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Update on Supreme Court case of social media giants and terrorism victims' families

ARI SHAPIRO, HOST:

It's day two of the big tech arguments at the U.S. Supreme Court. On one side are Twitter, Google, Facebook and other major companies that provide interactive platforms for information. On the other side are the American families of people killed in terrorist attacks. NPR legal affairs correspondent Nina Totenberg is here to tell us about the arguments. Hey, Nina.

NINA TOTENBERG, BYLINE: Hey there, Ari.

SHAPIRO: Remind us how we got here.

TOTENBERG: Well, when the internet was in its infancy, Congress passed, in 1996, a law that granted interactive platforms virtual immunity from most civil lawsuits. But in 2016, Congress amended the Anti-Terrorism Act to allow civil claims against any entity that aids or abets or provides material support for an act of international terrorism. So the cases argued yesterday and today are testing what that means for these big companies, all of which have, to one degree or another, allowed material to be posted online by known terrorist groups - groups that were responsible for terrorist attacks that killed the relatives of the plaintiffs in these cases.

SHAPIRO: So when you reported on the first day of arguments yesterday, I got the sense that the justices didn't seem especially inclined to revive these aiding and abetting cases that have been thrown out by the lower courts. Did the same seem to be true today?

TOTENBERG: You know, it's a little hard to tell. Over two days, we've heard close to six hours of argument - very complex argument. And I have to admit, you could actually see people dozing in the courtroom at times. But I thought the tone of today's argument was a bit different, less sympathetic to the tech companies. And today, the justices were looking at the one case that the lower courts did not throw out and instead allowed the case to move forward to trial. It's a case against Twitter - indeed, the pre-Elon Musk Twitter. The company is being accused of knowingly aiding terrorist groups by failing to aggressively enough remove the messages on its sites in violation of the Anti-Terrorism Act.

SHAPIRO: Can you give us an example of that shift in tone you noted today?

TOTENBERG: Well, Justice Thomas asked whether it would be aiding and abetting if he loaned a gun to a friend who was a murderer and a burglar. And Twitter's lawyer dodged the question, prompting this from Thomas.

(SOUNDBITE OF ARCHIVED RECORDING)

CLARENCE THOMAS: If I know, to moral certainty, the kind of person my friend is, would I have to be more specific than that in order to be aiding and abetting his criminal conduct?

TOTENBERG: And Justice Sotomayor made a similar point.

(SOUNDBITE OF ARCHIVED RECORDING)

SONIA SOTOMAYOR: Willful blindness is something we have said can constitute knowledge.

TOTENBERG: Justice Alito and Justice Kagan seemed to resist the idea of throwing out these cases at an early stage. Instead, they seem to want to let them go to trial. Here's Alito.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: So what is substantial assistance? What's the difference between substantial and insubstantial assistance? So why aren't these fact questions?

TOTENBERG: Fact and value questions that liberal Justice Kagan seemed to say should be decided by a jury.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: But it seems to suggest that this should be a jury question, shouldn't it?

SHAPIRO: So there's some resistance to throwing out these cases at an early stage. But you said yesterday the justices are also worried about these companies facing a wall of litigation in cases that might not ultimately be able to be proved. So how does this all shake out?

TOTENBERG: Where are these folks headed? I honestly can't tell you. And this is one of those cases where the liberal-conservative ideological splits just don't seem to play a role. The justices that I played cuts from were two conservatives and two liberals.

SHAPIRO: NPR's Nina Totenberg, thank you.

TOTENBERG: Thank you, Ari. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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