Transcript: Twitter, Inc. v. Taamneh

This transcript is drawn from the official version released by the Court.

APPEARANCES:

• Seth P. Waxman, Esq., Washington, D.C.; on behalf of the Petitioner.
• Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D.C.; for the United States, as amicus curiae, supporting reversal.
• Eric Schnapper, Esq., Seattle, Washington; on behalf of the Respondents.

PROCEEDINGS

(10:14 a.m.)

CHIEF JUSTICE ROBERTS:

We will hear argument this morning in Case 21-1496, Twitter versus Taamneh. Mr. Waxman.

ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER

MR. WAXMAN:

Mr. Chief Justice, and may it please the Court: JASTA permits any U.S. national injured by reason of an act of international terrorism to recover treble damages from a person who aids and abets by knowingly providing substantial assistance or who conspires with a person who committed such an act of international terrorism. The foundational points here are not in dispute.

First, the conceded and obvious act of international terrorism is the Reina attack, and the complaint includes no allegation that the defendants provided substantial assistance, much less knowing substantial assistance, to that attack or, for that matter, to any other attack.

Second, as the complaint concedes, the defendants "had no intent to aid ISIS's terrorist activities." Quite to the contrary, they maintained and regularly enforced policies prohibiting content that promotes terrorist activity. The plaintiff's claim that because defendants were generally aware that among their billions of users were ISIS adherents who violated their policies and, therefore, defendants should have done more to enforce those policies does not constitute aiding and abetting an act of international terrorism under the operative terms of the text, the constitutional principles articulated in Halberstam, or any recognized understanding of what it means to abet a criminal act.

If Congress had wanted to impose treble damage liability for existing -- assisting a terrorist organization, it had a ready model in the material support statute, Section 2339B. If it had wanted to create such liability for supporting international terrorism writ large, it likewise had a model in Section 2331(1). 5 Instead, it provided a remedy against those who conspire with terrorists or -- or who knowingly aid and abet acts of terrorism. It did not impose treble damage liability on companies whose services were exploited by terrorists in contravention of the company's enforced antiterrorism policies. I welcome the Court's questions.

JUSTICE THOMAS:

Mr. Waxman, it seems that you tie your analysis to knowledge of the Reina attacks rather than just general knowledge of terrorism.

MR. WAXMAN:

So we -- it's -- thank you, Justice Thomas. Let me clarify. We do not contend that there is no liability if these companies didn't know that the Reina nightclub would be attacked. What they had to have known to satisfy the operative language of the statute was that they were, in fact, providing substantial assistance to the act of international terrorism that injured the plaintiff and that they knew that their action would substantially assist an act of international terrorism. The -- the flight trainers who provide 6 -- who taught the al-Qaeda terrorists how to fly planes so they could fly them into the World Trade Center and the Pentagon didn't need to know that those were the targets, but he needed to know that he was, in fact, providing substantial assistance to people who aimed to use that knowledge in order to commit a terrorist attack.

JUSTICE THOMAS:

So the -- and I may have misunderstood your brief, but -- so you would -- I assume you would agree that if I had a friend who was a mugger, a murderer, and a burglar --

MR. WAXMAN: Hard to imagine that.

JUSTICE THOMAS: -- but, other than that, he was a good guy -- (Laughter.)

JUSTICE THOMAS:

-- and I loaned him a gun but not knowing and not wanting to know what he was going to do with it, that he -- that that possibly could be aiding and abetting?

MR. WAXMAN:

So I think it wouldn’t be.

JUSTICE THOMAS:

Why?

MR. WAXMAN:

Because it would – while it would satisfy Steps 1 and 3 of the Halberstam legal framework that is -- is meant to be the model for -- interpretive model for this statute, you also had to -- you also have to have a general awareness that you are assisting in overall illegal or tortious activity.

So, for example, if I have a farm and I -- I have a gate with my next-door neighbor's pasture and it's got a padlock and I don't -- I can't open the padlock, and I go to you, you're my neighbor on the other side, and say, Justice Thomas, I'm trying to open this gate, but I can't get the padlock open, can I -- do you have any bolt cutters that could do this, and you say, yes, I do, and, in fact, I'll cut the bolt for you, and I then use the open gate to steal my neighbor's sheep, you know that you provided substantial assistance to me in entering the property, but you don't have -- you're not culpable within the meaning of the common understanding of the word "aiding and abetting" or under Step 2 of the Halberstam doctrine because you're not generally aware of your role as part of an overall illegal or tortious activity.

JUSTICE THOMAS:

But I think you've changed somewhat my -- you know, my example.

MR. WAXMAN:

Oh. Well, I apologize.

JUSTICE THOMAS:

My friend is a burglar, he's a murderer, and he is a mugger, and he says he has some business to conduct, and I loan him a gun.

Now that's quite different from opening the gate because you can open the gate for quite a number of legal reasons and legitimate reasons. But, if I know to a moral certainty the kind of person my friend is, would I have to be more specific than that in order to aid -- be aiding and abetting his criminal conduct?

MR. WAXMAN:

So I think, in that instance, you would ask the question under the operative language of the statute were you -- did you knowingly provide substantial assistance.

Assume that -- assume that he -- your friend then committed a crime with the gun. That would be substantial assistance in the commission of that crime. But whether you know -- whether you knew you were substantially assisting the crime would involve a determination, under the circumstances, whether it was fair as a matter of law to permit an inference that you knew that although your friend was otherwise a good guy, he was, in fact, going to use it to commit some crime.

Now even that hypothetical is quite removed from the circumstances of this case because that involved an active provision from one person to another of something that was, in fact, of substantial assistance. What we have here --

CHIEF JUSTICE ROBERTS:

Well, if I could just --

MR. WAXMAN:

I'm sorry, can I just finish my sentence?

CHIEF JUSTICE ROBERTS:

Okay.

MR. WAXMAN:

Okay. What we have here is an alleged failure to do more to ferret out violations of a clear and enforced policy against assisting or allowing any postings supporting terrorist organizations or activities. I'm sorry, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS:

You gave a variety of considerations to take into account in response to Justice Thomas's hypothetical, but it seems to me that given the facts, you ought to be able to give us a bottom line or not. Would that be covered by the statute or not?

MR. WAXMAN:

Well, I – in his hypothetical?

CHIEF JUSTICE ROBERTS:

Right. The facts he gave, the friend who he knew was committing all these crimes and all that, and he gave him a gun. Now is that covered or not?

MR. WAXMAN:

It would be covered if the finder of fact concluded that under all the facts and circumstances it was fair to infer that he knew that it was going to be used for this purpose.

CHIEF JUSTICE ROBERTS:

Well, I'm just trying to get you to answer. It seems a pretty direct case. Would it be fair to infer that he intended to use it for that -- for that purpose if the facts were as posed by Justice Thomas?

MR. WAXMAN:

And I -- I -- I -- I -- I can't -- I don't think the facts posed by Justice Thomas, which are that on the one hand 11 he's a good guy, but on the other hand he has engaged in criminal acts before, would be enough. I would tend to think that that would be sufficient to -- for a finder of fact to infer knowledge that you were substantially assisting a crime. It probably would survive -- it therefore would survive a motion to dismiss. But, again, I'm -- I don't mean to -- I'm not evading the question at all. In every one of these instances, you would ask with respect to all of the many difficult hypotheticals that could be arrayed in this case, is this -- is what you did -- did what you did amount to substantial assistance to the operative tort or, here, the act of international terrorism, and did you know that in providing that assistance you would be substantially assisting an act of international terrorism or a crime that Justice Thomas's friend might commit?

JUSTICE BARRETT:

But you agree that we don't need to know where Justice Thomas's friend is heading, right? Like, here --

MR. WAXMAN:

Right.

JUSTICE BARRETT:

-- Twitter didn't need -- could conceivably have been liable even if it didn't know about the Reina attacks --

MR. WAXMAN:

Correct. I mean –

JUSTICE SOTOMAYOR:

But I guess I’m a little confused from your brief because it need -- from your brief, I thought you needed a direct connection between the assistance given and the actual act. So I came away from your brief thinking that what you were arguing was that they had to provide something specifically for this bombing. They had to provide either the platform for the people to get together or for the actual people doing the bombing to get together or a text message or something that tied them to the crime. Are you moving away from that?

MR. WAXMAN:

No. I apologize for any unclarity, and I appreciate the opportunity, therefore, to clarify it. You have to have known -- well, number one, you have to have provided -- the cause of action in this remedial statute derives from the act of international terrorism that injured the plaintiff. You had to have provided substantial assistance to an act of international terrorism that happened to be the one that injured the plaintiff. Otherwise, there's no connection between your assistance and the cause of action. What you don't have to know in advance is that the target would be the Reina nightclub as opposed to Taksim Square or the Paris metro.

JUSTICE SOTOMAYOR:

So I -- I guess I'm a little bit confused because, as I read your brief -- I remain confused, Mr. Waxman -- you want a very direct tie between the form of assistance and the actual act. Am I correct?

MR. WAXMAN:

I -- there must be --

JUSTICE SOTOMAYOR:

With or without knowledge that this will be the act.

MR. WAXMAN:

Yes, yes.

JUSTICE SOTOMAYOR:

Okay. So is there a difference between providing the gun or just providing money? Meaning we have cases in the Second Circuit -- and I'm sure you're familiar with them --

MR. WAXMAN:

I am.

JUSTICE SOTOMAYOR:

-- the Atchley case and the Kaplan case, in which they didn't provide a platform or a gun, but they provided money to people, and a fair inference from the evidence in both cases, people they knew were using that money for terrorist acts. And both circuits in this case sustained the claims of action here. So why was -- why was the indirect assistance, fungible money, make those defendants liable, but you're not liable for providing a platform that you knew they were using to recruit people and to help arrange other terrorist acts, perhaps not this one, but to help the enterprise?

MR. WAXMAN:

So --

JUSTICE SOTOMAYOR:

Just in the same way, in the case that JASTA talks about, Halberstam. In Halberstam, the woman didn't know which burglary, where. She didn't even know he was committing burglaries necessarily. She knew he was committing a property crime. She was just assisting his enterprise generally. So --

MR. WAXMAN:

I -- I hear a lot --

JUSTICE SOTOMAYOR:

-- talk to me about what direct means.

MR. WAXMAN:

-- I hear a lot of -- a lot of questions, and I hope that I remember banking case -- the banking case is in the Second Circuit and the pharmaceutical case in the D.C. Circuit, are both -- I mean, they -- the -- the salient distinction there is that the culpable conduct was, in fact, the active provision of something of assistance to the tortfeasor, whereas, here, the actionable conduct is a failure to better ferret out violations of a --

JUSTICE KAGAN:

I don't think that that's right, Mister -- I realize you have a lot of questions piled up there.

JUSTICE SOTOMAYOR:

I -- I -- I do want him to come back to them, though.

JUSTICE KAGAN:

Yeah. Can I just --

MR. WAXMAN:

I -- I --

JUSTICE KAGAN:

I mean, the -- 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. So you can, you know, say it's the failure to better police the platform, but it's the provision of a platform.

MR. WAXMAN:

The -- the -- the distinction that the cases make between action and inaction -- and the -- the -- the plaintiffs in this case have repeatedly characterized the gravamen here as inaction, failure to do better to prevent more violations of an established policy. The -- the distinction between --

JUSTICE KAGAN:

Well --

MR. WAXMAN:

I'm --

JUSTICE KAGAN:

-- maybe that's right. I'm going to rewrite their complaint for them.

MR. WAXMAN:

Okay.

JUSTICE KAGAN:

It's the provision of a platform.

MR. WAXMAN:

Okay. The distinction that all of the cases, the aiding-and-abetting cases draw between action and inaction is culpability, and, therefore -- and what is alleged to be culpable in this case is not the provision to billions of users of a communications platform subject to established policies which are enforced. What's -- what's alleged to be culpable is that we knew from government reports and from -- from newspaper reporting that there -- notwithstanding whatever efforts we were making to enforce our policies, nonetheless, there were lots of terrorist organizations or terrorist adherents that were still doing it. That's the culpability. And that's why the Restatement, for example, when it talks about -- and I'm -- I'm referring here to Restatement (Third) -- "substantially assisting a wrongdoer" means affirmatively helping with the commission of the tort. It does not mean -- it means "something more than routine professional services provided to the primary" --

JUSTICE KAGAN:

I feel guilty that you're not answering Justice Sotomayor's questions, but I'm just going to pile on a little bit if you'll forgive me.

MR. WAXMAN:

I -- I -- I have --

JUSTICE SOTOMAYOR:

Just --

MR. WAXMAN:

-- I have them in mind --

JUSTICE SOTOMAYOR:

-- just don't --

MR. WAXMAN:

-- and I will come back to them.

JUSTICE KAGAN:

Yeah, the same thing could have been said about banking. It was -- you know, we just provided the same banking services to the terrorists as we did to everybody else. But, in fact, that -- the provision of that service materially supported and the bank knew that it was going to materially support terrorist operations.

MR. WAXMAN:

So that may or may not be the case. The -- we -- the Second Circuit and the D.C. Circuit erred in, we think, notwithstanding the distinction that I'm having a hard time convincing you of, because they collapsed the mental state required under Step 2 and Step 3 of Halberstam.

What they said is these -- the pharmaceutical company was providing money and kickbacks to a known terrorist organization. It was generally aware that this was a terrorist organization. And that satisfies Step 3, which is the knowing provision of substantial assistance to an act of international terrorism. Likewise, the Second Circuit has said expressly that the only knowledge required to establish the requisite mental state for abetting a crime is general awareness of -- that you are aiding an enterprise. Now the word "enterprise" -- maybe I can shuffle back to -- to -- or march back to Justice Sotomayor's question.

You referred to the -- the -- Halberstam's opinion's discussion of the criminal enterprise and aiding and abetting the criminal enterprise. We are here -- I have three points to make. One, we are here parsing the language of a statute. The word "enterprise" does not appear in this statute. The word that appears over and over and over again is "the act of international terrorism" that injured the plaintiff. 20 Number two, Congress in its findings said that it intended to import the legal framework set forth in a section of Halberstam conveniently called "Legal Framework."

Again, there is nothing in the legal framework set out there that talks about aiding and abetting or substantially assisting an enterprise. In any event, we don't in any way contest that the court, in applying the facts in Halberstam to the legal framework, referred over and over again to the substantial assistance that she was providing to the enterprise.

Now the word "enterprise," if you look in the dictionary, has a variety of different meanings, but the two first meanings are, number one, it can refer to an entity that is typically a "unit of economic organization," or, quite distinctly, it can refer to an undertaking, systemic, purposeful activity. What Halberstam was using the term to do was to characterize a factual characterization of a series of property crimes in which it held that Bernard Welch and Linda Hamilton played "symbiotic roles." It was not announcing a legal standard that encompasses a broad entity that provides general services to billions of people subject to an unequivocal enforced policy against terrorism.

So even if I agree with you that you can establish substantial assistance to the principal tort by showing that there was a course of -- you know, a series of like acts of international terrorism or burglaries or property crimes in which the aider and abettor was, to quote the -- the D.C. Circuit, "a willing participant" and, therefore, aided and abetted the -- the principal tort, which was the burglary of the Halberstam home, I don't have a problem with that.

CHIEF JUSTICE ROBERTS:

Thank you, Mr. Waxman. Justice Thomas, anything further? Justice Alito?

JUSTICE ALITO:

A few questions. If this were a criminal case, I think it's clear that there would not be aiding and abetting liability. The element in our -- and we've addressed aiding and abetting in criminal cases directly, and it requires the intention of causing the crime to be committed. And that's 22 not alleged here. But we have to decide this case, presumably, under Halberstam, which has sort of a statutory status as a result of the preamble to this statute, and that makes it somewhat difficult. So the second -- there's no dispute, I take it, that the first Halberstam factor is satisfied, right?

MR. WAXMAN:

Correct.

JUSTICE ALITO:

Okay. The second one to me is -- has very little meaning. Maybe you can explain how we can read some meaning into it. A defendant must be generally aware of his role as part of an illegal or tortious activity. Well, you know, if Twitter knows that ISIS is a terrorist organization and ISIS members are communicating for the purpose of furthering their terrorist activity, then Twitter is aware of its role. The second factor doesn't even require that it be an important role, a major role. It's just a role. So what substance is there to that?

MR. WAXMAN:

So, for purposes of this case, we're not disputing that the second step 23 of Halberstam is satisfied.

JUSTICE ALITO:

Okay. So then we go on to the third --

MR. WAXMAN:

Right.

JUSTICE ALITO:

And I'm sorry. I won't --

MR. WAXMAN:

No, no, no. I was going to say I could -- in the fullness of time, which I appreciate the Court may not permit me, I could make an argument about what it means to actually be playing a role, but let's move on. The -- where the rubber meets the road here is in what is Step 3 of Halberstam, but, more significantly, the operative language of the statute, which means that even if -- of course, Twitter and -- and Meta and Google, YouTube knew from all these reports that, notwithstanding their efforts, there continued to be posted on their communication services messages, videos, whatever, that violated their policies.

The question is, is a failure to do more to prevent misuse of widely used services, offered at arm's length and subject to an enforced policy against terrorist content, the 24 knowing provision of substantial assistance, at least absent specific knowledge of particular accounts or posts that are or may be being used to plan, commit, or support in some proximate way a particular -- the particular act of international terrorism that injured the plaintiffs?

JUSTICE ALITO:

Okay. So I see two potential arguments that could win for you under the third prong, and one is that -- one has to do with knowingly, one has to do with substantiality. So "knowingly," I think you're -- you're right to concede that it wasn't necessary. It's not necessary that they know that there's going to be --

MR. WAXMAN:

Right.

JUSTICE ALITO: -- an attack on the Reina nightclub, would it matter if it was a different nightclub, would it matter if it was a bombing at some facility in Istanbul during a particular period of time when people would be present and people would be killed. But, at a certain point, it becomes too attenuated --

MR. WAXMAN:

Correct.

JUSTICE ALITO:

-- to support aiding and abetting. So that's a difficult -- that's a line-drawing problem. Substantiality is also a line-drawing problem. So what is substantial assistance? What's the difference between substantial and insubstantial assistance? So why aren't these fact questions? How can they be -- were they properly decided on a motion to dismiss?

MR. WAXMAN:

We think that they -- they are properly decided on a motion to dismiss. You know, all cases present fact questions. The question is whether the facts asserted, the facts -- whether there are plausibly pled facts that would permit a trier of fact to conclude that what we have here amounted to aiding an international crime -- aiding and abetting an international crime. And we're -- what we're saying is, Justice Alito, as a matter of law, a court should conclude, consistent with the -- the teachings of the common law cases that Halberstam expressly used to extract its three-part framework and that the Restatement makes very, very clear that the failure to do more to remove content in the context of a service that is generally and widely provided to anybody who complies with the policies, the failure to do more or even a lot more to enforce those policies does not amount to the knowing provision of substantial assistance.

And the -- look, if the -- if the -- if the police chief in Istanbul came to Twitter and said, look, we've been following three accounts and these people -- these -- these people appear to be planning some sort of terrorist act, and Twitter basically said, you know, people do lots of things, we're not going to take these things down, we're not going to look into it, there, we would have fairly assumed culpable knowledge that there were, in fact, accounts that they knew about that were assertedly, plausibly being used to do this. I mean, your -- your original point, I think, is absolutely right. If this were a criminal case, obviously, it requires specific intent.

JUSTICE ALITO:

Right.

MR. WAXMAN:

And the -- the statute 27 here says knowingly provides substantial assistance, but insofar as, as you say, we're to -- although we parse the statute, not Halberstam, we should interpret the statute in light of Halberstam's legal framework, there are three separate -- and my friend agrees with me -- there are three separate questions of scienter that are posed in the Halberstam framework.

And together, you know, if you're generally aware that you're playing a role in illegal activity and you know that you are providing substantial assistance to some act of international terrorism and, therefore, you look at substantiality, where -- where scienter and intent, as it did in Halberstam, played a major role, I'm not sure there's a huge distinction between the level of intent that's required in this context in which what's alleged is a broad provision of a commercial service and a failure to do anything, you can't infer intent unless you can allege we knew about some accounts that, in fact --

JUSTICE ALITO:

All right. I -- I -- I understand, Mr. Waxman.

MR. WAXMAN:

Okay. Thank you.

JUSTICE ALITO:

I don't want to take up too much of my colleagues' time. One more -- one more question, and that has to do with the status of these six factors that Halberstam says are to be considered in assessing the third factor in its test for a civil conspiracy. Do you think the Ninth Circuit went astray by regarding this as sort of a checklist, so, you know, it's checking how many of these boxes are checked, and if enough boxes are checked, then that means that the third factor is satisfied, or is what is required the consideration of those insofar as they have a bearing on the third factor?

MR. WAXMAN:

It's definitely the latter. And I -- I -- I think even the Ninth Circuit -- although we think the Ninth Circuit was utterly wrong in a way that I'll explain, the Ninth Circuit conceded that three of the factors plainly favor no liability because we weren't present, these platforms weren't present at the time of the attack. We had no relationship with the attackers. 29 And -- and our state of mind was the opposite. This is negative intent. We are opposed to this. I think --

JUSTICE ALITO:

Okay. I understand. Let me --

MR. WAXMAN:

Where they went wrong was in mixing up what the object of aids and abets is. The object of aids and abets is either the act of international terrorism or the person who commits it in the commission of that.

JUSTICE ALITO: Let me allow my --

MR. WAXMAN: Okay.

JUSTICE ALITO:

-- colleagues to ask some questions.

CHIEF JUSTICE ROBERTS:

Justice Sotomayor?

JUSTICE SOTOMAYOR:

I think, as often we do, that Justice Alito has touched on what I think is the center of the issue, which is -- and you've conceded it's Item Number 3, is the aid knowingly and substantial. I'm a little afraid of going on the knowing standard because willful blindness is something we have said can constitute knowledge. And their allegation is that there were similar names to the ones you took off the platform and that you did no work to find those similarly named entities and determine whether they were ISIS or not. So there is an allegation of willful blindness here. But I'd like to concentrate -- maybe I'm wrong about that, but that's what I --

MR. WAXMAN:

I think you are.

JUSTICE SOTOMAYOR:

All right. At any rate, if I'm wrong about that, that's fine, but not wrong about that you knew that ISIS was using your platform. But, on substantiality, there is a focus on how much your platform helped ISIS and less on how much you actually helped them. And that -- there is a difference between the two things, and I think that that's the difference that you're trying to point to, which is, in a neutral business setting, using something that is otherwise not criminal, a platform, to communicate with people and you're doing it not by, as in the bank situation or in the pharmaceutical situation, to help this particular person commit a crime, but in a general business situation, that others are coming to you and you can't find them ahead of time, that that doesn't constitute substantial aid.

MR. WAXMAN:

That's correct, it doesn't -- it doesn't -- the -- the -- you know, the case law and the Restatements, you know, make -- and -- and Halberstam itself makes clear that the culpable -- the culpable conduct has to be, to quote Halberstam, "knowing action," knowing action that substantially aids tortious conduct or, as the Restatement (Third) says, active participation doesn't constitute -- active participation is what substantial assistance means in the absence of an external, legal, or fiduciary duty to act, which is not alleged here. And we know it's -- it's a fundamental principle of --

JUSTICE SOTOMAYOR:

So how do you answer Justice Alito's question? How do we decide that as a matter of law on this complaint? Write it for me --

MR. WAXMAN:

As a --

JUSTICE SOTOMAYOR:

-- if you were going to write it, that this is not substantial assistance because?

MR. WAXMAN:

Where the culpable -- where the alleged culpable conduct is the failure to do more to prevent misuse of widely available services offered to the world at arm's length subject to enforced policies against terrorist content, it is not as a matter of law the knowing provision of substantial assistance to an act of international terrorism, absent specific knowledge of particular accounts or posts that were used to plan, commit, or proximately support the act of international terrorism that injured the plaintiff.

JUSTICE SOTOMAYOR:

This is -- this is a one-case disposition?

MR. WAXMAN:

I -- I -- I don't think so. The -- the rule that the Ninth Circuit has posited and that the plaintiffs embrace, which is essentially derived from the substitution of ISIS as an entity, ISIS as some criminal enterprise for the statutory trigger, which is an act of international terrorism, means that as a matter of course, every time somebody is injured by an act of international terrorism committed, planned, or supported by a foreign terrorist organization, each one of these platforms will be liable in treble damages and so will the telephone companies that provided telephone service, the bus company or the taxi company that allowed the terrorists to move about freely. That is -- if Congress had wanted to -- again, it's hard to imagine in the context of a remedy to an injured person, but if Congress had wanted to make actionable the provision of substantial assistance to ISIS or a foreign terrorist organization, it just had to change a few words in 2339.

And even if you say, well, ISIS is a whole terrorist enterprise and engages in lots of terrorist activities, if they wanted to say if you aid and abet by provide -- knowingly providing substantial assistance to terrorist activities, that's a defined term in 2333(1). They could easily have said that. Because this is a remedial statute that requires treble damage liability against an entity that actively, culpably is helping a -- the commission of a crime -- I mean, the word -- the definition of the word "abet" in both the civil and criminal context is to "help or 34 encourage someone to do" --

JUSTICE SOTOMAYOR:

I -- I think you're going far beyond my question.

MR. WAXMAN:

I'm sorry.

JUSTICE SOTOMAYOR:

Thank you.

CHIEF JUSTICE ROBERTS:

Justice Kagan?

JUSTICE KAGAN:

Mr. Waxman, suppose this set of facts: That many terrorist organizations use the social media services provided by your client, that they do so to recruit other members for -- you know, for -- for purposes of enhancing their terrorist activities, that your client knows this because government officials, journalists, other people have pointed it out. Now I'm going to change one fact. I think so far we're actually pretty much in the real world.

MR. WAXMAN:

Right.

JUSTICE KAGAN:

I'm going to change one fact, which is that instead of having a policy against this and trying to remove this -- this various terrorist content, that Twitter had just said let a thousand flowers bloom, we're not going to touch a thing. 35 But, you know, it knows that all of this is happening, but it just -- it -- it -- it does not have a policy of trying to remove. Then do you fall within the language of the statute?

MR. WAXMAN:

I don't think so. I don't think -- I mean, that -- that's very far from what the facts of the case are even as pled and as the Ninth Circuit found, but I don't think so. If they said, look, we don't want our platforms to be used to support terrorist groups or to support terrorist acts, but they don't do anything to enforce it, I think it falls within the hornbook aiding-and-abetting rule that was established in the -- the cases that Halberstam relied on to define the rule. I mean, in -- in Woodward, the Fifth Circuit's decision, which is -- is really the -- sort of the case that the -- that Judge Wald's opinion most relies on, it says, when it is impossible to find any duty of disclosure, an alleged aider and abettor should be found liable only if scienter of the high conscious intent can be proved. 36 And in a case combining silence or inaction with affirmative assistance, the degree of knowledge --

JUSTICE KAGAN:

I mean, I -- I -- I guess it just strikes me as quite -- your answer strikes me as quite something actually. It's like, what part of Halberstam or of the statute do you think at that point that there's not at least a jury question on? You know, Twitter, in my hypothetical, is basically saying, you know, we know that there's a ton of terrorist use of our platform that's going directly to enhance terrorist activity worldwide, and we're not going to do a thing about it. So not like did you do too much, did you do -- you know, could you have done a little bit more, but we wipe our hands of it, such that you know -- I mean, just -- I mean, you know that that's going -- your platform is providing substantial assistance to terrorist activity. How can it be otherwise?

MR. WAXMAN:

Again, you know, the -- the outcome in this case doesn't turn on it, but I think, as a matter of principle, the -- the hornbook principle is that you are not "helping or encouraging" someone to do something wrong or illegal --

JUSTICE KAGAN:

You're helping by --

MR. WAXMAN:

-- by failing --

JUSTICE KAGAN:

-- you're helping by providing your service to those people --

MR. WAXMAN:

And, again, I would just --

JUSTICE KAGAN:

-- with the explicit knowledge that those people are using it to advance terrorism.

MR. WAXMAN:

Justice -- ISIS is an abhorrent institution, and it does sponsor acts of international terrorism, but not everything that ISIS does is terrorist activity within the defined meaning of that term, which is crime --

JUSTICE KAGAN:

Well, I take that point, and I think that that is the difference between the material support statute and this statute, that the material support statute is, if I help Hamas build hospitals, I'm still liable under the material support statute --

MR. WAXMAN:

Correct.

JUSTICE KAGAN:

-- and I'm not liable under this. But I don't see how it is, given the set of facts that, you know, with the exception of one, are the facts of this case, which is a set of facts that's saying ISIS is using these for terrorist activities, to advance terrorist goals, and -- and if Twitter knew all of that and did nothing to it, how could Twitter be said not to have been knowingly providing substantial assistance?

MR. WAXMAN:

Knowing -- knowingly providing substantial assistance to the act of international terrorism that injured the plaintiff. And I think the proposition is --

JUSTICE KAGAN:

Well, now you're going back to what I thought you dropped at the very beginning of this -- of this argument, which is they don't have to know --

MR. WAXMAN:

No.

JUSTICE KAGAN:

-- that it's the Reina nightclub act.

MR. WAXMAN:

But you have -- the plaintiff has to demonstrate that they provided substantial assistance in some proximate way that their provision of a general service, open to everybody, consistent with a policy which maybe they don't enforce at all, at arm's length to everybody in the world, does not amount to the knowing provision of -- it doesn't amount -- you had -- if the plaintiff could say there were, in fact, posts and accounts that were used to plan this attack or proximately support this attack, that would be something. It wouldn't be enough unless we knew about it because, as the cases all establish, there has to be "an affirmative help with the commission of the tort that forms the basis for the cause of action."

JUSTICE KAGAN:

Thank you.

CHIEF JUSTICE ROBERTS:

Justice Gorsuch?

JUSTICE GORSUCH:

Mr. Waxman, I can't help but wonder whether some of the struggle you've had this morning with my colleagues about the scope of the aiding-and-abetting statute comes from your reading of the text. And turning to 2333(d)(2), as I understand it, you read the aiding-and-abetting clause as taking as its object the act of international terrorism rather than the person who committed the act. And that -- that seems a 40 pretty abstract way to read the statute. Aiding an action or an explosion or -- or some -- something like that in the world, it's very different than how we normally read aiding-and-abetting statutes, sort of the common -- understanding of the common law, where you have to aid and abet a person. And you read the conspiracy clause to take as its object a person, the person.

And I just wonder whether the better reading of the statute is that both of those "who" clauses, both -- both the aiding and abetting and the conspiracy clause, take as their object the person who committed the act of international terrorism. And I wonder why you haven't pressed that argument a little bit further, because it seems to me it helps you. The plaintiff would have to plead and prove that the defendant helped, aided and abetted or conspired with, a person who committed an act of international terrorism. And the Dictionary Act defines "persons" as real persons and juridical entities, not an explosion or some other action in the world. And, here, the complaint alleges three people involved in the attack and doesn't link up your conduct, your client's conduct, necessarily in any very clear way to those three persons. What am I missing?

MR. WAXMAN:

I don't -- I don't think you're missing anything with -- with respect, but let me make clear what our position is with respect to the object of the couplet "aids and abets." Our brief doesn't --

JUSTICE GORSUCH:

Are you sure you want to do that? (Laughter.)

MR. WAXMAN:

I want to be -- I want my position to be as pellucid as it -- as I can make it to the Court for the Court's consideration. We think that the better reading of the object of "abets" is -- as the government and the Respondents supporting the Petitioner argue at length, is, in fact, the act of international terrorism. It is not --

JUSTICE GORSUCH:

Oh, I -- I didn't -- I -- I -- I was fearful. Maybe we ought to just stop, Mr. Waxman, and maybe -- maybe I ought to let my colleagues proceed.

MR. WAXMAN:

Okay. Did I answer your question?

JUSTICE GORSUCH:

Yeah. I -- I -- I -- I don't know why you're resisting, however --

MR. WAXMAN:

I --

JUSTICE GORSUCH:

-- that both of those clauses take as their object the person.

MR. WAXMAN:

I am not. I think it is perfectly fine to read the object as the person who committed the act of international terrorism, but it is in the nature of abetting criminal activity that it is assisting and aiding and abetting the person in the commission of the act of international terrorism. It is not coherent. It is not --

JUSTICE GORSUCH:

How about -- how about this? How about reading the statute for just what exactly it says, a person who aids and abets, dot, dot, dot, the person who committed such an act of international terrorism? Would you support reading the statute for what it says?

MR. WAXMAN:

I think the -- I support reading the statute for what it says. The statute says abetting, and --

JUSTICE GORSUCH:

No, it says who aid -- who aids and abets -- and then I'm going to put in some ellipses because it then goes on to conspiracy -- the person who committed such act of international terrorism. Any objection to that?

MR. WAXMAN:

No, with the understanding that the use of the verb "abets" means assisting the person in committing the act. And as the government -- as -- as the Facebook and Google brief points out, every time a statute uses "person" as the object of aiding and abetting, it goes on to make that clear.

JUSTICE GORSUCH:

Of course. I take that as given.

MR. WAXMAN:

Okay.

JUSTICE GORSUCH:

Thank you.

MR. WAXMAN:

Thank you.

CHIEF JUSTICE ROBERTS:

Justice Kavanaugh?

JUSTICE KAVANAUGH:

Just want to make sure I understand your position. So I think you're trying to translate the elusive words of the statute into some kind of general rule, and I just want to make sure I have the general rule or general principle that you're trying to articulate down, which I think is that a -- when there's a legitimate business that provides services on a widely available basis in an arm's length manner, it's not going to be liable under this statute even if it knows bad people use its services for bad things.

MR. WAXMAN:

Correct, unless it knows of specific, in this case, it would be accounts or posts, that are, in fact, being used to plan or commit a terrorist act, including an attack like the one that injured the plaintiff. That is, there has to be particular knowledge in that context.

JUSTICE KAVANAUGH:

Mm-hmm.

MR. WAXMAN:

That's our rule.

JUSTICE KAVANAUGH:

Thank you.

CHIEF JUSTICE ROBERTS:

Justice Barrett?

JUSTICE BARRETT:

Okay. So I'm having a little bit of difficulty isolating exactly your argument, so let me -- let me put it to you this way. So it seems to me that the flaws in the Ninth Circuit opinion that you see are one, in the unit of analysis --

MR. WAXMAN:

Correct.

JUSTICE BARRETT:

-- because they're focusing on the enterprise rather than the act or -- or, as Justice Gorsuch said, the person who committed an act, but, in any event, you're saying that we need to specifically focus on the act here, the Reina bombing, didn't have to know it was going to be there, okay. Second is the substantial assistance, and third is the knowledge requirement. So I just want to make sure I understand the difference between aiding the enterprise writ large and aiding in an act, because you've said in response to a few of my colleagues, including just now Justice Kavanaugh, that if you know bad people are using the platform and you don't do anything about it -- and I -- I'm pressing you now on what you said about specific knowledge of the --

MR. WAXMAN:

Mm-hmm.

JUSTICE BARRETT:

-- specific accounts, I guess, why -- if you know ISIS is using it, you know ISIS is going to be doing bad things. You know ISIS is going to be committing acts of terrorism. So what work does ISIS -- training your focus on the specific act do in that case? Because aiding ISIS is aiding the commission of particular acts in the future. How specific must the knowledge be? There must be a range between aiding the enterprise and knowing the time, date, and location of the particular act, right?

MR. WAXMAN:

So I -- I am -- I'm not resisting as a categorical matter the use of the word and Halberstam's use of the word "enterprise." My position is that where the court below erred was in substituting as the object of -- whereas the statute clearly said the object is either the act of international terrorism that you're abetting or the person who committed that act and commit -- you abetted that person in committing the act, Halberstam points out that, look, if you have a situation in which, you know, you -- you have a partner, you have a symbiotic relationship with a partner in which every week there's a property crime and he brings home the jewels and you smelt it down and -- you know, and sell it, that you can be deemed to have knowingly provided substantial assistance to the act where, ultimately, he gets caught, the Halberstam burglary. The fact that you were part of this series of discrete acts establishes Step 3 of Halberstam. That's very different from basically saying that all you have to do is aid and abet ISIS generally.

And the clarity with which the Ninth Circuit made that error is -- is actually revealed. I don't have the page number, but it's in the -- the discussion of the facts of -- of Gonzalez before it gets to Taamneh. The -- the Ninth -- the -- the Ninth Circuit says, "The parties dispute whether the relevant," quote, "principal violation is ISIS's broader campaign of terrorism or the Paris attacks." It chooses the former and therefore says anything that ISIS does -- that you assist anything that ISIS does is assisting an act of international terrorism.

JUSTICE BARRETT:

Okay.

MR. WAXMAN:

Now --

JUSTICE BARRETT:

So it's a level of generality. I -- I -- I -- you were kind of going back and forth with Justice Kagan about this same issue. It's a level of generality. You might know -- I -- I guess I'm trying to figure out if the Ninth Circuit's error matters because you might know that you're aiding ISIS and, as I said, aiding ISIS is going to result in aiding some terrorist attacks. But you're saying that the plaintiff would have to allege facts sufficient to show that Twitter was being used to plan this attack, put --

MR. WAXMAN:

And that --

JUSTICE BARRETT:

-- putting aside right now the knowledge and substantial assistance part, but that's the level of inquiry?

MR. WAXMAN:

-- you have to be -- the plaintiff has to plausibly allege that substantial assistance was provided to the act of international terrorism that injured the plaintiff in the case.

JUSTICE BARRETT:

So that these particular terrorists were communicating via Twitter for the Reina attack, putting aside what Twitter knew about it, would need to be looking at tweets or accounts going back and forth to share the details or recruit people to help participate in this bombing?

MR. WAXMAN:

No. I -- I mean, the -- Twitter would have to know there are accounts. We know of these --

JUSTICE BARRETT:

I'm not talking about Twitter's knowledge.

MR. WAXMAN:

Okay.

JUSTICE BARRETT:

I'm just talking about the unit of analysis.

MR. WAXMAN:

Okay. The unit of analysis is that there is a -- there is a -- there is a -- there are allegations in a complaint that there were Twitter accounts or Twitter posts that Twitter -- that, in fact, substantially assisted this terrorist attack.

JUSTICE BARRETT:

Bombing. So not the general recruiting.

MR. WAXMAN: Not general recruiting.

JUSTICE BARRETT:

Okay. All right. I -- I think I understand you. On -- on substantial assistance, you kind of conceded to Justice Kagan in her hypothetical that it would be substantial assistance if Twitter knew that these accounts were being used and didn't do anything to take them down.

MR. WAXMAN:

The -- yes, the particular accounts.

JUSTICE BARRETT:

So that's -- that would be -- because I'm just wondering what the test for substantial assistance is, right? I mean, there's -- there's a lot that goes into, presumably, pulling off a terrorist attack. So is providing the means of communication -- you concede that would be substantial assistance?

MR. WAXMAN:

I mean, it -- again, it would depend on what was going -- what it turned out was going on in those accounts that Twitter actually knew about. And if Twitter knows about -- and this goes to -- to -- to Justice Sotomayor's question about willful blindness, willful -- if -- if -- if in my hypothetical the Turkish police, the Istanbul police come and say there are 10 accounts, 10 Twitter accounts that appear to be involved in planning some sort of terrorist attack here, and Twitter basically says, not our 51 problem, that is the level of knowledge. And -- and, if, in fact --

JUSTICE BARRETT: But that's knowledge. I was asking you about substantial assistance.

MR. WAXMAN:

I see. If -- if what was in those posts, in fact, were the planning and preparation and commission of the attack that happened to occur at the Reina nightclub, that would be substantial assistance.

JUSTICE BARRETT:

Okay. So, to clarify, you're not saying that merely using the platform is enough, but it would depend on how significant the communications on the platform were to the attack?

MR. WAXMAN:

Correct.

JUSTICE BARRETT:

Okay. And last question. What daylight, if any, do you see between your position and the government's position?

MR. WAXMAN:

Very little. I think what the government says -- I mean, with respect to the relevant object, we agree. It's the act of international terrorism, not ISIS generally. With respect to knowledge, I think they also agree, the particularity in a context in which there's this remote general arm's length provision of services. If we disagree, it's on the -- how one calculates, I guess, or characterizes substantiality. The government says that there has to be a substantial causal link between the assistance provided and the act that occurred. And we -- I -- I don't -- in principle, I don't disagree with that.

JUSTICE BARRETT:

So no daylight really?

MR. WAXMAN:

I -- I -- can I --

JUSTICE BARRETT:

Okay.

MR. WAXMAN:

-- can I reserve judgment until I hear Mr. Kneedler's answer?

JUSTICE BARRETT:

Okay. You started out saying very little and then you said in principle.

MR. WAXMAN: I --

JUSTICE BARRETT:

But that's -- that's okay, I'll let Justice Jackson have a shot.

MR. WAXMAN:

It -- it's -- I -- I --

CHIEF JUSTICE ROBERTS:

Justice Jackson?

MR. WAXMAN:

-- I'm not sure.

CHIEF JUSTICE ROBERTS:

Justice Jackson?

JUSTICE JACKSON:

Yes, good morning, Mr. Waxman.

MR. WAXMAN:

Good morning.

JUSTICE JACKSON:

I -- I had thought that knowledge and substantial assistance were two different elements or two different criteria. Am I right that that's the case or no?

MR. WAXMAN:

I think you are --

JUSTICE JACKSON:

You're looking --

MR. WAXMAN:

-- you -- you --

JUSTICE JACKSON:

Go ahead.

MR. WAXMAN:

Yes, you are right. What the -- the operative text says that aiding and abetting by knowingly providing substantial assistance.

JUSTICE JACKSON:

All right. So two different things.

MR. WAXMAN:

So there are two elements.

JUSTICE JACKSON:

They are two elements. But then the -- the -- your statement 54 of the rule that you explored with Justice Kavanaugh seemed to have them both working in a way that I was confused about, so --

MR. WAXMAN:

Then let me -- yeah. I can see --

JUSTICE JACKSON:

Yeah. So -- so --

MR. WAXMAN:

-- I can see how it's -- it's confusing. So you have -- your -- what's alleged to be -- your culpable conduct has to have, in fact, substantially assisted the act of international terrorism that injured the plaintiffs.

JUSTICE JACKSON:

Independent of your knowledge, it has to have --

MR. WAXMAN:

It has to have done --

JUSTICE JACKSON:

-- factually substantially --

MR. WAXMAN:

-- it has to have done that.

JUSTICE JACKSON:

Okay.

MR. WAXMAN:

But the statute goes further and says that you have to knowingly provide that assistance, which we think must mean that you must know, A, that you're providing assistance and know that the 55 assistance you're providing is substantial. That's --

JUSTICE JACKSON:

But let me ask you, does it have to run to the particular act? Because, at the very beginning, in your conversations with, I think, Justice Sotomayor, we were trying to get to this point of understanding your view that the particular tortious act is what we're focusing on, not just general assistance to the -- the terrorist organization. I get that. But, if we're looking at the particular act, then you said at one point that you can have general awareness that you're assisting the particular act. And I don't really understand what that means.

MR. WAXMAN:

I misspoke if I said that.

JUSTICE JACKSON:

Okay.

MR. WAXMAN:

So I -- I think I was trying to explain that under Step 2 of Halberstam -- the Halberstam framework, you have to "be generally aware of your role as part of the overall illegal tortious activity at the time you provide the assistance." But this --

JUSTICE JACKSON:

And you conceded that in this case?

MR. WAXMAN:

I conceded --

JUSTICE JACKSON:

Okay.

MR. WAXMAN:

-- for purposes of this case --

JUSTICE JACKSON:

Okay.

MR. WAXMAN:

-- that that's establish -- that's fairly pled in the complaint.

JUSTICE JACKSON:

So then what's the knowledge that's working at Step 3?

MR. WAXMAN:

Right. You have to know that you are providing substantial assistance to an act of international terrorism and the substant- -- and an act of international terrorism that happened to be a terrorist attack that injured the plaintiff.

JUSTICE JACKSON:

But it doesn't have to be the Reina attack; you just have to know that you're assisting ISIS, that ISIS participates in --

MR. WAXMAN:

It's not just the -- there's a wide gulf between knowing that the -- that the location of the attack will be the Reina nightclub and knowing that you're somehow generally assisting ISIS in some way.

JUSTICE JACKSON:

Yes, and it's the gulf I'm trying to explore, so what --

MR. WAXMAN:

Right.

JUSTICE JACKSON:

I -- I want to chart it. What do you have to know in 3 that is sufficient under your view?

MR. WAXMAN:

Yes. You have to know that you, in fact -- well, I'm sorry, was it what did you have to know?

JUSTICE JACKSON:

In 3, in Step 3, when you say -- we -- we -- we --

MR. WAXMAN:

The -- the knowledge --

JUSTICE JACKSON:

-- we've disposed of 2, which is the general knowledge of your role. You know you have a platform and people are using it and some of those people are bad people.

MR. WAXMAN:

Got it.

JUSTICE JACKSON:

Three, you say home in on the act, it has to be act of -- of terrorism. And I guess I'm just trying -- that -- that you substantially assist in that.

MR. WAXMAN:

Correct, right.

JUSTICE JACKSON:

But then what's "knowing" doing there?

MR. WAXMAN:

You have to know that your action would substantially assist an act of international terrorism. That's the independent work that "knowing" -- that the know -- that you knowingly provide substantial assistance does.

JUSTICE JACKSON:

So they don't have to allege or they do have to allege that you knew something about the fact that this group was going to do an act of international terrorism that turned into the Reina attack?

MR. WAXMAN:

You have -- that is exactly what you have -- you have to -- they have to plausibly allege and ultimately prove not only that our actions substantially assisted the Reina attack but that we knew that we were providing substantial assistance to some act of international terrorism, period.

JUSTICE JACKSON:

But not enough to know that -- that you're providing substantial assistance to a group that does this kind of thing?

MR. WAXMAN:

Of course not.

JUSTICE JACKSON:

I don't know that I see that clearly, the distinction, but let me 59 ask you just a quick question about Halberstam. So I guess I'm a little concerned about framing this as the defendant is offering generally available services. What if in Halberstam itself, instead of Linda Hamilton providing bookkeeping services, we had an accounting firm, and their usual course of business was to provide the bookkeeping services, they did exactly what she did with exactly the same level of knowledge in the sense that they knew that these were pretty -- you know, the -- the -- they knew this guy didn't have a job and suddenly he was showing up with, you know --

MR. WAXMAN:

Jewels, right.

JUSTICE JACKSON:

-- thousands of dollars in jewels and whatnot and asking them for bookkeeping services. Are they -- are they on the hook or not?

MR. WAXMAN:

I think they probably would be on the hook. I mean, it's different than Hamilton, where she had no other job. She didn't do anything other than have this symbiotic criminal relationship. But, if you had an accounting firm 60 that somebody comes and basically says, you know, I'd like you to help me with the following, I'd like you to help me, you know, smelt down jewelry and then sell it --

JUSTICE JACKSON:

No, no, they're doing their usual bookkeeping services. They have a lot of clients. They have very, you know, well-to-do regular clients who do have jobs and are bringing them money, and then they have this guy who starts coming and saying, please, I'd like to do bookkeeping, and they're a little suspicious, but they don't do anything other than the regular bookkeeping services that they ordinarily would provide to their other clients.

MR. WAXMAN:

I mean, if the circumstances of the services that's being requested and that they provided would not permit a fair inference that they were "generally aware" of the role they were playing as part of overall illegal or tortious activity, they wouldn't be libel for aiding and abetting. I -- I do want to just --

CHIEF JUSTICE ROBERTS:

Thank you. You can finish your sentence. (Laughter.)

MR. WAXMAN:

Sadly, I'm afraid I did finish my sentence. (Laughter.)

JUSTICE JACKSON:

Thank you.

MR. WAXMAN:

Thank you.

CHIEF JUSTICE ROBERTS:

Mr. Kneedler.

ORAL ARGUMENT OF EDWIN S. KNEEDLER FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING REVERSAL

MR. KNEEDLER:

Mr. Chief -- excuse me. Mr. Chief Justice, and may it please the Court: The United States condemns in the strongest terms the terrorist act that caused Mr. Alassaf's death and sympathizes with the profound loss that the plaintiffs in this case have experienced. We submit, however, that the allegations in this complaint do not state a claim that the defendants aided and abetted, that is, that they assumed a culpable role in the commission of that murder.

JASTA requires more than allegations that a terrorist organization availed itself of interactive computer services that were remote 62 from the act of terrorism, were widely and routinely available to hundreds of millions, if not billions, of persons through the automatic features of those services, and did not single out ISIS for favorable treatment. JASTA permits recovery against persons who become complicit by rendering substantial assistance that encourages the commission of terrorist acts, but by JASTA's express terms and its incorporation of Halberstam's common law standards, Congress ensured that JASTA does not reach so broadly as to inhibit legitimate and important activities by businesses, charities, and others, both in the United States and in other parts of the world that may be unstable or underdeveloped. I welcome the Court's questions.

JUSTICE THOMAS:

Mr. Kneedler, I -- I think I'd just like to get a finer point on your position. When we talk about Twitter or YouTube or Facebook, it's because of the algorithms and how broadly these -- these businesses are. It's complicated. But I'd like to simplify it just a bit and see where you come out. You recall PageNet, 63 don't you, when pagers were ubiquitous?

MR. KNEEDLER:

Yes.

JUSTICE THOMAS:

And --

MR. KNEEDLER:

I don't recall PageNet, but --

JUSTICE THOMAS:

Okay. Well, let's just --

MR. KNEEDLER: -- I -- I'm not an expert in --

JUSTICE THOMAS:

Well, yeah. Well, just pagers were ubiquitous at one point, right?

MR. KNEEDLER:

Right.

JUSTICE THOMAS: And we ought -- let's assume that, as with certain criminal elements who used pagers back then, you had terrorists who had an affinity for these and that the -- PageNet -- let's assume there was a company, PageNet -- understood that they used their services, as did doctors, as did other people, businesspeople. Would that constitute aiding and abetting if they did nothing and permitted them to use it and engage in terrorist activity?

MR. KNEEDLER:

By application of the Halberstam standards --

JUSTICE THOMAS:

Yes, yes.

MR. KNEEDLER:

-- that may be -- that may be unclear, but I think it would probably not be substantial assistance or knowing substantial assistance.

JUSTICE THOMAS:

Okay. So if you would just pause that for me.

MR. KNEEDLER:

Right.

JUSTICE THOMAS:

You know -- you know they're using it, and you know it's probably central to what they're doing. So what's -- where does it fail the Halberstam test?

MR. KNEEDLER:

I think there's one distinction between this and -- between your hypo and this case, which is the distance between the aid and -- and the -- and the commission of the act. In your example, it's much more proximate, I think, if I understand the hypothetical. The -- using the pager will be alerting somebody to the immediate commission of the crime. That's not what we have here. Here, we have something that's much more remote, the use of an automatic service that the claim is that that enhances ISIS, which, in turn, maybe in combination with a number of other factors, might ultimately --

JUSTICE THOMAS:

Well, that's why I went to pagers, because I wanted it to be closer.

MR. KNEEDLER:

Right.

JUSTICE THOMAS:

And I wanted to put a finer point on it, because, you know, of course, a billion people or hundreds of millions of people are using these services and so you get lost in that. I understand you say that's too -- too amorphous or it's too attenuated. But, if you tighten it somewhat and use pagers, it would seem that you would be able to answer that with, you know, more clarity.

MR. KNEEDLER:

Yes, but I -- I think, frankly, it's somewhat in between. And -- and the -- the hypothetical that you're describing, I think, if you -- if you look at the Halberstam factors --

JUSTICE THOMAS:

Mm-hmm.

MR. KNEEDLER:

-- which is an important part of the Halberstam test in deciding what's substantial assistance -- and, by the way, that's not just a factual question. In Halberstam itself, the Court first affirmed the district court's factual findings and then applied its legal test, and by application of the legal test, which was those six factors, the Court was able to find liability. In a number of the other cases, they've been dismissed because the allegations don't make out a legal standard. It's not so much a question of fact. But, in your -- in your hypothetical, the three most important factors we think in this case, I think, bear on your -- on your question. And -- and one of those is, Halberstam puts it in terms of, was the person present at the commission of the offense? I think that's maybe a proxy or a window into the question of how proximate was the -- was the person, the -- the defendant's action to the ultimate act.

And, in Halberstam, obviously, the Court said she was integrally related. Here, we think it's not proximate either in the legal proximate cause sense or in the factual, the way the Internet works sense. In your example, it's more proximate both, I 67 think, in a factual and maybe in a legal sense, that the use of the -- of the pager would have, depending on -- you know, there may be other facts, and -- and the level of knowledge would be -- would be an important element of that. And another very important factor, I think, in Halberstam that would be relevant in the -- in the case that you're describing but I think is very relevant here is what is the state of mind of the person -- of the defendant in the case. And, here, the court of appeals said it's undisputed that Twitter and the other defendants here did not have an intent to further ISIS activities or the particular terrorist act here.

JUSTICE KAGAN:

So can I --

CHIEF JUSTICE ROBERTS:

How --

JUSTICE KAGAN:

I'm sorry.

CHIEF JUSTICE ROBERTS:

I was just going to say, Mr. Kneedler, I think the discussion this morning has really taken on a very academic tone. You -- you say both of the tests, the plaintiff's and Twitter's, they're -- they're wrong, and you come up with your own test on page 34 of your 34-page brief -- the suspense was killing me -- and this is what you say. (Laughter.)

You say, "In some circumstances, such as the direct channeling of substantial funds or other fungible resources to a foreign terrorist organization or its close affiliates with knowing acquiescence in their potential use, a secondary defendant's contributions may have a sufficient nexus to a terrorist act, even if the defendant has no advance knowledge of or does not provide support specifically directed to the particular act."

And I counted six different factors in there, and that's added on top of the six-factor Halberstam test. I guess that's six squared. And it -- it seems to me that I don't know how helpful it is to parse each of those different requirements or try to decide if there should be five or six into -- in trying to draw a line between, you know, assistance with respect to a particular terrorist act and assistance to a terrorist organization. You know, each -- each one of these situations that will come along will have 69 different of these facts prominent and different ones not there, and, I mean, is there any way to articulate how to approach these cases without having a 6- or 12-, I guess, or maybe 36-factor test?

MR. KNEEDLER:

Well, several things. First of all, what -- what you quoted from page 36 was not intended --

CHIEF JUSTICE ROBERTS:

Thirty-four.

MR. KNEEDLER:

Thirty-four, sorry, was not intended to be a legal test. It was an example of what might make out a case of knowing substantial assistance under the Halberstam test. But I think, because of the incorporation, express incorporation of Halberstam into the act, it is necessary to look to Halberstam.

And Halberstam did not come out of nowhere. It was based on the Restatement of -- of Torts. And what -- what -- in other circumstances, this Court has held that Congress should not be understood to displace the common law. Here, it incorporated the common law, as set forth in the Restatement of Torts, which 70 Halberstam relied upon, and then this -- and then Congress incorporated it. And the six factors are really guides or guideposts to getting at whether what the defendant's conduct was, is it culpable enough? And -- and you can't come up with a -- with a test that will answer every case, and that's why Halberstam looked to factors, but that's not –

CHIEF JUSTICE ROBERTS:

Well, but each factor, I mean, one, substantial assistance, okay. Well, that -- I mean, if you only give a hundred bucks to assist the terrorist act that's going to result in the murder of different people, you say, well, that's not real substantial --

MR. KNEEDLER:

Well --

CHIEF JUSTICE ROBERTS:

-- but, if you give 10,000, it is? That seems like a very odd factor.

MR. KNEEDLER:

Well, I -- I think it's not so odd if you think about the different ways in which it might arise. If somebody is about to commit a terrorist act and -- and you know it, and -- and -- and the terrorist said, you know, could you give me $10 to buy a knife, and 71 you give him the $10, and he commits the terrorist act with that knife, I think that that would count as substantial assistance both -- because it was -- it was an essential element in allowing the -- the act to occur.

CHIEF JUSTICE ROBERTS:

Okay. Thank -- thank you.

MR. KNEEDLER:

If you gave a hundred dollars to ISIS and just wrote a check --

CHIEF JUSTICE ROBERTS:

No, with respect to the act.

MR. KNEEDLER:

Oh, with -- anything that is -- that is specifically with respect to the act, I -- I think your example, the $100, in any way that says I'm writing this check to commit this particular terrorist act, that would count. So it's not -- it's not just the amount that is a factor, but the amount matters in terms of the overall context or what the defendant --

CHIEF JUSTICE ROBERTS:

Okay. I think I have your point.

JUSTICE KAGAN:

Mr. -- Mr. -- Mr. Kneedler, let's say a known terrorist walks into a bank and avails himself -- opens up an 72 account, avails himself of various banking services. The bank knows who this person is. The bank knows that terrorists need banking services to conduct their terrorist activities. The bank provides him with those banking services. They provide a hundred other clients who are not terrorists with the same banking services, but they provide this known terrorist with these banking services that are very important to its terrorist activities. Can you go after that person under this statute?

MR. KNEEDLER:

I -- I -- I think you probably could, but when you say known terrorist, I -- I -- I'm not -- if it's just somebody who is affiliated with ISIS, you might have the connect -- the proximate connection, but --

JUSTICE KAGAN:

Yeah. No, this is like Osama bin Laden.

MR. KNEEDLER:

Yeah. Yes. Some -- somebody who is a leader or somebody who you know has committed or is about to commit a terrorist act --

JUSTICE KAGAN:

Okay.

MR. KNEEDLER:

-- yes, I think you can. And the -- the --

JUSTICE KAGAN:

Because I would be shocked if the government gave that one away, right?

MR. KNEEDLER:

Right. No. And -- and I think that's the -- really, all this Court needs to decide in this case is --

JUSTICE KAGAN:

Well, but I guess what I'm trying to -- to focus on is, like, what's the difference? You know, I mean, we're -- we're used to thinking about banks as providing very important services to terrorists. Maybe we're not so used to, but it seems to be true that various kinds of social media platforms also provide very important services to terrorists. And if you know that you're providing a very important service to terrorists, why isn't -- why aren't you providing substantial assistance and just doing it knowingly? What's the difference between the banking case and this case?

MR. KNEEDLER:

I -- I -- I think there is a very large difference in terms of the nature of the interaction. And, again, one of the Halberstam factors is, what is the relationship between the defendant and the person who committed the act? And in -- in Halberstam, you know, she was daily engaged in --

JUSTICE KAGAN:

The bank doesn't know anything about any particular acts.

MR. KNEEDLER:

No, I'm -- I'm not saying the particular act, but -- but the -- the two -- the -- the two banking cases or the banking case, Kaplan, and the drug kickback case, Atchley, that are discussed in the briefs, there was personal interaction. There was a -- there were transactions, specific, knowing interactions between the bank or -- or the -- or the drug companies and the entity that was known to be a terrorist act -- actor engaged actively in terrorist acts, Hamas --

JUSTICE KAGAN:

So it has to be like personal banking? I mean, suppose the banking were less personal than that, but, you know, they were providing, you know, very important financial services to a terrorist organization.

MR. KNEEDLER:

But I -- but substantial assistance, again, is -- is partly a question -- I mean, it goes to the ultimate question of culpability and proximate causation. And the -- and the -- the ultimate issue is, is society prepared to hold the -- the person alleged to be an aider and abettor culpable, essentially, equally with a person who committed --

JUSTICE ALITO:

Mr. Kneedler, take -- take -- had you finished?

JUSTICE KAGAN:

Go.

JUSTICE ALITO:

Take Justice Kagan's hypothetical and substitute going back even further than the days of pagers to the days of -- of landline phones and phone booths. And so the telephone company -- the telephone company knows that a particular person is -- has a criminal background and is probably engaging in criminal activity and is using the phone to communicate with other members of that person's gang. Is that aiding and abetting the crimes that they commit?

MR. KNEEDLER:

No. No, that would not be. And I -- so I think the availing oneself of a -- of a service that is universally open, that is furnished automatically by the features of the system, that is mostly, you know, helping lawful businesses, that is not -- I think one of the hypos yesterday mentioned --

JUSTICE KAGAN:

Why doesn't that apply to my bank too?

MR. KNEEDLER: Well, the bank cases actually that have been decided in the lower courts go both ways. And -- and they -- I think they turn on the level of knowledge. They turn on -- ultimately, on the culpability. Several of the cases, Siegel for one, turn on the fact that the -- that the -- the -- the bank took steps to ensure the bank was not intending to -- to further the services. It was not -- it -- it didn't have a culpable intent. But we're -- in the example that you're describing, I think it's a lot easier to make a judgment, basically, a societal or -- or -- judgment, are we prepared to hold that person liable? And if --

JUSTICE JACKSON:

Suppose we have Justice Alito's scenario with the providing to the gangsters or whatnot, and you say, no, that's not going to be covered, but what if that 77 same company gets specific information about these people, and now we're not talking about generally provided services that, you know, they sign up for somewhere and the company thinks -- it doesn't have any information about them. But we know suddenly, the company knows, that these individual people are in a gang and generally using the cell phones that they have acquired from the company for criminal activity. Does that change the scenario?

MR. KNEEDLER:

Yes, it changes it dramatically, I think. And I think that that's the difference between, I think, the two examples that Mr. Waxman was offering. The -- the making available the general services that you would make available to anyone is -- is ordinary, not face-to-face business. But, if you know facts that -- that zero in on a -- a known act or a known actor who you know is committing those acts, and --

JUSTICE JACKSON:

But wait. What about the --

CHIEF JUSTICE ROBERTS:

Thank -- thank you -- thank you. Wrap up?

JUSTICE JACKSON:

I just wanted to say what about the difference between actor and act? If you know -- do you have to know that the -- that the gangster is going to commit a particular act, or is it just -- is it enough to know that he's a gangster and, therefore, is likely to do so?

MR. KNEEDLER:

I -- I think, because you're talking about a specific person who you know is likely to, I think that would be enough. That's very different from an organization like -- like one of these platforms that is not acting on a transaction-by- transaction basis to know whether this account or this person is -- is furthering an act.

CHIEF JUSTICE ROBERTS:

Thank you, Mr. Kneedler. Justice Thomas? Justice Alito?

JUSTICE ALITO:

I mean, Bell Telephone -- J. Edgar Hoover tells Bell Telephone that Dutch Schultz is a gangster and he's using his phone to carry out mob activities that -- and the phone company says, well, we don't pull -- we don't deprive people of service based on that. That makes them an aider and abettor?

MR. KNEEDLER:

Perhaps not. Probably not. I mean, it depends. But -- but --

JUSTICE ALITO:

Wow. That's a perhaps?

MR. KNEEDLER:

No, no, no. I -- I -- I think that even with that knowledge, there -- the Halberstam factors require an -- an intent or -- to move the -- to move the crime forward.

JUSTICE ALITO:

The problem -- the problem is Halbertsam, and we're stuck with Halberstam because those three factors are met in -- in my telephone example. They're arguably met in the telephone example, are they not?

MR. KNEEDLER:

Perhaps, but -- but, again, it's a judgment call. It's the nature of the act, the nature of the defendant's contribution. So I don't think -- I don't think the hypotheticals lend themselves to one basic rule. It's a judgment call as to whether the defendant is culpable, has become complicit, in the way a conspirator would. I mean, this statute equates or -- or puts on -- pairs together conspiracy and aiding 80 and abetting, requiring, again, some culpable -- becoming a willing participant in -- in the act. And, here, the furnishing of services as a general matter, which is all the Court needs to decide in this case, we do not think rises to that level.

JUSTICE ALITO:

Would it be consistent with Halberstam to read "knowingly" to mean, oh, just a shade short of "purposefully"? That would give some substance to this.

MR. KNEEDLER:

Yeah, I -- I -- again, I -- I think there is some overlap between the knowing and the substantial. For example, you -- you may know as a general matter that ISIS- affiliated persons are using your system, but you may not know by how much. You may not know for how long. You may not know which accounts. And so it's very generalized information. And any -- any -- that assistance with the idea that it might encourage recruiting is far removed from a specific act of terrorism.

JUSTICE ALITO:

Thank you.

CHIEF JUSTICE ROBERTS:

Justice Sotomayor?

JUSTICE SOTOMAYOR:

Mr. Stewart, would you answer the question that Justice Barrett placed to Mr. Waxman, which is what's the daylight between you and the Petitioners? And how would you write the bottom line of this opinion? They're not liable because?

MR. KNEEDLER:

On -- on the first -- I think one place where we might have a difference is to use the -- the actually-in-Kaplan examples, not necessarily saying whether those were right or wrong, but the general proposition is those were banks -- or banks or companies engaged in interpersonal, direct communications with the client. They had knowledge that the client was either a front for or closely aligned with Hamas -- I think it was Hamas in both cases -- that was actively committing terrorist acts, including against Americans, in the -- you know, in the proximate area. And so that --

JUSTICE SOTOMAYOR:

And -- and --

MR. KNEEDLER:

-- there's a degree of culpability there.

JUSTICE SOTOMAYOR:

-- because they were doing something outside the ordinary course of business?

MR. KNEEDLER: Yes. Yes, they -- they –

JUSTICE SOTOMAYOR:

Okay. So that sort of prong --

MR. KNEEDLER:

-- they bent the rules, which there's no allegation here that -- that these defendants treated ISIS any -- ISIS content any differently than they did anything else in the -- in the -- in their usual course of business. We think that's a critical fact, and it's --

JUSTICE SOTOMAYOR:

But what does that go to, knowledge or substantiality? And so to which factor does it go to?

MR. KNEEDLER:

I -- I -- I think it -- it goes somewhat to both, but I think it -- I think it's really substantiality, and I think that's an objective test. And, frankly, I think that would be a useful way for the Court to think about it here in terms of being able -- for courts to be able to dismiss these cases at the outset, without having to go through extensive discovery that would require analysis of all the -- all the accounts and everything over a period of time, because I -- I think it's a judgment that a company engaged in this sort 83 of activity which is overall very helpful to society should not be held responsible, culpable, a willing participant --

JUSTICE SOTOMAYOR:

Unless what? Write the bottom line for me. Okay?

MR. KNEEDLER:

I -- I think we're --

JUSTICE SOTOMAYOR:

I -- I -- I go as far as you go, but -- so what -- what does substantiality mean or not mean?

MR. KNEEDLER:

In -- in -- in the case of the Internet service providers, we think it means that they are not -- that the regular course of business, as alleged here, does not constitute knowing, substantial assistance. The situation in which it might is if -- if specific accounts are called to the defendant's attention saying this -- this account is about to be used for the -- the -- to facilitate the commission of -- of an account that was --

JUSTICE SOTOMAYOR:

So what do I do with -- we know what ISIS does. I think, if I read the complaint or something, they even know that ISIS has certain accounts. But they haven't taken off all the ISIS accounts. No? And Mr. Waxman is --

MR. KNEEDLER:

Well, no, I -- I --

JUSTICE SOTOMAYOR:

I can ask the other side.

MR. KNEEDLER:

The court -- the court of -- the court of appeals stated that on page 63A and 64 --

JUSTICE SOTOMAYOR:

Okay.

MR. KNEEDLER: -- where we think it addressed the -- the -- the most important factors, that ISIS regularly -- or ISIS -- that the defendants regularly take down the accounts, but -- at least when they're called to their attention. Now they may have missed some, but that's inherent in a system that -- that services hundreds of millions of customers. So, in this case, it would require something more specific about a particular act because of the nature of the services they're offering. That doesn't mean in every case, like in the Atchley case or -- or the bank cases, that the bank has to know of the specific act, because it was -- they were -- they were aware of proximate --

JUSTICE SOTOMAYOR:

Is it fair --

MR. KNEEDLER:

-- nefarious activity.

JUSTICE SOTOMAYOR:

-- is it fair for me to summarize in a way that Justice Alito did that substantiality in your view has to have some purpose to it?

MR. KNEEDLER:

The state of mind is --

JUSTICE SOTOMAYOR:

Instead of knowledge, purpose?

MR. KNEEDLER:

The state of mind is one of -- is one of the factors. And the state of mind is -- is how -- it does not require specific intent, which, as Justice Alito pointed out, is required, but what it -- but -- what is required in -- in the criminal context. What is required in the civil context is encouragement, something that -- something that the --

JUSTICE SOTOMAYOR:

Some purposeful act on it.

MR. KNEEDLER:

-- defendant knowingly does, encourages in -- in a -- in a -- in a meaningful way because proximate cause is about -- is about deciding how far responsibility should go. And, you know, the -- the -- this statute, and I -- I think we're concerned about not extending it so far that legitimate business activities could be inhibited. The banks, for example, in -- in underdeveloped parts of the world and charities that may depend on those banks, concerns about how they may -- they may pull back as a result of legitimate businesses, so that -- that is a concern that should enter into the analysis, and including here the type of the service and how remote that service is from the commission of any particular act.

CHIEF JUSTICE ROBERTS:

Thank you. Justice Sotomayor? Justice Kagan?

JUSTICE KAGAN:

Mr. Kneedler, a -- a few times, in talking about differences among hypothetical cases and real cases, you said this is really a societal judgment about who counts as complicit, who counts as culpable, and that seems right to me. But it seems to suggest that this should be a jury question, shouldn't it?

MR. KNEEDLER:

No, I think there's a very -- there's a big difference. Juries decide facts. The law decides what -- what consequences to attach to the facts that are found or alleged. And -- and we think this is essentially a question of -- question of law. Now, to be sure, it's a question of law that turns on looking at the particular factors in Halberstam, but that's exactly what Halberstam itself did. As I said, after making the factual findings, it went on to apply the -- the standards in the nature of the common law, drawing on the -- on the Restatement of -- of -- of Torts.

And I think there's a -- a practical, common-sense judgment that most people would understand that when you are running a -- a business that is open to all comers, that it's not face-to-face. You're not singling out one person for favorable treatment. It's an important service that we all benefit from that you would -- you would look at that conduct quite differently than you would somebody who is engaged in a face-to-face encounter, asked to lend money or give money or -- or give services that are specific to that person that you know is about to commit or is a member of a group that all around you is committing terrorist acts, as -- as in -- as in Atchley and -- and -- and -- and Kaplan.

So there -- that's a -- that's a judgment that the law makes about whether the conduct is culpable, whether the person has -- has become a willing partner. I mean, there are a lot of expressions trying to get at the question of whether the person is sufficiently complicit --

JUSTICE KAGAN:

Thank you.

MR. KNEEDLER: -- in the actual murder.

CHIEF JUSTICE ROBERTS:

Justice Gorsuch?

JUSTICE GORSUCH:

Mr. Kneedler, I -- I appreciate that Congress approved the Halberstam decision, but do we really have to wade through its three elements where the third element has two prongs and the second prong is made up of six factors, some of which you tell us don't apparently count for very much? Is there some way to cut through that kudzu and -- and decide this case on the statutory terms? Please say yes. (Laughter.)

MR. KNEEDLER:

Yes. (Laughter.)

There is. And I -- and I think that the -- you can look at the overall context of this statute. JASTA was passed largely in -- you know, almost entirely in response to decisions that -- that came out of the Second Circuit concerning responsibility for the 9/11 attacks and -- and specifically where plaintiffs were trying to hold responsible the Saudi government, Saudi officials, Saudi charities, but the courts had said, no, there's no personal jurisdiction over some of them. The -- the -- the Saudi state wasn't liable or couldn't be sued under the Foreign Sovereign Immunities Act because of limitations on the Foreign Sovereign Immunities Act --

JUSTICE GORSUCH:

Mr. -- Mr. Kneedler, I'm -- I'm sorry to interrupt, but I was hoping for an answer -- answer having something to do with the statutory text. And -- and let me just again offer one possibility, that the -- the -- the two clauses, the two "who" clauses in -- in this statute might modify the person who committed such an act, rather than the act itself, would -- an event in the world. And -- and it seems to me that that's a pretty important limitation on aiding and abetting liability and conspiracy liability, both secondary forms of liability, in our law generally, that you have to aid an actual person. It's not just a pedantic point. It has to do with the idea that -- that you're singling somebody out and that that is different than just doing your own business normally and that that does help limit the scope of the act. But what am I missing?

MR. KNEEDLER:

Well, I -- I think that the act in our view overall does not require that the assistance be zeroed in on the individual who committed the act. I mean, it's liability --

JUSTICE GORSUCH:

Why -- why not?

MR. KNEEDLER:

-- may be asserted against any --

JUSTICE GORSUCH:

Why not? Because that's normally how secondary liability works. And it's an important limitation that -- that -- that cabins in the scope and prevents secondary 91 liability from becoming liability for just doing business.

MR. KNEEDLER:

Yeah. Well, I -- I think -- I -- I think the sense that you have is correct in the sense that an act -- an act is actually committed by a human being, a natural person, or at least in -- in most instances.

JUSTICE GORSUCH:

Or -- or -- or a corporate person. The Dictionary Act, which defines person, includes those kinds of juridical entities.

MR. KNEEDLER:

Yes. Now --

JUSTICE GORSUCH:

And we -- and we have two "who" clauses, "who aids and abets" or "who conspires." And -- and the language then says "with the person."

MR. KNEEDLER:

Right. So the -- the point I was about to make was that even if you regard the person as the individual, if the assistance -- in this case, for example, ISIS would commit the terrorist act through the act of an individual.

JUSTICE GORSUCH:

Right.

MR. KNEEDLER:

So I'm not sure the distinction is --

JUSTICE GORSUCH:

And, here -- and, here, the point would be that, okay, the defendant, Twitter, was -- was -- Facebook, Google, whatever, was -- was -- was doing its business, but there are very few points in this complaint that allege that they aided the persons who actually engaged in the terrorist act. I mean, with all -- we all appreciate how horrible the attack was, but there's very little linking the defendants in this complaint to those persons.

MR. KNEEDLER:

Yes, I -- I agree with that, and -- but I think -- I think that also means there's very little, next to nothing, that links it with the act that the person committed. So --

JUSTICE GORSUCH:

Well, in a very abstract way in the world, everything's connected to everything else. And what the defendant did may have in some abstract way helped advance ISIS. And ISIS helped conduct the attack. And so, in -- in a -- in a world in which we're all and everything is interconnected, all acts touch on one another, there's some butterfly effect anywhere, but what helps limit secondary liability, it -- it -- one thing that helps limit secondary liability is that you're intentionally or knowingly in this case helping a person do something in the world.

MR. KNEEDLER:

I -- I -- I think that's right. I think that's right. I think that principle --

JUSTICE GORSUCH:

Perhaps we should Kavanaugh?

JUSTICE KAVANAUGH:

I just want to make sure I understand how you think this is different from a material support statute, so if you have a communications business or a financial business or a food business or a travel business and you serve lots of customers, but you knowingly provide your services to a terrorist organization that you know is a terrorist organization.

MR. KNEEDLER:

Yes, that would be criminal liability. That's a very important distinction.

JUSTICE KAVANAUGH:

Is that liability under this?

MR. KNEEDLER:

Not -- not under -- not under -- I mean, again --

JUSTICE KAVANAUGH:

That's what I --

MR. KNEEDLER:

-- again, I would --

JUSTICE KAVANAUGH:

I just want to --

MR. KNEEDLER:

-- you know, I'd want -- I'd want -- I would maybe want to know more. But what I -- but basic --

JUSTICE KAVANAUGH:

That's what we have. What we have is you know they're terrorists, picking up on Justice Kagan's hypothetical. You provide services, communications, food, travel to lots of people, and this one comes in -- you know, I know this person is a terrorist, but I'm going to provide the same service, no favorable treatment, the same service to that person as to everyone else. Congress has passed statutes to get at that kind of situation. The question is, is this statute getting at that situation?

MR. KNEEDLER:

I think ordinarily not, but it --

JUSTICE KAVANAUGH:

And why not?

MR. KNEEDLER:

Because it is --

JUSTICE KAVANAUGH:

It's the phrase "act," right?

MR. KNEEDLER:

It's the phrase "act," and --

JUSTICE KAVANAUGH:

Or the word "act."

MR. KNEEDLER:

It's the word "act," but it's also application of the, frankly, common-sense factors or way of looking at it. In Halberstam, it has to be substantial assistance to the act. Now it --

JUSTICE KAVANAUGH:

Now why is your answer to Justice Kagan's hypothetical that may be liability in that case? Is it because you could prove some suspicion that that terrorist was going to commit a particular act?

MR. KNEEDLER:

Yeah, and I --

JUSTICE KAVANAUGH:

If you don't have that, then I don't understand your answer --

MR. KNEEDLER:

No, no.

JUSTICE KAVANAUGH:

-- to Justice Kagan.

MR. KNEEDLER:

I took that to be -- maybe I misunderstood -- I took that to be an important part of the -- of her question when -- when I said, do you have an awareness or knowledge that that person has committed or is about to commit or -- or something, so there's that --

JUSTICE KAVANAUGH:

Well, you know they're a terrorist, though. Let's go back to what I said. You know they're a terrorist. So, by that -- they're a member of ISIS. They've been involved in past activities. But you're like, well, I'm still going to give them food.

MR. KNEEDLER:

Well --

JUSTICE KAVANAUGH:

I'm still going to have a cell phone. I'm still going to rent a car.

MR. KNEEDLER:

There may be differences in the services. I mean, a restaurant serving somebody, I -- I don't think you would regard that as substantial.

JUSTICE KAVANAUGH:

Well, a rental car?

MR. KNEEDLER:

Well, if he says, I -- I need -- I need a car to get to the airport quick so that I can get to Istanbul --

JUSTICE KAVANAUGH:

I mean, that's -- well, okay.

MR. KNEEDLER:

But -- but -- but, again, the question is, how much has the defendant willingly associated himself or become a willing partner and been complicit in what that person is doing? And I think it depends on both the nature of the assistance, what intent or state of -- of mind you have. I think a restaurant is very different from offering somebody, you know, here's my cell phone so you can call your compatriot. I think those -- those are -- those are, in -- in common-sense terms, very different acts. But, in your --

JUSTICE KAVANAUGH:

I think that's -- under this statute, that has to be your position, but I've seen -- you've got to maintain a hard line there, and in response to some of the hypotheticals, I'm not sure you've maintained a hard line --

MR. KNEEDLER:

Well, I --

JUSTICE KAVANAUGH:

-- which then swallows the whole principle.

MR. KNEEDLER:

No, no, I tried to maintain a hard -- a hard -- a hard line with respect to this service in particular, which is all the Court has to decide. It's generally available, no favorable treatment. It's not face-to-face, which, in your example, is another very important distinguishing characteristic. It's an individualized transaction where you -- you know who that person is by your --

JUSTICE KAVANAUGH:

That's -- I -- I don't want to prolong this, but that's very elusive. You know ISIS is using the organization -- some human being in the -- in the defendant company knows that ISIS, a group of individuals, is using this service to help recruit others to kill people.

MR. KNEEDLER:

But that --

JUSTICE KAVANAUGH:

You know that. I don't know why the face-to-face really changes that.

MR. KNEEDLER:

Oh, I think it changes it a lot. And, again, Halberstam -- Halberstam talks about was the person present, which, as I said, I think, in this context, really means what is -- how remote or how proximate was the defendant's association with it. And if you -- if you aid in something as generalized as -- as recruiting, that would render these defendants culpable, responsible, complicit in every terrorist act affecting --

JUSTICE KAVANAUGH:

Okay.

MR. KNEEDLER:

-- affecting a -- a U.S. national --

JUSTICE KAVANAUGH:

Thank -- thank you.

MR. KNEEDLER:

-- in the country.

CHIEF JUSTICE ROBERTS:

Justice Barrett?

JUSTICE BARRETT:

Mr. Kneedler, taking Justice Gorsuch's point about aid to the person in the statute, Justice Gorsuch was pointing out that the Dictionary Act treats juridical entities as persons. Would the government consider ISIS a juridical entity? Or, if we're focusing on the person, would we have to be focusing on the people who actually carried out the attack?

MR. KNEEDLER:

I don't know if we would consider it to be a juridical person. I -- I think ISIS is -- is an identifiable if somewhat amorphous entity --

JUSTICE BARRETT:

Entity?

MR. KNEEDLER:

-- entity. But it's important -- I think this is really a misunderstanding a lot of the -- of the -- that -- that Respondent has and some of the amici on that side. The -- the notion of an enterprise in Halberstam was not like some distinct entity. That -- sometimes "enterprise" is used that way. It was used there. The enterprise was a series of discrete acts.

JUSTICE BARRETT:

I -- I -- I understand, and I -- I agree with that reading of Halberstam actually. All right. Looking -- if we rule in favor of Twitter and I'm thinking about ways in which to do that if that's what we do, it seems to me -- well, tell me if you agree with this: One thing to say would be to say that because you have to assist a person who commits the particular act of terrorism, whether that person is ISIS or the particular individuals that carried out the attack, there would have to be allegations in the complaint showing the use of the defendant's service, of Twitter's service, to the end of the Paris attack and not just general recruitment or radicalizing people and that this complaint lacks those allegations, like using DMs or using comment threads on Twitter to actually coordinate the activities for the act. Would that be one way to do it?

MR. KNEEDLER:

Yes. I -- I think that is the distinction in this case. I mean, again, if they knew about -- if they knew about a specific account --

JUSTICE BARRETT:

But -- but -- but -- but I'm -- knowledge is a different thing. That's not what I'm -- I'm asking. If --

MR. KNEEDLER:

But just the -- yes?

JUSTICE BARRETT:

Before you even get to knowledge, you have to say that there was the use of the service in the particular attack on the -- on the government's view, right?

MR. KNEEDLER:

Yes.

JUSTICE BARRETT:

You have to link it up to the attack?

MR. KNEEDLER:

If you can do that, but for -- in this context, yes, for the use of these services, because of the nature of these -- of these services.

JUSTICE BARRETT:

But in the attack -- I mean, I -- I took the whole point to be, and the point of agreement between you and Mr. Waxman, that the statute refers not just generally to helping, as you were just saying, the enterprise but to aiding and abetting the act of terrorism that injured the plaintiff.

MR. KNEEDLER:

That's correct.

JUSTICE BARRETT:

So, here, in order to state a claim, we would need to see in the complaint some allegations that Twitter was used to carry out this specific attack, not just generally used to build up ISIS and recruit?

MR. KNEEDLER:

Yes.

JUSTICE BARRETT:

Okay. Another things it seems like we could say, it's kind of to the colloquy you were having with both Justices Kavanaugh and Kagan, which is about a business that operates and it's open to all 1920 knowledge but also the -- the --

JUSTICE BARRETT:

Substantial assistance?

MR. KNEEDLER:

-- substantial assistance, because it goes to how remote is it. Is it face-to-face? Some -- some companies open to all business are face-to-face. Some are not. Like, this is automatic.

JUSTICE BARRETT:

So it could be a little bit trickier, but an opinion to that effect might have to say something like, if the defendant is a business that's open to all comers, a page company, PageNet, or the phone service or a bank or Twitter, social media company, there has to be some allegation of, what, specific knowledge?

MR. KNEEDLER:

Of specific knowledge, some specific action with respect to that particular person or that particular act. I want to be clear, I don't -- I don't want to be taken to be saying absolute rules for every situation. The points I'm making here about --

JUSTICE BARRETT:

But I thought you said it would be helpful to give lower courts some way to dismiss these cases without wading into the facts. And it seems like the first thing I said, which was about linking up attacks, wouldn't serve that end because it sounds like you were saying that you thought it would be helpful to have a holding that related to generally open businesses. Am I right?

MR. KNEEDLER:

Again, because of the banking example, a bank may hold itself out to be open to all comers, but, in the -- in the context of conducting that business, they may have an individualized encounter. Some -- you don't just open an account in most banks online or get a loan online. There's going to be some back and forth by which the bank will get to know something about the person it's doing business with or know that that person is affiliated --

JUSTICE BARRETT:

Sure. But that goes to the point of knowledge, right? You know --

MR. KNEEDLER:

Well, it also goes to the nature of the -- of the --

JUSTICE BARRETT:

The nature of the assistance?

MR. KNEEDLER:

Yes.

JUSTICE BARRETT:

Yes.

MR. KNEEDLER:

Yes.

JUSTICE BARRETT:

Yes. MR. KNEEDLER:

So -- so, here, the primary point I'm making here is about these 105 businesses which are open to the public on an automated way, without -- without any occasion or ability for an individualized determination about --

JUSTICE BARRETT:

Sure. So I wasn't suggesting that you were asking us to say any business that's generally open to the public can never be liable. But any business that's generally open to all comers, absent some allegation of more specific knowledge or specific interaction, cannot be liable under JASTA?

MR. KNEEDLER:

Yes. And one other point I'd like to make, it -- I -- I -- I think it is possible, as I think Atchley and Kaplan show, in that situation, it doesn't necessarily require that you know that a particular person is going to commit a particular act. If you know because of the proximate relationship with the person you're -- you're assisting that there -- that they -- there are a group of acts that they are about to commit or that they are -- that they have an ongoing practice of committing, you don't have to know of the specific act in that -- in that situation. That's why I think it is -- it is context-specific. But this is open --

JUSTICE BARRETT:

And banks are what you're worried about? Banks is what the government is --

MR. KNEEDLER:

We are worried about --

JUSTICE BARRETT:

-- worried about in that?

MR. KNEEDLER:

-- and the -- and the cases, some of them have been dismissed and we think it's important for them to be able to be dismissed, where you don't have that -- the sort of knowledge or intent, the state of mind, the -- the -- the things that go to whether this --

JUSTICE BARRETT:

You want to make sure the banks aren't automatically dismissed. Like, you're trying to make sure that whatever we said about social media companies wouldn't get banks off the hook when they have those kinds of special relationships that you're talking about?

MR. KNEEDLER:

Yes.

JUSTICE BARRETT:

Yes.

MR. KNEEDLER:

Special relationships and knowledge. It's not just banks. There could be other institutions. Charities are another one, charities both in their own right, in operating --

CHIEF JUSTICE ROBERTS:

Justice Jackson?

JUSTICE JACKSON:

So I've been kind of going back in my mind to where I started with Mr. Waxman in terms of separating out knowledge and substantial, and it -- in listening to you, it was very clear that you are putting a lot of stock in substantial, and I was trying to figure out why that is. And I went back to Halberstam, and I'm looking at the opinion, and I am noting now for the first time that after the Court in aiding -- in the aiding-and-abetting section lists the three elements, it very quickly disposes of them and, in particular, with respect to the third element, it just says, "The district court also justifiably inferred that Hamilton assisted Welch with knowledge that he had engaged in illegal acquisition of goods."

Then it goes on to say the only remaining issue then is whether her assistance was substantial. So all the factors and all the things you've been talking about are insubstantial, so it seems as though, at least per this opinion, the only real knowledge is of the kind that you're talking about with these banks if they have a personal relationship and they know that this, you know, person or somebody who's using their services has engaged in illegal activity. Is that the government's position?

MR. KNEEDLER:

Yeah. I -- I -- I don't think -- I think, in Halberstam, that was an easy line to draw because she was obviously intimately integrally related, as the Court said, in his -- in what he did. I think there are situations -- but I don't think the Court needs to reach it here because I think this case could be decided on the basis of substantial assistance, applying the objective factors.

JUSTICE JACKSON:

But it seems like substantial is harder. Substantial is where all the six factors come in. I'm trying to say, if we have a third that's knowledge and according to Halberstam, you know, if you don't even have a knowledge that he was, you know, engaged in the illegal acquisition or was a gangster or was a terrorist in a way, that should be enough, right?

MR. KNEEDLER:

Oh, yeah, no. Yeah, no, no, I'm sorry, I was taking the question to be about Halberstam itself. Yes, if you don't have knowledge that the -- or that would -- that would even go into Prong 2, if you don't have a general awareness.

JUSTICE JACKSON:

No, you have -- you might have a general awareness that Twitter or your services are being used in terrorist activities.

MR. KNEEDLER:

Right.

JUSTICE JACKSON:

What you may not have according to this is knowledge that with respect to the attacks that the person is now accusing you of assisting, you were helping those people who were involved in that act. Is that enough to get you out?

MR. KNEEDLER:

I -- I -- I think you could look at it that way, yes, because of the attenuation. Knowledge -- I -- I think knowledge would ordinarily --

JUSTICE JACKSON:

Yeah.

MR. KNEEDLER:

-- entail some concrete or some immediate perception that what they're doing --

JUSTICE JACKSON:

All right. But one final question is just with respect to this notion that Justice Gorsuch brings up about the person. I'm wondering whether the concern about that that I hear from both you and Mr. Waxman is that if you're focusing on the person who committed such an act of international terrorism, which is what the statute says, that it seems to make the focus -- take the focus away from the act itself. So that, conceivably, if you separated out the clauses, aiding and abetting the person who committed such an act, it's almost like Justice Kavanaugh's materiality statute in the sense that you could, I guess, aid and abet a person who committed the act even if it's not with respect to that act, because that's not what the statute seems to say. And so the reluctance, I think, is in focusing on the person in that way.

MR. KNEEDLER:

Yes, I -- the --

JUSTICE JACKSON:

Yeah.

MR. KNEEDLER:

-- I think that's -- that is fair to say. And even focusing on the organization, the organization is acting through an individual in -- in the commission of the act. And the -- the -- the criminal aiding-and-abetting statute refers -- says that somebody who commits a criminal act or aids and abets its commission, referring to a specific criminal act. And, here, the definition of -- of terrorist -- terrorist activity, I think it is, says it's activities that involve violent or dangerous acts --

JUSTICE JACKSON:

Acts. And if we don't --

MR. KNEEDLER:

-- that are criminal.

JUSTICE JACKSON:

-- if we don't stay -- if we don't stay focused on the acts, then we get worried about Justice Alito's hypotheticals, where you might be aiding and abetting a person who is engaging in certain things, but you aren't really assisting in those things with knowledge?

MR. KNEEDLER:

Right. It has to be -- the act itself has to be culpable, which is why the definition of terrorism refers to acts that are punishable by the criminal law. And so whether you -- whether you focus on is it the person who committed the act or the commission of the act, I think, in that sense, it all comes to the same thing.

CHIEF JUSTICE ROBERTS:

Thank you, Mr. Kneedler.

Mr. Schnapper.

ORAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE RESPONDENTS

MR. SCHNAPPER: Mr. Chief Justice, and may it please the Court: I'm going to -- I'd like to waive my two minutes of silence to move the process forward.

CHIEF JUSTICE ROBERTS:

Granted. (Laughter.)

MR. SCHNAPPER:

I hope you won't make me regret that. And I'd like to -- I'd like to respond to some of the questions that were asked earlier. I'll try to do this in seniority order. So I'd like to start with the question that you asked about trying to understand what the government's position was in the multiple factors that were there. I -- I think that question really went to the heart of the difficulty with the government's position.

The -- the Halberstam factors, there are six of them. It's complicated. The government's standard is much harder to understand, and that was brought home by the question from Justice Kagan about banking services. It seemed clear as I read the magical few words on page 34 that banking services weren't covered, but then it turned out that they were. It's difficult to understand how we got there.

Our view is that -- and the government says there's a special nexus requirement. Our view is that once the statutory elements have been met on the Halberstam factors, the nexus is foreseeability. This other rule -- these other rules aren't there. It's not as simple as you might have hoped. We still have the six factors, but it stops there. Now Justice Alito made the point earlier on, and we think this is very important, that Halberstam has, as you put it, and I wish I had thought to say it as well, essentially statutory status. The courts are directed to use Halberstam. And that's been particularly important with regard to a number of the questions here, one of them being whether the assistance has to go to assisting the particular act that -- that harmed the plaintiff.

The Halberstam facts fail that standard. And -- and you may want to hold that -- that in general aiding and abetting requires assisting a particular act, and -- and you may want to overrule Halberstam when it gets here, but Halberstam is the standard, and it says aiding and abetting an enterprise. And a number of the times, as my friends articulated the standard they were asking the Court to adopt, they would articulate a standard that would be -- that would -- that would require you to conclude that Halberstam was wrongly decided. Justice Kagan, you asked and you framed this as a hypothetical, and I want to respond that it's not. You asked what would 115 happen in a case far afield from this in which a defendant said they really weren't going to do much of anything at all, even though they know that they were assisting terrorists.

There's a factual dispute about this, but the contention in the complaint is that that was really going on, that this policy was just window dressing. The complaint specifically alleges that unless someone came to one of the defendants and identified a particular post that was from ISIS, they would not do anything. They wouldn't look for posts on their own.

JUSTICE JACKSON: Mr. Schnapper, you -- you -- you want to cut to the chase, and I appreciate that, so let me ask you this. With respect to your claims -- MR. SCHNAPPER: Yes. JUSTICE JACKSON: -- that Twitter knew about these things and it didn't do anything, how -- how do you survive Section 230? I mean, you were here yesterday and we sort of had a preview of your thoughts on this case but also I thought a concession that that's sort of the heartland of a 230 issue in terms of 116 immunity, the -- the claim that here is this Internet platform and they have these terrorist videos and things on their website and they don't take them down.

MR. SCHNAPPER:

Well, I -- I framed my comment somewhat too generally. Our position is that they continue to recommend things apace.

JUSTICE JACKSON:

All right. So we're on recommendations.

MR. SCHNAPPER:

Yeah. And that they continue to do that apace, knowing -- knowing what's -- what's happening. And --

JUSTICE JACKSON:

So why is the recommendation aiding and abetting? Why does it fit -- so we're only looking at recommendations, not Twitter's --

MR. SCHNAPPER:

Yes. Yes.

JUSTICE JACKSON:

-- you know, take -- not taking down things because you concede that that that --

MR. SCHNAPPER:

Right.

JUSTICE JACKSON:

-- would be a heartland immunity issue. So the claims are recommendations related to various terrorist activities, and with respect to that, can you just walk us through why you think that qualifies under Halberstam as aiding and abetting?

MR. SCHNAPPER:

Well, the -- the aiding and abetting -- the recommendation function is at issue here potentially more broadly because we have three different defendants in this case. There's only one Petitioner. And so their practices would be varied. But insofar as the recommendations were affirmatively calling the attention of -- of users to ISIS materials, that would -- that would be extremely valuable to ISIS in recruiting more fighters, which was, of course, a --

JUSTICE JACKSON:

That has nothing to do with the attack. So you say the -- this particular attack, they didn't have to have any knowledge or awareness or assistance with respect to the particular attack?

MR. SCHNAPPER:

That is precisely our position.

JUSTICE BARRETT:

Mr. Schnapper, does your complaint contain any specific allegations about ways in which Twitter was used to perpetrate this attack? Or is it -- it's all -- as I read it, it's all about recruiting generally, the ways in which Twitter was used --

MR. SCHNAPPER:

That -- that's correct.

JUSTICE BARRETT:

-- to recruit generally?

MR. SCHNAPPER: It's recruiting and fundraising.

JUSTICE BARRETT:

Okay.

MR. SCHNAPPER:

That -- that's my --

JUSTICE BARRETT:

So nothing about the Paris attack in particular?

MR. SCHNAPPER:

No.

JUSTICE BARRETT:

Okay.

MR. SCHNAPPER:

No. That -- that's the -- that's where we part company.

JUSTICE KAVANAUGH:

Suppose that -- well, go back to 1997, CNN did an interview of Osama bin Laden, a very famous interview of him. Could, under your theory -- and that -- that interview became where he first time declared war against the United States to a western audience, and that interview became famous, tool 119 for recruiting, notoriety. Could, under your theory, CNN have been sued for aiding and abetting the September 11th attacks?

MR. SCHNAPPER:

I -- I -- it would probably fail several elements, I think, general --

JUSTICE KAVANAUGH:

Which -- which ones?

MR. SCHNAPPER:

I think general awareness of his role. It --

JUSTICE KAVANAUGH:

General or what -- you don't think they were generally aware of his role when he declared war against the United States and said --

MR. SCHNAPPER:

No, I --

JUSTICE KAVANAUGH:

That seems -- and that was known beforehand. That was the first time he did it to a western audience.

MR. SCHNAPPER:

Well, the standard is whether they would have necessarily understood the role that the -- that the interview would play. Look, the First Amendment is going to --

JUSTICE KAVANAUGH:

Well --

MR. SCHNAPPER:

-- solve that -- I'm sorry.

JUSTICE KAVANAUGH:

The First Amendment's going to solve that? And does it?

MR. SCHNAPPER:

I think the First Amendment would solve that problem.

JUSTICE KAVANAUGH:

Mm-hmm.

MR. SCHNAPPER:

And --

JUSTICE KAVANAUGH:

But the liability under this statute. But for that, there would be liability under this statute?

MR. SCHNAPPER:

It's -- it's difficult to see how it would get through the six elements of substantiality in terms of duration, it's one interview; in terms of nature of the assistance, which is just a television interview. The -- there would -- I -- I think -- I think it usually would not, but -- but I think the First Amendment would -- would be a --

JUSTICE KAVANAUGH:

Different --

MR. SCHNAPPER:

-- explain that.

JUSTICE KAVANAUGH:

-- different tack. Just more generally, I think you've heard Mr. Waxman and Mr. Kneedler talk about businesses that provide services on an arm's length basis to a variety -- all comers and not on a favorable basis.

So how does that involve aiding and abetting a particular act when, even though you know, okay, this person is a bank robber, this person is a terrorist, they use my communication services or whatever else it may be, you don't know they're going to use it for particular acts?

So how do you -- how do you get around that? And then the implications of that, I think, that they raise are this would put a heavy burden on a wide variety of businesses to try to ferret out more information about their customers to prevent liability under this kind of statute.

MR. SCHNAPPER:

That's a lot of questions I'm going to get to -- I -- I -- I do --

JUSTICE KAVANAUGH:

Well, try to start with the --

MR. SCHNAPPER:

No, no, I don't mean to cut you off. I'll do the best I can. If -- if it's not responsive, just tell me.

JUSTICE KAVANAUGH:

Yeah. The general business --

MR. SCHNAPPER:

Yes.

JUSTICE KAVANAUGH:

-- it's not connected to a specific act.

MR. SCHNAPPER:

Right.

JUSTICE KAVANAUGH:

Why liability?

MR. SCHNAPPER:

Okay. So, first of all, it's our position, as I've said, that the assistance doesn't have to be connected to a specific act. Nothing that Hamilton did in Halberstam assisted any particular act. It was all after the fact. With regard to it being a general --

JUSTICE KAVANAUGH:

That wasn't the -- I'm sorry to interrupt, but that wasn't a business of the kind that I was hypothesizing.

MR. SCHNAPPER:

Yes. I understand that. I'm sorry if that wasn't responsive. The fact that a defendant is a general business open to all comers could be very relevant to knowledge if someone just shows up and -- and wants to rent a pager or buy a pager or whatever the technology. It's unlikely that the defendant's going to know that they're dealing with a terrorist. But there was a hypothetical that, you know, Osama bin Laden walks in and says, I'd like to buy a laptop with -- with the capacity to -- maybe a -- a -- a cell -- a satellite cell phone. And I think they would -- they would know that this was going to be used for terrorist purposes. They wouldn't know the specific act. Our view is they don't have to know that.

JUSTICE KAVANAUGH:

And how's it different from a material support statute, which are distinct language?

MR. SCHNAPPER:

The material support statute is both broader and narrower than aiding and abetting. First, the material support statute doesn't require a showing of general awareness of a role -- of the role that the support may be playing. Secondly, the aiding-and-abetting statute requires you to work your way through the six factors that we've been talking about, and that's not required under material support. Conversely, aiding and abetting can include encouragement, and that would not be materially -- material support. So they're -- they're just different. And I think Congress chose to use aiding and abetting rather than just strict liability for material support that causes harm because it wanted to use that more nuanced set of rules for aiding and abetting.

JUSTICE KAGAN:

I mean, I -- I would have thought that there is a simpler answer to how is the material support statute different, because the material support statute says, when Osama bin Laden walks in, you can't give him the money to buy a hospital either, right? It has just nothing -- in other words, it says there are some people that even when you know it doesn't have anything to do with their terrorist activities, you can't support their non-terrorist activities. And that's what the whole theory of the material support statute was. It was to prevent people from giving money to Hamas to build houses.

MR. SCHNAPPER:

I amend my answer to include that point. (Laughter.)

JUSTICE JACKSON:

What about this -- what about this point -- what about this point --

MR. SCHNAPPER:

Yes.

JUSTICE JACKSON:

-- because I'm still a little confused about your disclaiming that the support that is being given has to run to the act. So we have Osama bin Laden coming in to rent a satellite cell phone. You say the sellers don't need to know that he will use the phone to commit a terrorist act, but I take it that you're also saying that he doesn't actually have to use the phone to commit the terrorist act. He could still -- they could still be on the hook for assisting him, even if he doesn't actually use the thing that they have provided in the act that injures your client, right?

MR. SCHNAPPER:

No.

JUSTICE JACKSON:

I'm sorry, that was very long-winded.

MR. SCHNAPPER:

No, I think there were -- there were several questions there. So we --

JUSTICE JACKSON:

The -- the point is that in the hypo --

MR. SCHNAPPER:

Yes, yes.

JUSTICE JACKSON:

-- does the cell phone that is sold to --

MR. SCHNAPPER:

Yes. Yes.

JUSTICE JACKSON:

-- Osama bin Laden actually have to be used to commit the terrorist act?

MR. SCHNAPPER:

No.

JUSTICE JACKSON:

Why not?

MR. SCHNAPPER:

Because providing him the cell phone aids -- I mean, is a -- is a piece of the answer. There are other elements. It counts because it -- it aids the terrorist enterprise. That's the -- that's the formula that we're advocating.

JUSTICE JACKSON:

But what --

JUSTICE BARRETT:

Because he uses it to make calls to other associates and to -- to fundraise and that sort of thing, so he uses the phone for other things that are unconnected to the act, and you're saying that's enough?

MR. SCHNAPPER:

Yes, and -- and --

JUSTICE JACKSON:

But would you have to allege that, or could you just say you -- I mean, does the complaint have to show -- so let's say the complaint doesn't say he used it in the particular act. Would you have to have allegations that the phone was used to call associates and other things, or is it just enough that we -- that you know Osama bin Laden is a terrorist and you allege that this phone was sold to him?

MR. SCHNAPPER:

In terms of -- in terms of what you need to prove, you need it, but to answer it in terms of pleading -- in terms of pleading --

JUSTICE JACKSON:

Mm-hmm.

MR. SCHNAPPER:

-- Rule 9 requires pleading with particularity about fraud, not other things. The general -- the courts have handed down a number of decisions, in Letterman and Swierkiewicz, disclaiming the notion that additional rules of particularity of pleading should be required. There are other procedural methods for -- for -- for bringing all of that out. But the general trend in pleadings since the abolition of the Field Code is not to require specific allegations of that sort. It might be deficient given the overall context.

JUSTICE BARRETT:

But wouldn't you still have to allege, in Justice Jackson's hypothetical, that he used the phone in furtherance of terrorist activities? You couldn't just say he sold him a cell phone and have that be enough.

MR. SCHNAPPER:

You -- you would probably need to say that, although it would be fairly implicit in his name, but, yes, true, I think that would be the -- that would be the better way to -- to plead it. But, if I could follow up on a question that you asked, one of the points the government officials have made in testimony, some of which we've quoted, is that of the overall cost of running a terrorist organization. The cost of a particular attack is a very small part. Running terrorist organizations is very expensive. It involves fundraising. There are lots of salaries. There's travel. There's bribery. There's forging documents.

That's why it's so important that the Court hold that the entire enterprise being aided matters. If you -- if you -- if you limit the aid that matters to the tip of the sphere, you've -- you've written out of the statute almost all the assistance that matters, and you shouldn't do that in our view.

CHIEF JUSTICE ROBERTS:

Counsel, I understand you to have abandoned the claim against Google based on its failure to remove ISIS material, but you haven't done that in this case with respect to Twitter?

MR. SCHNAPPER:

We -- we're not advancing that view. That's because of the procedural posture of the case, which is it wasn't decided on 230 grounds, it was decided on aiding-and-abetting grounds. The 230 issue was then remanded. We just never got there. So it just hasn't come up. But -- but we would not be advancing that argument on remand, to be clear.

CHIEF JUSTICE ROBERTS:

Okay.

JUSTICE SOTOMAYOR:

So what argument -- what argument are you advancing? Meaning what's the aiding and abetting if it's not the failure to remove?

MR. SCHNAPPER:

The aiding and abetting would be the various recommendation functions that we talked about yesterday. They're different for different entities. But -- but the distinction between affirmatively recommending as opposed to just posting, we think that's the distinction that the statute draws. I -- I think I owe you a few more answers. Justice Gorsuch, you asked whether the -- the answer to the case could be found in treating the word "person" as referring only to the individuals. And -- and we think the answer to that is no. The purpose of, you know, invoking the Dictionary Act was to make it clear that a terrorist organization could be the person who would be covered by the statute. And I should note that the statute itself, before we get to those last words, talks about one of the -- one of the premise acts that has to have occurred is authorization, planning, or committing the act by a terrorist group. This is an act that was committed by the terrorist group. They didn't have a passing role. They selected Masher Ivpal. They sent him to Istanbul. They told him to wait as a sleeper agent. They apparently supported him while he was there. Somebody brought him a gun 131 and stun grenades. And then the -- the evening of the attack, a few days before the attack, he was told the attack's going to be on New Year's Eve, and there was communication back and forth. They were --

JUSTICE GORSUCH:

Mr. Schnapper, if I might --

MR. SCHNAPPER:

Yes.

JUSTICE GORSUCH:

-- since you raised that point, you know, the statute, again, I do think focuses our attention on who aids and abets the person who committed such an act of international terrorism, but it doesn't -- it doesn't just focus us on the person, though that's helpful and it narrows things. It also says you must knowingly provide substantial assistance. So it -- it does two things. It focuses on the person and it focuses on the mens rea and then it focuses on the actus reus about substantial assistance. So I see all three of those things, not just the person, but all three of those things in the statute. And, again, I'm just struggling with how -- how your -- your complaint lines up with those three requirements in the statute.

MR. SCHNAPPER:

Thank you. Let me begin by responding to a point you made earlier because this is relevant here, where you expressed the hope that one could put aside the complicated formula in Halberstam and just use the text of the statute. As we turn to the issue of what does knowing mean and what does substantial assistance mean, that's where we need to go to Halberstam. And it's a complicated assessment. And so, in -- in terms of substantial assistance, one would need to walk through each of the six elements on the Halberstam list and assess them individually. And I could walk you through that in -- in this case in terms of what we think the facts are, but I think you're just asking about the methodology, and that's what -- what we believe the correct methodology to be.

JUSTICE KAVANAUGH:

What -- what do you say to the argument about the charitable and humanitarian organizations? So I think one of the arguments that the -- as pointed out by Mr. Waxman and Mr. Kneedler and some of the amicus briefs, is that humanitarian and charitable organizations are going to be caught up in this. And I think one of the background points about aiding-and-abetting liability is it's not -- moral complicity is different from legal liability. There might be moral complicity without necessarily legal liability, and we want to have fair notice for major sanctions, civil or criminal.

MR. SCHNAPPER:

Right.

JUSTICE KAVANAUGH:

And that fair notice for these humanitarian organizations is not present under your theory and they could be swept up in that. That's at least the statement on the other side, which appears sincere to me from the amicus briefs. So how do you respond to that?

MR. SCHNAPPER:

First of all, let me just say I take all the representations of the amicus briefs to be sincere. The -- the specific elements of the statute will normally protect a charitable organization. So let's start with the requirement of knowledge and -- and look at the -- the type of knowledge alleged in this case. If -- if -- let me just take a -- let's assume a hypothetical charitable organization, and, first, there are reports on four networks that they're providing assistance to ISIS, and then there are reports in all the major newspapers in the United States that that's happening.

And then there comes a time, and the complaint alleges this happened, in which the attorney general, the director of the FBI, the director of national intelligence, and the White House chief of staff meet with the officials of the -- of the NGO and tell them they're asserting ISIS -- they're assisting ISIS. That would satisfy knowledge. And those are obviously extreme facts. And -- and it would be appropriate in -- in assessing these cases to consider the kinds of circumstances that NGOs would face. And I think it's very relevant to -- to -- to the state of mind issue.

The -- the -- our view is that the state of mind here is highly culpable. And I would use the language, I've forgotten who used it earlier, of willful blindness, and, again, I say there's a factual dispute about what's happening. But our contention is that the policy was not to look at all. And there's a -- in -- in the brief of the Concerned Women for America, there's an extraordinary quote from Twitter, and it -- and it was made three months after two Americans were executed by ISIS. And when asked why Twitter wasn't taking down ISIS materials, the comment was: Well, one man's terrorist is another man's freedom fighter.

Now I think, if a -- if a charitable organization had that knowledge and had that attitude, they should be held liable.

JUSTICE JACKSON:

Can I just ask you, Mr. Schnapper, before we run out of time, I guess I don't know why Halberstam helps your argument that it's enough to support the enterprise. I know that they use the word "enterprise," but when you look at the actual case, they're talking about the criminal enterprise. It wasn't as though she was assisting Welch or whatever the name of the guy was with, you know, laundry and children, you know, child support and she was helping him to raise money for some other thing. That would have been supporting the enterprise. But she was actually engaged in conduct that supported the criminal activity.

And yet you seem to be arguing that looking at that case, it would be enough for, you know, the cell phone to be sold to Osama bin Laden with some knowledge that it might be used generally by his -- himself or his compatriots, as opposed to, you know, this is actually going to be involved in a terrorist attack, which is the kind of thing that was going on in Halberstam. So can you clear up?

MR. SCHNAPPER:

Yes. So the -- the word Halberstam -- the word "enterprise" in Halberstam is used to refer to a -- a wrongful enterprise because it's proceeding as a tort case and -- but -- but not to refer to other kinds of assistance the court draws that distinction. We -- we would make that distinction here, that is to say, if -- that insofar as social media -- bearing in mind the 137 recommendation qualification here -- is assisting ISIS in its terrorist enterprise, that's what's covered, the -- and -- and -- and -- and that's the -- that's the claim we're making here. So I think that there's --

JUSTICE JACKSON:

I don't understand. I -- I mean, wouldn't -- wouldn't, in the Welch case, you know, her taking care of his children be assisting him so that he doesn't have to be at home at night? He's actually out committing robberies. She would be assisting his, you know, illegal activities, but I understood that what made her liable in this situation is that the assistance that she was providing was, you know, assistance that was directly aimed at the criminal activity. It was not sort of this indirect supporting him so that he can actually engage in the criminal activity.

MR. SCHNAPPER:

I'm not entirely sure where I'm disagreeing with you, but -- but let me see if this is helpful. I'm not sure it will be. The -- the assistance she was playing was not in the commission of any of the burglaries. Her role was in helping to sell the loot and keeping the books. The books were apparently kept in a perfectly straightforward way. There was nothing unusual about it, except there were no expenses for the --

JUSTICE JACKSON:

Right. That's the -- that's the essence of aiding and abetting.

MR. SCHNAPPER:

Right.

JUSTICE JACKSON:

All right. So we know she wasn't a principal. She wasn't actually --

MR. SCHNAPPER:

Yes.

JUSTICE JACKSON:

-- committing the robbers --

MR. SCHNAPPER:

Right.

JUSTICE JACKSON:

-- robberies. She was an aider and abettor. The question is, what does your aid have to go to? And they seem to be saying your aid has to go to the act that is the thing that injures the plaintiff, right, the Reina attack. You seem to be saying that the aid has to go to or can go to the larger set of activities, illegal --

MR. SCHNAPPER:

Yes.

JUSTICE JACKSON:

-- terrorist activities --

MR. SCHNAPPER:

Yes.

JUSTICE JACKSON:

-- but not necessarily the act. And I -- I don't know that Halberstam helps you as much as you may think because she was in that case aiding in the act of the burglaries that, you know, injured the people whose money and things were stolen.

MR. SCHNAPPER:

I wouldn't characterize what happened that way, but I -- I'm a little concerned that this is going to seem semantic. She was not -- she didn't do anything to assist the commission of a burglary. Her role was only after the fact.

JUSTICE JACKSON:

I think we may disagree. I mean, that's why she was an aider and abettor. She wasn't a principal. Right. She didn't -- she didn't assist the burglaries in that sense, but she assisted them insofar as she, as Mr. Waxman said, took the stuff, wrote up inventories -- I mean, she was assisting the burglaries, right?

MR. SCHNAPPER:

Again, at the risk -- I'm not feeling this is responsive. No -- no act that occurred by -- by Welch was aided by anything she did. He was not better able to do any of it. And to go back to the issue of principal, I mean, the -- if -- if she had said I'll buy you some new burglary tools, or how about picking the Halberstam case -- house tomorrow, I think they've got a lot of money, that may --

JUSTICE JACKSON:

Or how about when you bring the loot home, I'll write down the -- the things that you have and make sure that it's all recorded properly so that we know what you brought home?

MR. SCHNAPPER:

It -- it's helpful to the enterprise, but it doesn't -- it doesn't make him better able to commit the burglary. And I think that's the distinction they're trying to advance. If the Court has no further questions?

CHIEF JUSTICE ROBERTS:

Justice Thomas?

JUSTICE THOMAS:

The -- in paragraph 30 of your first amended complaint, you say "Plaintiff's claims are based not upon the content of ISIS's social media postings but upon Defendants' provision of the infrastructure which provides material support to ISIS." What does that mean?

MR. SCHNAPPER:

Well, I don't think that this -- when this was written, it's trying to parse out the distinction we're now making in terms of the role, but I think the -- the thrust of that -- of that was to be that insofar as an assertion was being made against the social media companies, is that they were helping to propagate that content. The argument is we're not trying to hold you liable merely because there's content there but because you helped to propagate it. Now -- now we would draw a more fine distinction, but I think that's the -- the thrust of that paragraph.

JUSTICE THOMAS:

So you're not pointing to -- the thrust that I understand is that you're not pointing to specific instances of this; you're -- just a general idea that they're using the service to their -- to their advantage, to ISIS's advantage?

MR. SCHNAPPER: Yes. Let me give you a more fulsome answer to that. One of the arguments that the defendant makes is it's not enough to allege that there were 50- or 70- or 90,000 ISIS accounts. You have to name some. We do not think that the Federal Rules of Civil Procedure require that. Indeed, the whole gravamen of the problem here was that it was possible to identify tens of thousands of these, and they weren't doing -- but -- but they weren't used in that capacity. There was one instance in which the hacker group Anonymous took down several thousand ISIS accounts at Twitter. Now the -- the complaint doesn't name -- doesn't give you the URLs of the accounts, but I don't think the federal rules require that.

JUSTICE THOMAS:

So --

MR. SCHNAPPER:

The allegation isn't any less plausible because it doesn't name URLs.

JUSTICE THOMAS:

But on the -- but does it also mean -- the fact that you are focused on the infrastructure rather than specific conduct or specific accounts, does that also mean that Twitter could be held liable -- Twitter is the aid -- is an aider and abettor in every terrorist act -- terrorist act? cause and effect or proximate cause for specific things, then -- and you're focused on infrastructure or just the availability of -- of -- of -- of these platforms, then it would seem that every terrorist act that uses this platform would also mean that Twitter is a -- an aider and abettor in those instances?

MR. SCHNAPPER:

I think, as you phrase it, the answer would probably be yes, and they would agree the way you phrased it. Let me phrase it a little differently, because I understand the point you're trying to make. I think their view is if -- as to any -- if -- if in every single instance in which you could point to, ISIS using Twitter to commit the attack, would they be liable, I think my -- my friend would say yes. We're advancing a different argument, and I think this is the thrust of where your --your concern is -- is directed, which is that if our claim is based on providing generalized assistance to the terrorist enterprise, where does that end?

And let me say that that's not a question that arises merely under our standard. It arises under the government's standard because the government's formula on page 34 includes channeling, directly channeling, substantial amounts of money to ISIS, and the exact same problem would arise there. We think that the appropriate way of addressing that situation is to understand the remoteness issue in -- standard in Halberstam to refer not merely to remoteness in -- in space but to remoteness in time, and that would have been true in -- in the Halberstam case. If -- if there came a point when Hamilton stopped doing the books, let's say, Quicken came along and Welch wasn't using her assistance anymore, there would come a point when it had been too long since she was playing much of a role and she would no longer be liable.

So we -- we would -- we would suggest that the standard include remoteness in time, weighed together with the volume of activity, and that -- that would address that problem. And we would suggest, if you use some variant of the government's standard, you -- you include that there as well because it presents the same problem.

CHIEF JUSTICE ROBERTS:

Justice Alito?

JUSTICE ALITO:

Let's say that a particular person is known in a particular city to be a member of a gang that carries out -- carries out crimes. Not charged, hasn't been -- prosecution hasn't been able to amass enough proof for a criminal charge, but it's pretty well-known, suspected that that's what this person is doing. The chief of police from the town goes to the cell phone provider and says, look, this gang uses cell phones in carrying out their crimes, cut off their service, goes to the Internet service provider and says that sometimes they use e-mails, cut off the e-mail, goes to the car dealers and -- and repair shops and says they use cars, don't fix their cars, goes to all the gas stations and says don't sell them gas. On Wednesday evening, the gang gets together and they always order in meals from a particular place. They go there. They say don't feed them food. Are they -- are they -- have they aided and abetted the crimes that this gang commits?

MR. SCHNAPPER:

I -- I think it's probably -- the answer is probably going to depend on the nature of -- of the materials. So, unfortunately, this is difficult, but let's say that the first person on their list is a gun dealer, and the gun dealer is told this person is -- is -- we -- we think this person is an assassin and he's looking for weapons. And they -- and -- and they sell him a gun. They -- that -- that might be aiding and abetting. At the far end of things, take-out Chinese food, no, it's not really connected particularly to the -- to the offense. I think that's a difficult question. But -- but, clearly, at one end of the spectrum, if you sell guns -- and this goes back to Justice Thomas's question. If you provide a gun to someone who you know is a murderer, I think 147 you could be held liable for aiding and abetting.

CHIEF JUSTICE ROBERTS:

Justice Sotomayor? Justice Kagan? Justice Gorsuch?

JUSTICE GORSUCH:

No, thank you.

CHIEF JUSTICE ROBERTS:

Justice Kavanaugh?

JUSTICE KAVANAUGH:

No.

CHIEF JUSTICE ROBERTS:

Justice Barrett? Justice Jackson? Thank you, counsel.

MR. SCHNAPPER:

Thank you very much.

CHIEF JUSTICE ROBERTS:

Three minutes for rebuttal, Mr. Waxman.

REBUTTAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER

MR. WAXMAN:

Thank you. So guns and banks is what seems to be, you know, most of the hypotheticals here. And I -- I want to go to -- to Justice Kagan's question about the bank and know your customer and what your customer is doing, but I'm going to start -- because there are special know your customer rules involving banks, I want to start with guns and the -- the -- the point that my friend just brought up about somebody walks into a gun store and says: I hate my wife, please sell me a Glock. I'm going to kill my wife, please sell me a Glock. Obviously, he takes the Glock. If he buys the Glock and never kills his wife, there's no aiding and abetting any crime. If he buys the gun and kills his wife, there obviously is.

Walmart is the largest gun dealer, I believe, in the United States. They know for a certainty that some of the people that buy guns are criminals. Some of them are drug gangs. Some of them are terrorists. Nobody would say -- but they don't know anybody in particular. They know that they're there. There's been a newspaper report. The State Department has issued a pronouncement. Nobody would say that they are aiding and abetting particular crimes that happen to be committed by somebody who bought a gun at Walmart. Now, in the bank example, I think the key point as I understood it at -- at least, Justice Kagan, between your colloquy with -- with my friend, Mr. Kneedler, was somebody comes into the bank and says -- and either comes in or comes in online or by Zoom. The banker knows this guy is a terrorist, that is, a terrorist in the sense that this person commits acts of international terrorism. And the guy says, love the checking account services you've provided me, I've got a cash flow issue with the thing that I do, please lend me a million dollars.

Okay. That's a case in which certainly you would survive a motion to dismiss on the notion that you know this guy commits acts of international terrorism. He has asked you for what he says he needs to "keep doing his thing." That is materially different than a situation in which the bank has 100,000 customers, it knows to a certainty that some of its customers are terrorists and they are making use of the general services that a bank provides. Maybe it's a bank that does business in the Middle East. They are not aiding and abetting an act of terrorism that that bank occurs. Now, according to my friend today, he says, well, this case isn't about the failure to do better at taking things down. This is about recommendations. There are 545 paragraphs in this complaint, and there are four that mention recommendations, each one of which is essentially the sort of neutral algorithm that was talked about before. I see I've come to the end of my sentence.

CHIEF JUSTICE ROBERTS:

Thank you, counsel. The case is submitted.

(Whereupon, at 12:45 p.m., the case was submitted.)