Supreme Court hears oral arguments in Twitter case that could upend the internet

Confronting Twitter attorney Seth Waxman, Justices Sonia Sotomayor and Elena Kagan tag-teamed a series of questions about what kind of assistance to terrorists could make a social media website liable under the anti-terrorism law — with Kagan expressing frustration that a somewhat off-point Waxman wasn't responding to their inquiry.

Sotomayor asked whether there was a difference between a defendant providing a terrorist a gun versus providing money — an "indirect," "fungible" form of assistance. Other court rulings have said defendants are liable for providing financial assistance, she noted.

Under her and Kagan's follow up questioning, Waxman attempted to argue there was a distinction between a defendant taking an action that assisted a terrorist versus their inaction helping a terrorist. He said, in this case, the plaintiffs were arguing Twitter was not doing enough to police terrorist conduct on its platform.

Kagan redirected Waxman to answer the justices' question rather than focus on how the complaint was framed, telling him that she was "going to rewrite their complaint for them."

The liberal justices' line of questioning came after Waxman appeared to struggle to address a hypothetical scenario posed by Justice Clarence Thomas. Thomas asked how the law would treat him if he provided a gun to a friend who went on to commit a crime.

Waxman replied there weren’t enough facts in the hypothetical to address Thomas’ query. Sotomayor then stepped in and appeared to throw Waxman a lifeline, directing him back to Twitter’s brief and overall argument — focusing on the claim that a defendant must have knowledge that the assistance he gives to a third party will lead to a specific terrorist act in order to face liability under the Anti-Terrorism Act.

Justice Clarence Thomas has the first question for Twitter's lawyer and digs into a key issue of the case.

He asks whether Twitter sees the anti-terrorist law as requiring the defendant to have knowledge of the specific terrorist attack in question — in this case an attack on an Istanbul night club — or just a general knowledge of terrorists.

Twitter attorney Seth Waxman clarified that that was not what Twitter is arguing in the case.

The Supreme Court is in session and justices are now hearing oral arguments in Twitter v. Taamneh, a case which could decide whether social media companies can be sued for aiding and abetting a specific act of international terrorism when the platforms have hosted certain user content.

What both sides have said: The plaintiffs in the case — the family of Nawras Alassaf, who was killed in an ISIS attack in Istanbul in 2017 — have alleged that social media companies including Twitter had knowingly aided ISIS in violation of a US antiterrorism law by allowing some of the group’s content to persist on their platforms despite policies intended to limit that type of content.

Twitter has said that just because ISIS happened to use the company’s platform to promote itself does not constitute Twitter’s “knowing” assistance to the terrorist group, and that the company cannot be held liable under the antiterror law because the content at issue in the case was not specific to the attack that killed Alassaf.

What's at stake: This case, along with Google v. Gonzalez, carries significant stakes for the wider internet. An expansion of apps and websites’ legal risk for hosting or promoting content could lead to major changes at sites including Facebook, Wikipedia and YouTube, to name a few.

Supreme Court oral arguments on Twitter v. Taamneh will start soon. Here's what we know about how the day will go.

Seth Waxman, an attorney representing Twitter, will present first.

Then we'll hear from Deputy Solicitor General Edwin Kneedler, representing the US government.

Rounding out the list will be Eric Schnapper for the plaintiffs. Schnapper is the same attorney who yesterday represented the Gonzalez family in the oral arguments in the Google case.

As with yesterday's arguments, it's possible things could run long.

Justice Neil Gorsuch remains ill and will be absent from the courtroom for the second straight day, the Supreme Court said.

Gorsuch, as he did with Tuesday's oral arguments in Gonzalez v. Google, will participate remotely via phone.

During today's oral arguments, you may hear references to “CompuServe” and “Stratton Oakmont” — here’s what you need to know about these pivotal lawsuits that helped pave the way for Section 230’s creation.

Both cases were decided in New York courts.

In 1991's Cubby v. CompuServe, the court held that CompuServe, an early internet portal, could not be sued for libel over a defamatory forum post by one of its users, because CompuServe did not, as a rule, engage in any content moderation.

Four years later, in Stratton Oakmont v. Prodigy, a different court held that the online service Prodigy could be sued because it routinely moderated some content and thus should be liable for violative content on its forums that it had failed to remove.

The conflicting rulings prompted US lawmakers to worry that these sorts of lawsuits might strangle the nascent internet in its crib.

Thus, Section 230 was born, which explicitly immunized websites for engaging in content moderation. The new law, passed in 1996, did not require websites be politically neutral or that they must moderate content in a specific way.

The point, its authors have argued, was to protect the ability of websites to innovate new ways of content moderation. Now, as the Supreme Court weighs whether to scale back Section 230’s protections for content moderation, the question is how far the justices may go and what will happen to websites that face new liability as a result.

Congress, the White House and now the US Supreme Court are focusing their attention on a federal law that’s long served as a legal shield for online platforms.

The Supreme Court is hearing oral arguments on two pivotal cases this week dealing with online speech and content moderation. Central to the arguments is Section 230, a federal law that’s been roundly criticized by both Republicans and Democrats for different reasons but that tech companies and digital rights groups have defended as vital to a functioning internet. In Tuesday's oral arguments on Gonzalez v. Google, the law came up multiple times.

Tech companies involved in the litigation have cited the 27-year-old statute as part of an argument for why they shouldn’t have to face lawsuits alleging they gave knowing, substantial assistance to terrorist acts by hosting or algorithmically recommending terrorist content.

Here are key things to know about the law:

Read more about Section 230 here.

Nine justices set out Tuesday to determine what the future of the internet would look like if the Supreme Court were to narrow the scope of a law that some believe created the age of modern social media. After nearly three hours of arguments, it was clear that the justices had no earthly idea.

On several occasions, the justices said they were confused by the arguments before them – a sign that they may find a way to dodge weighing in on the merits or send the case back to the lower courts for more deliberations. At the very least they seemed spooked enough to tread carefully.

Justice Elena Kagan even suggested that Congress step in. “I mean, 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,” she said to laughter.

That hesitancy, coupled with the fact that the justices were wading for the first time into new territory, suggests the court, in the case at hand, is not likely to issue a sweeping decision with unknown ramifications in one of the most closely watched disputes of the term.

Tech companies big and small have been following the case, fearful that the justices could reshape how the sites recommend and moderate content going forward and render websites vulnerable to dozens of lawsuits, threatening their existence.

Oral arguments drifted into a maze of issues, raising concerns about trending algorithms, thumbnail pop-ups, artificial intelligence, emojis, endorsements and even Yelp restaurant reviews. But at the end of the day, the justices seemed deeply frustrated with the scope of the arguments before them and unclear of the road ahead.

Yet even Thomas, who has expressed reservations about the scope of Section 230 before, seemed skeptical. He sought clarification from Schnapper of how one might be able to distinguish between algorithms that “present cooking videos to people who are interested in cooking and ISIS videos to people interested in ISIS.”

Alito asked whether Google might have been simply organizing information, instead of recommending any kind of content. “I don’t know where you’re drawing the line.”

Chief Justice John Roberts tried to make an analogy with a book seller. He suggested that Google recommending certain information is no different than a book seller sending a reader to a table of books with related content.

When Lisa Blatt, a lawyer for Google, stood up she warned the justices that “exposing websites to liability for implicitly recommending third-party context defies the text [of 230] and threatens today’s internet."

As Twitter goes before the Supreme Court Wednesday, one big question is whether CEO Elon Musk may weigh in from the sidelines.

Musk — who is notoriously opinionated on Twitter — has not shied away from cultural debates, and in the world of tech policy, there may be no bigger cultural debate than whether platforms should have to face more lawsuits over content moderation.

There is no sign that Musk has been personally involved in the Supreme Court case being argued Wednesday.

But the outcome could have major implications for Twitter’s business and its bottom line, which Musk has been trying to improve in the face of an advertiser revolt and public outcry over his own management and content moderation decisions.