Page:Twitter v. Taamneh.pdf/5

Rh presented as agnostic as to the nature of the content. At bottom, the allegations here rest less on affirmative misconduct and more on passive nonfeasance. To impose aiding-and-abetting liability for passive nonfeasance, plaintiffs must make a strong showing of assistance and scienter. Plaintiffs fail to do so.

(2) The Ninth Circuit’s analysis obscured the essence of aiding-and-abetting liability. First, the Ninth Circuit framed the issue of substantial assistance as turning on defendants’ assistance to ISIS’ activities in general, rather than with respect to the Reina attack. Next, the Ninth Circuit misapplied the “knowing” half of “knowing and substantial assistance,” which is designed to capture the defendants’ state