The justices of the Supreme Court of the United States seem skeptical that Twitter is partly responsible for a terrorist attack in 2017.
The family of Nawras Alassaf, a man that was killed in a terrorist attack in 2017, alleged that Twitter is partially responsible for the attack by failing to police content promoting terrorism on the platform.
The suit, along with one against Google for similar reasons, was brought under the Anti-Terrorism Act. The federal law provides plaintiffs a path to recovery for being a victim of "an act of international terrorism."
Like Tuesday’s oral argument in the case against Google, on Wednesday the justices seemed skeptical that the plaintiffs can prove sufficient links existed between the company and terrorism, and that as such, the company intentionally aided and abetted terrorism.
Edwin Kneedler, a Justice Department lawyer arguing in favor of Twitter on behalf of the department, said the company could only be liable under the law if a plaintiff can prove that it engaged in "personal interaction" with a terrorist or terror group.
Justice Neil Gorsuch appeared to agree.
"We all appreciate how horrible the attack was, but there's very little linking the defendants in this complaint to those persons," Gorsuch said.
Justice Brett Kavanaugh expressed apparent concern over the scope of the statute. Kavanaugh asked University of Washington School of Law Professor and attorney for the plaintiffs, Eric Schnapper, if CNN could be held liable for a 1997 interview with al-Qaeda leader Osama bin Laden, who was ultimately responsible for the September 11 terrorist attacks in 2001. Nearly 3,000 people died as a result.
"Could under your theory CNN have been sued for aiding and abetting the Sept. 11 attacks?" Kavanaugh asked.
Schnapper said the First Amendment would “resolve” that issue, but Kavanaugh appeared to remain skeptical.
Justice Clarence Thomas seemed to express concern that ruling in favor of the plaintiffs would make Twitter "an aider and abetter” of terrorism any time a terrorist uses the platform.
“[D]oes that also mean that Twitter could be held liable [as] an aider and abetter in every terrorist act?” Thomas asked.
Schnapper demurred.
Justice Thomas has argued in the past that social media platforms are “sufficiently akin to common carriers,” and wrote in a 2021 opinion that the Supreme Court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms."
Justices Ketanji Brown Jackson and Amy Coney Barrett focused on the meaning of the word “knowledge” and whether the purported assistance provided to the terrorist group was “substantial.”
Justice Samuel Alito shared the concern of his colleagues and presented Schnapper with a hypothetical:
“Let's say that a particular person is known in a particular city to be a member of a gang that carries out crimes. Not charged … prosecution hasn't been able to amass enough proof for a criminal charge, but it's pretty well-known, it's suspected that that's what this person is doing? The chief of police from the town goes to the cell phone provider and says, look, this gang uses cell phones in carrying out their crimes; cut off their service. It goes to the Internet service provider and says that sometimes they use e-mails; cut off the e-mail. It goes to the car dealers and – and repair shops and says they use cars; don't fix their cars. Goes to all the gas stations and says don't sell them gas. And on Wednesday evening, the gang gets together and they always order in meals from a particular place. They go there; they say don't feed them food. [H]ave they aided and abetted the crimes that this gang commits?”
Schnapper said it was a “difficult” question and would “depend on the nature of materials” provided to the terrorists.
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