I'm not sure how common it's been over the years for the Supreme Court to issue unanimous rulings with a decision authored by Clarence Thomas. But Twitter v. Taamneh is that, and also constitutes a signal victory for free expression in the face of the ongoing moral panic about information technologies, which has shifted targets from "social media" to "artificial intelligence." (I put these phrases in scare quotes because the concepts are a lot fuzzier than the terms make them appear.)
The original suit was brought by the family of someone killed in an Islamic State attack on a nightclub in Istanbul in 2017. It accused Twitter, Facebook, and Google of "aiding and abetting" ISIS, or "knowingly providing substantial assistance" to the terrorist group.
Unanimously, the Court held that the fact that some ISIS content had appeared on the platforms, or were recommended by algorithms based on search histories and so on, was far too little to constitute "knowingly and substantially assisting in the principal violation," that is, the nightclub attack. "The concept of 'helping' in the commission of a crime or a tort has never been boundless and ordinarily requires some level of blameworthy conduct," says the decision. "Those limits ensure that aiding and abetting does not sweep in mere passive bystanders or those who, for example, simply deliver mail that happens to aid criminals. In tort law, many cases have thus required a voluntary, conscious, and culpable participation in the wrongful conduct to establish aiding and abetting."
In this case, no one was alleging that anyone at Twitter intended to promote ISIS; in fact, they were constantly moderating out that kind of content, but missed scraps for some time. The analogy to the US Postal Service or a mail carrier is worthwhile, though it draws the charge of anachronism. But what if the Post Office could search the contents of every package by scan and algorithm? Would they then be responsible for the content of every letter? And holding the US Postmaster liable for all the bad things sent by mail would certainly slow down shipping. In the case of social media companies, direct liability for all content would require them to engage in massive prior restraint on expression that they don't themselves generate. They’d be doing that as an agent of the state, or to enforce government regulation on expression.
The decision leaves intact Section 230, a legal provision that protects social media platforms from liability with regard to content appearing on their sites that’s posted by users. For the people who, up until last month, blamed all the world's ills on the internet (now it's AI), Section 230 is (I'm not kidding about this) the end of the world.
And if leaving Section 230 intact is something the nine justices agree on, suspending it so that it becomes much easier to sue social media platforms is one of the few substantial matters on which Joe Biden and Donald Trump coincide enthusiastically. Biden wants to be able to come at Twitter for right-wing conspiracy theories. Trump wants to sue Twitter because itsuspended his account, though it's since been reinstated. Each, I fear, has a goal preserving free expression for people who agree with himself, and removing it from his opponents, on the grounds that they endorse [insert bugaboo here: conspiracy theories, woke gender ideology, etc.]. Once they manage to ditch the legal protections, right and left will sue Twitter every day for every Tweet, seeking to make the platform 100 percent safe for their own propaganda. Somehow as they do that, they’ll pretend, even to themselves, they’re seeking to preserve the social contract, protect the children, save democracy, or some equally gaseous crap.
That Trump and Biden agree on this shows one of the many problems: a new regulatory and legal framework will be operated by Bidenish people for four years, then Trumpish people for four, then Bidenesque for four and so on. AOC will run the internet regulatory regime for a few years, then give way to Marjorie Taylor Greene. As you ponder whether to endorse a thorough new set of laws to replace Section 230, consider that the agency you're constituting will come to be run by the other side, by people you abhor.
What will happen when the protections are removed is evident, for example, from the tone of The Atlantic, the most mainstream expression of the panic. Mainstream, but even so, Adrienne LaFrance, Jeffrey Goldberg, Maria Ressa and company are running around in circles screaming. They’d make it possible to sue social media platforms for every act of violence committed anywhere in the world in the last decade that had any connection to any communication on the internet (all of them, in short). They hold social media responsible for white supremacism, mass shootings of all kinds, sexual assaults, suicides, and everything else bad that happens. They’d turn all social media over to governments. In this case, that means turning them over to Trump, then to Biden, then to Trump again. Good thinking.
The latest to join up with The Atlantic's totalitarian tizzy is the philosopher Daniel Dennett, one of the most eminent intellectuals in the world. He urges that "creating counterfeit people" and also "passing along counterfeit people" (?) should be "outlawed." The penalties should be "extremely severe," he urges. Late in the piece he inspiringly says he's opposed to the death penalty, while hinting that he could warm to it in the case of someone who "passes along counterfeit people." But hegenerously suggests life in prison instead. He calls counterfeit people "the most dangerous artifacts in human history," though I remark that the dangers are vague so far in comparison to those of the hydrogen bomb, for example.
Let me ask you this, Dan: are Logan and Kendall Roy counterfeit persons? How about that avatar I just generated for one of my Twitter accounts? That character in a video game? What about Siri, or Siri when she finally starts improving? It's getting to the point at which my vacuum cleaner is a counterfeit person. My cat is a fake person too, and she does a lot of aiding and abetting. The terms are vague, and the new crime (creating persons) is the very opposite of murder. It's great to have babies! But criminal to have counterfeit babies. In fact, you might be legally required to kill counterfeit babies under the new Dennettian dispensation.
Take a deep breath. Calm down. You're evidently not in any state to be making rational decisions, The Atlantic. Fortunately, The Supreme Court still seems to be.
—Follow Crispin Sartwell on Twitter: @CrispinSartwell