Supreme Court Unanimously Finds Social Media Companies Not Liable For Aiding And Abetting ISIS

In Twitter, Inc. v. Taamneh, the Supreme Court unanimously held that social media companies are not liable for aiding and abetting the Islamic State of Iraq and Syria (“ISIS”) absent proof of “knowing and substantial assistance.”

In Twitter, the family of a person killed in an ISIS attack sued under 18 U.S.C. §2333, which permits U. S. nationals who have been “injured. . . by reason of an act of international terrorism” to file a civil suit for damages. Instead of suing ISIS directly, plaintiffs sued Facebook, Twitter, and Google, for “aiding and abetting by knowingly providing substantial assistance” to ISIS by allowing it and its supporters to use their platforms and benefit from their “recommendation” algorithms, enabling ISIS to connect with the broader public, fundraise, and radicalize new recruits. The District Court dismissed plaintiffs’ complaint for failure to state a claim, but the Ninth Circuit reversed.

Writing for the unanimous Court, Justice Thomas explained that because tort law imposes liability only when someone commits an actual tort, under the federal statute, a defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong -- here, an act of international terrorism. The Court then examined the elements of aiding and abetting and concluded that “aids and abets” in §2333(d)(2) refers to conscious, voluntary, and culpable participation in another’s wrongdoing.

The Court noted that making the platforms available with hardly any screening and having matching algorithms, plaintiffs failed to show that the social media companies provided the “knowing and substantial assistance to ISIS necessary to show that the social media companies culpably participated in the Reina attack.” The Court also observed that Plaintiffs did not identify any duty requiring the defendants (or other communication-providing services, for that matter) to terminate customers after discovering that they were using the service for illicit ends.

In the Court’s view, the only affirmative “conduct” defendants allegedly undertook was creating their platforms and setting up their algorithms to display content relevant to user history. The Court concluded that the mere creation of those platforms is not culpable, explaining that while some may use those platforms for illegal ends, the same could be said of cell phones, email, or the internet generally. But providers of such services do not incur culpability merely for providing their services to the public at large. The Court further explained that plaintiffs failed to make the strong showing of assistance and scienter necessary to demonstrate that defendants’ failure to stop ISIS from using the platforms made defendants liable in the terrorist attack.

At bottom, the Court found that plaintiffs had failed to state an aiding and abetting claim because plaintiffs failed to allege that defendants intentionally provided any substantial aid to the attack or otherwise consciously participated in the attack, the connection between the defendants and the attack is too attenuated to impose liability on aiding and abetting grounds.

Justice Jackson concurred:

“I join the opinion of the Court with the understanding that today’s decisions are narrow in important respects. In this case and its companion, Gonzalez v. Google, 598 U. S. ___ (2023) (per curiam), the Court has applied 18 U. S. C.§2333(d)(2) to two closely related complaints, filed by the same counsel. Both cases came to this Court at the motion­-to-dismiss stage, with no factual record. And the Court’s view of the facts—including its characterizations of the social-media platforms and algorithms at issue—properly rests on the particular allegations in those complaints. Other cases presenting different allegations and different records may lead to different conclusions.

The Court also draws on general principles of tort and criminal law to inform its understanding of §2333(d)(2).General principles are not, however, universal. The common-law propositions this Court identifies in interpret­ing §2333(d)(2) do not necessarily translate to other con­texts.”

In light of Twitter, the Court remanded Reynaldo Gonzalez, et al. v. Google, LLC — a suit involving another ISIS attack — to the Ninth Circuit for reconsideration of the plaintiffs’ complaint:

“We need not resolve either the viability of plaintiffs’ claims as a whole or whether plaintiffs should receive fur­ther leave to amend. Rather, we think it sufficient to acknowledge 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. We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs’ complaint in light of our decision in Twitter.”