Case No. 3:17-CV-00230-JCS Defendants’ Reply ISO Motion to Dismiss 

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SETH P. WAXMAN (pro hac vice) 

seth.waxman@wilmerhale.com 

PATRICK J. CAROME (pro hac vice) 

patrick.carome@wilmerhale.com 

ARI HOLTZBLATT (pro hac vice) 

ari.holtzblatt@wilmerhale.com 

WILMER CUTLER PICKERING 

 HALE AND DORR LLP 

1875 Pennsylvania Avenue, NW 

Washington, D.C. 20006 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

Attorneys for Defendant 

TWITTER, INC. 

[Additional counsel for each defendant are 

included on the signature page.] 

DAVID H. KRAMER (CA SBN 168452) 

dkramer@wsgr.com 

LAUREN GALLO WHITE (CA SBN 309075) 

lwhite@wsgr.com 

WILSON SONSINI 

 GOODRICH & ROSATI, P.C. 

650 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 493-9300 

Facsimile: (650) 565-5100 

Attorneys for Defendant 

GOOGLE INC. 

KRISTIN A. LINSLEY (CA SBN 154148) 

klinsley@gibsondunn.com 

JEANA BISNAR MAUTE (CA SBN 290573) 

jbisnarmaute@gibsondunn.com 

SHELI R. CHABON (CA SBN 306739) 

schabon@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

555 Mission Street, Suite 3000 

San Francisco, CA 94105-0921 

Telephone: (415) 393-8200 

Facsimile: (415) 393-8306 

Attorneys for Defendant 

FACEBOOK, INC.

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 

DEMETRICK PENNIE, RICK ZAMARRIPA 

Plaintiffs, 

v. 

TWITTER, INC., GOOGLE INC., 

FACEBOOK INC., 

Defendants. 

Case No. 3:17-CV-00230-JCS 

REPLY MEMORANDUM IN SUPPORT 

OF MOTION OF DEFENDANTS 

TWITTER, INC., GOOGLE INC., AND 

FACEBOOK, INC. TO DISMISS THE 

AMENDED COMPLAINT PURSUANT TO 

FED. R. CIV. P. 12(b)(6) 

Judge: Hon. Joseph C. Spero 

[Fed. R. Civ. P. 12(b)(6)] 

Hearing Date: Aug. 25, 2017 
Case No. 3:17-CV-00230-JCS i Defendants’ Reply ISO Motion to Dismiss

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TABLE OF CONTENTS 

Page 

I. PLAINTIFFS CANNOT EVADE SECTION 230’S ROBUST IMMUNITY ................. 1

A. JASTA Did Not Impliedly Repeal Or Abrogate Section 230 .............................. 1 

B. Section 230 Bars Plaintiffs’ “Functionality” Theory ........................................... 4 

C. Targeting Advertising Does Not Make Defendants Content Providers ................ 6 

II. ALL OF PLAINTIFFS’ CLAIMS FAIL ON THEIR OWN TERMS ............................. 7

A. Plaintiffs Cannot Show Proximate Causation ..................................................... 7 

B. Plaintiffs Cannot Save Their Secondary Liability ATA Claims .......................... 8 

C. Plaintiff Pennie Cannot Plead a Cognizable Injury ........................................... 11 

D. Plaintiffs’ Other ATA Arguments Are Meritless .............................................. 12 

1. The FAC Fails To Allege Violations of 18 U.S.C. §§ 2339A and 

2339B ................................................................................................... 13 

2. Plaintiffs Do Not Allege Other Elements of “International 

Terrorism” ............................................................................................ 15 

CONCLUSION ....................................................................................................................... 15 

 
Case No. 3:17-CV-00230-JCS ii Defendants’ Reply ISO Motion to Dismiss

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Ahmad v. Christian Friends of Israeli Cmtys., 

2014 U.S. Dist. LEXIS 62053 (S.D.N.Y. May 5, 2014) ........................................... 8, 13 

Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296 (2017) ...................................................... 8 

Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2008) ............................................................... 4 

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ...................................................................4, 5, 6 

Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) .......................................................... 6, 7 

Boim v. Holy Land Found., 549 F.3d 685 (7th Cir. 2008) ........................................................ 15 

Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002) ................................................ 15 

Branch v. Smith, 538 U.S. 254 (2003) ................................................................................... 1, 3 

Brill v. Chevron Corp., 2017 U.S. Dist. LEXIS 4132 (N.D. Cal. Jan. 9, 2017) .................. 7, 8, 15 

City of Sherman v. Henry, 928 S.W.2d 464 (Tex. 1996) .......................................................... 12 

Cohen v. Facebook, Inc., 2017 U.S. Dist. LEXIS 76701 (E.D.N.Y. May 18, 2017) ............3, 4, 5 

Doe v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) ....................................................... 3, 4 

Doe v. Bates, 2006 U.S. Dist. LEXIS 93348 (E.D. Tex. Dec. 27, 2006) ..................................... 4 

Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) .............................................................. 4, 5 

Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) ............................. 6 

Fields v. Twitter, Inc., 200 F. Supp. 3d 964 (N.D. Cal. 2016) ................................................ 4, 8 

Fields v. Twitter, Inc., 217 F. Supp. 3d 1116 (N.D. Cal. 2016) ...........................................4, 5, 8 

Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988) .................................................... 12 

FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) ........................................................... 6 

Garcia v. San Antonio Hous. Auth., 859 S.W.2d 78 (Tex. App. 1993) ..................................... 12 

Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011) .............................................. 14 

Goldberg v. UBS AG, 660 F. Supp. 2d 410 (E.D.N.Y. 2009) ........................................ 10, 11, 14 

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) .........................................................10, 11 

Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009) ................................................... 3, 4 

Hinojosa v. S. Tex. Drilling & Expl., Inc., 727 S.W.2d 320 (Tex. App. 1987) .......................... 12 
Case No. 3:17-CV-00230-JCS iii Defendants’ Reply ISO Motion to Dismiss

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Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ......................................................... 13 

Hui v. Castaneda, 559 U.S. 799 (2010) ..................................................................................... 3 

Hussein v. Dahabshiil Transfer Servs. Ltd., 

2017 U.S. Dist. LEXIS 11756 (S.D.N.Y. Jan. 27, 2017) .............................................. 14

Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) ......................... 2, 6 

Kiffe v. Neches-Gulf Marine, Inc., 709 F. Supp. 743 (E.D. Tex. 1989) .................................... 12

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) ........................................... 3 

MCW, Inc. v. Badbusinessbureau.com, LLC, 

2004 U.S. Dist. LEXIS 6678 (N.D. Tex. Apr. 19, 2004) ................................................ 6 

Morton v. Mancari, 417 U.S. 535 (1974) ................................................................................... 1 

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) ..................................... 2 

Nigerian Nat’l Petroleum Corp. v. Citibank, N.A., 

1999 U.S. Dist. LEXIS 11599 (S.D.N.Y. July 29, 1999) .............................................. 10

Packingham v. North Carolina, 137 S. Ct. 1730 (2017) ........................................................... 15 

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ............................................................................ 2 

Pratt v. Martineau, 870 N.E.2d 1122 (Mass. App. Ct. 2007) ..................................................... 7 

Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) .......................................................... 2 

Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) ...................................................................... 7 

Ryan v. Hunton & Williams, 

2000 U.S. Dist. LEXIS 13750 (E.D.N.Y. Sept. 20, 2000) ............................................ 11 

Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998) ................................ 12

Strauss v. Credit Lyonnais, S.A., 925 F. Supp. 2d 414 (E.D.N.Y. 2013) ..................................... 8 

Temple-Insland Forest Prods. Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999) ............................ 12 

Traynor v. Turnage, 485 U.S. 535 (1988) .................................................................................. 1 

United Servs. Auto. Ass’n v. Keith, 970 S.W.2d 540 (Tex. 1998) ............................................. 12 

United States v. 493,850.00 in U.S. Currency, 518 F.3d 1159 (9th Cir. 2008) ............................ 1 

United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) ........................................................... 14 

Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) ............................ 4, 5 

Weiss v. Nat’l Westminster Bank PLC, 768 F.3d 202 (2d Cir. 2014) ...................................13, 14 
Case No. 3:17-CV-00230-JCS iv Defendants’ Reply ISO Motion to Dismiss

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STATUTES 

18 U.S.C. § 2331 ........................................................................................................ 8, 9, 13, 15 

18 U.S.C. § 2333 .............................................................................................................. passim 

18 U.S.C. § 2339A .............................................................................................................13, 15 

18 U.S.C. § 2339B .............................................................................................................13, 15 

47 U.S.C. § 230 ................................................................................................................ passim 

MISCELANEOUS 

Justice Against Sponsors of Terrorism Act, Pub. L. No. 114-222, 

130 Stat. 852 (2016) ............................................................................................. passim 
Case No. 3:17-CV-00230-JCS 1 Defendants’ Reply ISO Motion to Dismiss

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Plaintiffs’ Opposition (“Opp.”) leaves no doubt that they want to hold Defendants liable 

for a terrible incident of violence based solely on the ground that some of Defendants’ billions of 

users allegedly were able to post violent and/or objectionable material on Defendants’ online 

platforms. While Defendants have profound sympathy for the victims of this crime, the law does 

not permit Plaintiffs’ theory of liability. Plaintiffs’ claims are barred by 47 U.S.C. § 230 and fail

to meet the substantive requirements of the Anti-Terrorism Act (“ATA”) and state tort law. 

I. PLAINTIFFS CANNOT EVADE SECTION 230’S ROBUST IMMUNITY 

As Defendants have shown, § 230 bars claims that seek to hold an online service provider 

liable as a “publisher” with respect to third-party content. Plaintiffs do not dispute that 

Defendants are providers of “interactive computer service[s]” or that the allegedly unlawful 

content at issue was supplied by third parties. The theories they do offer in an effort to evade 

§ 230 all fail. First, an uncodified statement of purpose in the recently enacted Justice Against 

Sponsors of Terrorism Act, Pub. L. No. 114-222, 130 Stat. 852 (2016) (“JASTA”), did not 

impliedly repeal or “nullify” § 230. Second, despite Plaintiffs’ attempt to characterize 

Defendants’ conduct as providing communication “functionality” and “account reconstitution,” 

their claims still seek, impermissibly, to impose liability on Defendants as publishers. Third, 

clear case law applying § 230 defeats the theory that Defendants’ alleged juxtaposition of thirdparty ads next to other third-party content made them providers of allegedly unlawful content. 

A. JASTA Did Not Impliedly Repeal Or Abrogate Section 230 

Plaintiffs first argue, without citing any authority, that Congress somehow “nullifie[d]” 

§ 230 when it enacted JASTA last year. Opp. 3-4. Plaintiffs are incorrect. 

“It is ‘a cardinal principle of statutory construction that repeals by implication are not 

favored.’” United States v. 493,850.00 in U.S. Currency, 518 F.3d 1159, 1167 (9th Cir. 2008); 

accord Traynor v. Turnage, 485 U.S. 535, 548 (1988) (court will not infer a statutory repeal 

“unless the later statute ‘expressly contradict[s] the original act’”). An implied repeal may be 

found only where two statutes “are in ‘irreconcilable conflict,’ or where the latter act covers the 

whole subject of the earlier one and ‘is clearly intended as a substitute.’” Branch v. Smith, 538 

U.S. 254, 273 (2003); see also Morton v. Mancari, 417 U.S. 535, 551 (1974) (“[W]hen two 
Case No. 3:17-CV-00230-JCS 2 Defendants’ Reply ISO Motion to Dismiss

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statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed 

congressional intention to the contrary, to regard each as effective.”). “[I]n either case, the 

intention of the legislature to repeal must be clear and manifest.” Radzanower v. Touche Ross & 

Co., 426 U.S. 148, 154 (1976); accord Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 

U.S. 644, 662 (2007). 

No such manifest intent or irreconcilable conflict is present here. Although JASTA made 

two specific amendments to other pre-existing statutes—the Foreign Sovereign Immunities Act 

(“FSIA”) and the ATA—it did not amend (or even reference) the immunity created by § 230 or 

address in any way the activities of online service providers. Nothing in JASTA’s text or history 

suggests any intent to override the established immunity that § 230 has provided for two 

decades—one that has repeatedly been “understood to merit expansion ... into new areas.” 

Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 408 (6th Cir. 2014). The operative

provision of JASTA at issue, codified at 18 U.S.C. § 2333(d), states only that, under certain 

circumstances involving a defined act of international terrorism, “liability may be asserted as to 

any person who aids and abets ... or who conspires with the person who committed [the] act,” 

id. (emphasis added). It does not say that liability is assured—for example, by providing for 

liability “notwithstanding” existing immunities or defenses, including that provided to online 

service providers. Cf. PLIVA, Inc. v. Mensing, 564 U.S. 604, 621-22 (2011) (describing absence 

of “non obstante” provision as indication that legislature did not intend a repeal by implication). 

Congress’s silence about § 230 in enacting JASTA is particularly significant because the 

Act expressly—but only partially—curtailed a different immunity: namely, foreign sovereign 

immunity under the Foreign Sovereign Immunities Act (“FSIA”) for certain acts of international 

terrorism. See JASTA § 3(a) (negating sovereign immunity for acts of terrorism in the U.S.). 

JASTA’s partial repeal of the FSIA powerfully suggests that Congress meant to abrogate only 

that one immunity, not surreptitiously to repeal other statutory immunities nowhere mentioned in 

the text of the act or in the extended debates about its passage. Plaintiffs’ reading would not only 

render superfluous JASTA’s express (but partial) repeal of one immunity; it would also 

improperly override the careful lines Congress drew in effecting that partial appeal. 
Case No. 3:17-CV-00230-JCS 3 Defendants’ Reply ISO Motion to Dismiss

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Applying JASTA as written also creates no “irreconcilable conflict” with § 230. Branch, 

538 U.S. at 273. JASTA permits secondary liability under the ATA in appropriate 

circumstances, but where such claims seek to hold online service providers liable for publishing 

third-party content, § 230 immunity continues to apply, just as it does to any other type of claim. 

This is how statutory immunities always work: one statute creates potential liability, and the 

immunity shields a defined class from that liability. In Hui v. Castaneda, 559 U.S. 799 (2010), 

for example, the Supreme Court rejected an argument that a later-enacted liability statute 

impliedly repealed an existing immunity, reasoning that no “irreconcilable conflict” was created 

by the mere fact that the older “more comprehensive immunity” would protect some defendants 

from liabilities created by the new law. Id. at 809-10. 

The same reasoning governs here. Courts routinely apply § 230 to immunize service 

providers against claims arising under other federal statutes—including later-enacted statutes. 

See Doe v. Backpage.com, LLC, 817 F.3d 12, 22-23 (1st Cir. 2016) (§ 230 barred claims under 

Trafficking Victims Protection Reauthorization Act of 2008), cert. denied, 137 S. Ct. 622 (2017). 

Most directly on point is Cohen v. Facebook, Inc., 2017 U.S. Dist. LEXIS 76701 (E.D.N.Y. May 

18, 2017), which applied § 230 to dismiss claims brought under JASTA—in the face of the same 

implied-repeal argument Plaintiffs make here. See Opp. to Mot. to Dismiss at 27 n.6, Cohen v. 

Facebook, Inc., No. 16-04453 (Jan. 13, 2017), ECF No. 29. This Court should do the same. 

Plaintiffs’ argument is especially weak because it relies not on JASTA’s substantive 

provisions, but instead on the uncodified findings and statement of purpose that preface the 

legislation. Opp. 3-5 (citing JASTA § 2(a)(6), (b)). It is well settled that such hortatory 

preambles are not law unto themselves, and do not change the scope of the operative provision of 

a statute—much less effectuate implied repeals of pre-existing and operative federal laws. See

Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 175 (2009); accord Kingdomware Techs., 

Inc. v. United States, 136 S. Ct. 1969, 1978 (2016) (“prefatory clauses or preambles cannot 

change the scope of the operative clause”). And in any event, although JASTA’s statement of 

purpose expresses a broad goal of combatting terrorism, it says nothing about online service 

providers, much less about abrogating existing immunities applicable to them. Nothing in the 
Case No. 3:17-CV-00230-JCS 4 Defendants’ Reply ISO Motion to Dismiss

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statement of purpose or findings provides any suggestion—much less a “clear and manifest” 

indication (Hawaii, 556 U.S. at 175)—that Congress meant to effect a significant change in U.S. 

law by eliminating the established protections that § 230 provides for online intermediaries.1

B. Section 230 Bars Plaintiffs’ “Functionality” Theory

Plaintiffs’ next theory—that their claims focus not on publishing third-party content but 

on the provision of “proprietary functions,” such as “allow[ing] ... accounts to reconstitute” 

(Opp. 20-21)—also fails. “[W]hat matters” for § 230 immunity is not the “label[]” placed on the 

claim but “whether the cause of action inherently requires the court to treat the defendant as the 

‘publisher or speaker’ of content provided by another.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 

1101-03 (9th Cir. 2008). This is not a new issue, as Plaintiffs suggest. Opp. 19. On the 

contrary, courts have repeatedly—and uniformly—held that an online platform’s provision of 

accounts (i.e., functionality) to users is publishing-related conduct protected by § 230. That is 

true both in ATA cases—see Fields v. Twitter, Inc., 200 F. Supp. 3d 964, 970-74 (N.D. Cal. 

2016) (“Fields I”); Fields v. Twitter, Inc., 217 F. Supp. 3d 1116, 1123-27 (N.D. Cal. 2016) 

(“Fields II”); Cohen, 2017 U.S. Dist. LEXIS 76701, at *28-31—and in other contexts, see 

Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420-22 (1st Cir. 2007); Doe v. 

MySpace, Inc., 528 F.3d 413, 421 (5th Cir. 2008). As these cases explain, § 230 bars such 

theories because they seek to penalize a protected publishing decision: “the decision to permit 

third parties to post content.” Fields I, 200 F. Supp. 3d at 972. 

Plaintiffs insist that Defendants could have prevented accounts from reconstituting in a 

“content-neutral” manner by barring “the incremental naming of accounts which have been taken 

down” and “request[ing] friends/followers in bulk.” Opp. 21. But even if those strategies truly 

 

1

 Plaintiffs mistakenly assert that “[n]o part of § 230 relied upon Constitutional principles.” 

Opp. 4. In enacting § 230, “Congress wanted to encourage the unfettered and unregulated 

development of free speech on the Internet,” and the immunity protects important First 

Amendment principles in ensuring that online platforms are not held liable for disseminating 

user expression. Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003). Plaintiffs further err in 

suggesting § 230 does not apply because their claims reference federal criminal statutes. Opp. 

19 n.7. Courts have uniformly rejected that argument, holding that § 230’s exception for 

“enforcement” of any “Federal criminal statute,” 47 U.S.C. § 230(e)(1), does not apply to civil 

claims that derive from federal criminal statutes. E.g., Backpage.com, 817 F.3d at 23; Doe v. 

Bates, 2006 U.S. Dist. LEXIS 93348, *8-12 (E.D. Tex. Dec. 27, 2006). 
Case No. 3:17-CV-00230-JCS 5 Defendants’ Reply ISO Motion to Dismiss

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were content neutral—which they are not2—that would make no difference. Because a service 

provider’s “choices as to who may use its platform are inherently bound up in its decisions as to 

what may be said on its platform,” any “attempt to draw a narrow distinction between policing 

accounts and policing content must ultimately be rejected.” Cohen, 2017 U.S. Dist. LEXIS 

76701, at *29. Contrary to Plaintiffs’ suggestion (Opp. 19), § 230 does not turn on whether an 

editorial strategy would require the service provider to make content-based decisions about user 

material. So long as the objective of a proffered strategy is to control who can publish or under 

what terms, § 230 bars claims based on a provider’s decision not to adopt that strategy. Lycos 

and MySpace make that clear, applying § 230 to claims premised on intermediaries’ failure to 

employ supposedly content-neutral strategies, such as barring users from having multiple screen 

names, Lycos, 478 F.3d at 420, and using age-verification tools, MySpace, 528 F.3d at 421-22. 

The same is true here: holding Defendants liable because they supposedly failed to block users 

from using certain account names or communicating with other users in certain ways would 

penalize them for protected publisher activities.3

Plaintiffs’ theory also would defeat a core objective of § 230: “to encourage interactive 

computer services and users of such services to self-police the Internet for obscenity and other 

offensive material.” Batzel, 333 F.3d at 1028. Plaintiffs assert that, whenever Defendants 

“voluntarily” “chose[] to delete an account,” they thereby “assumed responsibility” for any user 

action to “reconstitute” that account. Opp. 20-21. But that theory—that a service provider’s 

self-policing efforts become the basis for holding it liable for user behavior—is exactly what 

 

2

 Beyond the fact that the posited strategies would require Defendants to decide what content 

may be posted, including by making assessments about “suspicious conduct” by users (Opp. 21), 

the entire premise of Plaintiffs’ claims is an asserted connection between objectionable content 

allegedly posted on Defendants’ platforms and Micah Johnson’s crimes in Dallas. Absent the 

alleged effect of that third-party content, Plaintiffs’ claims against Defendants have no 

conceivable basis. Fields II, 217 F. Supp. 3d at 1124-25; see also infra n.3. 

3

 Plaintiffs’ attempt to focus on the alleged consequences of third-party content, such as “new 

recruits” (Opp. 20), also fails. Such a claim just as much seeks to hold the platform liable as 

publisher—and is just as much barred—as one premised overtly on the content of that material. 

Here, for example, Plaintiffs’ theory is that Defendants “provide[d] personnel to HAMAS” as a 

result of allegedly “giving HAMAS the means to post, save, and distribute videos and other 

messages.” Id. That theory is plainly content-based. 
Case No. 3:17-CV-00230-JCS 6 Defendants’ Reply ISO Motion to Dismiss

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Congress sought to overturn in enacting § 230. See Jones, 755 F.3d at 408 (§ 230 “set out to 

abrogate” precedent holding a service provider liable “because it had engaged in voluntary selfpolicing of ... third-party content”); Batzel, 333 F.3d at 1029-30 (same). 

C. Targeting Advertising Does Not Make Defendants Content Providers 

Likewise without merit is Plaintiffs’ argument that § 230 does not apply because 

Defendants supposedly act as “information content providers” by “targeting ads” and displaying 

“composite content.” Opp. 21-23. As already explained (Mot. 11-12), a service provider does 

not “develop” content merely by “augmenting the content generally,” Fair Hous. Council v. 

Roommates.com, LLC, 521 F.3d 1157, 1167-68 (9th Cir. 2008)—even where (unlike here) it 

“has an active, even aggressive role in making available content prepared by others,” Blumenthal

v. Drudge, 992 F. Supp. 44, 51-52 (D.D.C. 1998). A provider loses immunity only “if it 

contributes materially to the alleged illegality of the conduct.” Roommates, 521 F.3d at 1168.4

 

No such facts are alleged here. Not only were the ads themselves third-party content, but 

Plaintiffs do not even suggest that they were objectionable or contributed to the alleged illegality 

of any terrorist content at issue. Indeed, Plaintiffs admit that Defendants’ use of targeted ads 

applies across their platforms and has no special connection to terrorism or to Plaintiffs’ ATA 

claims. See, e.g., FAC ¶ 91. The use of “neutral tools” to place ads alongside third-party 

material, Roommates, 521 F.3d at 1171, does not defeat § 230 protection.

5

 

 

4

 Plaintiffs’ brief (Opp. 22-23) misreads this and other case law. The court in Blumenthal

expressly rejected the argument that § 230 protection is limited to “passive conduit[s],” and held 

AOL immune even though it had solicited, paid for, and “affirmatively promoted” the allegedly 

defamatory third-party content. 992 F. Supp. at 51-52. In MCW, Inc. v. Badbusinessbureau. 

com, LLC, 2004 U.S. Dist. LEXIS 6678, at *32 (N.D. Tex. Apr. 19, 2004), the court held the 

defendants acted as “information content providers” because they themselves had supplied titles 

and headers that were themselves defamatory. By contrast, the ads here were created by third 

parties and are not alleged to be unlawful. Finally, the aspect of Roommates on which Plaintiffs 

rely involved a service provider that had designed its service to require users to submit content in 

violation of federal law and then made “aggressive use” of that illegal content in conducting its 

business. 521 F.3d at 1172. No such allegations are present here. 

5

 Plaintiffs argue that Google is not immune insofar as it allegedly shared advertising revenue 

with users who posted Hamas-related videos. Opp. 23-24. Here again, Plaintiffs cannot explain 

how a neutral revenue-sharing policy (FAC ¶¶ 93-98) materially contributes to the illegality of 

terrorist content. Plaintiffs cite FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009), but the 

conduct there—where the service “solicited requests for confidential information protected by 

law” (id. at 1201)—is worlds away from what is alleged here. And Plaintiffs’ other cases make 
Case No. 3:17-CV-00230-JCS 7 Defendants’ Reply ISO Motion to Dismiss

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II. ALL OF PLAINTIFFS’ CLAIMS FAIL ON THEIR OWN TERMS 

A. Plaintiffs Cannot Show Proximate Causation 

As argued in Defendants’ opening brief, Plaintiffs’ attenuated theory of causation comes 

nowhere close to causally linking their injuries to any alleged misconduct by Defendants. Mot. 

15-19. The Opposition does not even try to explain how Johnson’s crime—or even his alleged 

engagement with social media content posted by “black separatist hate groups”—proximately 

resulted from any alleged misconduct by Defendants related to the alleged use of their platforms 

by persons affiliated with Hamas. Plaintiffs offer only a strained analogy, positing a scenario in 

which Smith gives a gun to Jones who leaves it to be found by Billy who, in turn, shoots 

Tommy. Opp. 16-18. That anecdote does not support Plaintiffs’ convoluted causation theory 

and only underscores what is lacking here. Providing an online platform that can be used to 

share information about any conceivable issue is not remotely like giving a child a loaded gun. 

Like all tools, online platforms can be misused, but that does not mean Defendants peddle in 

“dangerous instrumentalit[ies],” Pratt v. Martineau, 870 N.E.2d 1122, 1128 (Mass. App. Ct. 

2007), much less that they assume legal responsibility merely because bad actors misuse their 

services. This is especially so where, as here, the only alleged connection between the alleged 

bad actors and the crime at issue is indirect, intangible, and entirely speculative. 

Plaintiffs erroneously invite the Court to employ a looser causation standard used by 

some out-of-circuit courts construing claims under the ATA. Opp. 15-16. As Defendants have 

shown (Mot. 16, n.3), that approach ignores both the text of the statute and the weight of 

authority, including a recent decision in this district squarely holding that the ATA’s “by reason 

of” language requires a sufficiently “direct[]” relation between the defendant’s alleged material 

support and the plaintiff’s alleged injury. See Brill v. Chevron Corp., 2017 U.S. Dist. LEXIS 

4132, at *20 (N.D. Cal. Jan. 9, 2017) (“[T]he proximate causation standard articulated by the 

Second Circuit in Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) ... is well-reasoned and

 

clear that simply paying users for content does not fall outside § 230. Blumenthal, 992 F. Supp. 

at 51-52. In any event, Plaintiffs’ cursory allegations fail on their own terms. They make no 

plausible allegation that Google actually shared revenue with Hamas—much less that it did so 

knowingly or that any such hypothetical sharing had any connection to the Dallas shooting. 
Case No. 3:17-CV-00230-JCS 8 Defendants’ Reply ISO Motion to Dismiss

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compelling, and the Court applies it here.”). Plaintiffs’ focus on “foreseeability” (Opp. 15-16) 

also flies in the face of recent Supreme Court authority confirming that “foreseeability alone 

does not ensure the close connection that proximate cause requires.” Bank of Am. Corp. v. City 

of Miami, 137 S. Ct. 1296, 1306 (2017).6

In any event, Plaintiffs’ claims still would fail even if a looser causation standard were 

used. Plaintiffs allege no facts that plausibly could show that Defendants’ “actions were ‘a 

substantial factor in the sequence of responsible causation.’” Opp. 15 (quoting Strauss v. Credit 

Lyonnais, S.A., 925 F. Supp. 2d 414, 432 (E.D.N.Y. 2013)). Nothing in the FAC suggests that 

Defendants’ allegedly imperfect efforts to police their services against use by terrorists were a 

substantial factor leading to Johnson’s crime. See, e.g., Ahmad v. Christian Friends of Israeli 

Cmtys., 2014 U.S. Dist. LEXIS 62053, at *13-14 (S.D.N.Y. May 5, 2014) (no proximate cause 

based on alleged transfer of funds to a large group, some of whom eventually committed terrorist 

attacks), aff’d, 600 F. App’x 800 (2d Cir. 2015); Brill, 2017 U.S. Dist. LEXIS 4132, at *20 

(rejecting attenuated causation allegations). As in Fields, Plaintiffs’ alleged chain of causation is 

far “too speculative [and] attenuated to raise a plausible inference of proximate causation.” 

Fields I, 200 F. Supp. 3d at 974 n.4; Fields II, 217 F. Supp. 3d at 1127 n.3. This flaw defeats not 

only Plaintiffs’ direct liability claims under the ATA, but also their state law claims, which 

similarly require a showing of proximate cause. 

B. Plaintiffs Cannot Save Their Secondary Liability ATA Claims 

Plaintiffs’ Opposition likewise confirms that their claims under § 2333(d) for aiding and 

abetting and conspiracy must be dismissed. This is so for several independent reasons. 

First, Plaintiffs’ Opposition does nothing to establish that the act from which their 

injuries arose—a shooting in Dallas—constituted “international terrorism” as defined in the 

ATA, 18 U.S.C. § 2331(1)(C), and as required to state a claim under the ATA, see § 2333(a), (d). 

 

6

 Plaintiffs further err in arguing that JASTA’s “findings” impliedly relaxed the ATA’s 

causation requirement. Opp. 4. JASTA did not amend the “by reason of” language in Section 

2333(a) and did not purport to alter the causation analysis this phrase has long been understood 

to require. And in any event, as shown above, the findings and preamble cannot expand or alter 

the operative terms of the statute, which continues to mandate the “by reason of” standard. 
Case No. 3:17-CV-00230-JCS 9 Defendants’ Reply ISO Motion to Dismiss

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Plaintiffs do not dispute that the shooting was purely domestic, having been carried out in Texas 

by a U.S. citizen born in the United States, against victims who also were U.S. citizens. FAC ¶¶ 

1, 8-9, 123. And although Plaintiffs try to cast their claims as involving actions by Hamas that 

“transcend national boundaries” (Opp. 6), they do not show how their allegations about this 

incident transcended national boundaries as required by the statute. § 2331(1)(C). They do not 

allege that the “means” by which Johnson committed his attack involved any communication 

with any international terrorist group; that the persons he apparently intended to “intimidate or 

coerce” were outside the United States; or that he “operate[d]” or sought asylum overseas. See 

id. Rather, they contend that he was “radicalized” in the U.S. by viewing content from U.S.-

based “black separatist hate groups.” FAC ¶¶ 129, 132. 

Second, Plaintiffs allege no facts that would establish that a designated foreign terrorist 

organization “committed, planned, or authorized” the Dallas attack, as § 2333(d) requires.

Plaintiffs’ conclusory and unsubstantiated statements to the contrary (Opp. 2, 5-6, 11)—all of 

which rest on allegations that Hamas propaganda influenced “black separatist hate groups” (FAC 

¶¶ 132, 139-142), who in turn created other propaganda that allegedly caused Johnson to be 

“radicalized” (FAC ¶¶ 122, 130-131)—are not remotely sufficient. Section 2333(d) does not 

permit claims for attacks merely (and indirectly) inspired by a terrorist group’s online postings. 

Instead, its plain language requires direct and advance participation by the FTO in the specific 

attack at issue. This failure alone defeats Plaintiffs’ claims. 

Third, Plaintiffs ignore the requirement of § 2333(d) that the defendant have conspired 

with—or have knowingly provided substantial assistance to—the specific “person” who 

“committed” the alleged act of international terrorism. § 2333(d)(2). Plaintiffs do not dispute 

that that person is Johnson (FAC ¶¶ 1, 123), yet they do not even try to show that Defendants 

knowingly assisted or entered into any agreement with him. Plaintiffs do not mention Johnson in 

trying to defend their conspiracy claim, and mention him only once in connection with their 

aiding and abetting claim. And although they allege that Johnson made “use of Defendants’ 

platforms” to “‘lik[e]’ pages calling for the murders of police officers” (Opp. 9-10), they do not 

and cannot suggest that this alleged use constituted “substantial assistance” knowingly provided 
Case No. 3:17-CV-00230-JCS 10 Defendants’ Reply ISO Motion to Dismiss

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by Defendants to Johnson in the commission of his crimes. Nor can Plaintiffs avoid this problem 

by suggesting that the availability of Defendants’ platforms provided assistance to Hamas, such 

that Defendants supposedly assisted in “Hamas’s ongoing engagement in international terrorism” 

and had a “tacit agreement [with] Hamas” (Opp. 8-11)—which connections in some inexplicable 

way inspired Johnson to shoot police officers in Dallas. Even if all of that could be alleged, it 

would not be enough under § 2333(d) because it would not establish that Defendants knowingly 

provided substantial assistance to Johnson himself.

Fourth, Plaintiffs fail to establish the key elements of aiding and abetting—namely, that 

Defendants acted with knowledge of a specific illegal scheme and knowingly assisted the 

principal violation. Opp. 7 (citing Halberstam v. Welch, 705 F.2d 472, 477, 488 (D.C. Cir. 

1983)).7

 At most, Plaintiffs argue that Defendants made their services widely available to 

billions of users, while being generally aware that some attempting to use their services may 

have been affiliated with Hamas. Opp. 8. That is not enough to meet the mens rea required for 

aiding and abetting liability for Johnson’s crime. E.g., Nigerian Nat’l Petroleum Corp. v. 

Citibank, N.A., 1999 U.S. Dist. LEXIS 11599, at *25-26 (S.D.N.Y. July 29, 1999) (liability 

“‘require[s] actual knowledge of the primary wrong’ by the defendant”). 

Likewise, “[it] has long been recognized that substantial assistance means more than just 

a little aid, and requires knowledge of the illegal activity that is being aided and abetted, a desire 

to help that activity succeed, and some act to further such activity to make it succeed.” Goldberg 

v. UBS AG, 660 F. Supp. 2d 410, 425 (E.D.N.Y. 2009). Although Plaintiffs cite Halberstam, 

they try to dilute its six-factor test (Opp. 8-10) and also ignore its clear requirement that an aider

and abettor must act in some deliberate way to help the actual perpetrator. See 705 F.2d at 484, 

 

7

 In Halberstam, the court found that the defendant had “general awareness” of her role in the 

illegal criminal scheme because she not only lived for five years with the individual (Welch) 

who carried out that scheme, but also witnessed ongoing and direct evidence of his criminal 

behavior. 705 F.2d at 486-88. Here, by contrast, Plaintiffs have not alleged that Defendants, “at 

the time” they provided their services, even knew about Johnson at all, much less that they had 

some sort of “awareness” of his criminal plan. Halberstam also found that the defendant had 

provided “knowing assistance” to the principal violation because, among other things, she acted 

“as banker, bookkeeper, recordkeeper, and secretary ... in an unusual way under unusual 

circumstances.” Id.. The FAC alleges no such acts of specific assistance to Johnson. 
Case No. 3:17-CV-00230-JCS 11 Defendants’ Reply ISO Motion to Dismiss

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488 (“state of mind” factor focuses on whether the defendant had “a deliberate long-term 

intention to participate in an ongoing illicit enterprise”). Plaintiffs do not suggest (nor could 

they) that Defendants had any “desire” to help Johnson carry out acts of violence, that they 

knowingly worked with Johnson over an extended period of time, or that they did anything to 

encourage Johnson to commit the Dallas shooting. Plaintiffs’ allegations of “assistance” to 

Hamas—several levels removed from Johnson’s actions and not remotely like the facts of 

Halberstam—are insufficiently direct to state an aiding and abetting claim under § 2333(d). 

Courts have not hesitated to reject similarly remote allegations of aiding and abetting. See 

Goldberg, 660 F. Supp. 2d at 425 (“[D]efendant’s alleged actions in performing three wire 

transfers for [a primary Hamas fundraiser] fail to establish ‘substantial assistance’ of the sort 

required to support an aiding and abetting claim.”); Ryan v. Hunton & Williams, 2000 U.S. Dist. 

LEXIS 13750, at *29 (E.D.N.Y. Sept. 20, 2000) (allegations of a bank’s “failing to shut down 

the accounts sooner” does “not rise to the level of substantial assistance”). 

Fifth, Plaintiffs’ conspiracy theory fails because they have not alleged an agreement with 

Johnson (or anyone else) “to participate in an unlawful act.” Halberstam, 705 F.2d at 477. 

Allegations that Defendants made their services widely available for use by the public, that 

Defendants knew generally that some people affiliated with Hamas might try to use those 

services, and that Defendants could have done more to prevent Hamas-affiliated users from 

being able to post content, do not amount to “indirect evidence” of a conspiracy between 

Defendants and Johnson. Whether conspiracy liability can ever be established with proof of a 

“tacit” agreement (Opp. 10-11) is beside the point, because nothing Plaintiffs allege or argue 

plausibly suggests Defendants were “willing partners” of Johnson. Halberstam, 705 F.2d at 486. 

C. Plaintiff Pennie Cannot Plead a Cognizable Injury 

As Defendants showed in their moving papers (Mot. 24-25), Plaintiff Pennie’s claims 

also must be dismissed because, as a “first responder” who was neither present during the Dallas 

shooting nor a close relative of any victim, he does not and cannot allege a cognizable injury. 

See FAC ¶ 137. Controlling Texas law defeats Pennie’s argument (Opp. 24-25) that his arrival at 

the scene soon after the shooting affords him a basis to sue. See Uni. Servs. Auto. Ass’n v. Keith, 
Case No. 3:17-CV-00230-JCS 12 Defendants’ Reply ISO Motion to Dismiss

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970 S.W.2d 540, 541-42 (Tex. 1998) (denying mother’s claim even though she arrived at the 

scene immediately after auto accident and heard her daughter crying out from inside wreckage). 

Texas law also bars Pennie’s contention (Opp. 25) that he meets the “closely related” 

requirement for bystander claims as a “co-worker and close friend” of some of the individuals 

shot by Johnson. See Hinojosa v. S. Tex. Drilling & Expl., Inc., 727 S.W.2d 320, 324 (Tex. App. 

1987); Garcia v. San Antonio Hous. Auth., 859 S.W.2d 78, 81 (Tex. App. 1993) (limiting 

recovery to “relatives residing in the same household, or parents, siblings, children, and 

grandparents of the victim”); Kiffe v. Neches-Gulf Marine, Inc., 709 F. Supp. 743, 745 (E.D. 

Tex. 1989) (denying recovery to plaintiff who had only “served with [victim] in close proximity 

aboard ship”). Pennie cites City of Sherman v. Henry, 928 S.W.2d 464 (Tex. 1996), as holding 

that “the bond between fellow police officers from the same department cannot be questioned” 

(Opp. 25), but that case did not address whether a non-familial relationship between officers 

allows bystander liability. See Sherman, 928 S.W.2d at 465-67. Plaintiffs also are incorrect that 

under Freeman v. City of Pasadena, 744 S.W.2d 923, 924-25 (Tex. 1988), foreseeability alone is 

enough. “To recover as a bystander under Freeman,” a plaintiff must meet all three elements 

identified in that case, which are presence, foreseeability, and a close familial relationship. 

Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 n.6 (Tex. 1998) (denying 

recovery to plaintiff who failed to “meet the third requirement” of familial relationship); Keith, 

970 S.W.2d at 542 (plaintiff must meet all three elements).8

D. Plaintiffs’ Other ATA Arguments Are Meritless 

Plaintiffs devote two sections of their brief (Opp. 11-15) to discussing other defects that 

independently bar their ATA direct liability claims but that Defendants’ motion did not present 

(in light of the many other grounds for dismissal that the motion asserted). This oddity seems to 

stem from Plaintiffs’ having copied much of their opposition from another brief their counsel 

 

8

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to the physical harm requirement for emotional distress claims. Opp. 25. Doing so would 

violate the clear Texas rule that, “[a]bsent physical injury, the common law has not allowed 

recovery for negligent infliction of emotional distress except in certain specific, limited 

instances.” Temple-Insland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 91 (Tex. 1999). 
Case No. 3:17-CV-00230-JCS 13 Defendants’ Reply ISO Motion to Dismiss

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recently co-filed in another case. See Gonzalez v. Google, Inc., No. 16-cv-03282 (DMR) (N.D. 

Cal. June 23, 2017), ECF No. 101. Now that Plaintiffs have opened the door, Defendants will 

address these defects as additional grounds for dismissal of Counts III and IV. 

1. The FAC Fails To Allege Violations of 18 U.S.C. §§ 2339A and 2339B

For direct civil liability under the ATA, the defendant itself must have committed an “act 

of international terrorism.” See § 2333(a). One of the multiple elements of such an act is the 

violation of a criminal law (see § 2331(1)(A))—here, the laws Plaintiffs accuse Defendants of 

having violated are the so-called “material support” statutes, §§ 2339A and 2339B. Plaintiffs are 

incorrect that the FAC alleges facts sufficient to satisfy the strict mens rea required for a 

violation of those statutes.9

 As to § 2339A, Plaintiffs’ reliance (Opp. 12) on Ahmad, 2014 U.S. 

Dist. LEXIS 62053, is misplaced. Ahmad dismissed an ATA claim where the plaintiffs failed

plausibly to allege that the defendants “kn[ew] or intended that the support would be used [by 

others] in preparation for, or in carrying out, violations of certain [other] federal criminal 

statutes.” Id. at *7-12. As in Ahmad, the FAC offers no factual allegations establishing that 

Defendants had such knowledge or intent, and its conclusory assertions are insufficient. 

To try to establish mens rea under § 2339B, Plaintiffs rely on their allegations that 

Defendants knew that Hamas is a designated FTO (Opp. 11, 13-14), but that is not enough. The 

statute also requires a showing that the defendant knowingly provided material support to the 

FTO. See Weiss v. Nat’l Westminster Bank PLC, 768 F.3d 202, 208 (2d Cir. 2014) (“Plaintiffs 

must show that [the defendant] both knew that it was providing material support to [an FTO] and 

knew that [the FTO] engaged in terrorist activity.” (emphasis added)). To satisfy this latter 

element, the defendant had to know that it was providing support directly to the organization 

itself—that is, that the support was “coordinated with or under the direction of a designated 

foreign terrorist organization.” Holder v. Humanitarian Law Project, 561 U.S. 1, 31-32 (2010). 

 

9

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new “recklessness” standard for claims based on §§ 2339A and 2339B. Opp. 4. As explained 

above (supra § I.A & n.6), that prefatory language cannot expand JASTA’s own terms, much 

less that of other statutes that JASTA did not purport to amend, and nothing in the operative 

provisions of JASTA establishes a new scienter standard. In any event, Plaintiffs have not 

plausibly alleged that Defendants recklessly provided material support to Hamas. 
Case No. 3:17-CV-00230-JCS 14 Defendants’ Reply ISO Motion to Dismiss

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Here, however, nothing in the FAC permits the conclusion that Defendants deliberately provided 

support to Hamas. 

Plaintiffs try to overcome these defects by invoking “willful blindness” (Opp. 13), a 

doctrine that, where it applies, is a means of establishing that a party had the requisite 

knowledge. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). It requires 

“deliberate ignorance,” United States v. Heredia, 483 F.3d 913, 918 n.4 (9th Cir. 2007)—that is, 

“active efforts” by the defendants to avoid confirming the truth of a given fact, Global-Tech, 563 

U.S. at 770-71. Even if the doctrine were to apply to the material support statutes, Plaintiffs 

cannot meet its strict test because they have not alleged, and cannot allege, that Defendants (1) 

were actually aware of a high probability that they were providing material support to Hamas 

and (2) made an active and deliberate effort to avoid confirming that fact. Id. Vague assertions 

that Defendants generally knew that unidentified persons tied to Hamas were among Defendants’ 

billions of users (Opp. 13) are insufficient. See Hussein v. Dahabshiil Transfer Servs. Ltd., 2017 

U.S. Dist. LEXIS 11756, at *20 (S.D.N.Y. Jan. 27, 2017) (generalized knowledge of risk “is not 

the same as knowing or deliberately-indifferent support for terror”). 

Plaintiffs’ other cases (Opp. 13) do not hold otherwise. It was undisputed in those cases 

that the defendants knowingly provided financial services to specific customers who were 

involved in terrorism; the only question was whether the defendants also knew of that 

involvement. See Weiss, 768 F.3d at 208; Goldberg, 660 F. Supp. 2d at 428. This case is 

critically different. Defendants provide free and widely available online platforms used by 

billions of people. Plaintiffs cannot seriously claim that Defendants know the identity and 

affiliation of each such person, or that they “knowingly” provide support to each user. Although 

Plaintiffs assert that unidentified accounts displayed “the emblems and symbols of HAMAS,” 

they do not suggest that Defendants were aware of those accounts, and they admit that 

Defendants removed Hamas accounts when it did learn about them. Opp. 14; FAC ¶¶ 55, 69, 72, 

75. Plaintiffs offer no authority for their sweeping assertion that the provision of generalized 
Case No. 3:17-CV-00230-JCS 15 Defendants’ Reply ISO Motion to Dismiss

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services to the public with knowledge that the services might be used in an unauthorized way by 

some unidentified affiliate of an FTO satisfies the “material support” scienter requirement.10

2. Plaintiffs Do Not Allege Other Elements of “International Terrorism” 

Plaintiffs also assert that any violation of the material support statutes is automatically an 

“act of international terrorism” under the ATA. Opp. 14. Here too, Plaintiffs are incorrect. 

Judge Donato’s recent decision in Brill is directly on point. The court there rejected the very 

argument Plaintiffs make here, holding that an alleged material support violation does not, by 

itself, satisfy the other elements of “international terrorism” required by § 2331(1), including the 

requirement that the defendant’s conduct “appear to be intended” to achieve a specific terrorism 

purpose. See Brill, 2017 U.S. Dist. LEXIS 4132, at *17-18.11 The same analysis applies here. 

Plaintiffs do not even try to explain how Defendants, simply by offering their services to billions 

of users around the world, engaged in conduct that “appeared to be intended ... to” accomplish a 

terrorist purpose and, further, involved acts that were “violent” or “dangerous to human life.” 

§ 2331(1)(A)-(B)(i). As in Brill, Plaintiffs’ allegations are far removed from the kinds of 

substantial and direct assistance to terrorists that have led courts to allow ATA claims premised 

on material support. 2017 U.S. Dist. LEXIS 4132, at *18-20. 

CONCLUSION 

For all these reasons, as well as those set forth in Defendants’ moving papers, the FAC 

should be dismissed without further leave to amend.

 

10 Plaintiffs’ assertion that failing to stop someone’s use of an open Internet platform 

constitutes “material support” for terrorism (Opp. 11-12), has no support, and the suggestion that 

Defendants could be held criminally liable under §§ 2339A and 2339B simply because certain 

users may have posted content online (despite Defendants’ efforts and in violation of their rules) 

would raise serious First Amendment concerns. See Mot. 18-19 & n.5; cf. Packingham v. North 

Carolina, 137 S. Ct. 1730, 1737 (2017) (First Amendment protects use of social media services). 

11 Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir. 2002), is not to the contrary. It 

held that providing large sums of money directed to Hamas, knowing of the group’s terrorist 

aims, was an act of “international terrorism.” Id. at 1014-15. It did not hold that every violation 

of the material support laws constitutes such an act. See Brill, 2017 U.S. Dist. LEXIS 4132, at 

*17-18. Plaintiffs’ out-of-district cases (Opp. 14) misconstrue Boim and disregard key 

provisions of § 2331(1). And in any event, even if knowingly giving large sums of money to 

known terrorist groups were “like giving a loaded gun to a child,” Boim v. Holy Land Found., 

549 F.3d 685, 690 (7th Cir. 2008), offering a general service to millions of people is not, even if 

terrorists may be among those who might receive the service. Id. at 699. 
Case No. 3:17-CV-00230-JCS 16 Defendants’ Reply ISO Motion to Dismiss

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Dated: July 14, 2017 Respectfully submitted, 

 /s/ Kristin A. Linsley 

KRISTIN A. LINSLEY (CA SBN 154148) 

klinsley@gibsondunn.com 

JEANA BISNAR MAUTE (CA SBN 290573) 

jbisnarmaute@gibsondunn.com 

SHELI R. CHABON (CA SBN 306739) 

schabon@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

555 Mission Street, Suite 3000 

San Francisco, CA 94105-0921 

Telephone: (415) 393-8200 

Facsimile: (415) 393-8306 

Attorneys for Defendant 

FACEBOOK, INC. 

 /s/ Patrick J. Carome 

SETH P. WAXMAN (pro hac vice) 

seth.waxman@wilmerhale.com 

PATRICK J. CAROME (pro hac vice) 

patrick.carome@wilmerhale.com 

ARI HOLTZBLATT (pro hac vice) 

ari.holtzblatt@wilmerhale.com 

WILMER CUTLER PICKERING 

 HALE AND DORR LLP 

1875 Pennsylvania Avenue, NW 

Washington, D.C. 20006 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

MARK D. FLANAGAN (CA SBN 130303) 

mark.flanagan@wilmerhale.com 

WILMER CUTLER PICKERING 

 HALE AND DORR LLP 

950 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 858-6000 

Facsimile: (650) 858-6100 

Attorneys for Defendant 

TWITTER, INC.

 /s/ Brian M. Willen 

BRIAN M. WILLEN (pro hac vice) 

bwillen@wsgr.com 

WILSON SONSINI 

 GOODRICH & ROSATI, P.C. 

1301 Avenue of the Americas 

New York, NY 10019 

Telephone: (212) 999-5800 

Facsimile: (212) 999-5899 

DAVID H. KRAMER (CA SBN 168452) 

dkramer@wsgr.com 

LAUREN GALLO WHITE (CA SBN 309075) 

lwhite@wsgr.com 

WILSON SONSINI 

 GOODRICH & ROSATI, P.C. 

650 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 493-9300 

Facsimile: (650) 565-5100 

Attorneys for Defendant 

GOOGLE INC. 

 
Case No. 3:17-CV-00230-JCS 17 Defendants’ Reply ISO Motion to Dismiss

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ATTORNEY ATTESTATION 

 I, Brian M. Willen, am the ECF User whose ID and password are being used to file this 

Memorandum. In compliance with N.D. Cal. Civil L.R. 5-1(i)(3), I hereby attest that 

concurrence in the filing of the document has been obtained from each of the other signatories. 

By: /s/ Brian M. Willen 

 Brian M. Willen 

CERTIFICATE OF SERVICE 

 I hereby certify that on July 14, 2017, I electronically filed the above document with the 

Clerk of the Court using CM/ECF which will send electronic notification of such filing to all 

registered counsel. 

By: /s/ Brian M. Willen 

 Brian M. Willen