Brooklyn Law Review


In recent years, “home grown” terrorists—individuals inspired to violence after watching terrorist videos online—have been responsible for devastating attacks in the United States and across Europe. Such terrorist propaganda falls outside the realm of the First Amendment’s protection because it has been proven to indoctrinate attackers, thus inciting imminent lawless action. Seizing on this, victims’ families have brought suits alleging that social media platforms, including Twitter, Facebook, and Google, provided material support to terrorists in violation of the Anti-Terrorism Act (ATA). The Communications Decency Act (CDA), however, has served as an impenetrable shield against these claims, protecting social media companies from any liability when they are acting as mere “hosts” of third-party content. Congress should amend the CDA to prevent its immunity shield from applying in cases arising under the ATA because failure to do so frustrates the ATA’s intention of providing terror victims’ families with an avenue of legal redress against parties whose have provided material support to terrorists. Social media companies are aware that terrorist propaganda is being disseminated over their platforms, they are aware that people are being indoctrinated through their platforms, and they are profiting by running targeted advertising alongside the propaganda. Safely behind the CDA’s shield, however, they have no incentive to develop tools to mitigate the dire impact of online terrorist recruiting. The proposed amendment to the CDA would encourage companies to combat online terrorist propaganda while also ensuring that suits brought under the ATA will move past the motion to dismiss stage.