through by the early spring. Whatever you think is going on, you’re wrong if you think the Republicans, and McConnell in particular, are dragging their feet. It’s the one area where there’s no daylight between them and Trump. Schumer is a skilled terrorist.

  10. avatar Rikck says:

    I’m not sure I like the ruling either, given that social media censors extensively, thereby making them publishers. If the defendants had won, the owners of these platforms might have rethought their position on censorship. They should only be removing illegal content, not content they disagree with, and if they want to control content like they have been, then they should be responsible for what is published on their platforms.

    1. avatar Chief Master says:

      I absolutely agree with you, and people are too quick to overlook this point. Many social media providers hide behind the false label of being content “distributors,” when in fact their curation of content (ban-hammers against conservative users, for example) actually makes them “publishers.” Distributors, which exercise no control over the content posted on their platforms (except to remove illegal content), are shielded from liability related to the content users post. Publishers, on the other hand, exercise control over posted content, and can therefore be liable for what is posted.
      I think the judge got it wrong because platforms like Facebook and Twitter should not be able to both censor content like a publisher and also claim the protection afforded to neutral distributors.

    2. avatar UpInArms says:

      I basically agree with that, though I’m not totally comfortable with “removing illegal content”. I think that still leaves too much room for mischief.

      1. avatar LarryinTX says:

        Actually, if we read 1A one more time, there should not even *BE* any “illegal content” Shades of the Iron Curtain!

  11. avatar Sam I Am says:

    All initial judicial rulings are merely for entertainment. The appeals process is the final arbiter. Sometimes I think all courts should be rolled into a single, Supreme Court, with all decisions final. Merge all the jurists in the country into the Supreme Court, with states continuing to pay salaries and facilities maintenance. You get one shot at a verdict; one and done. Get rid of all this appeals on appeals on appeals crap. I cansee this as only harming trial lawyers.

    1. avatar Ralph says:

      The possibility of reversing a decision on appeal enhances the illusion of judicial fairness. It keeps the livestock calm while they’re being slaughtered.

  12. avatar Ardent says:

    Reading the comments, it appears many have cited without specifically naming the freedom of association portion of the 1A. Given ISIS is officially considered a terrorist organization, the 1A wouldn’t protect membership of same.

    On another note, if the social media platforms were freewheeling, allowing all content to stand, they would be immune from these suits (with the exception of potential civil liability where criminal law has been violated as well). Given that these platforms do censor content, often extensively, there is a case to be made that they were aware or should have been aware that their services were being used to facilitate criminal activities, suggesting they had the ability and obligation to censor, prevent or report such activities.

    The judges opinion that the case can’t be tried because it is complex and far reaching sounds simply insane to this layman.

    While such a case has serious 1A concerns, that doesn’t seem like a reason no to allow it to proceed.

    1. avatar Jonathan-Houston says:

      Your entire argument is predicated on a faulty premise and therefore invalid.

      “Given ISIS is officially considered a terrorist organization, the 1A wouldn’t protect membership of same.” “Officially considered?” Seriously? That’s an acceptable constitutional standard for you? The government considers them thus? What manner of due process established that? Fir that matter, who says these two were ISIS? U.S. investigators said they suspect one of the shooters professed loyalty to the Islamist network. Suspicions of professions? You want to deny 1A rights based on THAT?

      Didn’t we just have this debate over adding No-Fly List members to the NICS No-Buy list? Secret government lists you don’t know how to get off, how you got on, or even whether you’re on, justifies snatching your 2A rights?

      That’s bad, but cyber chitchat about ISIS this or that, communication which does not itself constitute a crime. Is enough for you to condone snatching 1A rights?

      1. avatar Ardent says:

        Well stated JH. I’m partially playing the devils advocate to illustrate the publisher versus distributor arguments seen above. At the same time I do believe there is a difference in protection from the 1A when dealing with known criminal and or terrorist organizations. There isn’t anything new in limiting the 1A where membership in an organization like la cosa nostra, drug cartels, criminal gangs or terrorist organizations is at question. It’s naive to perceive the law as so black and white. Even so, there are bright line divisions between activity like supporting a foreign power that is under a declaration of war (treason) and questionable activities like supporting CAIR. When the US dept of state designates a group as a foreign terror organization pursuant to section 219 of the INA, they are exercising authority granted them by an act of congress…that is, by federal law. Membership in such an organization is in itself a a criminal act, as is supporting an organization so designated via propaganda, recruiting or financial means.

        Am I concerned about the rights of US citizens as regards membership in an organization so designated? Yes, to a degree. Am I concerned about potential abuse of the authority granted to DOS under the INA? Yes. Am I concerned about it specifically as it applies to ISIS, and US citizens acknowledging membership in or otherwise supporting ISIS? No. The Secretary of State has a lawful authority to designate a group as a foreign terror organization, and in the case of ISIS this authority has not been abused in my opinion. That there are ramifications for US citizens Re declaring membership in or support of organizations lawfully designated as FTOs is of some concern, but again, this is all established federal law.

        Based on the DOS lawful authority in declaring ISIS to be an FTO, membership in ISIS is a crime for a US citizen, as is supporting ISIS via recruiting, disseminating propaganda, offering financial support, etc. Surely there are 1A concerns to be raised here, but given that such support is a criminal act, and given that Face Book either was aware or should have been aware that their service was being used to commit said criminal acts, and given that FB exercises oversight and censorsorial control over content in connection with their services for all manner of things that do not rise to the level of criminal support for a lawfully designated FTO, I believe a case could be made that FB unlawfully knowingly allowed their services to be used for said criminal purposes. It follows the very basis of tort law in the US that facilitating a criminal act can give rise to civil liability.
        If FB wants to avoid such liability they could factually act as a distributor and stop oversight and control of content (ignoring “hate speech” and nipple pictures) or they could act to delete content and close accounts where such rise to the level of a criminal act. I would argue however that what they cannot do is police content they (Face Book) find offensive while knowingly allowing their services to be used to facilitate criminal acts.

        Since these concerns were at the heart of plaintiffs filings, the case should have been allowed to go forward so that these arguments could be made.

        It has little to nothing to do with anyone’s opinion of FB or ISIS, nor to do with anyones opinion of yhe DOSs authority under Ss219 of the INA, and everything to do with whether or not FB has an obligation to curtail widespread and overt misuse of its services to facilitate criminal acts, and what, if any, civil liability they have when their failure to do so harm’s plaintiffs.

        It isn’t about my feelings about the DOS designation of ISIS as an FTO, but rather FBs failure to act within the law as written. The case should be allowed to proceed.

  13. avatar Jonathan-Houston says:

    The publisher vs. platform paradigm is outdated in the age of “platishers”, as the term eas coined back in 2014 to describe hybrids of digital media platforms and publishers.

    From a January 2015 Harvard Business Review article, “When a media company attempts to be both a destination for edited, themed content and a tool others can use to create content, it’s a platisher.”

    I’ll even go one further and say that as long as the underlying content is not itself illegal, then all civil liability should evaporate. Facebook et. al. cannot possibly police all of their website for objectionable material, especially when they’re devoting their precious resources to their commercial interests and to marginalizing conservative content.

    Their silence regarding Islamic material flourishing is not tantamount to their consent because they don’t always know what people are posting. Besides, as long as the material isn’t inherently illegal, then it’s none of your business, anyway. Even then, I would give social media very wide latitude to conduct their business free from after the fact entanglements with criminals imposed by greedy plaintiffs.

    None of you had a problem with this concept when spree shooting victims’ families were suing Lucky Gunner and Arms List. Back then it was “the websites didn’t commit a crime!”

    I’ll go by the 1992 “Soldier of Fortune” hit man case, where the magazine was held liable for publishing a killer’s ad. The ruling there was that the ad on its face, without any investigation, was obviously a hit man for hire ad, and that screening for such ads did not impose an undue burden on the magazine.

    Well, general Islamic chatter is not a crime on its face. Screening and interpreting every message, meme, or emoji message to the degree of legal compliance is ridiculously burdensome.

  14. avatar Red Eagle1 says:

    If ISIS can use Twitter, than so can I! What about the social media sites supporting terrorists and mass murder. Yet a conservative American is not allowed to use the platform? Twitter shadow bans a lot of people and I do not understand how it is legal.

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