Pittsburgh. Credit: Getty Images/iStockphoto

In the hours before Robert Bowers opened fire on a Pittsburgh synagogue, he posted a string of hostile and anti-Semitic messages on the social media website Gab, saying, among other things, “Screw your optics, I'm going in.”

By the evening of Oct. 27, 11 congregants were dead, several others were injured, and the 46-year-old Bowers faced a total of 65 criminal charges, including 11 counts of homicide in state court and 11 federal counts of obstruction of exercise of religious beliefs resulting in death. Internet service providers like PayPal also stopped working with the company soon after it was reported that Bowers used the site to spread anti-Semitic messages, and President Donald Trump called for Bowers to get the death penalty.

By Monday, Gab had gone offline, and it was widely reported in the local and national press that federal prosecutors were pushing to seek the death penalty against Bowers.

However, according to several attorneys, it's doubtful that Bowers would ever face execution, even if convicted, and it is also highly unlikely the Philadelphia-based website will face any criminal or civil liability in connection with the incident.

“I'm sure there's a conversation taking place between the social medial services and the government prosecutors, but in terms of liability, it would shock me if the prosecutors tried to loop in Gab,” Eric Goldman, a professor at Santa Clara University School of Law and co-director of the school's High Tech Law Institute, said. “Gab has problems, but the legal liability isn't one of them.”

The Shooting

The shooting on Oct. 27 left 11 dead and six injured, including four law enforcement officers. The dead ranged in age from a 54-year-old man with an intellectual disability to a 97-year-old woman.

The incident quickly sent shock waves across the country, and led many in the Pennsylvania legal community to voice their concerns.

Pennsylvania Bar Association president Charles Eppolito III said the legal community was “heartbroken” by the murders.

“Peace should reign throughout our neighborhoods,” he said in a statement. “We are reminded to turn to our Constitution that guarantees freedom of religion and to the laws meant to protect us from hateful speech and actions. Our society can make no room for hate crimes.”

State Attorney General Josh Shapiro also issued a statement in the wake of the shooting, saying the shooting was “an assault on the liberties our country and commonwealth were founded to protect.”

“As the congregants of Tree of Life, the people of Pittsburgh and Pennsylvanians across our commonwealth grapple with this latest atrocity over the coming days and weeks, we must act to quell this senseless violence,” he said in the statement. “There will be hard conversations ahead, looking at both our words and our laws, but they are critical for us to heal and move forward together.”

Bowers made his first court appearance Monday before U.S. Magistrate Judge Robert Mitchell of the Western District of Pennsylvania, who, according to the Pittsburgh Post-Gazette, appointed a public defender to represent him. The judge also set a preliminary hearing for 10 a.m. Thursday.

Death Penalty

Along with 36 charges filed in state court, Bowers is also facing 29 charges in federal court. The state murder charges carry with them the possibility for prosecutors to seek a death sentence, but, according to defense attorney and former Lawrence County District Attorney Matthew Mangino, it is the 11 “obstruction of exercise of religious beliefs resulting in death” charges, all of which are so-called “hate crime” charges, that allow federal prosecutors to seek the death penalty.

For federal prosecutors to seek the death penalty, prosecutors will need to get approval from U.S. Attorney General Jeff Sessions, Mangino said. Although Mangino said the president's comments advocating for the death penalty appeared to be more general, he said he would expect Sessions to approve seeking the death penalty for Bowers.

However, Mangino noted that in both the Pennsylvania and the federal system, it has been decades since anyone has been executed, and in most cases, those who were executed gave up their appellate rights.

“In Pennsylvania there has been no involuntary execution since 1962,” he said. “In federal court there was one in 2003 and two in 2001, but before then, the last time was in 1960. There have been very few executions in 50 years.”

Social Media Liability

Gab is a Philadelphia-based social media site that launched in 2016 after numerous, more mainstream sites began policing their content to crack down on what they considered to be hate speech. Gab billed itself as a forum for unfettered free speech, and, according to several media outlets, including the Washington Post, it soon became a sanctuary for white supremacists.

According to a message posted on Gab by the company's CEO, Andrew Torba, the company has been working with the U.S. Department of Justices and the Federal Bureau of Investigation since the shooting to provide information about Bowers. Torba said in the message that the company “isn't going anywhere.”

Philadelphia-based First Amendment attorney Jordan Rushie, who has previously represented Gab in federal court, said the issue of criminal or civil liability generally comes down to whether the platform played an active role in any criminal activity, which, he said, Gab did not.

“It's an absolute tragedy. Clearly this person had mental issues, but I don't think you can blame the forum,” he said. “Gab takes a laissez-faire approach to free speech. It does give nutjobs a platform to speak, but that's part of the backbone of the First Amendment.”

According to Goldman and others, there are several reasons why it is highly unlikely Gab would face civil or criminal liability in connection with Bowers' posts, but the main reason is the Communications Decency Act. The law pre-empts any state jurisdiction for both civil and criminal liability, and, on the federal level, it provides broad immunity for internet providers.

Goldman noted that there are some narrow exceptions to the law, but none would apply to the social media site, and said even cases against online arms dealers have failed. Some cases have proceed on civil claims that a site materially supported a terrorist by allowing them to spread contact that contributed to a terrorist attack; however, Goldman said, courts have generally failed to find a strong-enough causal link to support those claims.

And, even if a court were to find that the CDA somehow did not apply, attorneys agreed that all of Bowers' statements appeared to be protected speech under the First Amendment.

Duquesne University School of Law professor Bruce Ledewitz, who focuses on constitutional law, said that for the speech to lose its First Amendment protections, it would need to communicate a “true threat,” and even then, unless you are in a role as a family member, teacher or doctor, you do not have a duty under criminal law to act.

Ledewitz, instead, said he was concerned about the free speech implications of the companies that decided to de-platform Gab, and said “people are looking at this in exactly the wrong way.”

“I'm horrified that the whole notion of free speech has dropped out of this debate and concern, and it shouldn't. It mustn't,” he said. “Especially since these were statements by the shooter himself. It's terrible, but it's not like his words hurt anybody. What happened was he took out a gun.”