Internet Censorship Archive

US Solicitor General Elizabeth Prelogar takes on the question of how (hypothetical) TikTok “covert” data manipulation by China poses a uniquely pressing threat, but Justice Kagan seems skeptical. “Everybody now knows that China’s behind it,” notes Kagan — so is any shaping of the algorithm really covert? She points out that you could make a similar argument about manipulation for almost any social network. “You can take any of these algorithms ... none of these are apparent. You get what you get and you think, that’s puzzling!”

Hypothetical Jeff Bezos cannot catch a break. Justice Barrett poses this example, then asks whether Post readers could sue if Congress banned the Post unless he divested, trying to pick apart the different rights of corporations and the American public. (Fisher says it would indeed be an issue for readers.)

Fisher notes that even if TikTok is banned, it gets to keep all the data it harvested, whereas a broader data-focused rule would require it to expunge it. We need a federal data privacy law!

“Congress is fine with the expression. They’re not fine with a foreign adversary ... gathering all this information,” he continues. Some members of Congress do, in fact, seem pretty concerned with the content — they’ve raised pro-Palestinian posts as an issue.

Jeffrey Fisher makes some extremely brief opening statements, then fields a question from Clarence Thomas on what speech is being infringed — the law is “only concerned about ownership,” says Thomas. “The American creators have the right to work with the publisher of their choice,” says Fisher. He raises the hypothetical of users being banned from posting on X, for instance.

On Bluesky (requires login), Colorado Law professor Blake Reid points out how the court’s arguments could apply to US platforms:

TikTok attorney Francisco lays out what happens if the law goes into effect on January 19th. Justice Brett Kavanaugh asks what shutting down means. “One, the app is not available in the app stores,” but also, service providers will say “we’re not going to be providing the services necessary to have you see” anything from the platform, says Francisco. (TikTok has an incentive to paint the most dramatic picture possible, even if a sale is possible, of course.)

UChicago Law professor Genevieve Lakier notes just how much time is being spent on whether this is a case about speech at all. That may not bode well for TikTok.

Justice Elena Kagan suggests ByteDance could find alternatives to its current ownership structure of TikTok — questioning whether banning a particular corporate structure is fundamentally a regulation of TikTok’s speech. Justice Roberts follows up on the corporate structure question. “I’m not sure there’s another case” where the court has considered something a direct speech restriction “when it’s based on derivative regulation of corporate structure of somebody else.”

Several justices have raised questions about how many degrees of separation lie between TikTok (a US company) and the Chinese Communist party, and Justice Neil Gorsuch asks whether China would let ByteDance sell TikTok. “It would be exceedingly difficult under any timeframe” to sell, says Francisco — not because China controls it, but for logistical reasons like carving out US videos from TikTok’s global platform.

We’re getting a question about past cases involving limits on foreign media ownership — Francisco says these involved media like radio, where the government had greater discretion because of basic spectrum scarcity, so they aren’t good points of comparison. Broadcast regulations are a big deal recently.

The prime metaphor in the case so far, raised by TikTok’s attorney, is an analogy about whether the government could ban The Washington Post from operating if the Chinese government kidnapped Jeff Bezos’ children and forced him to print propaganda. (He’s against it.) Regardless of the questions over speech and TikTok, Justice Sonia Sotomayor seems pretty skeptical of his claim that the government couldn’t meaningfully step in.

Roberts raises the national security concerns of ByteDance working from China. “Do you dispute that ByteDance has ultimate control” of TikTok? Francisco does dispute it, but he says, “I don’t think it would change the analysis.”

TikTok attorney Noel Francisco is making opening arguments on the livestream — stressing the First Amendment’s role in the case and the potential speech burdens for TikTok and its users. He’s arguing that TikTok’s speech is, in particular, its recommendation algorithm, which is the least likely piece to be approved for a sale by the Chinese government.

The Supreme Court will hear oral arguments from TikTok, a group of TikTok users, and the US government before deciding whether to block a law that will otherwise take effect on January 19th. You can listen on C-Span or the Supreme Court’s site, starting at 10AM ET.