In July 2016 lawyers for Israeli and American victims of Palestinian attacks filed a billion-dollar lawsuit against Facebook in New York, accusing the company of knowingly supporting Hamas. The claim was brought under the United States Anti-Terrorism Act, which lets the victims of terrorism recover three times their damages and their legal costs from anyone who provides “material support or resources” to a terrorist organisation, and it followed earlier claims of the same kind against banks. Behind it was Shurat HaDin, the Tel Aviv law centre that fights terrorism through the courts, which had run a series of documented experiments showing that Facebook consistently refused to remove material inciting attacks. I discussed the case on the radio at the time.
The argument
The central issue was always going to be whether Facebook is a neutral platform or something more. The claimants’ case was that Facebook actively helps inciters find people interested in acting on their message, by suggesting friends, groups and events and by targeting advertising on the basis of people’s likes and browsing history, and that it refuses to take down inciting pages on the ground that they do not breach its community standards. Calling on people to commit crimes is not protected speech, and the Anti-Terrorism Act takes incitement to terrorism, and the facilitation of it, outside the First Amendment. The report of the Middle East Quartet published that month had recorded that Palestinians who carry out attacks were being glorified as heroic martyrs, with images and slogans encouraging violence widely circulated, and that incitement on social media had gathered pace since October 2015 and was particularly affecting the young.
What happened to the case
It failed, and not on the facts. The District Court dismissed the claim in May 2017 under section 230 of the Communications Decency Act, the provision that shields an American online service from liability as the publisher of what its users post. The Court of Appeals for the Second Circuit upheld the dismissal in July 2019 (Force v Facebook, 934 F.3d 53), holding that Facebook’s algorithms, which match users with content and with one another, are part of what a publisher does and do not take the company outside the immunity, though Chief Judge Katzmann dissented on exactly that point, and in May 2020 the Supreme Court declined to hear it. Three years later the same court closed the other door: in Twitter v Taamneh (2023) it held unanimously that a platform which hosts terrorist content and recommends it through its algorithms does not, by that alone, aid and abet a terrorist attack under the Anti-Terrorism Act. In the United States the platforms are, for now, beyond the reach of victims of the terrorism they carry.
The United Kingdom has gone the other way. Under the Online Safety Act 2023 terrorism content is a priority offence, and every platform with users here must assess the risk of it, take proportionate steps to prevent users encountering it and remove it swiftly once notified, on pain of fines of up to 10 per cent of worldwide turnover; the duty is owed to Ofcom rather than to the victim, so a civil claim of the kind Shurat HaDin brought would face the same difficulty here that it faced in New York, but the regulator can do what the American courts would not. The wider question, of whether making platforms answerable for what they carry is worth what it costs in free speech, is the subject of my 2026 series, Regulated Without Representation.
First published 12 July 2016. Reviewed and updated 28 September 2026.