• by Wendy Davis  @wendyndavis, February 22, 2023

A lawyer for Twitter on Wednesday urged the Supreme Court to rule that family members of a terror victim lack grounds to sue the company for aiding terrorists by allegedly failing to remove posts by ISIS members.

The family's complaint against Twitter, initially brought in 2018, “includes no allegation that the defendants provided substantial assistance, much less knowing substantial assistance, to that attack or, for that matter, to any other attack,” attorney Seth Waxman, former Solicitor General, told the justices Wednesday morning during an argument that lasted nearly three hours.

The argument marked the second time this week the Supreme Court considered social media companies' potential liability for terrorist attacks. On Tuesday, the Supreme Court heard arguments on whether Section 230 of the Communications Decency Act immunizes Google for allegedly recommending YouTube videos posted by ISIS members.

This battle stems from a lawsuit by family members of Jordanian citizen Nawras Alassaf, who was killed in a January 2017 attack in Istanbul.

The family alleged that Google, Twitter and Facebook aided ISIS, in violation of the Anti-Terrorism Act -- a law enabling people harmed by international terrorism to sue anyone who knowingly provides substantial assistance to foreign terrorist organizations. The family's theory was that the social media companies assisted terrorists by failing to take down their posts and, in the case of Google's YouTube, by allegedly recommending them.

The tech companies sought dismissal at an early stage, arguing that failing to remove terrorist videos doesn't amount to aiding and abetting terrorism. The companies also said that Section 230 of the Communications Decency Act immunizes them from liability over illegal material posted by third parties.

U.S. District Court Judged Edward Chen in the Northern District of California dismissed the lawsuit on the grounds that the allegations, even if proven true, wouldn't show the companies violated the Anti-Terrorism Act. Chen didn't address whether the companies also have a defense under Section 230.

The family appealed to the 9th Circuit Court of Appeals, which reinstated the claims, writing that the complaint's allegations, if true, could prove that the platforms aided and abetted terrorism.

The tech companies then appealed to the Supreme Court, arguing that failing to police the use of “routine services” that are available to the public doesn't equate with aiding and abetting terrorism.

During Wednesday's hearing, Waxman repeatedly argued that the allegations, even if proven true, wouldn't show that Twitter “knowingly” provided “substantial” assistance to terrorism.

He argued that the family shouldn't be able to proceed with its claim unless it could show that Twitter knew of specific accounts or posts that were used “to plan, commit, or proximately support” the bombing in Istanbul.

Justice Brett Kavanaugh restated Waxman's argument, asking him whether his position was that a “legitimate business that provides services on a widely available basis in an arm's-length manner” isn't under the Anti-Terrorist Act, even if the business “knows bad people use its services for bad things.”

Waxman answered, “Correct, unless it knows of specific ... accounts or posts, that are, in fact, being used to plan or commit a terrorist act, including an attack like the one that injured the plaintiff.”

Kavanaugh later asked the lawyer for the family, University of Washington law professor Eric Schnapper, whether, under his theory CNN could have been sued for aiding and abetting terrorism by promoting its 1997 interview with Osama bin Laden.

Schnapper answered that CNN would have been protected by the First Amendment.

The court is expected to issue its decision later this year.