Twitter’s Supreme Court case shines fog light on the hazy area of speech and anti-terrorism statute

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'If, as the famous adage goes, bad facts make for bad law, then the case of Twitter v. Taamneh, which the U.S. Supreme Court heard last week, may be headed toward an inauspicious denouement,' Michael M. Rosen writes.

The facts ofare actually fairly straightforward—and quite tragic. On New Year’s Day in 2017, an ISIS gunman slaughtered 39 revelers at Istanbul’s Reina nightclub, including Nawras Alassaf, a Jordanian national.

In a lengthy and often testy exchange with counsel for Twitter and for the government, which filed a brief largely supportive of Twitter’s positions, the justices—trying out various analogies—struggled to articulate a coherent position on where they should draw the line on liability.Justice Clarence Thomas of Seth P.

Waxman also contrasted the hypothetical justice’s active provision of a gun to a wrongdoer with Twitter’s alleged inaction in not removing offensive, inciting Islamic State posts and messages. But Justice Elena Kagan waxed skeptical of the distinction,that “the conduct is the provision of a platform by which to communicate with each other and other members of ISIS and by which to recruit.

Along the way, the justices extensively examined both parties’ counsel and the government’s representative about a six-part test underlying another important appellate court decision on liability for aiding and abetting.

 

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