Taamneh Case Gave Us A Glimpse Of The Horror Websites Would Face In A Post-Section 230 World

Sliding doors SCOTUS edition

By  
on

internet addressLast week I wrote some initial thoughts on the Supreme Court hearing in Gonzalez v. Google. Of course, as lots of people mentioned, it was tied at the hip with another case, Taamneh v. Twitter, as both were granted cert together. The two cases have been connected for a while, as the decisions in the 9th Circuit on both of them weren’t just released on the same day, but in the same ruling. The fact patterns between the two cases are at least somewhat similar (and similar to a bunch of other ridiculous cases). Someone, somewhere in the world, was killed in a terrorist attack. The plaintiff (who represents the estate of the deceased) sues a social media company. Not because there’s any evidence whatsoever connecting that company to the attack, but because the plaintiffs claim that the social media sites “aided and abetted” terrorists by… letting them use the platform (not for planning the attack, just in general).

Most people recognize that these lawsuits are what we here at Techdirt refer to as Steve Dallas lawsuits. We named it this after a classic Bloom County comic strip from 1986, in which bottom-feeding lawyer Steve Dallas explains who to sue, systematically rejects all the actual parties involved in a dispute, and settles on suing the largest company only tangentially related to the dispute because it has the deepest pockets. From the end of that strip:

Both of these cases clearly fit the bill.

Indeed, given how closely they were connected (and the fact that the same lawyer argued for the family estates in both cases), I was surprised that the Court didn’t actually just combine them, rather than have them argued on back-to-back days.

But the issue in each case was different. For whatever reason, the 9th Circuit rejected the Gonzalez case on 230 grounds, but sent Taamneh back to the lower court because, for unclear reasons, it skipped over the Section 230 issues and looked straight at whether or not Twitter violated the Anti-Terrorism Act (ATA). So, while the oral arguments on Gonzalez focused on issues related to Section 230, the oral arguments in Taamneh were all about whether or not Twitter allowing some ISIS-associated individuals to use its service violated the ATA.

What resulted was… weird. Prof. Eric Goldman has a good summary of all the weirdness.

Sponsored

But, that weirdness was actually a fantastic example of why we have — and need — Section 230 in the first place. As we’ve explained repeatedly, in the absence of Section 230, websites hosting third party content would still be required to have knowledge of the violative content before they could be held liable. This is due to the 1st Amendment and discussed in a long line of cases. You can’t just expect a website to magically know that something is bad. This is why many of us keep pointing out that without Section 230, you encourage sites to look the other way, because the less looking they do, the less that it can be shown they had any requisite knowledge.

Either way, much of the hearing focused on this kind of question: did Twitter actually know about these ISIS accounts, and did it do anything that made the company culpable. This discussion went on at length in the oral arguments to an almost silly degree. And much of it was just back and forth about whether or not Twitter had the requisite level of knowledge to trigger ATA liability, what constitutes knowledge, and what the company should be expected to do about it.

And the facts of the case, as discussed above, are so absurd, and so disconnected from the actual crime, that the Justices really struggled to figure out why this was even being heard at the Supreme Court.

And that is why Section 230 is normally so important. Section 230’s main purpose is to say “put the liability on the party who actually engaged in the violative conduct, and remove quickly from the case the random internet platforms they happened to use”. Thus, what Section 230 does is avoid all of this wasteful nonsense of trying to figure out whether or not a platform had knowledge. It skips the long, drawn out, awkward hearings and just says “you don’t blame the tool, you blame the person who did the crime.”

Section 230’s huge benefit is that it gets rid of these obviously frivolous cases quickly. Without it, tons of cases that are otherwise dismissed would have to go through long, detailed, expensive back-and-forth fights (possibly even jury trials) to determine whether or not platforms had knowledge. And, because that process is so time consuming and so expensive (usually just before a district court, rather than the Supreme Court), many companies will find it more reasonable to just settle a case, possibly taking down perfectly legitimate content or even paying some sort of nuisance fee and encouraging more such lawsuits.

Sponsored

The bizarre and ridiculous oral arguments before the Supreme Court are exactly what Section 230 is in place to avoid. It prevents this kind of nonsense and saves frivolously mistargeted defendants from having to go through it all. It’s not clear if the Justices will make this connection, but for two and a half hours last week, the Taamneh oral arguments gave us a glimpse into what would happen in the alternative reality in which there is no Section 230: nonsense arguments over whether or not websites had “knowledge” of some user on a platform.

One hopes that this would inform the Justices of why 230 is so important in the first place, but that seems unlikely…

Taamneh Case Gave Us A Glimpse Of The Horror Websites Would Face In A Post-Section 230 World

More Law-Related Stories From Techdirt:

Disgraced Ex-Sheriff Joe Arpaio Still Costing Taxpayers Hundreds Of Millions Of Dollars
Publishers Lobbied To ‘Axe The Reading Tax’ On Ebooks, Then Paid It To Themselves
Documents Expose Yet Another Reputation Management Company Abusing Copyright Law To Bury Negative Content

Topics

, , ,