Supreme Court of the United States
Twitter, Inc. v. Taamneh
Supreme Court of the United States
5/18/23, Justice Thomas
Topics: 18 U.S.C. § 2333
I never thought, when this case was issued, that by the time I got around to summarizing the case, Twitter would no longer exist. This case presents an unusual sort of claim, but it’s in the personal injury sphere generally.
The family of a man killed by a terrorist acting on behalf of the Islamic State of Iraq and Syria (“ISIS”) in Turkey sued in American courts, but they didn’t sue ISIS or the terrorist himself. Instead, they sued Twitter (the social media giant rebranded as “X” a few short months later), Facebook, and Google (in its capacity as the owner of YouTube) under 18 U.S.C. § 2333, which allows U.S. nationals who have been “injured…by reason of an act of international terrorism” to file a civil suit for damages.
The family blamed Twitter, Facebook, and YouTube for allowing ISIS to use the social media platforms to coordinate their terrorist attacks. They even alleged that the algorithms that are part of the social media platforms—designed to show more and more of the same kind of content to viewers who keep clicking on it (giving you more of what you like)—actively assisted ISIS to spread its propaganda and advertisements.
The Supreme Court held, however, that the plaintiffs failed to state a claim. Yes, the law permits citizens to sue anyone who aids and abets or provides substantial assistance or conspires with terrorists, but case law requires that the person aiding and abetting do so with general awareness of his role as part of the illegal or tortious activity and that he knowingly and substantially assisted.
This specific cause of action is not like a RICO case where one aids an enterprise; here, the plaintiff had to show that Twitter, Facebook, and/or YouTube aided a specific act of terrorism—the bombing in Turkey. There was no evidence the social media companies gave knowing and substantial assistance to ISIS in carrying out that attack.
Justice Thomas brushed off the idea that social media giants helped ISIS with their algorithms that fed more of their content to engaged audiences, saying that the mere creation of social media platforms results in no more culpability than the creation of email, cell phones, or the internet generally. He also brushed off the idea that algorithms actively help drive more and more of the same or similar content to those to consume it (i.e. people who “like” or view ISIS posts will see more and more of them and become radicalized), describing the algorithms as merely part of the infrastructure through which all the content is filtered. He states that algorithms are agnostic as to the nature of the content (apparently holding that it doesn’t matter that Twitter, Facebook, and YouTube were aware that some people are fed more and more ISIS videos because if those same people “liked” and clicked on cute cat videos, the algorithm would have sent them more and more cat videos, not ISIS videos; it’s all up to the user, not Twitter, Facebook, or YouTube). The facts don’t rise to knowing assistance. The opinion was UNANIMOUS.
JUSTICE JACKSON CONCURRED SPECIALLY, adding a single paragraph to the 38-page opinion. She joined the opinion but noted that she did so only because the opinion was decided on narrow grounds at the motion-to-dismiss stage where the court was operating on the factual allegations without any factual record. She noted that in a different case with similar issues but better factual allegations, her opinion might be different. She also noted that much of the language about aiding and abetting and scienter came from criminal cases, which were not necessarily appropriate for application to a civil case. In other words, she might be open to applying a lower level of knowledge or mens rea in a similar civil claim, but there was just not enough even under a lower standard in this case.
https://www.supremecourt.gov/opinions/22pdf/598us2r22_hejm.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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