We’re deep in the dictionary definitions of things with Justice Gorsuch, who is exploring personal identity. I will admit I was not expecting this line of inquiry, but if you’ll excuse me, I’m off to rewatch I Heart Huckabees.
“Let’s say a known terrorist walks into a bank,” says Justice Kagan, before getting into the weeds of a “knowing your customer” hypothetical.
The government expresses skepticism that the ability to tweet is as valuable as having a place to store money. As a former power user of Twitter, I would have to agree.
(Incidentally, Elon Musk has expressed plans to turn Twitter into an actual bank, so this distinction might not work in future lawsuits.)
Edwin Kneedler, on behalf of the government, faces a theoretical question on pager companies providing services to terrorists. It’s not clear how this act of technological paleontology from Thomas will provide a comparison to Twitter. But it’s interesting by virtue of the fact that while pagers could be used directly to plan an attack, pager companies probably knew way less about their customers’ beliefs and actions than a modern social platform.
Thus concluding Twitter’s arguments. Now it’s the US government’s turn.
Barrett suggests to Waxman that it’s obvious what ISIS is about and what it will do in the future: “If you know ISIS is using [Twitter], you know ISIS is going to be doing bad things… what work does turning your focus on the specific act do? Aiding ISIS is aiding the commission of specific acts in the future.”
Building on previous questioning from Justice Kagan, it seems like the court is trying to get Twitter to draw a line about how willfully dumb it can play about certain accounts and users on the platform.
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.”
Waxman tries to explain, but Gorsuch isn’t impressed: “Maybe we oughta just stop.”
Sotomayor:
“There is a focus on how much your platform helped ISIS, and less on how you actually helped them, and there is a difference between the two things. … [Your argument is that] in a neutral business setting, using something that is otherwise not criminal, a platform, to communicate with people, and you’re doing it not by as in the bank situation or pharmaceutical situation, to help this particular person to commit a crime, but in a general business situation that others are coming to you and you can’t find them ahead of time, that that doesn’t constitute substantiality.”
But that doesn’t get Twitter off the hook here, as the court is questioning Waxman about whether the company’s conduct meets the Halberstam standard for liability. Here are the basics of that standard:
(1) “the party whom the defendant aids must perform a wrongful act that causes an injury”; (2) “the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance”; and (3) “the defendant must knowingly and substantially assist the principal violation.”
Twitter’s counsel, Seth Waxman, is up first in oral arguments. If his first performance is a preview of what’s to come, we’re going to hear a lot of weird metaphors about criminal activity. Waxman is clearly angling toward the idea that Twitter had to specifically know what criminals on the platform were going to do to be liable for their actions.
Justice Thomas and Waxman opened with dueling hypotheticals about respectively giving your friend a gun and breaking a padlock to steal your neighbor’s sheep. Sure.
It’s entirely fair that the Supreme Court doesn’t want to broadcast video from its hearing room, but the American people deserve a serious upgrade to its audio livestream capabilities. Unless you’re an expert on the court it’s often difficult to tell who is speaking at any given time, because there’s no live transcript or indication of the current speaker.