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Claim Can Go Forward Against American Publisher That Allegedly Knew Knew Author It Paid Was Hamas Hostage-Holder
The claim is under the Alien Tort Statute, which allows lawsuits in U.S. courts for aiding and abetting terrorism (among other things).
From Jan v. People Media Project, decided Tuesday by Judge Tiffany Cartwright (W.D. Wash.):
This case arises from the kidnapping of Plaintiffs Almog Meir Jan, Shlomi Ziv, and Audrey Kozlov by Hamas during the terrorist attack of October 7, 2023. Plaintiffs are Israeli citizens who were kidnapped at the Nova Music Festival and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces. Defendants are People Media Project, doing business as the Palestine Chronicle, its individual officers Ramzy Baroud and John Harvey, and unnamed Doe Defendants 1 through 10.
Plaintiffs allege that Defendants employed and compensated Aljamal for work as a journalist before and after the October 7 attack, despite knowing Aljamal was a Hamas operative. Plaintiffs assert that through these actions, Defendants aided and abetted their kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute ("ATS") ….
The following facts are those alleged in the amended complaint. Because the Court is considering a motion to dismiss …, Jan's factual allegations must be taken as true and construed in the light most favorable to him ….
Plaintiffs allege that beginning in May 2019, Aljamal worked as a journalist for the Palestine Chronicle, which regularly published his articles. However, "Aljamal also served as an official spokesperson for Hamas's Ministry of Labor" and "Defendants knew that … Aljamal was an operative and official spokesperson for Hamas." For example, Plaintiffs allege that Aljamal's Facebook page included a photo of his son wearing Hamas headbands posted on June 6, 2023, and a graphic that is the symbol for Hamas's internal security bureau. Following October 7, Plaintiffs allege that Aljamal posted on his Facebook page and TikTok account a message supporting the attack. They assert that individual "Defendants regularly viewed and interacted with" Aljamal's social media posts.
After October 7, Aljamal's publications on the Palestine Chronicle "increased exponentially, often publishing two to three pieces per day[.]" And to receive and publish Aljamal's articles, Plaintiffs allege that "Defendants were in consistent, direct, and substantial contact with Aljamal, using electronic and internet means." Specifically, "Defendants used electronic and internet means, including, but not limited to, WhatsApp and Skype, to communicate with Hamas Operative Aljamal following October 7, 2023 to coordinate Defendants' publishing of Hamas propaganda, including the publishing of justifications for Aljamal's imprisonment of Israeli citizens." Plaintiffs further assert that "Defendants knew that Aljamal was a terrorist participating in kidnapping and hostage-taking through their close employment relationship and their personal connections, e.g., Aljamal and Defendant Baroud are from the same hometown in Gaza."
Plaintiffs were rescued on June 8, 2024. They allege that once Aljamal's name and identity was reported in the news, "Defendants attempted to minimize their connection to Plaintiffs' captor." The next day, the Palestine Chronicle changed Aljamal's position on its website from a "correspondent" to a "contributor." But "[r]egardless of his employment status," Plaintiffs assert that "it is indisputable that Defendants provided Hamas Operative Aljamal, whose connections to Hamas were publicly known, with a U.S.-based and taxpayer subsidized platform to publish Hamas propaganda[.]" Plaintiffs also allege that "the compensation Defendants paid Hamas Operative Aljamal for his propaganda directly enabled him to imprison Plaintiffs in his home." Thus, "[b]y compensating Hamas Operative Aljamal for his propaganda, all the while knowing that Aljamal was a Hamas operative involved in Hamas's October 7, 2023 attacks … Defendants aided, abetted, and materially supported both Hamas Operative Aljamal and Hamas itself in their acts of terrorism, including kidnapping and holding Plaintiffs hostage for 246 days, in violation of international law." …
The court concluded that plaintiffs had adequately alleged that defendants had aided and abetted the hostage-taking, by providing substantial assistance to Aljamal, and doing so knowing that Aljamal was involved in Hamas hostage-taking
Plaintiffs allege "that Aljamal was a Hamas operative and spokesperson before, during, and in the months after the October 7, 2023 attacks," and that "Defendants knew that Aljamal was a terrorist participating in kidnapping and hostage-taking" …. Plaintiffs have supported these allegations by pleading facts, based on Aljamal's social media and communications with the Defendants, to support a reasonable inference that Defendants knew Aljamal was affiliated with Hamas and involved in the October 7 attack. For example, on October 7, 2023, "Aljamal publicly praised Hamas's terrorist attack on his Facebook page stating, 'Praise to be God, thank you very much … Oh God, pay back.'" That day, he also "posted on his public TikTok … 'Praise be to God, abundant, good and blessed praise … O God, guide us … O God grant us the victory that you promised … O God, acceptance, acceptance, acceptance … Your victory, O God.'"
Plaintiffs further contend that along with "regularly viewing Aljamal's public media posts, 'Defendants were in consistent, direct, and substantial contact with Aljamal' before and after October 7, 2023." And when Aljamal stopped publicly posting to social media, Plaintiffs assert that his communications with Defendants moved to other forms of electronic communications such as Skype and WhatsApp. They argue that the "Defendants' communications with Aljamal dramatically increased after October 7 as Aljamal began regularly providing text of stories, digital images, and other material to [the] Palestine Chronicle."
Defendants contend that Plaintiffs' claims fail because they "do not allege anywhere in the Amended Complaint that Defendants had any idea, or could have had any idea, that Hamas was planning to carry out their operations on October 7, 2023, including any kidnappings." … [But] Plaintiffs allege that Defendants had actual knowledge that Aljamal was a Hamas operative in the months following the October 7 attacks, when it was commonly known that Hamas was holding Israeli hostages in Gaza. For accomplice liability under the ATS, "it is not necessary that the aider or abettor know the precise crime that was intended and was in fact committed—if the accused is aware that one of a number of crimes will probably be committed, and one of those crimes is committed," the mens rea standard is satisfied. "[W]hen ongoing abuses are common knowledge, knowing action may be imputed to the defendant."
Plaintiffs' assertion of actual knowledge is supported by sufficient factual allegations. For example, Plaintiffs allege that Aljamal "publicly appeared in Arab media as a spokesperson for the Hamas-run Ministry of Labor." They also assert that Aljamal posted a photo on his public Facebook page on June 6, 2023, which shows his son wearing a Hamas headband. They also allege that Aljamal posted a graphic of a symbol representing Hamas's internal security bureau. On October 7, 2023, Aljamal publicly supported the attacks by expressing gratitude for the event on his public Facebook page and TikTok. Plaintiffs allege that Defendants knew of Aljamal's affiliation with Hamas because they regularly viewed his social media posts.
Additionally, Plaintiffs assert that Defendants were in direct contact with Aljamal prior to and after October 7 because the Palestine Chronicle continued publishing his articles. Specifically, Defendants communicated with Aljamal through WhatsApp and Skype to coordinate the publication of Aljamal's articles after October 7, which "increased exponentially, often publishing two to three pieces per day[.]" Despite knowing that "Hamas was committing numerous international crimes, including … kidnapping [and] holding hostages for ransom," Plaintiffs allege that Defendants continued compensating Aljamal as a journalist.
Defendants argue that Plaintiffs lack specificity in their allegations with respect to Aljamal's participation in kidnapping Plaintiffs and holding them hostage in his home. But at the motion to dismiss stage, Plaintiffs need not plead "detailed factual allegations" but rather "enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Plaintiffs have done so here. They allege that Defendants regularly viewed and interacted with Aljamal's social media posts which expressed his support and affiliation with Hamas before and on October 7. Importantly, Plaintiffs assert that after October 7, Defendants continued to directly communicate with Aljamal and increasingly published his articles, demonstrating a "close employment relationship." Along with publishing the articles, Plaintiffs allege that Defendants kept paying Aljamal for his writing, even though at the time, it was commonly known that Hamas was holding hostages in Gaza….
For earlier decisions in the case, see Alien Tort Statute Liability for American Publisher Would Turn on Whether It Knew Author It Paid Was Hamas Hostage-Holder and Publishing Pro-Hamas Propaganda Is Protected by First Amendment. Mark Goldfeder (National Jewish Advocacy Center, Inc.), Jason Torchinsky, Erielle Davidson, John J. Cycon, and Kellen Dwyer (Holtzman Vogel Baran Torchinsky & Josefiak PLLC), and David Schoen represent plaintiffs.
