Several Jewish groups are taking an active role in two cases currently being considered by the Supreme Court, which could have significant impacts for how social media companies address extremist content — including content posted by known terror groups.

On Tuesday and Wednesday, respectively, the Supreme Court heard oral arguments in Gonzalez v. Google and Twitter v. Taamneh. In Gonzalez, the family of the victim of an ISIS attack is suing Google, alleging that YouTube’s recommendation algorithm helped the terror group recruit, and is arguing that Google should be subject to liability for its recommendations. The case has the potential to drastically modify Section 230 of the Communications Decency Act, which broadly exempts websites from liability for the content their users post and undergirds the internet’s functionality. The Gonzalez family’s arguments have been rejected in lower courts.

In Taamneh, the family of another ISIS victim is suing the social media platform under an antiterrorism law for failing to take down content promoting terrorism. The plaintiffs allege that Twitter’s failure to address the content makes the platform liable for knowingly aiding and abetting terrorism. Lower courts have sided with the family, and Twitter is seeking to overturn their judgements, arguing that the case does not satisfy the antiterrorism law’s standard for liability.

An Israeli legal nonprofit, Shurat HaDin (Letter of the Law), which sues companies for allegedly aiding terrorists, has played a key role in both cases. The group helped the Gonzalez family file suit after meeting through a member of the Los Angeles Jewish community, Nitsana Darshan-Leitner, the president of Shurat HaDin, told Jewish Insider earlier this week. 

Darshan-Leitner argued that Section 230 — which has been the subject of calls for reform from members of both parties, albeit for different reasons — is outdated in the era of social media and algorithms.

“They’re not a neutral bulletin board, as it was maybe in 1996 when the law was legislated,” she said. “Today, the companies have algorithms, they have tools and they can control the content, so they should not be immune.”

Past cases supported by Shurat HaDin against Facebook, which accused the social media company of supporting terrorism, have been dismissed. 

Darshan-Leitner told JI that, while the facts in the new cases are similar to the failed Facebook lawsuits, “the timing is different.”

“We have a conservative [Supreme] Court now, and I believe they would like to make a change,” she said, adding that recent events, including former President Donald Trump’s now-lifted Facebook and Twitter bans, “proved what everybody knew before, that the social media companies do control the content… And that just proves that Section 230 has to be revisited.”

In addition to Shurat HaDin, U.S. Jewish groups have filed “friend of the court” briefs in both cases — the Zionist Organization of America filed a brief supporting the Gonzalez plaintiffs, while the American Association of Jewish Lawyers and Jurists (AAJLJ), the Simon Wiesenthal Center and the Zachor Legal Institute filed a brief supporting the Taamneh respondents. The Anti-Defamation League filed briefs in both cases, one supporting the Taamneh respondents and the other supporting neither party in Gonzalez.

ADL’s brief in Gonzalez highlights two different sections of Section 230, urging the Supreme Court to uphold provisions allowing platforms to moderate content based on their own guidelines while also encouraging the justices to clarify the “overbroad” interpretations of platforms’ immunity from liability, Lauren Krapf, the lead counsel for the Center for Technology and Society at ADL, explained.

“There needs to be a line drawn that does not provide near-blanket automatic immunity,” Krapf told JI, particularly as it relates to platforms’ recommendations of content and similar functionalities that would “result in legally actionable harm.”

“Platforms do need to be empowered to moderate content,” she added. “We think that needs to remain the same. And so in that way, we do think that it’s important that the court doesn’t completely upend Section 230.”

ADL has long advocated for changes to Section 230 to place some liability on platforms for hate and extremist content posted by their users, in an effort to press companies to crack down on such content.

Susan Tuchman, the director of ZOA’s Center for Law and Justice, told JI the Gonzalez case “seemed like a perfect time for us to weigh in here and talk about why sweeping immunity under this statute would be problematic, because it would help encourage and foment antisemitism… and it would also undermine the enforcement of our antiterrorism laws.”

The ZOA brief argues that internet platforms’ content recommendations to users falls outside of the protections of Section 230.

In Taamneh, the ADL urged the court to uphold the circuit court’s ruling, and “reject the overly narrow interpretation [offered by Twitter] that would prevent victims of terror from seeking any sort of form of redress from social media companies,” Krapf explained. The brief outlines the myriad ways that terrorist groups utilize social media in their operations.

Accepting Twitter’s arguments, she continued, would make it “nearly impossible” to bring a claim under the antiterrorism law in question, she continued.

Krapf emphasized that, while the fact patterns in the two cases are similar, the legal questions are separate, relating in one case to social media regulation and in the other to allegations of assistance to terrorist groups.

The AAJLJ, Simon Wiesenthal Center and Zachor Institute brief argues that the lower court ruling should be upheld, highlights the centrality of social media to ISIS’s operations and argues that the platforms knowingly allowed this content to proliferate.

Shurat HaDin’s Darshan-Leitner said she believes the court “came with an attitude of a change” with the “intention to find a way to limit the immunity of the social media companies” — given that the justices accepted both of the cases — but acknowledged that the justices “would need to think very carefully [about] how they want to do it, if they want to do it.” 

ADL’s Krapf said that she anticipates that the justices are likely to issue a narrow ruling in Gonzalez, and said she believes that they “were looking for a line to draw” to ensure that some activities remain protected.

“That doesn’t take away — in fact, if anything, it almost makes it more urgent, for Congress to take their role in updating Section 230,” she said.

ZOA’s Tuchman told JI the justices seemed “confused” by the arguments in Gonzalez, and that she was unsure how the decision would shake out.

Darshan-Leitner added that the reception seemed more positive in Taamneh. Broadly, the justices seemed more split in that case over Twitter’s potential liability.

“My impression was that the [justices] were studying the case as they go along,” she said. “They were looking for ways to reinterpret Section 230 without blowing [up] the internet. So it’s very hard to predict.”
Krapf described the Taamneh oral arguments as “an exercise in line drawing,” with the justices appearing to focus on when a platform “knowingly provides substantial assistance to a terrorist organization,” in violation of the law.