Justice Kagan asks about a Supreme Court ruling that Americans have a right to receive foreign propaganda. “It was focused only on foreign adversary control,” Prelogar says of the TikTok divest-or-ban law. Therefore, she argues, that ruling’s precedent shouldn’t apply. Kagan seems to disagree — saying the concerns about covert content manipulation clearly appear to be about content.
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.)
Would it be possible, Barrett asks, for TikTok to lose but its users to win this case — or would you “fall together?” Fisher says yes, the users could win alone.
“Wow,” says Barrett.
No honor among TikTokers!
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.
Thomas responds that this theory could have prevented things like the breakup of AT&T — Fisher counters by saying that these platforms have “a particular perspective,” making it a unique speech question.
On Bluesky (requires login), Colorado Law professor Blake Reid points out how the court’s arguments could apply to US platforms:
The message from this argument is that you can maybe avoid even implicating speech interests if you go after editorial choices by way of structurally severing corporate ties with downstream intermediaries.
A prime example of how this could be abused: making the owners of social networks divest them to pressure them into changing how they moderate.
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.”