Force v. Facebook, Inc.

Issue: Whether Facebook was liable under the Anti-Terrorism Act for allegedly providing Hamas with a communications platform, and whether Facebook's content recommendation algorithm constituted independent tortious conduct not shielded by § 230(c)(1).

The plaintiffs were U.S. citizens who were victims — or representatives of estates and families of victims — of five Hamas terrorist attacks in Israel between 2014 and 2016. The attacks killed or injured Americans, including Yaakov Naftali Fraenkel (a teenager kidnapped and shot), Chaya Zissel Braun (a 3-month-old killed at a train station), Richard Lakin (shot and stabbed on a bus), Taylor Force (stabbed on the Jaffa boardwalk), and Menachem Mendel Rivkin (stabbed near a restaurant). Plaintiffs alleged that Facebook provided Hamas with a platform to maintain pages, recruit members, raise funds, and spread propaganda, and that Facebook's newsfeed and friend-suggestion algorithms — which automatically connected users to Hamas content based on behavioral and demographic data — constituted knowing material support that enabled the attacks. The district court dismissed under § 230, and the Second Circuit affirmed in an opinion by Judge Droney. On the § 230 question, the court held that Facebook's algorithmic recommendations of third-party content were a publisher function barred by § 230(c)(1). The algorithms were mechanisms for distributing content created by users; they did not transform Facebook into an information content provider. The court also held the ATA claims failed on the merits because plaintiffs had not adequately alleged proximate causation linking Facebook's platform to the specific attacks.

The Second Circuit's definitive pre-Gonzalez holding that algorithmic content recommendation is publisher activity protected by § 230(c)(1). Force v. Facebook directly conflicts with the Third Circuit's subsequent Anderson v. TikTok decision, which held that a platform's targeted algorithmic recommendations constitute the platform's own speech. The resulting circuit split on whether recommendation algorithms are publisher functions or independent platform speech is the central unresolved question in § 230 doctrine post-Gonzalez.