From Judge Michael Moore's decision yesterday in Newman v. AP (S.D. Fla.):
Several news organizations, including the AP, reported on the October 7 Attack by publishing real time photos and articles about the conduct of Hamas militants. The Amended Complaint identifies Gaza-based photojournalists Hassan Eslaiah, Yousef Masoud, Ali Mahmud, and Hatem Ali (together, the "Freelance Photographers"), as individuals who provided photographs of the October 7 Attack that the AP ultimately published. Plaintiffs allege that the Freelance Photographers were longstanding Hamas affiliates, who "acted and continue to act as part of Hamas, furthering Hamas' goals and objectives."
To support that the Freelance Photographers were Hamas affiliates, Plaintiffs point to social media posts by one of the Freelance Photographers, Eslaiah, to suggest that he was on "friendly terms" with Hamas and its members. The Amended Complaint provides a photograph of Eslaiah posted in 2020 with then Hamas leader Yahya Sinwar, known to be the "operational mastermind" of the October 7 Attack. In the photograph, Sinwar is kissing Eslaiah on the cheek. On October 7, 2023, Eslaiah posted several photographs now removed on X, formerly known as Twitter, including one in front of an Israeli tank, stating "Live from inside the Gaza Strip settlements." Plaintiffs also cite to a video Eslaiah posted during the attack, where he states "[y]ou know, the beautiful thing about storming the settlements: the civilians, the people, they go [out] on foot and come back driving, be it a motorcycle, a scooter or a car – [one can] grab and load trophies." Additionally, Plaintiffs point out that Eslaiah did not wear a press vest, helmet, or any other press credentials. Plaintiffs aver that in light of Eslaiah's access to "the most violent and dangerous scenes of the [October 7 Attack], despite not being identifiable as a member of the press, thereby indicat[es] the degree of his entrenchment within Hamas and the trust that his fellow Hamas Terrorists placed in him."
As for the other Freelance Photographers, Plaintiffs allege that they could not have gained access to photograph the October 7 Attack without Hamas affiliations, and that the Freelance Photographers must have known about the attack in advance because they "arrived at roughly the same time as the initial Hamas terrorists who breached entry into the State of Israel," Plaintiffs also note that the Freelance Photographers' lack of press credentials or other indicia marking them as non-participants in the attack demonstrate that they were embedded within the Hamas infrastructure and were part of the Hamas Terrorists' group. In addition, Plaintiffs allege that the Freelance Photographers returned to Gaza alongside the Hamas militants.
Plaintiffs allege that the AP's publication of images by the Freelance Photographers and relationship with the Freelance Photographers contributed to the October 7 Attack. Specifically, Plaintiffs allege that the Freelance Photographers' payments and funding to Hamas "substantially contributed to the sheer mass of people that illegally infiltrated Israel," which increased the "logistical and tactical" burden on the Israeli government in responding to the attack. Moreover, the Freelance Photographers' "presence and encouragement increased the terror" felt by Israeli civilians. Plaintiffs point to the AP's payments to the Freelance Photographers as a direct monetary benefit to Hamas. They further allege that the AP's photographs helped Hamas gain public support internationally and served as a form of propaganda for Hamas.
On February 21, 2024, Plaintiffs initiated the instant action asserting claims against the AP under the Federal Anti-Terrorism Act ("ATA"), as amended by the Justice Against Sponsors of Terrorism Act ("JASTA") and two Florida state law claims. The Amended Complaint asserts six causes of action against the AP: aiding and abetting acts of international terrorism under the Federal ATA and the JASTA (Count I); conspiring in furtherance of acts of international terrorism under the Federal ATA and the JASTA (Count II); provision of material support to terrorists under the Federal ATA (Count III); provision of material support and resources to a designated foreign terrorist organization under the Federal ATA (Count IV); negligent infliction of emotional distress (Count V); and facilitating and furthering terrorism pursuant to Florida Statute § 772.13(1) (Count VI).
The court rejected plaintiffs' claims; the opinion is long, but here's an excerpt from the discussion of the aiding and abetting claim:
