Supreme Court Likely to Shield Internet Platforms from Liability for Terrorist Acts
February 27, 2023
“Supreme Court of the United States” by Phil Roeder
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On February 21 and 22, the Supreme Court heard oral arguments in two companion cases regarding the liability of internet platforms for terrorists’ use of their services. Gonzalez v. Google concerns the scope of immunity for internet companies under 47 U.S.C § 230, specifically whether that statutory grant of immunity covers a platform’s automated suggestions and recommendations of third-party content. Twitter v. Taamneh asks the Court to assess the scope of aiding-and-abetting liability under the Justice Against Sponsors of Terrorism Act (JASTA), specifically what constitutes “knowingly providing substantial assistance” to terrorists.
The plaintiffs in Gonzalez are family members of Nohemi Gonzalez, an American citizen killed in 2015 during an ISIS attack in France. The lower courts in Gonzalez relied on Section 230 to dismiss their claims but did not address the scope of liability under JASTA. The plaintiffs in Taamneh are relatives of Nawras Alassaf, who was killed in 2017 during an ISIS attack on a nightclub in Istanbul. The district court in Taamneh dismissed their complaint for failure to state a claim under JASTA, but the Ninth Circuit reversed that decision and reinstated the JASTA claim without addressing Section 230 immunity.
The oral argument in Gonzalez presented the Justices with a stark choice between a narrow construction of 230 immunity—which petitioners and the U.S. government contend is supported by the plain meaning of the statute—and a broad construction of 230 immunity, which respondents claim is necessary to avoid horrific consequences. Several Justices pressed the advocates to help them formulate a coherent middle-ground position, but none succeeded in articulating one. Lacking a middle ground, the Justices will probably either issue a decisive ruling in favor of Google (maintaining the status quo with broad immunity) or remand with instructions for the Ninth Circuit to resolve the Gonzalez case by applying JASTA in light of their ruling in Taamneh.
In Taamneh, there do not appear to be more than three votes (likely Justices Sotomayor, Kagan, and Jackson) for affirming the Ninth Circuit ruling that the Taamneh complaint states a valid claim under JASTA. The majority probably wants to set a high bar for aiding-and-abetting liability, which would preclude most claims against social media companies under JASTA. However, it may not be possible to craft a rationale that garners five votes. We expect to see several separate opinions in Taamneh with different rationales that support a ruling in favor of Twitter.
Gonzalez v. Google
Congress enacted the Communications Decency Act in 1996. Section 230 of the statute is credited with jumpstarting the modern Internet. In more recent years, debates about Section 230 have triggered many varied proposals for statutory reform.
Section 230(c)(1) grants internet companies immunity from civil liability when they disseminate “information provided by another information content provider.” Thus, internet platforms enjoy immunity under Section 230 for third-party content hosted on their platforms or websites. Eric Schnapper, counsel for both the Gonzalez and Taamneh plaintiffs, argued that, under the plain meaning of the statute, companies are not entitled to immunity when they “recommend” third-party content because the companies’ targeted recommendations do not qualify as “information provided by another.” Social media companies should be held liable, he added, because their algorithms effectively provide targeted recommendations of terrorist content to that small subset of social media users who are most likely to be motivated by that content to commit terrorist acts.
Lisa Blatt, a leading Supreme Court practitioner, represented Google. She argued that it is practically impossible for social media companies to separate the functions of “passively” hosting third-party content and “actively” recommending content to social media users. Although those two functions may be conceptually distinguishable, the two functions are inextricably linked in the day-to-day business operations of social media companies. Interpreting Section 230 narrowly to exclude immunity for recommendations, she insisted, would trigger catastrophic consequences for both social media companies and social media users.
Most of the Justices seemed to be persuaded by her argument, and those presented in several supporting amicus briefs, even before she spoke. Several Justices were evidently searching for a middle ground between virtually unlimited immunity (Google’s position) and almost no immunity (petitioner’s position). They pressed Schnapper and Malcolm Stewart, Deputy Solicitor-General representing the United States as amicus curiae, to present a construction of Section 230 that might allow courts to hold social media companies liable for promoting harmful content while avoiding the dire consequences predicted by Google for the future of the internet. Unfortunately, they were unable to offer the Justices any such construction. In one exchange, Justice Kagan said: “We’re a court. We really don’t know about these things. You know, these are not like the nine greatest experts on the Internet.” The implication is clear: since the parties cannot help the Court find a middle-ground position based on statutory interpretation, the Court is likely to affirm the Ninth Circuit and leave it to Congress to amend the statute.
Twitter v. Taamneh
In Taamneh, former Solicitor General Seth Waxman represented Twitter. Deputy Solicitor General Edwin Kneedler represented the U.S. government, and his position was almost indistinguishable from Waxman’s. Schnapper, representing respondents, faced an uphill battle from the beginning.
The arguments focused narrowly on the correct interpretation of 18 U.S.C. 2333(d), which states in relevant part: “liability may be asserted as to 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.” The statutory language raises at least three distinct questions. First, how much assistance is sufficient to qualify as “substantial assistance”? Second, precisely what type of knowledge must plaintiffs plead and prove? Third, what is the proper object of the phrase “knowingly provide substantial assistance”: is it the “act of international terrorism” or “the person who committed” that act? Further, if the object is “the person,” given the facts in Taamneh, is that person ISIS or the specific individual who bombed the nightclub in Istanbul?
Schnapper argued that plaintiffs must plead and prove only that defendant companies knew they were assisting ISIS and that the Ninth Circuit correctly held they had met this burden for the purpose of a 12(b)(6) motion. (Under this approach, whether assistance is “substantial” is presumably a jury question.) Waxman, on the other hand, argued that plaintiffs must plead and prove that defendant companies knew in advance that they were aiding a terrorist attack in Istanbul or at least a terrorist attack in Turkey. The Taamneh complaint does not include any such allegation.
The Court’s six conservative Justices will likely rule for Twitter. However, based on the oral argument, it is difficult to identify five Justices who agree on a single rationale. JASTA makes clear that Congress wanted courts to rely on the D.C. Circuit decision in Halberstam v. Welch as a guide. In Justice Alito’s view, “we have to decide this case, presumably, under Halberstam, which has sort of a statutory status as a result of the preamble to this statute.” Justice Gorsuch, by contrast, would apparently prefer to ignore Halberstam altogether and focus on the text of Section 2333(d). In his view, plaintiffs must plead and prove that Twitter knowingly aided the specific individuals who committed the terrorist bombing in Istanbul. Justice Gorsuch did not explain why, in his view, ISIS would not qualify as “the person who committed” the attack within the meaning of Section 2333(d). Perhaps for that reason, no other Justice expressed support for his interpretation.
It bears emphasis that Congress said, in the statement of purpose included in JASTA, that it intended “to provide civil litigants with the broadest possible basis . . . to seek relief against persons, entities, and foreign countries . . . that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.” Although this statement of purpose supports the Taamneh respondents, it seems unlikely to persuade a majority of Justices to rule in their favor. It remains to be seen whether a plurality of Justices may be persuaded to issue a narrow ruling in favor of Twitter that leaves the door open for future JASTA claims against corporate defendants other than social media companies, such as cell phone companies and banks implicated in terrorist financing.
Before oral arguments, several commentators warned that the Court’s decision in Gonzalez could “break the internet.” Based on the oral arguments, we can predict with high confidence that this will not happen. The Court may well affirm the broad interpretation of 230 immunity adopted by lower courts in cases such as Dyroff v. Ultimate Software Group, Inc.and Force v. Facebook. Alternatively, the Court might interpret JASTA narrowly in Taamneh and remand Gonzalez to the Ninth Circuit for further consideration in light of that decision, as suggested by Stewart (arguing for the United States) in an exchange with Justice Barrett. Under that approach, the Court could leave the Section 230 issues for another day. That approach may not be viable, however, if Taamneh yields a highly fractured decision without a clear majority in favor of a single rationale. The decisions are expected by the end of June.