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Twitter struggles to convince SCOTUS it isn’t bolstering terrorists

Attorney Eric Schnapper speaks to reporters outside of the US Supreme Court following oral arguments for the case Twitter v. Taamneh on February 22, 2023, in Washington, DC.
Enlarge / Attorney Eric Schnapper speaks to reporters outside of the US Supreme Court following oral arguments for the case Twitter v. Taamneh on February 22, 2023, in Washington, DC.

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.

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