Twitter struggles to convince SCOTUS it isn’t bolstering terrorists

Today it was Twitter’s turn to argue before the Supreme Court in another case this week that experts fear could end up weakening Section 230 protections for social networks hosting third-party content. In Twitter v. Taamneh, the Supreme Court must decide if under the Justice Against Sponsors of Terrorists Act (JASTA), online platforms should be held liable for aiding and abetting terrorist organizations that are known to be using their services to recruit fighters and plan attacks.

After close to three hours of arguments, justices still appear divided on how to address the complicated question, and Twitter's defense was not as strong as some justices seemingly thought it could be.

Twitter attorney Seth Waxman argued that the social network and other defendants, Google and Meta, should not be liable under JASTA, partly because the act of providing the same general services—which anyone on their platforms can access—does not alone constitute providing substantial assistance to an individual planning a terrorist attack.

For Twitter to be liable, Waxman argued that the complainant would need to go further than highlighting how terrorist organizations generally use social media to recruit and plan attacks. The complainant must instead point to specific posts or accounts that were used to commit a specific terrorist attack, Waxman argued.

Supporting Twitter, US Deputy Solicitor General Edwin Kneedler also argued against liability because there is no special relationship between platforms and terrorist organizations, and no preferential treatment was given to terrorist organizations on platforms.

Rather, community standards are enforced to ban terrorist content whenever it is flagged on these platforms. Because allegedly ruling against Twitter could harm a wide range of online businesses, Kneedler urged the court to decide that when it comes to Internet service providers, conducting a “regular course of business does not constitute knowingly providing substantial assistance” to terrorist organizations that manage to evade moderation.

Overall, Waxman suggested that there isn’t sufficient evidence linking alleged terrorist use of Twitter’s communications services to the specific attack that injured the complainant, and therefore the Supreme Court should reverse a lower court’s opinion.

Justices appeared drawn over whether Twitter was effectively arguing its appeal. At one point, Justice Sonia Sotomayor told Waxman, “I remain confused,” later firing a tough line of questioning that led Waxman to admit that he knew he was having a hard time convincing the court.

Waxman seemed to get some help from justices who yesterday appeared hesitant to weaken Section 230 immunity when hearing a connected case, Gonzalez v. Google. In the most prominent example of Twitter getting a helping hand, Justice Neil Gorsuch twice attempted to help Waxman amend his argument to potentially secure an easy win in the case.

“How about reading the statute for just what exactly it says?” Gorsuch prompted Waxman.

Because the statute directly states that Twitter would have to have aided and abetted an individual person involved in the terrorist act, if Waxman argued that fact, Gorsuch offered that complainants would have to somehow “prove that Twitter conspired with a person,” in order to defeat Twitter. However, Waxman repeatedly declined to take up Gorsuch’s argument, sticking with his original argument and overlooking a potential “lifeline,” CNN reported.

In an exchange with Justice Amy Coney Barrett—who also attempted to walk Waxman through what she saw as a winning argument—Waxman summed up Twitter’s view on how courts should determine liability for platforms letting terrorists use their services.

Any business that widely provides services should not be held liable under JASTA unless that business is found to have specific knowledge of accounts or posts that are directly linked to an attack that causes injury to a complainant, Waxman argued.

Arguments against Twitter

Eric Schnapper is the lawyer representing US national family members of Nawras Alassaf, a Jordanian citizen who died during a 2017 terrorist attack in Turkey. The Islamic State of Iraq and Syria (ISIS) claimed responsibility for this attack, which killed 39 and injured 69 people at a nightclub.

Schnapper argued that Twitter is directly and secondarily liable for this attack, not because Twitter simply hosted ISIS content but because its platform was designed to recommend ISIS content. At the time, Twitter knew about the accounts because government and media reports showed ISIS was openly maintaining official Twitter accounts “to recruit, radicalize, and instruct terrorists, fund terrorism, and spread propaganda,” Twitter's appeal noted.

According to Schnapper, Waxman is wrong to insist that Alassaf’s family must show specific posts or accounts linked to the Turkey attack for the Supreme Court to hold Twitter liable under JASTA. Instead, Schnapper suggested that Twitter’s infrastructure was the problem, with the family's complaint specifically calling out Twitter’s algorithm as providing a valuable service that allegedly boosts the reach of ISIS content, videos, and accounts.

“The allegation isn’t any less plausible because it doesn’t name accounts,” Schnapper argued.

Justices did not necessarily seem easily swayed by Schnapper’s arguments, with Thomas asking if Schnapper focusing on Twitter’s infrastructure instead of specific posts or accounts meant “Twitter is an aider and abetter in every terrorist attack?”

Schnapper said that might be the case, depending on how much activity Twitter permitted on its platform.

The stakes are high in the case, because ruling that Twitter is liable for third-party content posted by terrorist organizations could trigger new challenges to Section 230 immunity, chipping away at protections that prop up the Internet today. Among the biggest concerns for justices weighing how to interpret liability under JASTA in this case is setting a precedent that could hinder routine business operations or potentially provide a path allowing currently heavily restricted banks to escape liability for financially supporting terrorist organizations.

It’s not clear yet which way the Supreme Court will go. A ruling is expected in June.

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