Colon v. Twitter, Inc., 14 F.4th 1213 (11th Cir. 2021) was decided by the United States Court of Appeals for the Eleventh Circuit on September 27, 2021 (No. 20-11283). The Eleventh Circuit affirmed the dismissal, in an opinion by Judge Jordan joined by Judges Brasher and Julie Carnes; the Florida-law claims were treated as abandoned for failure to brief proximate cause. Colon establishes in the Eleventh Circuit that a domestic lone-actor attack inspired by online propaganda is not an act of international terrorism under the ATA, which forecloses the aiding-and-abetting theory before any question of platform conduct arises. Together with Crosby and Retana, it makes the transnational element a threshold obstacle for inspired-attack claims.
The question before the court
Is a mass shooting carried out on U.S. soil by a lone, self-radicalized attacker an act of "international terrorism" within 18 U.S.C. § 2331(1), such that social-media companies can be secondarily liable for aiding and abetting it? Does a foreign terrorist organization's after-the-fact claim of responsibility satisfy § 2333(d)(2)?
The governing rule
18 U.S.C. § 2333(a) creates the civil action; § 2333(d)(2) permits aiding-and-abetting liability only where the act of international terrorism was "committed, planned, or authorized" by an organization designated a foreign terrorist organization. "International terrorism" is defined in § 2331(1)(A)-(C); subsection (C) requires that the activities occur primarily outside the United States or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. A statutory definition controls over ordinary meaning: Stenberg v. Carhart, 530 U.S. 914, 942 (2000). The court followed Crosby v. Twitter, Inc., 921 F.3d 617 (6th Cir. 2019), and Retana v. Twitter, Inc., 1 F.4th 378 (5th Cir. 2021), and found its result consistent with Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021).
How the court applied it
Judge Jordan's opinion turned on the statutory definition rather than on causation or Section 230. Because § 2331(1) supplies an explicit definition of international terrorism, that definition governs over colloquial usage, and each of its three parts must be met. The court held the complaint failed subsection (C). On means, it held the internet was not the means by which the Pulse massacre was accomplished; allegations that ISIS posts propaganda and videos that may cross borders show only that ISIS posts information on the internet, and nothing about Mateen's conduct in carrying out the attack had a transnational component. On the persons intended to be intimidated, the plausible inference from a mass shooting on United States soil is that it was meant to terrorize American citizens and residents; the contrary reading would treat every act of domestic terrorism anywhere as intended to intimidate all humankind, draining the limiting language of effect. On locale, Mateen lived in Florida, killed there, and sought asylum nowhere. The court then held the claim independently failed § 2333(d)(2)'s foreign-terrorist-organization element, reasoning that "committed, planned, or authorized" each connote conscious action at or before the act, while ISIS claimed credit only afterward and was never alleged to have known of Mateen or his plan.
What the court concluded
The Eleventh Circuit affirmed the dismissal, in an opinion by Judge Jordan joined by Judges Brasher and Julie Carnes; the Florida-law claims were treated as abandoned for failure to brief proximate cause. Colon establishes in the Eleventh Circuit that a domestic lone-actor attack inspired by online propaganda is not an act of international terrorism under the ATA, which forecloses the aiding-and-abetting theory before any question of platform conduct arises. Together with Crosby and Retana, it makes the transnational element a threshold obstacle for inspired-attack claims.
From the opinion
- “the plaintiffs failed to make out a plausible claim that the Pulse massacre was an act of “international terrorism”” — Opening summary of the holding, immediately after “Following oral argument, we affirm.” Slip op. at 5 (No. 20-11283).
- “the Internet was not the means by which the Pulse massacre was accomplished” — Rejecting the transcend-national-boundaries theory as to “means”; followed by a quotation from Crosby, 303 F. Supp. 3d at 572-73. Slip op. at 15 (No. 20-11283).
- “we do not view the complaint as plausibly pleading that ISIS “committed, planned, or authorized” the Pulse massacre” — Opening the independent § 2333(d)(2) foreign-terrorist-organization ground. Slip op. at 18 (No. 20-11283).
Why it matters for cyber conflict
Colon draws the line between inspired and directed attacks as a matter of statutory text, which is the pivotal distinction for cyber-conflict lawyers assessing when online radicalization by a foreign actor crosses into conduct the ATA reaches.
Editorial note: this case note was drafted with AI assistance by the JLCW Research Desk, checked against the text of the opinion, and reviewed by a human editor before publication. Every quotation above is carried through from the opinion itself. See our editing policy.
Read the opinion: Colon v. Twitter, Inc. on CourtListener. This note is a summary prepared by the Journal, not legal advice, and not a substitute for the opinion itself.
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