Supreme Court Decides Twitter, Inc. v. Taamneh, No. 21-1496 and Gonzalez v. Google LLC, No. 21-1333

On May 18, 2023, the Supreme Court of the United States decided Twitter, Inc. v. Taamneh, No. 21-1496 (Twitter), holding that plaintiffs who were injured in a terrorist attack failed to state a claim against Facebook, Twitter, and Google for “aiding and abetting” an “act of international terrorism” under 18 U.S.C. § 2333(d)(2), the Justice Against Sponsors of Terrorism Act. 

Under the Antiterrorism Act, United States nationals or their estates can bring civil suits for damages sustained “by reason of an act of international terrorism.” In 2016, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA) to impose secondary civil liability on anyone “who aids and abets, by knowingly providing substantial assistance” to a person that commits “an act of international terrorism.” See 18 U.S.C. § 2333(d)(2). 

A year later, an ISIS terrorist killed 39 individuals in Istanbul, Turkey. The family of one of the deceased individuals sued Facebook, Twitter, and Google under JASTA. The family alleged that the social media companies knowingly allowed ISIS and its supporters to use their platforms and their “recommendation” algorithms as tools for recruiting, fundraising, and spreading their propaganda. These “recommendation” algorithms allegedly facilitated ISIS’s connection with its supporters and the broader public. The family also alleged that Facebook, Twitter, and Google profited from advertisements placed near ISIS’s tweets, posts, and videos. 

The District Court dismissed the family’s claims against the social media companies, but the Ninth Circuit reversed. It held that the family had plausibly alleged that the social media companies aided and abetted ISIS under JASTA. The Supreme Court, however, took the case and reversed. 

It first interpreted the meaning of the term “aid and abet” under JASTA. Because Congress did not define those words, the Supreme Court examined their meaning in light of the framework from a D.C. Circuit case that Congress had identified when it enacted JASTA. After reviewing a “three-element and six-factor test” from that case, the Supreme Court concluded that a rigid application of that framework could be inadequate for allegations concerning internet platforms and international terrorist networks. But the “basic thrust” of that framework, in light of the common law of aiding and abetting, required some level of conscious and culpable conduct. The Supreme Court then concluded that the term “aid and abet” under JASTA requires “a conscious, voluntary, and culpable participation in another’s wrongdoing.” 

The Supreme Court then concluded that, although a defendant must “aid and abet” an act of international terrorism, there need not be a strict nexus between the assistance and the wrongful act. It stated that courts should still rely on the three-element and six-factor test identified by the D.C. Circuit, but when applying that framework, defendants can be subject to liability only when they consciously and culpably participate in a terrorist act. 

Applying that framework to the facts in the Twitter case, the Supreme Court concluded that the family failed to state a claim. The allegations failed to show that Twitter, Facebook, or Google gave knowing and substantial assistance to ISIS that rose to the necessary level of culpability. Because the social media platforms are available to the public and the “recommendation” algorithms treated ISIS-related content like any other content created by other users, there was no affirmative conduct that showed the social media companies had assisted ISIS within the meaning of JASTA. At best, the family’s allegations showed passive failures to stop ISIS from using their platforms. But for mere passive failures to rise to the level of culpability required for a JASTA claim, the family would need to allege “a strong showing of assistance and scienter,” which it did not. Rather, the family’s allegations lacked any concrete nexus between the companies’ social media services and the specific terrorist attack. Because the Ninth Circuit’s analysis evaluated the social media companies’ level of culpability at too general a level, the Supreme Court reversed the Ninth Circuit.

In a related opinion, Gonzalez v. Google LLC, No. 21-1333 (Google), the Supreme Court issued a per curiam opinion remanding a case involving similar JASTA claims against Google. In that case, the Ninth Circuit had held that most of the JASTA claims were barred by Section 230 of the Communications Decency Act of 1996. Although the Supreme Court had granted certiorari to review the Ninth Circuit’s application of Section 230, the Supreme Court declined to address that holding. Instead, the Court vacated the Ninth Circuit’s decision with instructions to consider whether the JASTA claims in Google stated a claim for relief in light of the unanimous decision in Twitter. In remanding, the Supreme Court stated that “much (if not all) of plaintiffs’ complaint seems to fail under either our decision in Twitter or the Ninth Circuit’s unchallenged holdings below.”

In Twitter, Justice Thomas delivered the unanimous opinion for the Court. Justice Jackson wrote a one-page concurring opinion. The Court’s opinion in Gonzalez v. Google LLC was unanimous and per curiam.