Pro-ISIS content at heart of Section 230 Supreme Court arguments 

The Supreme Court will have its sights set on Big Tech next week when it hears arguments involving Section 230, a controversial liability shield for online platforms, in cases in which Twitter, Google and Facebook are at the center.

But the dispute may have broader impacts for diplomats and international organizations. 

It was brought about by families of terrorist attack victims for pro-ISIS content posted to and recommended on social media, but the companies also are arguing they don’t need Section 230 protections because they weren’t liable under a federal anti-terrorism law in the first place.

Sen. Chuck Grassley (R-Iowa) and some legal scholars argue taking Big Tech’s position would let terrorism sympathizers off the hook, while other observers contend that holding the companies liable would lead foreign countries to reciprocate in their courts against the U.S.

“This is the first time the court is looking at the intersection of social media platforms and material support provisions or aiding and abetting terrorism, and nobody really knows,” said Steve Freeman, vice president of civil rights at the Anti-Defamation League (ADL), which filed an amicus brief supporting one of the families. 

The justices will consider the dispute through two separate cases that present the same material issues. 

After considering how Section 230 applies in Gonzalez v. Google on Tuesday, the justices will turn to the anti-terrorism portion in Twitter v. Taamneh the following day. Rulings in the cases are expected by the summer.

The latter case arose after an ISIS-linked attacker killed Nawras Alassaf and 38 other people at an Istanbul nightclub in 2017.

Alassaf’s family sued Twitter, Facebook and Google by alleging the companies contributed to ISIS’s growth and that they could have taken more aggressive enforcement action to combat pro-ISIS content.

The relatives brought the lawsuit under the Justice Against Sponsors of Terrorism Act (JASTA), which in 2016 amended the nation’s anti-terrorism laws to allow civil suits against entities that aid and abet terrorism.

Congress passed JASTA to allow families of victims of 9/11 to sue Saudi Arabia, nearly unanimously overriding then-President Obama’s veto for the only time during his presidency.

Obama at the time warned in his veto message, “Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials — including our men and women in uniform — for allegedly causing injuries overseas via U.S. support to third parties.”

A group of former State Department legal advisers penned an amicus brief in the Twitter case raising reciprocity concerns, asserting that the 9th U.S. Circuit Court of Appeals expanded the scope of the law’s liability beyond what Congress intended.

The group argued the broader interpretation would backfire against American interests if allowed to stand, because the United Kingdom, Pakistan and other countries have laws that would automatically reciprocate the standard against the U.S.

“You should be very worried, because a lot of countries don’t like humanitarian organizations, and some of them just throw them out, right, and they would find quite a lot of pleasure in going after them,” said Abraham Soafer, a former federal judge and State Department lawyer who co-authored the brief.

“And also going after individual diplomats who they think are aiding and abetting a terrorist organization by adopting various policies,” he added.

The former State Department officials, the Justice Department and others who oppose the lower court’s ruling believe that violating the law requires a nexus to a specific act of international terrorism, not just ISIS’s broader criminal enterprise.

“Plaintiffs allege that defendants knew that ISIS and its affiliates used defendants’ widely available social media platforms, in common with millions, if not billions, of other people around the world, and that defendants failed to actively monitor for and stop such use,” the Justice Department wrote to the justices. “Those allegations do not plausibly allege that defendants knowingly provided substantial assistance to the Reina attack.”

Grassley, one of JASTA’s original co-sponsors, sided with the family in an amicus brief and argued more general support of ISIS is enough to hold companies liable under the statute.

“If this Court accepts petitioner’s argument, knowingly facilitating a billion-dollar payment to ISIS would not be actionable unless the payment was earmarked for a specific terrorist attack or funds from that payment could be traced to the financing of that attack,” Grassley wrote. “Such a result would be absurd and discredits any rule that compels it.”

That argument is bolstered by several anti-terrorism legal scholars, hundreds of terrorist attack victims and the ADL, all of whom wrote amicus briefs ahead of next week’s oral argument.

ADL did not take any position on the merits of the family’s specific allegations, but Freeman, the group’s vice president of civil rights, stressed that social media is a “dangerous tool” for terrorists if platforms do not adequately respond.

“Anti-terrorism laws should not be so narrowly construed as to eliminate any possibility of holding a social media platform accountable if they knowingly provide substantial assistance to a terrorist group,” said Freeman.