Thread by @jess_miers

Twitter v. Taamneh just started. I'll be live tweeting. Listen here: supremecourt.gov/oral_arguments…

JCT kicks it off driving at the substantial assistance Q.

Hypo: JCT's friend is a mugger and JCT loans him a gun knowing that the friend *may* use it to commit a crime. Does he need to know more to qualify aiding / abetting?

Petitioners note that the facts in Twitter's case are much more remote than JCT's example. Twitter doesn't have any reason to know or even infer the same of its users.

Justices are struggling to understand the distinction between indirect / direct assistance as applied to online platforms.

(FWIW this is why offline analogies are so imprecise).

There's a clear misunderstanding about where the culpable conduct derives from. Court appears to think it's from the general provision of the platform.

[this is a very dangerous assertion]

Justice Alito asserts that if Twitter knows that ISIS is communicating on its platform and that ISIS is a known terrorist org, then Twitter has the requisite knowledge per Halberstam.

Petitioner argues it's about lack of specific knowledge (i.e. exact accounts / posts at issue)

[.@ericgoldman just noted to me: This is the nightmare about what constitutes scienter in the absence of Section 230.

He's exactly right.]

Important point from Petitioner: you can't just infer intent on the failure to do something.

Put differently, the Court can't infer Twitter's intent to aid/abet terrorism solely based on Twitter's imprecise enforcement of their guidelines (esp. absent specific posts at issues).

The Court focuses heavily on how Twitter's platform assisted "ISIS."

But ISIS isn't a singular account or person. What is the expected conduct of Twitter here? Verification that every user that joins the service isn't also part of ISIS?

IMO there are two major hurdles the Petitioner is struggling to clear here:

(1) navigating the scienter in the statute (aiding / abetting);

(2) conveying the technological difference between the general provision of a platform versus something more. This should inform (1).

ACB: if you know that ISIS is using your platform, and you know that ISIS commits terrorist acts, why would we need to go further to consider specific intent?

[IMO Petitioner needs to point out that ISIS is a general entity, not a specific account on Twitter...]

The banking hypo is problematic for a few reasons:

For starters, perhaps the rule in itself is wrong (i.e. holding the bank liable for supporting terrorism when it provides its services generally).

But also, the more obvious reason, SOCIAL MEDIA COMPANIES ARE NOT BANKS, technologically, legally, or otherwise.

Not to mention, we're talking about the provision of speech and expression (not just $$$). The stakes here are so much higher.

Instead of leaning into problematic offline analogs, perhaps we need to do better, especially for something as important as online speech and expression...

(again, that was the entire point of Section 230)

ACB getting at the right point -- is ISIS the people carrying out the acts or an entity?

ACB is trying (I think), reiterating that there's a difference between Twitter actively supporting the attacks in Paris versus making a service available where general ISIS recruitment may take place.

We can't begin to address knowledge until we resolve that first.

Jackson asks respondents how Twitter can survive #Section230 based on the discussion in Gonzalez yesterday.

We're now down a rabbit hole WRT recommendations as aiding / abetting.

Kavanaugh's Q is an important one: should there be liability under the statute when CNN airs an interview with Bin Laden?

Respondent: well no because of the First Amendment...

So the same doesn't apply to Twitter?

I'm really struggling to understand the respondent's logic that 1A applies to CNN but not Twitter.

If anything it should especially apply to Twitter given Twitter's lack of specific knowledge of the content (compared to CNN).

It seems Kavanaugh gets this.

Gorsuch noting that aiding / abetting focuses on not just the person but also the specific knowledge and the actual ACT of materially supporting terrorism.

IMO we have none of those factors in the present case.

Jackson seems unconvinced as well --> "I don't understand how Halberstam helps your case WRT criminal enterprise."

Jackson: in the Welch case, couldn't you suggest that by staying home to take care of the children, Hamilton aided/abetted Halberstam so that he could go commit burglary?

Respondents are essentially making the same argument WRT Twitter making its service generally available.

Respondent's arguments regarding recommendation liability are just as tenuous today as they were yesterday in Gonzalez. Hopefully the Court sees that too.

Petitioner arguing that Walmart is not liable for aiding / abetting terrorism when they sell guns to malicious actors.

Which brings me to the last point that all of us have been making:

THIS IS A SPEECH CASE. WHY ARE WE NOT TALKING ABOUT SPEECH.

Thanks for coming to my live tweet of #Taamneh

I (think) Twitter / Google can rest easy tonight.

The rest of us...🤷‍♀️