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SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1496
_________________
Twitter, Inc., PETITIONER
v. Mehier
Taamneh, et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[May 18, 2023]
Justice Thomas delivered the opinion of the
Court.
Under 18 U. S. C. §2333, United States
nationals who have been “injured . . . by reason of an
act of international terrorism” may sue for damages. §2333(a). They
are not limited to suing the individual terrorists or organizations
that directly carried out the attack, however. That is because
§2333(d)(2) also imposes civil liability on “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.” Victims of terrorist acts therefore may
seek to recover from those who aided and abetted the terrorist act
that injured them.
The plaintiffs (who are respondents) contend
that they have stated a claim for relief under §2333(d)(2). They
were allegedly injured by a terrorist attack carried out by ISIS.
But plaintiffs are not suing ISIS. Instead, they have brought suit
against three of the largest social-media companies in the
world—Facebook, Twitter (who is petitioner), and Google (which owns
YouTube)—for allegedly aiding and abetting ISIS. As plaintiffs
allege, ISIS has used defendants’ social-media platforms to recruit
new terrorists and to raise funds for terrorism. Defendants
allegedly knew that ISIS was using their platforms but failed to
stop it from doing so. Plaintiffs accordingly seek to hold
Facebook, Twitter, and Google liable for the terrorist attack that
allegedly injured them. We conclude, however, that plaintiffs’
allegations are insufficient to establish that these defendants
aided and abetted ISIS in carrying out the relevant attack.
I
Plaintiffs’ case arises from a 2017 terrorist
attack on the Reina nightclub in Istanbul, Turkey. The attack was
carried out by Abdulkadir Masharipov on behalf of the Islamic State
of Iraq and Syria (ISIS).[
1]
Born in Uzbekistan, Masharipov had received military training with
al Qaeda in Afghanistan in 2011 and eventually became affiliated
with ISIS. In 2016, he was ordered by ISIS to travel to Turkey and
launch an attack in Istanbul on New Year’s Eve. After planning and
coordinating the attack with ISIS emir Abu Shuhada, Masharipov
entered the Reina nightclub in the early hours of January 1, 2017,
and fired over 120 rounds into a crowd of more than 700 people. In
total, Masharipov killed 39 people and injured 69 others. The next
day, ISIS released a statement claiming responsibility for the
attack. Two weeks later, Masharipov was arrested in Istanbul after
hiding out in ISIS safe houses.
One of Masharipov’s victims was Nawras Alassaf,
who was killed in the attack. Several members of Alassaf ’s
family then brought the present lawsuit under §2333, alleging that
they had been injured by the attack.[
2] Invoking §2333(d)(2), plaintiffs sued three major
social-media companies—Facebook, Inc., Google, Inc., and Twitter,
Inc.—claiming that they aided and abetted ISIS and thus were liable
for the Reina nightclub attack.[
3]
As is common knowledge, these three companies
control three of the largest and most ubiquitous platforms on the
internet: Facebook, YouTube, and Twitter. At the time of the Reina
attack, Facebook had over 2 billion active users each month,
YouTube had over 1 billion, and Twitter had around 330 million. See
Facebook, Inc., Form 10–K for Fiscal Year Ended Dec. 31, 2017, p.
34; Twitter, Inc., Form 10–K for Fiscal Year Ended Dec. 31, 2017,
p. 47; YouTube, YouTube Hits a Billion Monthly Users (Mar. 21,
2013), https://blog.youtube/news-and-events/onebillionstrong. At
least for Facebook and YouTube, those numbers are even higher
today. See Meta Platforms, Inc., Form 10–K for Fiscal Year Ended
Dec. 31, 2022, p. 56 (nearly 3 billion); L. Ceci, Statista,
YouTube–Statistics & Facts (Mar. 22, 2023),
https://www.statista.com/topics/2019/youtube/ #topicOverview (2.56
billion).
Everyone before us today agrees on the basic
aspects of these platforms’ business models. People from around the
world can sign up for the platforms and start posting content on
them, free of charge and without much (if any) advance screening by
defendants. Once on the platforms, users can upload messages,
videos, and other types of content, which others on the platform
can then view, respond to, and share. As noted above, billions of
people have done just that. As a result, the amount of content on
defendants’ platforms is staggering. It appears that for
every
minute of the day, approximately 500 hours of video are
uploaded to YouTube, 510,000 comments are posted on Facebook, and
347,000 tweets are sent on Twitter. See Statista, Media Usage in an
Internet Minute as of April 2022 (2023),
https://www.statista.com/statistics/195140/new-user-
generated-content-uploaded-by-users-per-minute; Statista,
YouTube–Statistics & Facts; B. Marr, How Much Data Do We Create
Every Day? Forbes, May 21, 2018. On YouTube alone, users
collectively watch more than 1 billion hours of video
every
day. See YouTube Advertising, Reach Your Customers—and Discover
New Ones, https://youtube.com/
intl/en_us/ads/how-it-works/set-up-a-campaign/audience.
Defendants profit from this content largely by
charging third parties to advertise on their platforms. Those
advertisements are placed on or near the billions of videos, posts,
comments, and tweets uploaded by the platforms’ users. To organize
and present all those advertisements and pieces of content,
defendants have developed “recommendation” algorithms that
automatically match advertisements and content with each user; the
algorithms generate those outputs based on a wide range of
information about the user, the advertisement, and the content
being viewed. So, for example, a person who watches cooking shows
on YouTube is more likely to see cooking-based videos and
advertisements for cookbooks, whereas someone who likes to watch
professorial lectures might see collegiate debates and
advertisements for TED Talks.
But not all of the content on defendants’
platforms is so benign. As plaintiffs allege, ISIS and its
adherents have used these platforms for years as tools for
recruiting, fundraising, and spreading their propaganda. Like many
others around the world, ISIS and its supporters opened accounts on
Facebook, YouTube, and Twitter and uploaded videos and messages for
others to see. Like most other content on those platforms, ISIS’
videos and messages were then matched with other users based on
those users’ information and use history. And, like most other
content, advertisements were displayed with ISIS’ messages, posts,
and videos based on information about the viewer and the content
being viewed. Unlike most other content, however, ISIS’ videos and
messages celebrated terrorism and recruited new terrorists. For
example, ISIS uploaded videos that fundraised for weapons of terror
and that showed brutal executions of soldiers and civilians alike.
And plaintiffs allege that these platforms have been crucial to
ISIS’ growth, allowing it to reach new audiences, gain new members,
and spread its message of terror.
Plaintiffs also allege that defendants have
known that ISIS has used their platforms for years. Yet, plaintiffs
claim that defendants have failed to detect and remove a
substantial number of ISIS-related accounts, posts, and videos.
(For example, plaintiffs aver that defendants “have failed to
implement . . . a basic account detection methodology” to
prevent ISIS supporters from generating multiple accounts on their
platforms. App. 150.) Accordingly, plaintiffs assert that
defendants aided and abetted ISIS by knowingly allowing ISIS and
its supporters to use their platforms and benefit from their
“recommendation” algorithms, enabling ISIS to connect with the
broader public, fundraise, and radicalize new recruits. And, in the
process, defendants allegedly have profited from the advertisements
placed on ISIS’ tweets, posts, and videos.
Plaintiffs also provide a set of allegations
specific to Google. According to plaintiffs, Google has established
a system that shares revenue gained from certain advertisements on
YouTube with users who posted the videos watched with the
advertisement. As part of that system, Google allegedly reviews and
approves certain videos before Google permits ads to accompany that
video. Plaintiffs allege that Google has reviewed and approved at
least some ISIS videos under that system, thereby sharing some
amount of revenue with ISIS.
The District Court dismissed plaintiffs’
complaint for failure to state a claim.[
4] But the Ninth Circuit reversed, finding that plaintiffs
had plausibly alleged that defendants aided and abetted ISIS within
the meaning of §2333(d)(2) and thus could be held secondarily
liable for the Reina nightclub attack.
Gonzalez v.
Google, 2 F. 4th 871 (2021). We granted certiorari to
resolve whether plaintiffs have adequately stated such a claim
under §2333(d)(2). See 598 U. S. ___ (2022).
II
Section 2333 was originally enacted as part of
the Antiterrorism Act (ATA) in 1990. 104Stat. 2250. At that time,
Congress authorized United States nationals or their “estate,
survivors, or heirs” to bring civil lawsuits when “injured in
[their] person, property, or business by reason of an act of
international terrorism.”
Id., at 2251.[
5] In such a lawsuit, the plaintiff could recover
treble damages and the cost of the suit, including attorney’s fees.
See 18 U. S. C. §2333(a). But the ATA did not explicitly
impose liability on anyone who only helped the terrorists carry out
the attack or conspired with them. Prior to 2016, some courts
accordingly determined that the ATA did not authorize that sort of
secondary civil liability. See,
e.g.,
Rothstein v.
UBS AG, 708 F.3d 82, 97–98 (CA2 2013).
Then, in 2016, Congress enacted the Justice
Against Sponsors of Terrorism Act (JASTA) to provide for a form of
secondary civil liability. 130Stat. 852. Thus, as the law now
stands, those injured by an act of international terrorism can sue
the relevant terrorists directly under §2333(a)—or they can sue
anyone “who aids and abets, by knowingly providing substantial
assistance, or who conspires with the person who committed such an
act of international terrorism” under §2333(d)(2). For such a
secondary-liability claim, there is an additional condition: The
“act of international terrorism” must have been “committed,
planned, or authorized by an organization that had been designated
as a foreign terrorist organization under [ 8 U. S. C.
§1189] as of the date on which such act of international terrorism
was committed, planned, or authorized.”
Ibid. Plaintiffs
seeking secondary liability can likewise recover treble damages and
the cost of the suit, including attorney’s fees. See §§2333(a),
(d)(2).
The parties here do not dispute that the first
three components of §2333(d)(2) have been adequately alleged: The
Reina nightclub attack was an “act of international terrorism”; the
attack was “committed, planned, or authorized” by ISIS; and ISIS
was “designated as a foreign terrorist organization” as of the date
of the Reina nightclub attack. §2333(d)(2). The central question is
thus whether defendants’ conduct constitutes “aid[ing] and
abett[ing], by knowingly providing substantial assistance,” such
that they can be held liable for the Reina nightclub attack.
Ibid.
III
As always, we start with the text of §2333.
See
Bartenwerfer v.
Buckley, 598 U.S. 69, 74 (2023).
Here, that text immediately begs two questions: First, what exactly
does it mean to “aid and abet”? Second, what precisely must the
defendant have “aided and abetted”?
A
We turn first to the meaning of the phrase
“aids and abets, by knowingly providing substantial assistance.”
Nothing in the statute defines any of those critical terms. Yet
terms like “aids and abets” are familiar to the common law, which
has long held aiders-and-abettors secondarily liable for the
wrongful acts of others. See
Central Bank of Denver, N. A.
v.
First Interstate Bank of Denver, N. A.,
511 U.S.
164, 181 (1994). We generally presume that such common-law
terms “brin[g] the old soil” with them.
Sekhar v.
United
States,
570 U.S.
729, 733 (2013) (internal quotation marks omitted). In enacting
JASTA, Congress provided additional context by pointing to
Halberstam v.
Welch, 705 F.2d 472 (CADC 1983), as
“provid[ing] the proper legal framework” for “civil aiding and
abetting and conspiracy liability.” §2(a)(5), 130Stat.
852.[
6] We thus begin with
Halberstam’s “legal framework,” viewed in context of the
common-law tradition from which it arose.
1
Long regarded as a leading case on civil
aiding-and- abetting and conspiracy liability, see 130Stat. 852,
Halberstam arose from a distinctive fact pattern. Bernard
Welch was a serial burglar who had killed Michael Halberstam during
a break-in. 705 F. 2d, at 474. Halberstam’s estate then sued
Welch’s live-in partner, Linda Hamilton, for aiding and abetting
and conspiring with Welch.
Id., at 474, 476.[
7] Hamilton was not present for Halberstam’s
murder, or even allegedly aware of the murder. See
id., at
474–476. But the facts made clear that “[s]he was a willing partner
in [Welch’s] criminal activities.”
Id., at 474 (internal
quotation marks omitted). Hamilton had lived with Welch for five
years, during which time the couple had risen from modest
circumstances to possess a substantial fortune.
Ibid. This
rapid ascent was remarkable because Welch had no outside
employment.
Id., at 475
. Rather, he left the house
most evenings and returned with antiques, jewelry, and precious
metals—some of which he melted down into gold and silver ingots by
using a smelting furnace that he had installed in their garage.
Meanwhile, Hamilton did bookkeeping work for Welch’s “business,”
facilitating the sale of those stolen goods.
Ibid. She had
Welch’s customers make checks payable to her, falsified her tax
returns at Welch’s direction, and kept records of incoming payments
from Welch’s customers—with no records of outgoing funds to his
“suppliers.”
Ibid. Their arrangement continued until Welch
was arrested after he killed Halberstam while burglarizing
Halberstam’s home.
Ibid.
To determine Hamilton’s liability, the
D. C. Circuit undertook an extensive survey of the common law,
examining a series of state and federal cases, the Restatement
(Second) of Torts, and prominent treatises that discussed secondary
liability in tort.
Id., at 476–478, 481–486. With respect to
aiding and abetting, the court synthesized the cases as resting on
three main elements: First, “the party whom the defendant aids must
perform a wrongful act that causes an injury.”
Id., at 477.
Second, “the defendant must be generally aware of his role as part
of an overall illegal or tortious activity at the time that he
provides the assistance.”
Ibid. And, third, “the defendant
must knowingly and substantially assist the principal violation.”
Ibid. (citing,
e.g.,
Landy v.
Federal
Deposit Ins. Corp., 486 F.2d 139, 162–163 (CA3 1973);
Woodward v.
Metro Bank of Dallas, 522 F.2d 84, 94–95
(CA5 1975)).
Halberstam then articulated six factors to help
determine whether a defendant’s assistance was “substantial.” 705
F. 2d, at 486–488. Those factors are (1) “the nature of the act
assisted,” (2) the “amount of assistance” provided, (3) whether the
defendant was “present at the time” of the principal tort, (4) the
defendant’s “relation to the tortious actor,” (5) the “defendant’s
state of mind,” and (6) the “duration of the assistance” given.
Id., at 488 (emphasis deleted). Last,
Halberstam
clarified that those who aid and abet “a tortious act may be
liable” not only for the act itself but also “for other reasonably
foreseeable acts done in connection with it.”
Id., at
484.
Applying that framework, the D. C. Circuit
held that Hamilton was liable for aiding and abetting Halberstam’s
murder.
Id., at 489.[
8]
The court first determined that Welch had committed a wrong (in
killing Halberstam during the burglary) and that Hamilton was
generally aware of her role in Welch’s criminal enterprise.
Id., at 488. It then explained that Hamilton had given
knowing and substantial assistance to Welch’s activities by helping
him turn his “stolen goods into ‘legitimate’ wealth,” thereby
intending to help Welch succeed by performing a function crucial to
any thief.
Ibid. And it clarified that Hamilton knew Welch
was committing some sort of “personal property crime,” the
“foreseeable risk” of which was “violence and killing.”
Ibid. The court therefore concluded that Hamilton
substantially helped Welch commit personal property crimes and was
liable for Halberstam’s death, which was a foreseeable result of
such crimes.
Ibid.
That articulation of the common law thus
resolved
Halberstam. But
Halberstam recognized that
the elements and factors it provided could “be merged or
articulated somewhat differently without affecting their basic
thrust.”
Id., at 478, n. 8. It thus cautioned—in a
typical common-law fashion—that its formulations should “not be
accepted as immutable components.”
Id., at 489. Rather,
Halberstam suggested that its framework should be “adapted
as new cases test their usefulness in evaluating vicarious
liability.”
Ibid.
2
The allegations before us today are a far cry
from the facts of
Halberstam. Rather than dealing with a
serial burglar and his live-in partner-in-crime, we are faced with
international terrorist networks and world-spanning internet
platforms. By
Halberstam’s own lights, its precise
three-element and six-factor test thus may not be entirely adequate
to resolve these new facts.
Ibid. And JASTA itself points
only to
Halberstam’s “framework,” not its facts or its exact
phrasings and formulations, as the benchmark for aiding and
abetting. §2(a)(5), 130Stat. 852. We therefore must ascertain the
“basic thrust” of
Halberstam’s elements and determine how to
“adap[t]” its framework to the facts before us today. See 705
F. 2d, at 478, 489, and n. 8. To do so, we turn to the
common law of aiding and abetting upon which
Halberstam
rested and to which JASTA’s common-law terminology points.
As we have recognized, “[a]iding and abetting is
an ancient criminal law doctrine” that has substantially influenced
its analog in tort.
Central Bank of Denver, 511 U. S.,
at 181. In one early statement of the criminal-law doctrine,
William Blackstone explained that those who were “present, aiding
and abetting the fact to be done,” or “procure[d], counsel[ed], or
command[ed] another to commit a crime,” were guilty and punishable.
4 Commentaries on the Laws of England 34, 36 (1795). Over the
years, many statutes and courts have offered variations on that
basic rule. See
United States v.
Peoni, 100 F.2d 401,
402 (CA2 1938) (L. Hand, J., for the court) (collecting
authorities). Yet, to this day, the basic “view of culpability”
that animates the doctrine is straightforward: “[A] person may be
responsible for a crime he has not personally carried out if he
helps another to complete its commission.”
Rosemond v.
United States,
572 U.S.
65, 70 (2014).
Importantly, the concept of “helping” in the
commission of a crime—or a tort—has never been boundless. That is
because, if it were, aiding-and-abetting liability could sweep in
innocent bystanders as well as those who gave only tangential
assistance. For example, assume that any assistance of any kind
were sufficient to create liability. If that were the case, then
anyone who passively watched a robbery could be said to commit
aiding and abetting by failing to call the police. Yet, our legal
system generally does not impose liability for mere omissions,
inactions, or nonfeasance; although inaction can be culpable in the
face of some independent duty to act, the law does not impose a
generalized duty to rescue. See 1 W. LaFave, Substantive Criminal
Law §6.1 (3d ed. 2018) (LaFave); W. Keeton, D. Dobbs, R. Keeton,
& D. Owen, Prosser and Keeton on Law of Torts 373–375 (5th ed.
1984) (Prosser & Keeton). Moreover, both criminal and tort law
typically sanction only “wrongful conduct,” bad acts, and
misfeasance. J. Goldberg, A. Sebok, & B. Zipursky, Tort Law:
Responsibilities and Redress 31 (2004). Some level of
blameworthiness is therefore ordinarily required. But, again, if
aiding-and-abetting liability were taken too far, then ordinary
merchants could become liable for any misuse of their goods and
services, no matter how attenuated their relationship with the
wrongdoer. And those who merely deliver mail or transmit emails
could be liable for the tortious messages contained therein. See
Restatement (Second) of Torts §876, Comment
d, Illus. 9, p.
318 (1979) (cautioning against this result).
For these reasons, courts have long recognized
the need to cabin aiding-and-abetting liability to cases of truly
culpable conduct. They have cautioned, for example, that not “all
those present at the commission of a trespass are liable as
principals” merely because they “make no opposition or manifest no
disapprobation of the wrongful” acts of another.
Brown v.
Perkins, 83 Mass. 89, 98 (1861); see also
Hilmes v.
Stroebel, 59 Wis. 74, 17 N.W. 539 (1883);
Duke v.
Feldman, 245 Md. 454, 457–458, 226 A.2d 345, 347 (1967). Put
another way, overly broad liability would allow for “one person
[to] be made a trespasser and even a felon against his or her
consent, and by the mere rashness or precipitancy or overheated
zeal of another.”
Bird v.
Lynn, 49 Ky. 422, 423
(1850). Moreover, unlike its close cousin conspiracy, aiding and
abetting does not require any agreement with the primary wrongdoer
to commit wrongful acts, thus eliminating a significant limiting
principle. See
Nye & Nissen v.
United States,
336
U.S. 613, 620 (1949).
To keep aiding-and-abetting liability grounded
in culpable misconduct, criminal law thus requires “that a
defendant ‘in some sort associate himself with the venture, that he
participate in it as in something that he wishes to bring about,
that he seek by his action to make it succeed’ ” before he could be
held liable.
Id., at 619 (quoting
Peoni, 100
F. 2d, at 402). In other words, the defendant has to take some
“affirmative act” “with the intent of facilitating the offense’s
commission.”
Rosemond, 572 U. S., at 71. Such
intentional participation can come in many forms, including
abetting, inducing, encouraging, soliciting, or advising the
commission of the offense, such as through words of encouragement
or driving the getaway car. 2 LaFave §13.2(a), at 457–460; see also
J. Hawley & M. McGregor, The Criminal Law 81 (3d ed. 1899).
Regardless of the particulars, however, it is clear that some
culpable conduct is needed. See
Rosemond, 572 U. S., at
73, 77.[
9]
Similar principles and concerns have shaped
aiding-and-abetting doctrine in tort law, with numerous cases
directly employing them to help articulate the standard for
tortious aiding and abetting. See,
e.g.,
Zoelsch v.
Arthur Andersen & Co., 824 F.2d 27, 35–36 (CADC 1987);
Woodward, 522 F. 2d, at 95, n. 23;
Landy, 486
F. 2d, at 163–164 (all relying on
Nye & Nissen, 336
U. S., at 619); see also
Camp v.
Dema, 948 F.2d
455, 459 (CA8 1991) (relying on
People v.
Terman,
4 Cal. App. 2d 345, 346–347 (1935), another criminal case).
Similar to the criminal-law rule, some cases have required that the
defendant’s assistance “must have had a direct relation to the
trespass, and have been calculated and intended to produce it” to
warrant liability for the resulting tort.
Bird, 49 Ky., at
423; see also
Smith v.
Thompson, 103 Idaho 909, 911,
655 P.2d 116, 118 (App. 1982);
Brown, 83 Mass., at 98. Other
cases have emphasized the need for some “culpable conduct” and
“some degree of knowledge that [a defendant’s] actions are aiding
the primary violator” before holding the defendant secondarily
liable.
Camp, 948 F. 2d, at 460. Still others have
explained that “[c]ulpability of some sort is necessary to justify
punishment of a secondary actor,” lest mostly passive actors like
banks become liable for all of their customers’ crimes by virtue of
carrying out routine transactions.
Monsen v.
Consolidated
Dressed Beef Co., 579 F.2d 793, 799 (CA3 1978). And others have
suggested that “inaction cannot create liability as an aider and
abettor” absent a duty to act.
Zoelsch, 824 F. 2d, at
36; see also
Woodward, 522 F. 2d, at 96.
In articulating those limits, courts
simultaneously began to crystalize the framework for aiding and
abetting that
Halberstam identified and applied. See,
e.g.,
Monsen, 579 F. 2d, at 799 (stating a
similar three-part test).[
10] As in
Halberstam, that framework generally
required what the text of §2333(d)(2) demands: that the defendant
have given knowing and substantial assistance to the primary
tortfeasor. See,
e.g.,
Monsen, 579 F. 2d, at
799;
Landy, 486 F. 2d, at 162–163. Notably, courts
often viewed those twin requirements as working in tandem, with a
lesser showing of one demanding a greater showing of the other.
E.g.,
Woodward, 522 F. 2d, at 97;
Woods
v.
Barnette Bank of Ft. Lauderdale, 765 F.2d 1004, 1010
(CA11 1985). In other words, less substantial assistance required
more scienter before a court could infer conscious and culpable
assistance. See
Woodward, 522 F. 2d, at 97. And, vice
versa, if the assistance were direct and extraordinary, then a
court might more readily infer conscious participation in the
underlying tort. See
ibid. In moving back and forth between
all these guideposts, the courts thus largely tracked the same
distinctions drawn above to ensure that liability fell only on
those who had abetted the underlying tort through conscious,
“culpable conduct.”
Camp, 948 F. 2d, at 460.
3
Halberstam’s framework reflected and
distilled those common-law principles. Indeed,
Halberstam
started with a survey of many earlier common-law cases, including
many of the same cases cited above. 705 F. 2d, at 477, 483
(citing,
e.g.,
Woodward, 522 F. 2d, at 94–95;
Landy, 486 F. 2d, at 162–163;
Duke, 245 Md., at
457–458, 226 A. 2d, at 347). As part of that survey,
Halberstam explicitly distinguished different types of aid
along the same culpability axis that grounded the common law. 705
F. 2d, at 481–483. For example,
Halberstam recognized
that giving verbal encouragement (such as yelling “ ‘Kill
him!’ ”) could be substantial assistance,
id., at 481,
but that passively watching an assault after hearing an assailant
threaten the victim likely would not be,
id., at 483. Those
same lines have long been drawn for aiding-and-abetting liability
under the common law. See
Rosemond, 572 U. S., at 70;
see also,
e.g., 2 LaFave §13.2(a), at 457–460; Restatement
(Second) of Torts §876, Comment
d, Illus. 9–10, at 318;
Brown, 83 Mass., at 98. And
Halberstam’s six factors
for “substantial assistance” call for the same balancing that
courts had undertaken previously between the nature and amount of
assistance on the one hand and the defendant’s scienter on the
other. 705 F. 2d, at 484–485, 487–488.
Despite that deep-rooted common-law basis, the
Ninth Circuit appears to have understood JASTA’s approval of
Halberstam’s “legal framework” as requiring it to hew
tightly to the precise formulations that
Halberstam used.
The parties before us similarly make a conscious effort to draw
analogies to the facts of that case. But any approach that too
rigidly focuses on
Halberstam’s facts or its exact
phraseology risks missing the mark.
Halberstam is by its own
terms a common-law case and provided its elements and factors as a
way to synthesize the common-law approach to aiding and abetting.
And JASTA employs the common-law terms “aids and abets,” pointing
to
Halberstam’s common-law “framework” as the primary
guidepost for understanding the scope of §2333(d)(2).
At bottom, both JASTA and
Halberstam’s
elements and factors rest on the same conceptual core that has
animated aiding-and-abetting liability for centuries: that the
defendant consciously and culpably “participate[d]” in a wrongful
act so as to help “make it succeed.”
Nye & Nissen, 336
U. S., at 619. To be sure, nuances may establish daylight
between the rules for aiding and abetting in criminal and tort law;
we have described the doctrines as “rough[ly] simila[r],” not
identical.
Central Bank of Denver, 511 U. S., at 181.
But we need not resolve the extent of those differences today; it
is enough for our purposes to recognize the framework that
Halberstam set forth and the basis on which it rests. The
phrase “aids and abets” in §2333(d)(2), as elsewhere, refers to a
conscious, voluntary, and culpable participation in another’s
wrongdoing.
B
The next question, however, is what precisely
a defendant must aid and abet. As noted above, JASTA imposes
liability on anyone “who aids and abets, by knowingly providing
substantial assistance, or who conspires with the person who
committed such an act of international terrorism.” §2333(d)(2). The
parties vigorously dispute the textual object of the term “aids and
abets”: Plaintiffs assert that it is “the person,” and defendants
insist that it is the “act of international terrorism.” So,
plaintiffs contend, defendants can be liable if they aided and
abetted ISIS generally—there is no need for defendants to have
aided and abetted the specific Reina nightclub attack. Conversely,
defendants posit that they are liable only if they directly aided
and abetted the Reina nightclub attack, with a strict nexus between
their assistance and that attack. Neither side is quite right.
To start, we find it unnecessary to parse
whether the textual object of “aids and abets” is “the person” or
the “act of international terrorism.” That syntactic dispute makes
little difference here, because aiding and abetting is inherently a
rule of secondary liability for specific wrongful acts. See Prosser
& Keeton 323. As stated above, the rule imposes liability for a
wrong on those who “hel[p] another to complete
its
commission.”
Rosemond, 572 U. S., at 70 (emphasis
added). Or, as
Halberstam put it, the defendant must aid and
abet “a tortious act.” 705 F. 2d, at 484.
Nor would a contrary rule make sense for torts.
That is because tort law imposes liability only when someone
commits an actual tort; merely agreeing to commit a tort or
suggesting a tortious act is not, without more, tortious. See
Prosser & Keeton 324;
Halberstam, 705 F. 2d, at
479.[
11] “Enterprises” or
“conspiracies” alone are therefore not tortious—the focus must
remain on the tort itself. The same is true here: The ATA opens the
courthouse doors only if the plaintiff is “injured . . .
by reason of an act of international terrorism.” §2333(a). JASTA
further restricts secondary liability by requiring that the “act of
international terrorism” be “committed, planned, or authorized by”
a foreign terrorist organization designated as such “as of the date
on which such act of international terrorism was committed,
planned, or authorized.” §2333(d). Thus, it is not enough, as
plaintiffs contend, that a defendant have given substantial
assistance to a transcendent “enterprise” separate from and
floating above all the actionable wrongs that constitute it.
Rather, a defendant must have aided and abetted (by knowingly
providing substantial assistance) another person in the commission
of the actionable wrong—here, an act of international terrorism.
See,
e.g., Restatement (Second) of Torts §876(b), and
Comment
d;
Halberstam, 705 F. 2d, at 488.
Plaintiffs insist that
Halberstam proves
the contrary, but their argument misses the gist of that case. To
be sure, Linda Hamilton was not on the scene for the burglary of
Halberstam’s house and did not lend any specific support to
Halberstam’s murder.
Ibid. But Hamilton’s assistance to
Welch was so intentional and systematic that she assisted each and
every burglary committed by Welch; any time that Welch left the
house to burglarize, he would have relied on Hamilton’s assistance
in laundering the stolen goods and transforming them into usable
wealth. See
ibid. Thus, Hamilton did aid and abet Welch in
burglarizing Halberstam’s home—and, as noted above, killing
Halberstam was a foreseeable consequence of that burglary. See
ibid.
On the other hand, defendants overstate the
nexus that §2333(d)(2) requires between the alleged assistance and
the wrongful act. To start, aiding and abetting does not require
the defendant to have known “all particulars of the primary actor’s
plan.” Restatement (Third) of Torts: Intentional Torts to Persons
§10, Comment
c, p. 104 (Tent. Draft No. 3, Apr. 6, 2018).
For example, a defendant might be held liable for aiding and
abetting the burning of a building if he intentionally helped
others break into the building at night and then, unknown to him,
the others lit torches to guide them through the dark and
accidentally started a fire. See
American Family Mutual Ins.
Co. v.
Grim, 201 Kan. 340, 345–347,
440 P.2d 621, 625–626 (1968); Restatement (Second) of Torts
§876, Comment
d, Illus. 10, at 318. That leads to the next
problem: As
Halberstam makes clear, people who aid and abet
a tort can be held liable for other torts that were “a foreseeable
risk” of the intended tort. 705 F. 2d, at 488. Accordingly, a
close nexus between the assistance and the tort might help
establish that the defendant aided and abetted the tort, but even
more remote support can still constitute aiding and abetting in the
right case.
Moreover, in appropriate circumstances, a
secondary defendant’s role in an illicit enterprise can be so
systemic that the secondary defendant is aiding and abetting every
wrongful act committed by that enterprise—as in
Halberstam
itself.
Id., at 487–488. At this point, aiding-and-abetting
liability begins to blur with conspiracy liability, which typically
holds co-conspirators liable for all reasonably foreseeable acts
taken to further the conspiracy. See
Pinkerton v.
United
States,
328 U.S.
640, 647–648 (1946); see also
Halberstam, 705
F. 2d, at 482–483 (noting the occasional overlap). Yet, as
noted above, aiding and abetting lacks the requisite agreement that
justifies such extensive conspiracy liability. See Restatement
(Second) of Torts §876, Comment
a, at 316 (“The theory of
the early common law was that there was mutual agency of each
[conspirator] to act for the others”);
Pinkerton, 328
U. S., at 646. Thus, while the facts of
Halberstam are
not totemic (lest courts strain to compare Linda Hamilton with
international criminal syndicates), its facts are useful when
determining whether a defendant has so consciously “participate[d]
in” a series of tortious acts in order to “make [each one]
succeed.”
Nye & Nissen, 336 U. S., at 619 (internal
quotation marks omitted).
* * *
To summarize the requirements of §2333(d)(2),
the phrase “aids and abets, by knowingly providing substantial
assistance,” points to the elements and factors articulated by
Halberstam. But, those elements and factors should not be
taken as inflexible codes; rather, they should be understood in
light of the common law and applied as a framework designed to hold
defendants liable when they consciously and culpably
“participate[d] in” a tortious act in such a way as to help “make
it succeed.”
Nye & Nissen, 336 U. S., at 619
(internal quotation marks omitted). And the text requires that
defendants have aided and abetted the act of international
terrorism that injured the plaintiffs—though that requirement does
not always demand a strict nexus between the alleged assistance and
the terrorist act.
IV
Under the appropriate framework, some aspects
of today’s case become immediately clear: First, because they are
trying to hold defendants liable for the Reina attack, plaintiffs
must plausibly allege that defendants aided and abetted
ISIS[
12] in carrying out
that attack. Next, plaintiffs have satisfied
Halberstam’s
first two elements by alleging both that ISIS committed a wrong and
that defendants knew they were playing some sort of role in ISIS’
enterprise. The key question, therefore, is whether defendants gave
such knowing and substantial assistance to ISIS that they culpably
participated in the Reina attack. The allegations here fall short
of that showing under
Halberstam’s framework as properly
understood by reference to the common-law principles it
applied.
A
To start, recall the basic ways that
defendants as a group allegedly helped ISIS. First, ISIS was active
on defendants’ social-media platforms, which are generally
available to the internet-using public with little to no front-end
screening by defendants. In other words, ISIS was able to upload
content to the platforms and connect with third parties, just like
everyone else. Second, defendants’ recommendation algorithms
matched ISIS-related content to users most likely to be interested
in that content—again, just like any other content. And, third,
defendants allegedly knew that ISIS was uploading this content to
such effect, but took insufficient steps to ensure that ISIS
supporters and ISIS-related content were removed from their
platforms. Notably, plaintiffs never allege that ISIS used
defendants’ platforms to plan or coordinate the Reina attack; in
fact, they do not allege that Masharipov himself ever used
Facebook, YouTube, or Twitter.
None of those allegations suggest that
defendants culpably “associate[d themselves] with” the Reina
attack, “participate[d] in it as something that [they] wishe[d] to
bring about,” or sought “by [their] action to make it succeed.”
Nye & Nissen, 336 U. S., at 619 (internal quotation
marks ommitted). In part, that is because the only affirmative
“conduct” defendants allegedly undertook was creating their
platforms and setting up their algorithms to display content
relevant to user inputs and user history. Plaintiffs never allege
that, after defendants established their platforms, they gave ISIS
any special treatment or words of encouragement. Nor is there
reason to think that defendants selected or took any action at all
with respect to ISIS’ content (except, perhaps, blocking some of
it).[
13] Indeed, there is
not even reason to think that defendants carefully screened any
content before allowing users to upload it onto their platforms. If
anything, the opposite is true: By plaintiffs’ own allegations,
these platforms appear to transmit most content without inspecting
it.
The mere creation of those platforms, however,
is not culpable. To be sure, it might be that bad actors like ISIS
are able to use platforms like defendants’ for illegal—and
sometimes terrible—ends. But the same could be said of cell phones,
email, or the internet generally. Yet, we generally do not think
that internet or cell service providers incur culpability merely
for providing their services to the public writ large. Nor do we
think that such providers would normally be described as aiding and
abetting, for example, illegal drug deals brokered over cell
phones—even if the provider’s conference-call or video-call
features made the sale easier. See
Doe v.
GTE Corp.,
347 F.3d 655, 659 (CA7 2003).
To be sure, plaintiffs assert that defendants’
“recommendation” algorithms go beyond passive aid and constitute
active, substantial assistance. We disagree. By plaintiffs’ own
telling, their claim is based on defendants’ “provision of the
infrastructure which provides material support to ISIS.” App. 53.
Viewed properly, defendants’ “recommendation” algorithms are merely
part of that infrastructure. All the content on their platforms is
filtered through these algorithms, which allegedly sort the content
by information and inputs provided by users and found in the
content itself. As presented here, the algorithms appear agnostic
as to the nature of the content, matching any content (including
ISIS’ content) with any user who is more likely to view that
content. The fact that these algorithms matched some ISIS content
with some users thus does not convert defendants’ passive
assistance into active abetting. Once the platform and sorting-tool
algorithms were up and running, defendants at most allegedly stood
back and watched; they are not alleged to have taken any further
action with respect to ISIS.
At bottom, then, the claim here rests less on
affirmative misconduct and more on an alleged failure to stop ISIS
from using these platforms. But, as noted above, both tort and
criminal law have long been leery of imposing aiding-and-abetting
liability for mere passive nonfeasance. To show that defendants’
failure to stop ISIS from using these platforms is somehow culpable
with respect to the Reina attack, a strong showing of assistance
and scienter would thus be required. Plaintiffs have not made that
showing.
First, the relationship between defendants and
the Reina attack is highly attenuated. As noted above, defendants’
platforms are global in scale and allow hundreds of millions (or
billions) of people to upload vast quantities of information on a
daily basis. Yet, there are no allegations that defendants treated
ISIS any differently from anyone else. Rather, defendants’
relationship with ISIS and its supporters appears to have been the
same as their relationship with their billion-plus other users:
arm’s length, passive, and largely indifferent. Cf.
Halberstam, 705 F. 2d, at 488. And their relationship
with the Reina attack is even further removed, given the lack of
allegations connecting the Reina attack with ISIS’ use of these
platforms.
Second, because of the distance between
defendants’ acts (or failures to act) and the Reina attack,
plaintiffs would need some other very good reason to think that
defendants were consciously trying to help or otherwise
“participate in” the Reina attack.
Nye & Nissen, 336
U. S., at 619 (internal quotation marks omitted). But they
have offered no such reason, let alone a good one. Again,
plaintiffs point to no act of encouraging, soliciting, or advising
the commission of the Reina attack that would normally support an
aiding-and-abetting claim. See 2 LaFave §13.2(a), at 457. Rather,
they essentially portray defendants as bystanders, watching
passively as ISIS carried out its nefarious schemes. Such
allegations do not state a claim for culpable assistance or
participation in the Reina attack. See
Halberstam, 705
F. 2d, at 481, 483.
Because plaintiffs’ complaint rests so heavily
on defendants’ failure to act, their claims might have more
purchase if they could identify some independent duty in tort that
would have required defendants to remove ISIS’ content. See
Woodward, 522 F. 2d, at 97, 100. But plaintiffs
identify no duty that would require defendants or other
communication-providing services to terminate customers after
discovering that the customers were using the service for illicit
ends. See
Doe, 347 F. 3d, at 659;
People v.
Brophy,
49 Cal. App. 2d 15, 33–34 (1942).[
14] To be sure, there may be situations where some such
duty exists, and we need not resolve the issue today. Even if there
were such a duty here, it would not transform defendants’ distant
inaction into knowing and substantial assistance that could
establish aiding and abetting the Reina attack.
If there were any doubt, the expansive scope of
plaintiffs’ claims would put it to rest. Given the lack of any
concrete nexus between defendants’ services and the Reina attack,
plaintiffs’ claims would necessarily hold defendants liable as
having aided and abetted each and every ISIS terrorist act
committed anywhere in the world. Under plaintiffs’ theory, any
U. S. national victimized by an ISIS attack could bring the
same claim based on the same services allegedly provided to ISIS.
Plaintiffs thus must allege that defendants so systemically and
pervasively assisted ISIS that defendants could be said to aid and
abet every single ISIS attack. Viewed in that light, the
allegations here certainly fall short. Plaintiffs do not claim that
defendants intentionally associated themselves with ISIS’
operations or affirmatively gave aid that would assist each of
ISIS’ terrorist acts. Nor have they alleged that defendants and
ISIS formed a near-common enterprise of the kind that could
establish such broad liability. These allegations are thus a far
cry from the type of pervasive, systemic, and culpable assistance
to a series of terrorist activities that could be described as
aiding and abetting each terrorist act.
To be sure, we cannot rule out the possibility
that some set of allegations involving aid to a known terrorist
group would justify holding a secondary defendant liable for all of
the group’s actions or perhaps some definable subset of terrorist
acts. There may be, for example, situations where the provider of
routine services does so in an unusual way or provides such
dangerous wares that selling those goods to a terrorist group could
constitute aiding and abetting a foreseeable terror attack. Cf.
Direct Sales Co. v.
United States,
319 U.S.
703, 707, 711–712, 714–715 (1943) (registered morphine
distributor could be liable as a co- conspirator of an illicit
operation to which it mailed morphine far in excess of normal
amounts). Or, if a platform consciously and selectively chose to
promote content provided by a particular terrorist group, perhaps
it could be said to have culpably assisted the terrorist group. Cf.
Passaic Daily News v.
Blair, 63 N. J. 474,
487–488,
308 A.2d 649, 656 (1973) (publishing employment advertisements
that discriminate on the basis of sex could aid and abet the
discrimination).
In those cases, the defendants would arguably
have offered aid that is more direct, active, and substantial than
what we review here; in such cases, plaintiffs might be able to
establish liability with a lesser showing of scienter. But we need
not consider every iteration on this theme. In this case, it is
enough that there is no allegation that the platforms here do more
than transmit information by billions of people, most of whom use
the platforms for interactions that once took place via mail, on
the phone, or in public areas. The fact that some bad actors took
advantage of these platforms is insufficient to state a claim that
defendants knowingly gave substantial assistance and thereby aided
and abetted those wrongdoers’ acts. And that is particularly true
because a contrary holding would effectively hold any sort of
communication provider liable for any sort of wrongdoing merely for
knowing that the wrongdoers were using its services and failing to
stop them. That conclusion would run roughshod over the typical
limits on tort liability and take aiding and abetting far beyond
its essential culpability moorings.
B
In holding that plaintiffs had stated a claim,
the Ninth Circuit went astray through a series of missteps that,
together, obscured the essence of aiding-and-abetting liability. To
correct those errors, we proceed through the Ninth Circuit’s
application of
Halberstam’s framework.
The Ninth Circuit framed the issue of
substantial assistance as turning on defendants’ assistance to
ISIS’ activities in general. See 2 F. 4th, at 909. But, as we
explained above, the question is whether defendants gave
substantial assistance to ISIS with respect to the Reina attack.
The focus thus must remain on the Reina attack; plaintiffs’ failure
to allege any definable nexus between the defendants’ assistance
and that attack therefore—at minimum—drastically increases their
burden to show that defendants somehow consciously and culpably
assisted the attack.
Next, the Ninth Circuit misapplied the “knowing”
half of “knowing and substantial assistance.” It first separated
the “knowing” and “substantial” subelements; it then analyzed the
“knowing” subelement as a carbon copy of the antecedent element of
whether the defendants were “generally aware” of their role in
ISIS’ overall scheme.
Ibid.; see also
id., at 908.
But, as discussed above, “the knowledge and substantial assistance”
components “should be considered relative to one another” as part
of a single inquiry designed to capture conscious and culpable
conduct.
Camp, 948 F. 2d, at 459 (internal quotation
marks omitted). The “knowing” part of that inquiry is therefore
designed to capture the defendants’ state of mind with respect to
their actions and the tortious conduct (even if not always the
particular terrorist act), not the same general awareness that
defines
Halberstam’s second element.
Finally, when applying
Halberstam’s six
substantiality factors, the Ninth Circuit appears to have regarded
the factors as a sequence of disparate, unrelated considerations
without a common conceptual core. See 2 F. 4th, at 909–910.
That is incorrect. The point of those factors is to help courts
capture the essence of aiding and abetting: participation in
another’s wrongdoing that is both significant and culpable enough
to justify attributing the principal wrongdoing to the aider and
abettor. The Ninth Circuit thus erred in focusing (as it did)
primarily on the value of defendants’ platforms
to ISIS,
rather than whether defendants culpably associated themselves with
ISIS’ actions. For example, when applying the second factor (the
amount and kind of assistance), the Ninth Circuit should have
considered that defendants’ platforms and content-sorting
algorithms were generally available to the internet-using public.
That focus reveals that ISIS’ ability to benefit from these
platforms was merely incidental to defendants’ services and general
business models; it was not attributable to any culpable conduct of
defendants directed toward ISIS. And, when considering the fourth
and fifth factors (the defendants’ relationship to ISIS and the
defendants’ state of mind), the Ninth Circuit should have given
much greater weight to defendants’ arm’s-length relationship with
ISIS—which was essentially no different from their relationship
with their millions or billions of other users—and their undisputed
lack of intent to support ISIS. See
id., at 910.
Taken as a whole, the Ninth Circuit’s analytic
approach thus elided the fundamental question of aiding-and-
abetting liability: Did defendants consciously, voluntarily, and
culpably participate in or support the relevant wrongdoing? As we
have explained above, the answer in this case is no. Plaintiffs
allege only that defendants supplied generally available virtual
platforms that ISIS made use of, and that defendants failed to stop
ISIS despite knowing it was using those platforms. Given the lack
of nexus between that assistance and the Reina attack, the lack of
any defendant intending to assist ISIS, and the lack of any sort of
affirmative and culpable misconduct that would aid ISIS,
plaintiffs’ claims fall far short of plausibly alleging that
defendants aided and abetted the Reina attack.
C
That leaves the set of allegations specific to
Google. As explained above, plaintiffs allege that Google reviewed
and approved ISIS videos on YouTube as part of its revenue-sharing
system and thereby shared advertising revenue with ISIS. The Ninth
Circuit briefly mentioned those allegations when analyzing
plaintiffs’ complaint here. However, in addressing another,
materially identical complaint, the Ninth Circuit held that the
same allegations “failed to state a claim for aiding-and-abetting
liability” because they were “devoid of any allegations about how
much assistance Google provided” and therefore did not plausibly
allege “that Google’s assistance was substantial.”
Id., at
907.
We think that the Ninth Circuit was correct in
that holding. The complaint here alleges nothing about the amount
of money that Google supposedly shared with ISIS, the number of
accounts approved for revenue sharing, or the content of the videos
that were approved. It thus could be the case that Google approved
only one ISIS-related video and shared only $50 with someone
affiliated with ISIS; the complaint simply does not say, nor does
it give any other reason to view Google’s revenue sharing as
substantial assistance. Without more, plaintiffs thus have not
plausibly alleged that Google knowingly provided substantial
assistance to the Reina attack, let alone (as their theory of
liability requires) every single terrorist act committed by
ISIS.
V
By their very nature, the concepts of aiding
and abetting and substantial assistance do not lend themselves to
crisp, bright-line distinctions. However, both the common law and
Halberstam provide some clear guideposts: The point of
aiding and abetting is to impose liability on those who consciously
and culpably participated in the tort at issue. The focus must
remain on assistance to the tort for which plaintiffs seek to
impose liability. When there is a direct nexus between the
defendant’s acts and the tort, courts may more easily infer such
culpable assistance. But, the more attenuated the nexus, the more
courts should demand that plaintiffs show culpable participation
through intentional aid that substantially furthered the tort. And,
if a plaintiff ’s theory would hold a defendant liable for all
the torts of an enterprise, then a showing of pervasive and
systemic aid is required to ensure that defendants actually aided
and abetted each tort of that enterprise.
Here, however, the nexus between defendants and
the Reina attack is far removed. As alleged by plaintiffs,
defendants designed virtual platforms and knowingly failed to do
“enough” to remove ISIS-affiliated users and ISIS-related
content—out of hundreds of millions of users worldwide and an
immense ocean of content—from their platforms. Yet, plaintiffs have
failed to allege that defendants intentionally provided any
substantial aid to the Reina attack or otherwise consciously
participated in the Reina attack—much less that defendants so
pervasively and systemically assisted ISIS as to render them liable
for every ISIS attack. Plaintiffs accordingly have failed to state
a claim under §2333(d)(2).
We therefore reverse the judgment of the Ninth
Circuit.
It is so ordered.
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