If, as the famous adage goes, bad facts make for bad law, then the case of Twitter v. Taamneh¸ which the US Supreme Court heard last week, may be headed toward an inauspicious denouement.

The facts of Taamneh are actually fairly straightforward—and quite tragic. On New Year’s Day in 2017, an ISIS gunman slaughtered 39 revelers at Istanbul’s Reina nightclub, including Nawras Alassaf, a Jordanian national. Claiming that Twitter and other social networks permitted ISIS to post terrorist videos, propagate the organization’s message, and radicalize recruits, Alassaf’s family sued the platforms for violating Section 2333 of the Anti-Terrorism Act, as amended by the 2016 Justice Against Sponsors of Terrorism Act.

Under the terms of that legislation, “liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” (Emphasis added.)

The trial court dismissed the Taamneh family’s complaint outright, agreeing with Twitter that the plaintiff could not state a claim for aiding and abetting because the platform neither knew about the planned terror attack nor substantially assisted it. But the Ninth Circuit Court of Appeals reversed the district court, allowing the case to move forward.

The US Supreme Court then took up the case and heard oral argument on February 22—duly attended by your humble correspondent. (Taamneh is distinct from but a close cousin to Gonzalez v. Google, which was heard by the Supreme Court a day earlier and which concerned online platforms’ immunity from suit under Section 230 of the 1996 Telecommunications Act.)

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

“I assume you would agree,” inquired Justice Clarence Thomas of Seth P. Waxman, Twitter’s attorney and a legend of the Supreme Court Bar, “that if I had a friend who was a mugger, a murderer, and a burglar, but, other than that, he was a good guy, and I loaned him a gun but not knowing and not wanting to know what he was going to do with it, that that possibly could be aiding and abetting?”

But Waxman wouldn’t bite, arguing that even in that case, the fictional Justice Thomas could contend that he didn’t specifically know that his mugger-murderer-burglar friend intended to carry out a crime. All the more so, then, would Twitter not be liable for failing to take down objectionable ISIS content, especially if it had no knowledge of an imminent attack.

Waxman also contrasted the hypothetical justice’s active provision of a gun to a wrongdoer with Twitter’s alleged inaction in not removing offensive, inciting Islamic State posts and messages. But Justice Elena Kagan waxed skeptical of the distinction, noting that “the conduct is the provision of a platform by which to communicate with each other and other members of ISIS and by which to recruit.” For Justice Kagan, that Twitter provides this service generally to more than one billion users does not render the provision any less of an act.

Another common analogy involved financial institutions, where more extensive jurisprudence has established that banks can be liable for providing financial services to terrorist organizations even if they had no advance knowledge of the groups’ targets. In that regard, much is likely to turn on the difference between the more intimate, one-on-one relationship typical of a bank and its customers and the one-on-a-billion relationship between social media platforms and their users.

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

In the end, odds are that Twitter will prevail, as the justices ultimately seemed to doubt that the plaintiff could ever prove that the social media giant knowingly provided substantial assistance to ISIS in perpetrating the Reina attack; the link between its generally available service and the horrific act of mass murder simply seems too attenuated.

But if the justices agreed to hear the case to clarify and promulgate some sort of bright-line rule about whether, when, and how social media platforms can be liable for acts of terror carried out and furthered by their users, the justices may be regretting their decision, given the thorniness of the facts in Taamneh. We may indeed be headed toward bad law.

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