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Supreme Court sounds skeptical on Twitter liability for terror attack

Second oral arguments in as many days where justices grappled with lawsuits over user-posted content

People walk on the plaza of the Supreme Court ahead of oral arguments Wednesday.
People walk on the plaza of the Supreme Court ahead of oral arguments Wednesday. (Anna Moneymaker/Getty Images)

Supreme Court justices expressed skepticism during oral arguments Wednesday that terror attack victims could sue Twitter because the attackers had used the social media site.

Twice in as many days, the justices mulled the broader negative consequences of ruling against Twitter and other internet companies when it comes to liability for content users post on their platforms.

Wednesday’s case, Twitter v. Taamneh, centers on whether Twitter could be held liable because terrorist group the Islamic State used the website to recruit members and spur the 2017 attack at the Reina night club in Istanbul that killed Nawras Alassaf.

The victim’s family argued that Twitter should face a lawsuit under the Antiterrorism Act because it knew the Islamic State group used its platform and had not done enough to stop them. The justices are expected to decide the case before the conclusion of the term at the end of June.

Justice Brett M. Kavanaugh expressed concern Wednesday about what it would mean for the economy if a business could be brought into court because a terrorist used its generally available services.

“This would put a heavy burden on a wide variety of businesses to try to ferret out more information about their customers to prevent liability under this kind of statute,” Kavanaugh said.

Kavanaugh and several other justices questioned whether a ruling that sided with the terror victim’s family could sweep in too many otherwise normal activities that unintentionally help a terror group.

Justice Neil M. Gorsuch said the statute was meant to target those who “aid or abet” a specific person or people who commit a terror attack, not just a terrorist group in general.

“There is very little linking with the defendant in this complaint to the persons” who committed the act, Gorsuch said.

Gorsuch also pointed out that in a modern, interconnected world, it could be hard to say what act aided a terrorist organization because “there is some butterfly effect anywhere.”

Twitter’s attorney, Seth P. Waxman, argued the law was meant to allow people who know they are aiding particular terror attacks to face consequences in court. Its structure “means something more than routinely providing professional services,” such as signing up and using a website, to those who may go on to commit attacks.

The Biden administration, which sought to participate in oral arguments because of the government’s interest in the antiterrorism law at issue, argued that Twitter did not know the platform was being used to plan a particular attack or that it took any independent steps to help further an attack, key elements of the law.

Edwin S. Kneedler, deputy solicitor general, argued that should keep Twitter from facing suit connected to the Istanbul attack. “That assistance, with the idea that it might encourage recruiting, is far removed from a specific act of terrorism,” Kneedler said.

The attorney for the attack victims, Eric Schnapper, told the justices the law was meant to include “aiding or abetting” to a terror group generally, not just the support that furthered a particular attack.

Actual attacks represent just a small portion of the work those groups do in fundraising, training and running their organizations, Schnapper said.

“If you limit the ‘aid’ that matters to the tip of the spear then you have read out of the statute almost all of the assistance that matters,” Schnapper said.

The case is one of two at the Supreme Court this week related to immunity of internet companies that could reshape how the internet is governed and open those companies to an unknown number of lawsuits.

In the case argued Tuesday, Gonzalez v. Google, the court mulled whether to weaken the broad immunity websites have against lawsuits for content users post on their platforms.

In those oral arguments, the justices expressed reluctance to upend those protections instead of leaving the issue, and its potential pitfalls, to Congress. The Twitter case does not explicitly involve those protections, known as Section 230 of the Communications Decency Act of 1996, but both involve the Antiterrorsm Act.

During Tuesday’s oral arguments, Justice Amy Coney Barrett noted that a ruling in Twitter’s favor in Wednesday’s case could effectively decide both cases.

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