Court Dismisses Lawsuit Alleging AP Liability for October 7 Casualties Based on Procurement of Photos from Allegedly Hamas-Affiliated Freelancers

Paragraph 1: The Lawsuit and Allegations

The plaintiffs in Newman v. Associated Press (S.D. Fla.) alleged that the AP’s publication of photographs taken by freelance journalists during the October 7, 2023 Hamas attack on Israel constituted material support for terrorism. The plaintiffs claimed these photographers, based in Gaza, were affiliated with Hamas and that their actions, including photographing the attack and posting about it on social media, directly benefited the terrorist organization. The lawsuit centered on the AP’s relationship with these photographers, arguing that by paying them for their work, the AP indirectly funded Hamas and provided a platform for its propaganda. The plaintiffs pointed to social media posts, including a photo of one photographer with a Hamas leader and boasts about looting during the attack, as evidence of their affiliation. The lack of press credentials worn by the photographers was also cited as further indication of their embedded status within Hamas.

Paragraph 2: The Plaintiffs’ Legal Arguments

The lawsuit asserted claims under the Federal Anti-Terrorism Act (ATA), as amended by the Justice Against Sponsors of Terrorism Act (JASTA), and Florida state law. The plaintiffs argued that the AP aided and abetted Hamas, conspired with them, and provided material support to the terrorist organization through their financial transactions with the photographers. They claimed that these payments, even if indirect, contributed to the scale of the attack and increased the terror experienced by Israeli civilians. Furthermore, they alleged that the AP’s publication of the photographs served as Hamas propaganda, boosting international support for the group. The plaintiffs relied heavily on a Seventh Circuit case, Boim v. Holy Land Foundation, to argue that any financial support provided to a terrorist organization, even indirectly, constitutes material support for terrorism.

Paragraph 3: The Court’s Analysis of Aiding and Abetting

Judge Moore, citing the Supreme Court’s recent decision in Twitter, Inc. v. Taamneh, rejected the plaintiffs’ aiding and abetting claim. Taamneh established that aiding and abetting requires "conscious, voluntary, and culpable participation" in another’s wrongdoing, with a demonstrable nexus between the assistance provided and the terrorist act. The court found that the AP’s purchase of photographs, similar to other news organizations, did not meet this standard. The plaintiffs failed to allege that the AP knowingly assisted Hamas or that their actions substantially furthered the attack. The court emphasized the attenuated nature of the alleged connection between the AP and Hamas, contrasting it with the direct promotion of terrorist content at issue in Taamneh. The court found no evidence of intent on the part of the AP to support Hamas, noting the absence of any "arms-length relationship" or participation in an "ongoing illicit enterprise."

Paragraph 4: The Court’s Analysis of Material Support

The court also dismissed the plaintiffs’ claim of providing material support to terrorism. Judge Moore distinguished the AP’s payment for photographs from direct donations to terrorist organizations, as was the case in Boim. He argued that the former constituted an arms-length transaction for a product, while the latter represents an act of support. The court also questioned the sweeping liability imposed by the Boim decision, which treated virtually all financial support to a terrorist organization as material support, regardless of intent. Judge Moore expressed agreement with the dissenting opinion in Boim, which warned of the potential chilling effect on First Amendment freedoms if such a broad interpretation were adopted. He concluded that the AP’s conduct did not constitute an act of international terrorism, emphasizing the lack of evidence that the AP’s payments resulted in any significant financial benefit to Hamas.

Paragraph 5: Additional Grounds for Dismissal

The court also rejected the conspiracy and negligent infliction of emotional distress claims. The conspiracy claim failed because the plaintiffs could not plausibly allege an agreement between the AP and Hamas to further the terrorist attack. The negligent infliction of emotional distress claim was dismissed because the plaintiffs failed to demonstrate that the AP owed them a duty of care or that the AP’s actions were the proximate cause of their emotional distress. The court’s decision effectively dismantled the plaintiffs’ entire case, finding their allegations insufficient to establish liability against the AP under any of the asserted legal theories. The court’s detailed analysis underscored the high bar for proving material support for terrorism, particularly in cases involving newsgathering activities.

Paragraph 6: First Amendment Implications and Conclusion

While the court dismissed the claims on statutory grounds, the case raises significant First Amendment concerns. Had the plaintiffs’ claims been successful, it could have created a chilling effect on newsgathering activities, particularly in conflict zones. News organizations rely on freelance journalists, often operating in dangerous environments, to provide crucial information to the public. Holding news organizations liable for the actions of their freelance contributors, especially without clear evidence of knowing support for terrorism, could discourage reporting on important events and limit the public’s access to information. The court’s decision in Newman v. AP protects the ability of news organizations to report on events of public concern, even those involving terrorist groups, without fear of being held liable for inadvertently providing material support to terrorism. This protection is crucial for maintaining a free press and ensuring public access to information about critical global events.