Lawyers argued whether social media companies can be sued for aiding and abetting terrorist acts in front of the U.S. Supreme Court today (Feb. 22). The hearing follows oral arguments from a complimentary case, Gonzalez v. Google, on Feb. 21. If the tech companies are found liable, they will lose a significant amount of the government protection they’ve been granted since the advent of the internet.
Twitter v. Taamneh, the case in front of the court today, addresses U.S. anti-terrorism law. Lawyers for the Taamneh family argue Twitter and other internet service providers assisted ISIS in attacking Istanbul in 2017 by hosting the terrorist group’s content on their platforms. The plaintiffs—members of the Taamneh family—are related to a victim of the attack, Nawras Alassaf. Their lawyer, Eric Schnapper, must prove Twitter “knowingly (provided) substantial assistance” to the person who committed an act of terrorism, according to the petition for Writs of Certiorari, which allows the Supreme Court to hear the case.
Schnapper also represents Reynaldo Gonzalez, who is the father of a woman killed in the 2015 ISIS attack in Paris. Gonzalez v. Google addresses Section 230 of the Communications Decency Act, which protects platforms for being sued for the third party content they host.
Cases that could lead to major changes in content moderation
In both cases, the plaintiffs are family members of people who died in attacks from ISIS and both suits address the legal liability of social media platforms that host terrorist content. The first court to rule in Twitter v. Taamneh sided with the company, but the appeals court reversed the decision, saying Twitter could be held liable. In Gonzalez v. Google, both lower courts ruled in favor of Google. The Supreme Court agreed to hear the cases in October.
If Twitter loses the case, internet provider companies will be more vulnerable to lawsuits for “aiding and abetting” terrorist acts when their platforms host pro-terrorism content, even if they try to remove it. If Google loses as well, the provision protecting social media platforms, online marketplaces and other websites for hosting content will have to be reinterpreted. In the most extreme outcome, any problematic content that appears under their names could be grounds for a lawsuit, which would change how the companies moderate content.
The result of today’s case will impact Gonzalez v. Google. If Twitter loses its case, Google might automatically lose as well, Justice Amy Coney Barrett suggested in oral arguments for the Google case on Feb. 21. While Schnapper, the companies’ attorney disagreed, saying he’d have the chance to amend the case under the new standards, Justice Barrett’s statement outlines how the cases are intrinsically intertwined, with the outcome of today’s suit informing the Google case decision.
Schnapper struggled to draw the line between a “neutral” algorithm and one that aids and abets international crime in the Google oral arguments. When Justice Clarence Thomas asked today if Schnapper’s case against Twitter means the platform would be liable for every terrorist attack in which the terrorists are on the platform, the lawyer reluctantly replied, “the answer would probably be yes,” before asking to amend Justice Thomas’s statement.