Supreme Court Rejects Allegations That Social-Media Companies Did Not Do “Enough” To Block Terrorist Content But Declines To Address Scope Of Section 230
Client Alert | May 18, 2023
Decided May 18, 2023
Twitter, Inc. v. Taamneh, No. 21-1496
Gonzalez v. Google LLC, No. 21-1333
Today, a unanimous Supreme Court rejected claims that social-media companies could be held liable under the Anti-Terrorism Act for allegedly not doing “enough” to remove terrorist-related content from their services. In light of that ruling, the Court declined to address whether plaintiffs’ claims were barred by Section 230 of the Communications Decency Act.
Background: Under the Anti-Terrorism Act (ATA) a United States national who is injured by an “act of international terrorism” may recover treble damages. 18 U.S.C. § 2333(a). Victims may also seek recovery from “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.” Id. § 2333(d)(2).
In Twitter, Inc. v. Taamneh, family members of a victim of the 2017 ISIS shooting at the Reina nightclub in Istanbul, Turkey, sued Facebook, Twitter, and Google under the ATA for aiding and abetting the attack. Plaintiffs did not allege that the terrorists who carried out the attack used the companies’ services or that the companies were aware of any specific ISIS accounts tied to the attack. Despite the extensive measures the companies take to block and remove terrorist accounts and terrorist content, plaintiffs alleged that the companies violated the ATA by not doing more.
The district court rejected plaintiffs’ claims, because (1) plaintiffs failed to plausibly allege that the defendants assisted committing the particular attack at issue and (2) it is not enough to allege that the defendants provided general assistance to a terrorist organization. The Ninth Circuit reversed, holding that allegations that a defendant assisted a “broader campaign of terrorism” are enough, even absent allegations that the defendant assisted the particular attack at issue.
Gonzalez v. Google LLC involves substantially similar allegations asserted by family members and the estate of a victim of the 2015 ISIS attacks in Paris. The trial court dismissed plaintiffs’ claims as barred by Section 230 of the Communications Decency Act of 1996, 47 U.S.C. § 230(c)(1), which protects websites and other “interactive computer service” providers from claims based on third-party content, and the Ninth Circuit affirmed.
Issues:
Taamneh: Whether a defendant that provides generic, widely available services to all its numerous users and “regularly” works to detect and prevent terrorists from using those services “knowingly” provided substantial assistance under Section 2333 merely because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use.
Gonzalez: Whether Section 230 applies to recommendations of third-party content.
Court’s Holdings:
Taamneh: No. Section 2333 requires allegations that the defendant consciously, voluntarily, and culpably participated in the terrorist act at issue in such a way as to help make it succeed.
Gonzalez: Given the overlap with the allegations in Taamneh, the Court declined to address the Section 230 issue and instead remanded for consideration in light of Taamneh.
“[T]he fundamental question of aiding-and-abetting liability [is]: Did defendants consciously, voluntarily, and culpably participate in or support the relevant wrongdoing? … [T]he answer in this case is no.”
Justice Thomas, writing for the Court
Gibson Dunn represented Meta Platforms, Inc. as Respondent Supporting Petitioner in Taamneh and Amicus in Gonzalez.
What It Means:
- In Taamneh, the Court refused to expand aiding-and-abetting liability under Section 2333(d)(2) beyond the traditional, common-law understandings of aiding and abetting.
- Liability under Section 2333(d)(2) is limited to defendants who “consciously and culpably” participate in the specific act of international terrorism that injured the plaintiffs. Although that requirement does not always demand “a strict nexus,” “the more attenuated the nexus, the more courts should demand that plaintiffs show culpable participation though intentional aid that substantially furthered the tort.”
- Today’s opinion also underscores that providing goods or services to the general public should not itself give rise to aiding-and-abetting liability, even if the provider may become aware that its goods or services are being put to illicit ends. As the Court emphasized, imposing liability based on an alleged failure to act requires the plaintiff to make a heightened showing of assistance and scienter.
- The Court also concluded that “[t]he mere creation of” social-media services “is not culpable.”
- The Court’s decision to vacate and remand in Gonzalez without addressing Section 230 returns questions about the scope, interpretation, and application of Section 230 to the courts of appeals, which have developed an extensive body of cases construing and applying Section 230 since the statute was enacted in 1996.
The Court’s opinion is available here and here.
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