Supreme Court hears oral arguments in Twitter case that could upend the internet

After back-to-back oral arguments this week, the Supreme Court appears reluctant to hand down the kind of sweeping ruling about liability for terrorist content on social media that some feared would upend the internet. 

On Wednesday, the justices struggled with claims that Twitter contributed to a 2017 ISIS attack in Istanbul by hosting content unrelated to the specific incident. Arguments in that case, Twitter v. Taamneh, came a day after the court considered whether YouTube can be sued for recommending videos created by ISIS to its users. 

If you're just reading in now, here's what you need to know:

What's at stake: The closely watched cases carry significant stakes for the wider internet. An expansion of apps and websites’ legal risk for hosting or promoting content could lead to major changes at sites including Facebook, Wikipedia and YouTube, to name a few. 

For nearly three hours of oral argument, the justices asked attorneys for Twitter, the US government and the family of Nawras Alassaf – a Jordanian citizen killed in the 2017 attack – how to weigh several factors that might determine Twitter’s level of legal responsibility, if any. But while the justices quickly identified what the relevant factors were, they seemed divided on how to analyze them. 

The court’s conservatives appeared more open to Twitter’s arguments that it is not liable under the Anti-Terrorism Act, with Justice Amy Coney Barrett at one point theorizing point-by-point how such an opinion could be written and Justice Neil Gorsuch repeatedly offering Twitter what he believed to be a winning argument about how to read the statute. 

The panel’s liberals, by contrast, seemed uncomfortable with finding that Twitter should face no liability for hosting ISIS content. They pushed back on Twitter’s claims that the underlying law should only lead to liability if the help it gave to ISIS can be linked to the specific terrorist attack that ultimately harmed the plaintiffs.

The key issues at hand: The justices spent much of the time picking through the text of the Anti-Terrorism Act, the law that Twitter is accused of violating — especially the meaning of the words "knowingly" and "substantial." 

The law says liability can be established for "any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism." 

Justice Sonia Sotomayor seemed unpersuaded by Twitter attorney Seth Waxman's arguments that Twitter could have been liable if the company were warned that specific accounts were planning a specific attack, but that those were not the facts of the case and Twitter was therefore not liable in the absence of such activity and such warnings. 

Chief Justice John Roberts grappled with the meaning of "substantial" assistance: Hypothetically, he asked, would donating $100 to ISIS suffice, or $10,000?  

What's next? The Taamneh case is viewed as a turning point for the future of the internet, because a ruling against Twitter could expose the platform – and numerous other websites – to new lawsuits based on their hosting of terrorist content in spite of their efforts to remove such material. 

While it’s too early to tell how the justices may decide the case, the questioning on Wednesday suggested some members of the court believe Twitter should bear some responsibility for indirectly supporting ISIS in general, even if the company may not have been responsible for the specific attack in 2017 that led to the current case. 

But a key question facing the court is whether the Anti-Terrorism Act is the law that can reach that issue – or alternatively, whether the justices can craft a ruling in such a way that it does. 

Rulings in the cases heard this week are expected by late June.

You can read more takeaways from today's arguments here.

The Supreme Court wrapped up arguments in the Twitter case about two and a half hours after the hearing started. Before the hearing ended, Twitter lawyer Seth Waxman offered a brief rebuttal to his opponents’ arguments. 

It may be perplexing why Twitter didn't leap at Justice Neil Gorsuch's offer of a way out by focusing on the ATA's mention of "person," but Justice Ketanji Brown Jackson appeared to reason out why Twitter — and the US government, as well — might be concerned about that.

In an exchange with US Deputy Solicitor General Edwin Kneedler, Jackson said: "I'm wondering whether the concern about that is, if you're focusing on the person [who committed a terrorist act]... that it seems to take the focus away from the act itself ... you could aid and abet a person who committed the act, even if it's not with respect to that act."

In other words, that interpretation of the law could significantly broaden ATA liability such that anyone could be sued for knowingly and substantially helping any person who ultimately went to commit some act of terrorism.

Eric Schnapper, attorney for the plaintiffs is presenting his argument now.

Schnapper is the same attorney who yesterday represented the Gonzalez family in the oral arguments in the Google case.

What would a ruling in Twitter's favor look like? Justice Amy Coney Barrett asked the US government's Kneedler to help her game out how the Justice Department would like the Supreme Court to shape its opinion, and their exchange showed how the DOJ was concerned about the potential fallout for banks.

Such a line of questioning doesn't guarantee that Barrett will vote to reverse the appellate decision that found Twitter liable under the anti-terrorist law. But it illuminates how the Justice Department sees the scope of the law and highlighted the key questions that Barrett is grappling with.

She seemed to understand a point made by Kneedler: that the statute should apply to assistance given that is linked to the act of terrorism that injured the plaintiff, rather than just the general enterprise of a terrorist group. But she balked a bit at Kneedler's assertion that, for a defendant to be liable, the interaction between it and the terrorist group would need to be individualized or "face to face," rather than something more remote.

She said such a standard would be "a little bit trickier" for the court to draw.

Kneedler later clarified that companies that offer the service in question to all comers should be held liable if there is an additional allegation of knowledge or a specific allegation.

Through his back and forth with Barrett, Kneedler made clear that the US government was concerned about how a decision in the Twitter case would affect not social media platforms but rather banks that could be sued under the law.

"You're trying to make sure that whatever we said about social media companies wouldn't get banks off the hook when they had those kinds of special relationships," Barrett said.

"[The law] doesn't necessarily require that you know that a particular person is going to commit a particular act, if you know -- because of the proximate relationship with the person you're assisting -- that there are a group of acts that they are about to commit or that they are that they have an ongoing practice of committing," Kneedler said.

In an exchange with Justice Sonia Sotomayor, the US government's attorney argued that a ruling against Twitter that specifies that routine business activity -- as opposed to targeted assistance -- can lead to liability could threaten innocuous behavior.

"We are concerned about not extending it so far that legitimate business activities could be inhibited, that banks for example in underdeveloped parts of the world and charities that may depend on those banks, concerns that they may pull back as legitimate businesses," said US Deputy Solicitor General Edwin Kneedler. "That is a concern that should enter into the analysis."

Justice Elena Kagan offered a hypothetical for US Deputy Solicitor General Edwin Kneedler about a bank that offered its services to a known terrorist.

"They provide 100 other clients who are not terrorists with the same banking services, but they provide this known terrorist with these banking services that are very important to its terrorist activities," the liberal justice said. "Can you go after that person under this statute?"

Once Kagan clarified that the terrorist in her hypothetical is someone particularly well known to be terrorist, like Osama bin Laden, Kneedler said he thought that bank would be liable under the anti-terrorist law at issue in Wednesday's case.

Kagan then grilled on Kneedler on what differentiated Twitter in this case from the bank in her hypothetical. Kneedler tried to insist that there was a difference in the "nature" of the interactions, prompting Kagan to ask if it had to be like "personal banking" to be covered under the law.

US Deputy Solicitor General Edwin Kneedler is now up to present the Justice Department's views on the case.

The Justice Department argues that Twitter should not be liable under the law.

Regarding how Congress wrote Justice Against Sponsors of Terrorism Act, Kneedler said, "Congress ensured that JASTA does not reach so broadly as to inhibit legitimate and important activities by businesses, charities and others."

Justice Ketanji Brown Jackson seemed unpersuaded by Twitter's argument that Anti-Terrorism Act (ATA) liability only arises when a defendant's actions substantially assist a specific act of international terrorism, as opposed to merely providing general support to the terrorist group.

"You have to know that you are providing substantial assistance to an act of international terrorism ... that happened to be a terrorist attack that injured the plaintiff," Twitter attorney Seth Waxman said.

There is a "gulf," Waxman said, between that and general support provided to a terrorist organization not connected to a specific attack.

Jackson pushed Waxman to "explore" that gulf more fully, before ultimately concluding, "I don't know that I see clearly that distinction."