Today it was Twitter’s turn to argue in another Supreme Court case this week that experts fear Section 230 protections for social networks hosting third-party content could be weakened. In Twitter against TaamnehThe Supreme Court must decide whether online platforms should be held liable under the Justice Against Sponsors of Terrorists Act (JASTA) for aiding and abetting terrorist organizations known to use their services to recruit fighters and plan attacks.
After nearly three hours of arguments, the judges still appear to be at odds over how to approach the complicated issue, and Twitter’s defense wasn’t as strong as some judges apparently thought it could be.
Twitter’s attorney, Seth Waxman, argued that the social network and other defendants, Google and Meta, should not be held liable under JASTA, in part because providing the same general services – which anyone can access on their platforms – does not alone constitutes significant assistance to an individual planning a terrorist attack.
For Twitter to be held liable, Waxman argued that the complainant would need to go further than just highlighting how terrorist organizations generally use social media to recruit and plan attacks. Instead, the complainant must reference specific posts or accounts used to commit a specific terrorist attack, Waxman argued.
Deputy US Attorney General Edwin Kneedler supported Twitter and also argued against liability, since there is no special relationship between platforms and terrorist organizations and terrorist organizations are not given preferential treatment on platforms. Rather, community standards are enforced to ban terrorist content whenever it is reported on these platforms. Because an alleged judgment against Twitter could harm a wide range of online businesses, Kneedler asked the court to rule that, for internet service providers, conducting a “normal course of business does not constitute knowing significant assistance” to terrorist organizations that manage to evade moderation.
Overall, Waxman suggested that there was insufficient evidence linking the alleged terrorist use of Twitter’s communications services to the specific attack that injured the applicant and that the Supreme Court should therefore reverse a lower court’s opinion.
The judges seemed upset about whether Twitter effectively argued his appeal. At one point, Judge Sonia Sotomayor told Waxman, “I remain confused,” and later fired off a harsh series of questions that led Waxman to admit he knew he was having a hard time convincing the court.
Waxman appeared to be getting some help from judges who appeared reluctant to weaken Section 230’s immunity yesterday as they heard a related case. Gonzalez vs Google. In the most prominent example of Twitter being given a helping hand, Judge Neil Gorsuch twice attempted to help Waxman change his reasoning in a bid to potentially secure an easy win in the case.
“How about you read the bylaws to find out exactly what it says?” Gorsuch prompted Waxman.
Since the law directly states that Twitter should have endorsed and assisted an individual involved in the act of terrorism, Gorsuch offered that complainants would have to somehow “prove that Twitter was conspiring with an individual” if Waxman established that fact would argue to do so defeat Twitter. However, Waxman repeatedly declined to take up Gorsuch’s argument, sticking to his original argument and overlooking a potential “lifeline,” CNN reported.
In an exchange with Judge Amy Coney Barrett — who also attempted to walk Waxman through what she saw as a compelling argument — Waxman summarized Twitter’s view of how courts should determine liability for platforms that allow terrorists to use their services. Any company that provides services at scale should not be held liable under JASTA unless that company has specific knowledge of accounts or posts directly linked to an attack causing harm to a complainant, Waxman argued.