The Supreme Court released opinions on two major social media cases on Thursday, and the justices unanimously decided to not break the Internet. The court could have used the cases to hold social media companies liable for “aiding and abetting” terrorist attacks when terrorists use their platforms. Instead, the justices made a distinction between helping terrorists and failing to ban terrorists who use the Internet, decided that the latter does not give rise to liability, and let social media companies go on their merry way.
The two cases were called Google v. Gonzales and Twitter v. Taamneh. Both cases were brought by the families of victims of ISIS terrorist attacks who claimed that social media companies (namely Twitter and the Google-owned YouTube) helped the group carry out the attacks. Normally, Section 230 of the Communications Decency Act of 1996 protects Internet companies from liability for defamatory or illegal content posted on their platforms. In the Google case, families argued that YouTube’s algorithm actively promotes terrorist content to users it thinks might be interested in such activity, and thus the company should not be protected by Section 230. In the Twitter case, families argued that a different law, the Justice Against Sponsors of Terrorism Act (JASTA), allowed them to sue Twitter for “aiding and abetting” terrorism and “providing substantial assistance” to ISIS.
In deciding the cases, the court ignored Section 230 altogether. That alone is a huge victory for Internet companies. As I explained in February, after oral arguments for these cases, Section 230 lies at the beating heart of how the Internet operates. Any decision based on Section 230 would have been sweeping and could have led to unintended consequences across all of social media. By avoiding it—that is, by not making Section 230 the basis for their rulings—the justices stayed narrowly within their lanes.
The court managed this by punting Google v. Gonzales (the more direct challenge to Section 230) back to the lower courts, instructing them to rehear the case in light of the decision in Twitter v. Taamneh. And then in Taamneh, the court decided the case strictly on the grounds of JASTA.
Looking only at JASTA, the court decided that the plaintiffs could not sue Twitter. The plaintiffs, who were relatives of victims of the Reina nightclub shooting in Istanbul, had argued that Twitter had general knowledge that ISIS was using the platform, and didn’t do enough to prevent the group from using it or remove the content posted by ISIS. Justice Clarence Thomas, who wrote the unanimous opinion for the court, argued that such general knowledge was not enough to establish liability. He argued that the actions of Twitter, which amounted to allowing ISIS-associated individuals to post on Twitter, did not rise to the level of “aiding and abetting” the crimes later carried out by members of ISIS. Thomas further noted that the families never established that the shooter, Abdulkadir Masharipov, ever used Twitter or other social media platforms, much less that he or ISIS received special treatment from Twitter that was not available to any other user in the world. Thomas wrote: “The mere creation of those platforms…is not culpable.”
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At worst, Thomas argued, Twitter and other social media companies engaged in “nonfeasance”—that is, the failure to remove terrorist content after the companies became aware that such content existed on their platforms. But Thomas argued, rightly I believe, that “both tort and criminal law have long been leery of imposing aiding-and-abetting liability for mere passive nonfeasance.” Indeed, if failure to delete content that potentially aids a criminal enterprise were the standard, then CNN would be liable every time it broadcasts a Trump town hall. The standard the victims’ families want here is simply too broad.
Of course, that’s the charitable read on Thomas’s opinion. The more cynical view is that Thomas and the five other conservatives are so deep in the pockets of massive corporate interests like Twitter, YouTube, and Facebook that there was no way the court would risk destroying those businesses. Senator Josh Hawley can complain about Section 230 all he wants while Justice Sam Alito whines to The Wall Street Journal about how the Internet is mean to him. But when the chips are down, there’s too much money invested in the internet functioning as it does for the conservatives to mess with that.
Whichever view you take (I lean toward the charitable construction, for what it’s worth), this opinion was, again, unanimous, and so the liberal justices were on board with the thrust of these rulings. But Justice Ketanji Brown Jackson did write an interesting two-paragraph concurrence. She wrote to emphasize that the ruling was narrow, and that the court reviewed the cases based on motions to dismiss—which means that no factual record had been established to show the Internet companies’ potential liability. She left open the possibility that a factual record could be established that would lead to a conclusion of aiding and abetting liability. She wrote: “Other cases presenting different allegations and different records may lead to different conclusions.”
I take that as Jackson signaling to social media companies that they shouldn’t use these rulings as a “Get Out of [Liability] Free” card. There is a line where the conduct of these companies could give rise to vicarious liability for crime, and while the court does not establish where that line is, Justice Jackson wants people to know it exists.
To be sure, the rulings are a victory for the tech-bro-industrial-complex, which has again dodged accountability for what is said and done on its platforms. But in a larger sense, it’s a victory for democratic self-government. I don’t read these cases as an endorsement of how social media operates: I think they’re more of an acknowledgement that existing law allows social media to operate the way it does. If we want the Internet to change, that change must be brought about by the people, through our elected representatives in Congress. The nine law-wizards who rule over us would rather not tell the Internet what to do. Whether they came to this decision through a good-faith reading of applicable law, corporate cronyism, or honest humility in the face of technological forces they don’t fully understand, we should want more of this kind of decision. The best thing this court can do is to stay the hell out of it.
