Adi Robertson

For 2023 Fair Use Week, University of Virginia professor Kevin Driscoll offers a thoughtful essay about how his students engage with an iconic piece of computing history: the screen saver collection After Dark.

In 2014 Mother Jones wrote that Twitter was deliberately avoiding taking aim at ISIS, quoting a Twitter official saying that “one man’s terrorist is another man’s freedom fighter.” Taamneh attorney Eric Schnipper brought the quote back up today — this time to argue that Twitter should in fact be found liable for supporting terrorists.

Twitter has been making the case that aiding and abetting requires helping a specific terrorist attack, but justices are referencing cases that suggest aiding the enterprise at all is indefensible — even if it’s not specifically used for an attack.

The subject of speech has been notably absent from today’s arguments. Kavanaugh asks if interviewing a terrorist leader on TV would provide the same material support as a Twitter recommendation. “I think the First Amendment would solve that problem,” says Schnapper.

Receiving laughs from the gallery, Gorsuch presses Waxman on whether Twitter has read the law incorrectly. “I can’t help but wonder if some of the struggle you’ve had this morning … comes from your reading of the text.” Waxman has been arguing that they have to support an act, not just the person behind it — “that seems a pretty abstract way to read the statute.”

Justice Kagan alludes to the Elon Musk school of Twitter: is Twitter liable if its policy is “let a thousand flowers bloom?” Waxman still says no. “If they said, we don’t want our platforms to be used to support terrorist groups or terrorist acts, but they don’t do anything to enforce it,” he claims, they’re not aiding and abetting.

Justice Elena Kagan does a good job of summing up the big question here after the opening question from Clarence Thomas. “This was a pre-algorithm statute, and everyone is trying their best to figure out how this statute applies,” Kagan notes. “Every time anyone looks at anything on the internet, there is an algorithm involved.”