IP Law Daily, TECHNOLOGY/INTERNET—U.S.: Supreme Court holds social media companies not liable for alleged aiding of ISIS, (May 18, 2023)

By Brian Craig, J.D.

Social media companies cannot face liability for aiding and abetting under the Antiterrorism Act without a strong showing of assistance and scienter through culpable participation. The Court declined to address thorny issues regarding Section 230 immunity.

In a unanimous decision, the U.S. Supreme Court has held that civil lawsuits brought under the Antiterrorism Act (ATA) by victims of terrorist attacks against social media companies for alleged aiding and abetting ISIS in terrorist attacks cannot go forward. In two separate opinions involving Twitter and Google, the Court held that the phrase “aids and abets, by knowingly providing substantial assistance” under the statute requires a strong showing of assistance and scienter through culpable participation. The Court declined to address whether Section 230 of the Communications Decency Act protects the social media companies because the underlying tort claims lacked merit (Twitter, Inc. v. Taamneh, May 18, 2023, Thomas, C.; Gonzalez v. Google LLC, May 18, 2023, per curiam).

The case involving Twitter, Twitter, Inc., v. Taamneh, stems from claims made by the family of Nawras Alassaf, a Jordanian citizen, who was killed in a terrorist attack committed by ISIS in Turkey in 2017. Taamneh sued Twitter in the U.S. District Court for the Northern District of California, alleging a violation of the ATA, 18 U.S.C. § 2333(a). The ATA allows United States nationals to recover damages for injuries suffered by international terrorism. The Justice Against Sponsors of Terrorism Act (JASTA) broadened the ATA to provide secondary liability for “knowingly providing substantial assistance” to an act of international terrorism. The district court dismissed Taamneh’s claims, but the Ninth Circuit reversed, holding that the district court erred in finding that the plaintiffs failed to state an actionable claim. The Ninth Circuit’s opinion consolidated appeals in three separate cases brought against the giant social media platforms Twitter, Google, and Facebook for violations of the ATA. The Supreme Court granted certiorari to review the Ninth Circuit’s decision.

In a separate case against Google, Gonzalez v. Google LLC, the family members of a victim killed in the ISIS terrorist attacks in Paris, France in 2015 brought an action over content on the video sharing site YouTube, which is owned by Google. Nohemi Gonzalez, a 23-year-old U. S. citizen was one of the 130 victims killed in the Paris attacks. Gonzalez’s parents and brothers then sued Google under the ATA alleging that Google was both directly and secondarily liable for the terrorist attack that killed Gonzalez. The district court dismissed the complaint. The Ninth Circuit held (in the same opinion as the Twitter decision) that most of the claims were barred by Section 230 of the Communications Decency Act of 1996. In the case against Google, the Supreme Court granted certiorari to review the Ninth Circuit’s analysis of the Section 230 immunity.

Aiding and abetting. The Court held that the social media companies cannot face liability for aiding and abetting under the ATA without a strong showing of assistance and scienter through culpable participation. The justices construed the phrase “aids and abets, by knowingly providing substantial assistance” under the ATA. The Court recognized that both tort and criminal law have long been leery of imposing aiding-and-abetting liability for mere passive nonfeasance. The point of aiding and abetting is to impose liability on those who consciously and culpably participated in certain conduct.

The Court held that the mere creation of the social media platforms, however, is not culpable. While it might be that bad actors like ISIS are able to use the platforms for illegal and sometimes terrible ends. The fact that some bad actors took advantage of the social media companies’ mere creation of their media platforms is no more culpable than the creation of email, cell phones, or the Internet generally. For example, illegal drug deals are brokered over cell phones—even if the provider’s conference-call or video-call features made the sale easier. Internet or cell service providers should not incur culpability merely for providing their services to the public writ large. Likewise, social media companies should not face liability for passive conduct. A contrary holding would effectively hold any sort of communication provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them. That conclusion would run roughshod over the typical limits on tort liability and take aiding and abetting far beyond its essential culpability moorings, according to the decision.

Scienter requirement. The Court held that a strong showing of assistance and scienter is required against a defendant that aids and abets, by knowingly providing substantial assistance under the ATA. To impose aiding-and-abetting liability for passive nonfeasance, the victims must make a strong showing of assistance and scienter. There are no allegations that the social platforms do more than merely transmit information by billions of people, most of whom use the platforms for interactions that once took place via mail, on the phone, or in public areas. Therefore, the Court reversed the decision of the Ninth Circuit and agreed with the district court’s decision to dismiss the claims against the social media companies.

Section 230 immunity. In light of the holding in the Twitter v. Taamneh case that social media companies cannot face liability under the ATA, the Court declined to address immunity for social media companies under Section 230 of the Communications Decency Act in the Gonzalez v. Google case. Despite hearing oral arguments on Section 230 immunity, the justices decided not to address the issue and relied on other grounds to dismiss the claims in a brief three-page per curiam opinion.

The cases are No. 21-1496 and No. 21-1333.

Attorneys: Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) for Twitter, Inc. Eric Schnapper, University of Washington School of Law, for Mehier Taamneh, Lawernce Taamneh, Sara Taamneh and Dimana Taamneh. Edwin S. Kneeder and Malcolm L. Stewart, U.S. Department of Justice, for the United States. Eric Schnapper, University of Washington School of Law, for Reynaldo Gonzalez. Lisa S. Blatt (Williams & Connolly LLP) for Google LLC.

Companies: Twitter, Inc.; Google LLC

Cases: TechnologyInternet GCNNews