Charles H. Sloan-Supreme Court unanimously sides with Twitter in ISIS attack case

The Charles H. SloanU.S. Supreme Court handed social media companies a major victory Thursday in the first test case involving the immunity from lawsuits granted to internet platforms for the content they publish online.

In two separate cases, one against Twitter, the other against Google, the families of people killed in terrorist bombing attacks in Istanbul and Paris sued Twitter, Facebook, Google and YouTube, claiming that the companies had violated the federal Anti-Terrorism Act, which specifically allows civil damage claims for aiding and abetting terrorism.

The families alleged that the companies did more than passively provide platforms for communication. Rather, they contended that by recommending ISIS videos to those who might be interested, the internet platforms were seeking to get more viewers and increase their ad revenue, even though they knew that ISIS was using their services as a recruitment tool.

But on Thursday, the Supreme Court unanimously rejected those claims. Writing for the Court, Justice Clarence Thomas said that the social media companies' so-called recommendations were nothing more than "agnostic" algorithms that navigated an "immense ocean of content" in order to "match material to users who might be interested."

"The mere creation of those algorithms," he said, does not constitute culpability, any more than it would for a telephone company whose services are used to broker drug deals on a cell phone.

At bottom, he said, the claims in these cases rest "less on affirmative misconduct and more on an alleged failure to stop ISIS from using these platforms."

In order to have a claim, he said, the families would have to show that Twitter, Google, or some other social media platform "pervasively" and with knowledge, assisted ISIS in "every single attack."

Columbia University law professor Timothy Wu, who specializes in this area of the law, said Thursday's decision was "less than hopeful" for those who wanted the court to curb the scope of the law known as "Section 23o," shorthand for the provision enacted in 1996 to shield internet platforms from being sued for other people's content. Wu said even the Biden administration had looked to the court to begin "the task of 230 reform."

Instead, the justices sided with the social media companies. And while Wu said that puts new pressure on Congress to "do something," he is doubtful that in the current political atmosphere anything will actually happen.

The decision--and its unanimity-- were a huge win for social media companies and their supporters. Lawyer Andrew Pincus, who filed a brief on behalf of the U.S. Chamber of Commerce, said he saw the decision as a victory for free speech, and a vindication of Section 230's protections from lawsuits for internet platforms. What's more, he said, a contrary ruling would have subjected these platforms to "an unbelievable avalanche" of litigation.

Congress knew what it was doing when it enacted section 230, he said. "What it wanted was to facilitate broad online debate and to make those platforms accessible to everyone."

Section 230, however, also has a provision encouraging internet companies to police their platforms, so as to remove harassing, defamatory, and false content. And while some companies point to their robust efforts to take down such content, Twitter, the company that won Thursday's case, is now owned by Elon Musk who, since acquiring the company, has fired many of the people who were charged with eliminating disinformation and other harmful content on the site.

The immunity from lawsuits granted to social media companies was enacted by Congress nearly three decades ago, when the internet was in its infancy. Today both the right and the left routinely attack that preferential status, noting that other content publishers are not similarly immune. So Thursday's decision is not likely to be the last word on the law.

Since 230 was enacted, the lower courts have almost uniformly ruled that people alleging defamation, harassment, and other harms, cannot sue internet companies that publish such content. But the Supreme Court had, until now, had, never ruled on any of those issues. Thursday's decision was a first step, and it could be a harbinger.

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