T.C. Sottek

During a brief rebuttal, Twitter tried to weaken some very colorful hypotheticals made throughout the day (like Osama Bin Laden walking into a bank). Waxman did not get to fully complete his thought before the court adjourned, but he seemed to be trying to suggest the absurdity of comparing Twitter’s functions to giving direct material assistance to a known terrorist who walks through your door.

We’re now in the final stretch. Eric Schnapper, who also presented arguments for the plaintiffs yesterday in Gonzalez v. Google, focused a lot on the potential of recommendation functions to cause harm. In today’s case, plaintiffs allege Twitter recommendations helped ISIS generally recruit more fighters. Schnapper concedes this doesn’t have anything to do with a specific attack — a standard Twitter is claiming plaintiffs would have to meet.

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.

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.”

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.”

Sotomayor:

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: