Lawsuits claiming that online services aid terrorist organizations just by hosting their content or having users who espouse the organizations’ views potentially could censor a vast amount of protected expression online, EFF and a coalition of other civil society groups argued in a brief filed this week.

In Twitter v. Taamneh, the U.S. Court of Appeals for the Ninth Circuit ruled that online services can be civilly liable under the Anti-Terrorism Act (ATA) based on claims that the platform had generalized awareness that members of a terrorist organization used its service. The Supreme Court agreed to review Taamneh and another case involving similar facts and legal claims (Gonzales v. Google) this fall.

Although the legal issues in Taamneh primarily center on how federal courts should interpret the ATA’s language,the Ninth Circuit’s broad interpretation would have dangerous implications for the First Amendment rights of internet users and the platforms hosting their speech, according to a friend-of-the-court brief filed by EFF, the Center for Democracy & Technology, the ACLU, the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the R Street Institute.

“These platforms and other intermediaries provide essential fora for speech and have become a primary source of news, information, and discussions across the nation and around the world,” the brief argues. But if the Ninth Circuit’s “startlingly broad construction of the ATA stands, online intermediaries will be forced to suppress protected speech.”

The Supreme Court can avoid these significant First Amendment concerns by interpreting the ATA to create liability only when platforms have “actual knowledge that a specific piece of user-generated content substantially assists an act of terrorism,” the brief argues. In other words, online services should not be liable under the ATA based only on claims that they had some generalized awareness of terrorist content on their platforms.

The Supreme Court has repeatedly struck down laws that imposed liability on intermediaries even when they lacked any actual knowledge that the content they are publishing or distributing is illegal, largely to protect the First Amendment rights of the intermediaries and their customers. The Supreme Court first recognized this principle in a case involving the prosecution of a Los Angeles bookstore for selling obscene material.

The Supreme Court ruled that the ordinance under which the bookstore was prosecuted  violated the First Amendment because it created strict liability, meaning it did not matter whether the store owner knew whether any material was obscene.

But that was precisely the problem, the Supreme Court ruled, because a bookstore faced with such massive liability would likely only sell material that they had read themselves first. Besides imposing an unreasonable level of omniscience on the store, the ordinance forced the store to engage in self-censorship that would affect the broader public, who would not be able to access material that the seller had not yet reviewed, regardless of whether it was protected speech.

The same concerns apply with even greater force to online intermediaries, who distribute an exponentially greater amount of content daily than even the largest bookseller, the amicus brief argues. Thus, the Supreme Court should reject the Ninth Circuit’s broad ATA interpretation.

Otherwise, all sorts of protected speech by all sorts of speakers could conceivably subject an online intermediary to liability, and intermediaries will have to restrict a great deal of speech in order to mitigate the risk of litigation and massive damages awards. This chilling effect, in turn, will deprive the public of access to large swaths of speech. These outcomes are precisely what the First Amendment forbids under this Court’s precedents.

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