Supreme Court could broaden social media liabilities under anti-terrorism laws
Christopher Hutton Kaelan Deese
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The Supreme Court on Wednesday debated the extent of liability that social media companies should incur for hosting terrorist propaganda, leading justices to appear unconventionally split on whether Twitter should be absolved of blame after it was accused of “aiding and abetting” an Islamic State attack in Istanbul.
The case, Twitter. v. Taamneh, will determine whether the Big Tech social platform can be held liable for the attack under the Anti-Terrorism Act and the Justice Against Sponsors of Terrorism Act. Wednesday’s oral arguments were the second of two arguments before the Supreme Court this week that observers say could yield decisions with major repercussions for social media and the internet.
The court appeared more open to the idea that anti-terrorism laws should be interpreted to keep Big Tech in check than the notion, presented Tuesday in oral arguments in Gonzalez v. Google, that the companies should be further reined in by a new interpretation of Section 230 of the Communications Decency Act, which shields websites from being held liable for user-generated content.
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The lawsuit in question focuses on the two anti-terrorism acts that allow victims and their families to seek justice for acts of international terrorism in the United States if the terrorism occurs in a foreign state.
The case arose after an ISIS terrorist opened fire at a nightclub in Istanbul in 2017. The shooting killed 39 people, including Nawras Alassaf. Alassaf’s family filed a suit against Twitter, Meta, and YouTube, alleging that they had aided and abetted in recruiting and promoting ISIS causes to the public.
Twitter’s attorney, Seth Waxman, argued that Twitter was not liable for the 2017 ISIS shooting due to it not knowing about a user’s intent to shoot. The court’s questioning focused on what the legal system considered providing “substantial assistance” to the shooter or what “knowingly provided” assistance would look like.
Justice Clarence Thomas opened with a query about whether helping someone who was knowingly a murderer but otherwise a “good guy” could make someone liable, a question that Waxman evaded.
Justices Elena Kagan and Sonia Sotomayor teamed up in back-to-back questions in an attempt to determine what assistance would be considered liable. Sotomayor asked Waxman whether there was a difference between someone providing finances versus providing a firearm to an assailant.
Sotomayor appeared unconvinced by Waxman’s argument that direct knowledge was necessary to make one liable. “Willful blindness is something that we have said can constitute knowledge,” she told the attorney.
Justice Ketanji Brown Jackson was also skeptical of Waxman’s framing, stating that she did not see the “gulf” between substantial assistance in a specific act of terrorism compared to general support of terrorism.
The court’s attention shifted to Deputy Solicitor General Edwin Kneedler, who provided the Department of Justice’s perspective on the law. Kagan pressed Kneedler, asking if Twitter’s role in the 2017 ISIS attack was comparable to a bank knowingly providing funding and support to Osama bin Laden. Kneedler affirmed that the bank would be considered liable under the anti-terrorism law.
Kneedler warned against expanding the antiterrorism laws being discussed. “We are concerned about not extending it so far that legitimate business activities could be inhibited, that banks, for example in underdeveloped parts of the world and charities that may depend on those banks, concerns that they may pull back as legitimate businesses,” Kneedler added.
Finally, the plaintiffs’ legal representative, Eric Schnapper, appeared before the court. Schnapper previously testified before the court on Tuesday to represent the Gonzalez family in Gonzalez v. Google.
On Wednesday, Schnapper argued that Twitter’s recommendations helped ISIS recruit more members but conceded that he did not have specific evidence that tied Twitter’s involvement to a specific attack, a threshold that the platform argues plaintiffs need to meet.
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Gerard Filitti, a senior counsel at the Lawfare Project, told the Washington Examiner he believes it’s unclear whether the high court will side with Twitter or the plaintiffs. He contended, however, that “there’s a desire and the need” for the justices to clarify liability standards under the ATA and JASTA.
“I think this is going to be an opportunity for the court to define the factors that lower courts need to look at when considering whether there is a possible violation of the ATA or JASTA,” Filitti said. “And I do think that there will be some clarity that comes out of this case.”