US Supreme Court
Sometimes what the US Supreme Court doesn’t do matters a lot, and that was definitely the case in two cases promulgated on May 18 via the internet and social media.
In Twitter v. Taamneh and Gonzalez v. Google, the court unanimously refused to hold internet and social media companies liable for aiding and abetting terrorist activities for what was posted on their platforms. A decision to the contrary would have sparked a lot of litigation and changed the way the internet works.
While many questions remain, these rulings reflect judges who understandably want to be cautious about the judiciary’s role in setting internet and social media guidelines.
Twitter against Taamneh
The Twitter vs. Taamneh case addressed the question of whether social media platforms can be held liable for supporting terrorist activities based on their posts. In an opinion by Judge Clarence Thomas, the court firmly rejected such liability.
The case arose from a terrorist attack on the Reina nightclub in Istanbul at the beginning of New Year’s Day 2017. The attack was carried out by Abdulkadir Masharipov on behalf of the Islamic State in Iraq and Syria. Masharipov entered the nightclub and fired over 120 shots at a crowd of more than 700 people, killing 39 and wounding 69 others.
The family of Nawras Alassaf, who was killed in the attack, sued Facebook, Inc., Google, Inc. and Twitter, Inc., claiming they supported ISIS and were responsible for the Reina nightclub attack. The plaintiffs alleged that ISIS and its followers used these platforms as tools to recruit, fundraise and disseminate their propaganda. The plaintiffs claimed that these platforms were crucial to ISIS spreading its terrible news and recruiting new members. The plaintiffs alleged that these social media companies were aware of IS’s use of their platforms and therefore supported and abetted terrorist activities.
Federal law, 18 USC Section 2333, allows United States nationals “injured by an act of international terrorism” to seek damages. The law provides civil liability for “any person who knowingly provides significant assistance or conspiracy with the person who has committed such an act of international terrorism.” Under this provision, victims of terrorist attacks can seek compensation from those who supported and abetted the terrorist attack that injured them.
The Supreme Court stated that the concept of “aiding and abetting” has long existed in law and needs to be qualified to limit who can be held liable. Judge Thomas stated, “Thus, in order for liability for an accessory to be based on culpable misconduct, criminal law requires that an accused “affiliate himself in some way with the enterprise that he participates in as in something he wishes to bring about” that he through.” his action seeks to make things happen before he can be held liable.’” There must be “culpable conduct” on the part of the defendant, an “affirmative action taken with intent to facilitate the commission of the crime.” The court found States: “Specifically, Plaintiffs never allege that ISIS used Defendants’ platforms to plan or coordinate the attack on Reina; In fact, they don’t claim that Masharipov himself ever used Facebook, YouTube or Twitter.”
The court applied this standard to conclude that the social media platforms could not be held liable for the terrorist attack in Turkey. The court stated that these platforms were in no way “connected” to the shooting. The Court noted: “Specifically, Plaintiffs never allege that ISIS used Defendants’ platforms to plan or coordinate the attack on Reina; In fact, they do not claim that Masharipov himself ever used Facebook, YouTube or Twitter.” The connection between the social media platforms and the terrorist attack was “too weakened”. According to the court, admitting liability would be nothing more than making cellphone companies liable for cellphone-related crimes planned.
The court left open the possibility that there could be situations where social media platforms were more involved in criminal activity and could be held liable: “There may be situations, for example, where the routine service provider does this in an unusual way or.” supplies goods so dangerous that the sale of these goods to a terrorist group could constitute aiding and abetting in a foreseeable terrorist attack.” This would require “more direct, active and substantial aid”. In other words, simply being the place where material is published is not sufficient to establish a basis for aid liability.
Gonzalez vs Google
The facts of the Gonzalez v. Google case were similar to those of the Twitter v. Taamneh case, but the legal issue was different. A 2015 ISIS attack in Paris killed 130 people, including Nohemi Gonzalez. Her parents are suing Google under federal law that provides liability for aiding and abetting terrorism. Google filed a defense under 47 USC Section 230, which protects internet and social media companies from liability for content posted by users on their platforms and from platforms’ decisions to remove (or not to publish) that content removed).
Section 230 is widely considered crucial to the development of the internet and social media. Jeff Kosseff described these as “the twenty-six words that created the internet” in the title of his 2019 book. It’s hard to imagine how the internet and social media could work if platforms were held accountable for what was posted or removed.
In Gonzalez v. Google, the question was whether a social media platform loses its Section 230 protections because it uses algorithms to draw users’ attention to certain content. As some of the judges pointed out during the hearing, admitting such liability would open the door to an enormous amount of litigation. The impact on the functioning of the internet and social media would be huge as social media companies inevitably use algorithms in ordering and controlling material.
The court ruled in favor of Google in a per curiam opinion, but did not address the meaning of Section 230. The court stated that according to its decision in the Twitter v. Taamneh case, the allegations in the complaint were insufficient to establish a plausible claim of complicity in liability. Therefore, there was no need to decide whether a Section 230 defense was possible. The court concluded: “We therefore decline to consider the application of Section 230 to a complaint which appears to contain little, if any, plausible right of appeal.”
implications
The court’s decisions in these cases matter because of what the court failed to do. Social media companies are not responsible for what is posted on their platforms. Billions of things are posted on social media platforms every day. Allowing liability on the basis of aid to aid would have resulted in a huge change in the way the internet and social media work. The Supreme Court was unwilling to open that door based on the facts of these cases.
But those decisions are just the beginning of the court’s deliberations on how to hold social media companies accountable, whether through claims for damages or through government regulation. Attorney General Florida v. NetChoice and NetChoice v. Paxton have pending certification motions in two cases, expected to be heard next year, that challenge the constitutionality of state laws that prevent social media companies from engaging in activities participate in the moderation of content. And future lower courts have cases pending to challenge state laws requiring greater moderation of content by social media platforms and restricting access by minors. Unlike Twitter v. Taamneh and Gonzalez v. Google, these cases will likely continue to shape online and social media opinion for years to come.
Erwin Chemerinsky is Dean of the University of California at the Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and liberties, and appellate procedures. He is also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, co-written with Howard Gillman; and Presumptive Guilt: How the Supreme Court Empowered Police and Undermined Civil Rights.
This column reflects the opinion of the author and not necessarily the views of ABA Journal – or the American Bar Association.
