The Twitter decision is about more than the internet

Just as the last issue of this newsletter was being put to bed, the U.S. Supreme Court handed down decisions in Twitter v. Taamneh and Gonzalez v. Google, companion cases that shared an underlying question: Can social media platforms that are “generally aware” terrorists may be using their services be sued for “aiding and abetting” specific terrorist acts? The Reporters Committee joined a friend-of-the-court brief led by the Center for Democracy and Technology in the Twitter case and filed a brief alone in Google. (Cooley LLP served as counsel in Twitter and Debevoise & Plimpton LLP represented the Reporters Committee in Google.)

In Google, the court issued a brief, unsigned opinion, finding that the question there had likely been resolved by the full — and much more interesting — opinion in Twitter. (The U.S. Court of Appeals for the Ninth Circuit in Google held that Section 230 barred liability, a question that the Supreme Court, relievingly for us, decided not to reach.)

The topline in Twitter is that the platform won pretty resoundingly. In a unanimous opinion authored by Justice Clarence Thomas, the Supreme Court held that allegations that a platform had generalized knowledge that terrorists may be using a service open to all-comers is not enough for a lawsuit under the federal Justice Against Sponsors of Terrorism Act, which permits victims to sue anyone “who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed [] an act of international terrorism.”

But that seemingly simple holding contains multitudes. Indeed, the case could be read to clarify the scope of “aiding and abetting” liability in any case where an underlying statute doesn’t provide a definition of the term. That’s important for journalists, as I’ll explain shortly.

But, before I do that, follow me here. JASTA, the federal anti-terrorism statute at issue, doesn’t define “aiding and abetting.” Rather, it cites Halberstam v. Welch from the U.S. Court of Appeals for the District of Columbia, a leading case from 1983 on the scope of civil aiding and abetting liability. (The facts of that case are fascinating; a serial burglar killed a man during a break-in and the estate successfully sued his live-in partner, who provided secretarial and recordkeeping services for his criminal enterprise.)

The court in the Halberstam case identified three elements of civil aiding and abetting liability, one of which is that the assistance be “knowing and substantial,” and offered a six-factor analysis to determine whether the help provided was “substantial.” I’ll spare the reader the other elements and factors, but what’s crucial here is that Justice Thomas distilled them into a new articulation of the rule.

First, Justice Thomas recognized that an overly broad approach to aiding and abetting could, for instance, draw in the passive observer who sees someone commit a crime but fails to report it, or the postal worker who delivers a package with contraband. Then, he offered a lengthy discussion of how courts have attempted to limit aiding and abetting liability to avoid such results. And, finally, the court offered a clean articulation of the rule: “The phrase ‘aids and abets’ in [JASTA], as elsewhere, refers to a conscious, voluntary, and culpable participation in another’s wrongdoing.” (The court also held that the person or entity must assist in a specific act of wrongdoing, or must be so intertwined with the wrongdoer’s course of conduct that they are fairly liable for all wrongs committed.)

Now, why should journalists care? First, and as noted in the friend-of-the-court brief we joined in Twitter, journalists cover terrorists and terrorism. And, they do so with “generalized knowledge that coverage of the newsworthy activities of terrorists, like coverage of any other newsworthy activity, publicizes that activity,” which could have been enough to state a JASTA claim under the Ninth Circuit’s interpretation of the statute.

The brief cited a 1998 PBS interview with Osama Bin Laden, and there are other prominent examples. Though this involved domestic activity, a particularly interesting instance is the decision in 1995 by The New York Times and The Washington Post to publish in The Post the Unabomber’s manifesto after he wrote to The New York Times and said he would “desist from terrorism” if it ran in a national, widely-read periodical. (The Post had the mechanical ability to publish it as an insert in all copies of its daily edition.) In a twist, the publication actually led to Ted Kaczynski’s capture after his brother recognized the writing.

Second, there is the ongoing concern over criminal liability for journalists in national security leak cases. Although criminal and civil aiding and abetting liability may differ somewhat, the doctrines are similar. As Reporters Committee Executive Director Bruce Brown and I explained in a lengthy piece in Lawfare last week on the revised Justice Department news media guidelines, the act of asking a source for classified information isn’t expressly included in the definition of newsgathering in the new policy, which leads to some uncertainty on whether the Justice Department could cite that as “aiding and abetting” or another “inchoate” crime, like conspiracy. The focus in the Twitter holding on “culpable participation” could suggest an argument that newsgathering of this sort doesn’t qualify as criminal “aiding and abetting.” That is, can routine newsgathering be “culpable” (guilty) conduct?

Separately, and just because it could prove interesting if similar issues come before the Supreme Court again, Justice Ketanji Brown Jackson wrote a one-page concurrence where she may have been picking up on the expansive way one could read Justice Thomas’s opinion. She wrote, “The Court also draws on general principles of tort and criminal law to inform its understanding of [JASTA]. General principles are not, however, universal. The common-law propositions this Court identifies in interpreting [JASTA] do not necessarily translate to other contexts.” As Mr. Spock would say, “fascinating.”

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.