Pennie v. Twitter, Inc., Case No. 17–cv–00230–JCS

• Decision Date: 04 December 2017
• Docket Number: Case No. 17–cv–00230–JCS
• Citation: 281 F.Supp.3d 874
• Court: U.S. District Court — Northern District of California
• Parties: Demetrick PENNIE, et al., Plaintiffs, v. TWITTER, INC., et al., Defendants.

281 F.Supp.3d 874

Demetrick PENNIE, et al., Plaintiffs,

v.TWITTER, INC., et al., Defendants.

Case No. 17–cv–00230–JCS

United States District Court, N.D. California.

Signed December 4, 2017

Keith L. Altman, Ari Kresch, Solomon M. Radner, Excolo Law, PLLC, Southfield, MI, for Plaintiffs.

Ari Holtzblatt, Patrick J. Carome, Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, David H. Kramer, Brian M. Willen, Lauren Gallo White, Wilson Sonsini Goodrich & Rosati, Mark D. Flanagan, Palo Alto, CA, Kristin A. Linsley, Esq., Jeana Marie Bisnar Maute, Sheli Rabinowitz Chabon, Gibson, Dunn & Crutcher LLP, San Francisco, CA, for Defendants.

ORDER GRANTING MOTION TO DISMISS

Re: Dkt. No. 43

JOSEPH C. SPERO, Chief Magistrate Judge

I. INTRODUCTION

This case 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 Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the Court held a hearing on September 22, 2017. Because Plaintiffs have not plausibly alleged a causal connection between the shooting and Defendants' alleged conduct, and because the Communications Decency Act immunizes most if not all of the conduct at issue, Defendants' motion is GRANTED.¹

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).

The general premise of Plaintiffs' First Amended Complaint is that Defendants have provided material support to Hamas by allowing Hamas and its members and affiliates to use Defendants' social media platforms, despite Hamas's designation as a terrorist group under United States law. See FAC ¶¶ 1, 21–23.² According to Plaintiffs, "Hamas's use of Defendants' sites" was responsible "in part" for "radicaliz[ing]" Micah Johnson, who killed five police officers and wounded

several other people when he "ambushed and fired upon a group of police officers in Dallas, Texas." Id. ¶¶ 1, 123. Plaintiff Rick Zamarripa's son Patrick, a six-year veteran of the Dallas Police Department, was among the officers killed in the attack. Id. ¶ 124. Plaintiff Demetrick Pennie, himself an officer of the Dallas Police Department, was among the first responders to the scene of the attack and personally knew the deceased officers. Id. ¶ 137. Plaintiffs continue to suffer emotional distress as a result of the attack. Id. ¶¶ 137–38.

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 8 U.S.C. § 1189 in 1997, and as a "Specially Designated Global Terrorist" pursuant to Executive Order 13224 in 2001. Id. ¶¶ 21–23.

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 unique 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 terrorist operations."). The First Amended Complaint does not, however, include allegations addressing particular content posted by Hamas that Johnson allegedly viewed.

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 Matter") 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 ‘What 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 Facebook pages of Black Nationalist organizations such as the New Black Panther Party (NBPP), Nation of Islam, and Black Riders Liberation Army, three groups which are listed by the SPLC as hate groups," as well as "the Facebook page of the African American Defense League, whose leader, Mauricelm–Lei Millere, called for the murders of police officers across the U.S. following the fatal 2014 shooting of Laquan McDonald." Id. ¶¶ 130–31. The First Amended Complaint does not allege any connection between those specific groups and Hamas.

Plaintiffs bring five claims for relief: (1) liability...