Court Rejects Lawsuit Against AP Over Oct. 7 Deaths and Injuries, Premised on AP's Buying Photos from Allegedly Hamas-Connected Freelancers

From Judge Michael Moore's decision yesterday in Newman v. AP (S.D. Fla.):

Several news organizations, including the AP, reported on the October 7 Attack by publishing real time photos and articles about the conduct of Hamas militants. The Amended Complaint identifies Gaza-based photojournalists Hassan Eslaiah, Yousef Masoud, Ali Mahmud, and Hatem Ali (together, the "Freelance Photographers"), as individuals who provided photographs of the October 7 Attack that the AP ultimately published. Plaintiffs allege that the Freelance Photographers were longstanding Hamas affiliates, who "acted and continue to act as part of Hamas, furthering Hamas' goals and objectives."

To support that the Freelance Photographers were Hamas affiliates, Plaintiffs point to social media posts by one of the Freelance Photographers, Eslaiah, to suggest that he was on "friendly terms" with Hamas and its members. The Amended Complaint provides a photograph of Eslaiah posted in 2020 with then Hamas leader Yahya Sinwar, known to be the "operational mastermind" of the October 7 Attack. In the photograph, Sinwar is kissing Eslaiah on the cheek. On October 7, 2023, Eslaiah posted several photographs now removed on X, formerly known as Twitter, including one in front of an Israeli tank, stating "Live from inside the Gaza Strip settlements." Plaintiffs also cite to a video Eslaiah posted during the attack, where he states "[y]ou know, the beautiful thing about storming the settlements: the civilians, the people, they go [out] on foot and come back driving, be it a motorcycle, a scooter or a car – [one can] grab and load trophies." Additionally, Plaintiffs point out that Eslaiah did not wear a press vest, helmet, or any other press credentials. Plaintiffs aver that in light of Eslaiah's access to "the most violent and dangerous scenes of the [October 7 Attack], despite not being identifiable as a member of the press, thereby indicat[es] the degree of his entrenchment within Hamas and the trust that his fellow Hamas Terrorists placed in him."

As for the other Freelance Photographers, Plaintiffs allege that they could not have gained access to photograph the October 7 Attack without Hamas affiliations, and that the Freelance Photographers must have known about the attack in advance because they "arrived at roughly the same time as the initial Hamas terrorists who breached entry into the State of Israel," Plaintiffs also note that the Freelance Photographers' lack of press credentials or other indicia marking them as non-participants in the attack demonstrate that they were embedded within the Hamas infrastructure and were part of the Hamas Terrorists' group. In addition, Plaintiffs allege that the Freelance Photographers returned to Gaza alongside the Hamas militants.

Plaintiffs allege that the AP's publication of images by the Freelance Photographers and relationship with the Freelance Photographers contributed to the October 7 Attack. Specifically, Plaintiffs allege that the Freelance Photographers' payments and funding to Hamas "substantially contributed to the sheer mass of people that illegally infiltrated Israel," which increased the "logistical and tactical" burden on the Israeli government in responding to the attack. Moreover, the Freelance Photographers' "presence and encouragement increased the terror" felt by Israeli civilians. Plaintiffs point to the AP's payments to the Freelance Photographers as a direct monetary benefit to Hamas. They further allege that the AP's photographs helped Hamas gain public support internationally and served as a form of propaganda for Hamas.

On February 21, 2024, Plaintiffs initiated the instant action asserting claims against the AP under the Federal Anti-Terrorism Act ("ATA"), as amended by the Justice Against Sponsors of Terrorism Act ("JASTA") and two Florida state law claims. The Amended Complaint asserts six causes of action against the AP: aiding and abetting acts of international terrorism under the Federal ATA and the JASTA (Count I); conspiring in furtherance of acts of international terrorism under the Federal ATA and the JASTA (Count II); provision of material support to terrorists under the Federal ATA (Count III); provision of material support and resources to a designated foreign terrorist organization under the Federal ATA (Count IV); negligent infliction of emotional distress (Count V); and facilitating and furthering terrorism pursuant to Florida Statute § 772.13(1) (Count VI).

The court rejected plaintiffs' claims; the opinion is long, but here's an excerpt from the discussion of the aiding and abetting claim:

The U.S. Supreme Court recently provided clarification as to … aiding and abetting liability under JASTA in Twitter, Inc. v. Taamneh (2023). There, the victims of an ISIS terrorist attack brought JASTA aiding-and-abetting claims against Twitter, Google, and Facebook. The plaintiffs argued that the three companies were liable for failing to take action against ISIS from using their platforms to post recruitment and propaganda videos. The plaintiffs further alleged that Google (through its platform YouTube) was liable because it "reviewed and approved ISIS videos on YouTube as part of its revenue-sharing system and thereby shared advertising revenue with ISIS." The Court held that Plaintiffs failed to state a claim for aiding-and-abetting.

In coming to this conclusion, the Court framed two questions in its reading of the statute. The first being "what exactly does it mean to 'aid and abet'"? The Court answered this question by finding that aiding and abetting "refers to a conscious, voluntary, and culpable participation in another's wrongdoing." … The Court further explained that defendants must have "aided and abetted the act of international terrorism that injured the plaintiffs—though that requirement does not always demand a strict nexus between the alleged assistance and the terrorist act." "Aiding and abetting does not require the defendants to have known all particulars of the primary actor's plan." A defendant "can be held liable for other torts that were a 'foreseeable risk' of the intended tort." "[T]he more attenuated the nexus, the more courts should demand that plaintiffs show culpable participation through intentional aid that substantially furthered the tort."

Applying this framework in Taamneh, the Court found that defendants did not aid and abet ISIS in carrying out a terrorist attack by allowing ISIS to access their social media platforms, where they indiscriminately employed an algorithm which matched ISIS-related content to users that would likely be interested. The Supreme Court describes Defendants' conduct as "arm's length, passive, and largely indifferent" and notes that defendants point to no act of "encouraging, soliciting, or advising the commission" of the terrorist attack to adequately support an aiding and abetting claim.

In light of Taamneh's guidance, the Court now … [considers] the instant case. As to whether the AP "knowingly" assisted Hamas in carrying out the October 7 Attack, a defendant who lacks general awareness cannot be said to have knowingly assisted an FTO…. [E]ven if the AP was put on notice of potential ties between the Freelance Photographers and Hamas through social media posts, an anonymous tip, or the fact that such Freelance Photographers were present during the attack, this fails to sufficiently allege that the AP had the requisite "state of mind with respect to their actions and tortious conduct."

An independent and alternative ground for dismissal is that Plaintiffs failed to allege that the AP provided substantial assistance …. [T]he AP is alleged to have provided Hamas through the Freelance Photographers, (1) financial support, and (2) a platform to further promote the interests of Hamas. Although the Court need not focus exclusively on Plaintiffs' financial support argument, courts have considered financial assistance to terrorist organizations as "'indisputably important' to the operation of a terrorist organization, and any money provided to the organization may aid its unlawful goals." Courts also consider the culpability of the act, which is relevant because "a court might well reason that culpability for the same amount of assistance would increase with an increase in either the blameworthiness of the tortious act aided or the seriousness of the foreseeable consequences." …

In Taamneh, the social media platforms were accused of recommending videos uploaded by ISIS and sharing advertising revenues directly with ISIS. Here, the AP's purchase of photographs of the October 7 Attack is significantly more attenuated than directly promoting an FTO's content. Nor have Plaintiffs pleaded that the AP's purchase resulted in a significant amount of money—or any amount of money—indirectly flowing to Hamas. Plaintiffs do not plausibly allege that Hamas received any financial support from the AP or that the AP knew that Hamas would likely receive any funds from the purchase of such photographs. The cases upon which Plaintiffs rely include specific allegations regarding the amount of money and other assistance that went to terrorist groups. Accordingly, Plaintiffs' conclusory allegations are inadequate to establish that any amount of money or assistance from the AP went to Hamas in carrying out its terrorist attacks….

[T]he defendant's relation to the tortious actor[ is also] "useful for determining the defendant's capacity to assist." Even assuming the AP had knowledge of the Freelance Photographers' ties to Hamas, the Amended Complaint does not allege that the Freelance Photographers participated in the tortious conduct, nor that there is a direct link between the AP and Hamas….

[Moreover, i]n Taamneh, the Supreme Court focused on the defendants' "undisputed lack of intent to support ISIS." Here, the AP's purchase of certain photographs, similar to several other media organizations, is a far cry from an active business partnership. Plaintiffs also do not allege any "arms-length relationship" between the AP and the Hamas-affiliates. Plaintiffs thus fail to provide any allegation that defendant's commercial activity evidenced an "intention to participate in an ongoing illicit enterprise." Halberstam, 705 F.2d at 484.

Finally, [courts must consider] the defendant's duration of assistance. This factor assesses the "quality and extent of [the AP's] relationship and probably influences the amount of aid provided as well." … [E]ven assuming the AP had a series of transactions with the Freelance Photographers over a period of several years, Plaintiffs do not suggest that the length of such relationship aided terrorism, outside of the conclusory allegations that the AP was a direct funding source for Hamas. This differs substantially from Zobay where the plaintiffs alleged that the defendants were in an investment relationship lasting from 2005 to 2020 and remained in a joint venture with the terrorist organization even after it was designated as an FTO….

The court went on to likewise reject the other claims (conspiracy, provision of material support for terrorism, and negligent infliction of emotional distress). In the process, it disagreed with a Seventh Circuit case, Boim v. Holy Land Found. for Relief & Dev. (7th Cir. 2008), as to provision of material support:

Whether the AP's alleged payments to the Freelance Photographers may be considered an act of international terrorism, however, requires a separate analysis. Plaintiffs largely rely on Boim, where the plaintiffs were the parents of an American-Israeli teenager shot at a bus stop in Israel by a Hamas terrorist. The defendants either gave money to Hamas or made donations to another defendant, who then channeled the donations to Hamas. The plaintiffs, like in this case, brought claims that the defendants provided material support in violation of § 2339A. The Seventh Circuit concluded that giving money to terrorist groups is "like giving a loaded gun to a child," and, as such, constitutes an "act dangerous to human life," within the meaning of § 2331(1)(A). It also found that donations made to Hamas would violate the statute. Here, Plaintiffs argue that, as in Boim, they allege in their Complaint that the AP knowingly gave money to Hamas, with the knowledge that Hamas would use such funds to inflict more terror.

The Seventh Circuit in Boim imposes sweeping liability, treating nearly all financial support provided to a terrorist organization and its affiliates as support for terrorism, regardless of whether the money is even given to the terrorist organization itself. See Boim ("This sweeping rule of liability leaves no role for the factfinder to distinguish between those individuals and organizations who directly and purposely finance terrorism from those who are many steps removed from terrorist activity and whose aid has, at most, an indirect, uncertain, and unintended effect on terrorist activity.") (Rovner, J., dissenting in part). Judge Rovner's dissent in Boim explains that treating all those who provide money and other aid to a terrorist organization as primarily liable "poses a genuine threat to First Amendment freedoms." …

Overall, the Court considers Judge Rovner's dissent more compelling than the majority, given the possible sweeping liability the statute might impose. Regardless of Boim's far-reaching standard, the exchange of payments for photographs regarding issues of public concern appears wholly distinguishable from a standing financial relationship, or donations that "appear to be intended … to intimidate or coerce a civilian population" or "affect the conduct of a government by … assassination," within the meaning of § 2331(1). A donation connotes an act of support, whereas a payment in exchange for a product is more akin to an arms-length transaction. And as the Court has already discussed, Plaintiffs have not pleaded that the AP's purchase resulted in a significant amount of money—or any amount of money—indirectly flowing to Hamas. The Amended Complaint merely alleges that the Freelance Photographers recorded footage and took photographs "with the expectation that they would be continuously paid by AP."

Accordingly, the Court finds that the AP's conduct cannot be considered an act of international terrorism….

Because it rejected the claims on statutory grounds, the court didn't have to discuss in more detail the AP's First Amendment defense.

Charles David Tobin, Elizabeth Seidlin-Bernstein, and R. Stephen Stigall (Ballard Spahr LLP) represent the AP. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.