On today’s internet, the boundaries of acceptable speech are set by a few massive platforms, including Facebook, Twitter, Instagram, YouTube, and a handful of others. If those companies find something unacceptable, it can’t travel far — a restriction that’s had a massive impact for everyone from copyright violators to sex workers. At the same time, vile content that doesn’t violate platform rules can find shockingly broad audiences, leading to a chilling rise in white nationalism and violent misogyny online. After years of outcry, platforms have grown more willing to ban the worst actors online, but each ban comes with a new political fight, and companies are slow to respond in the best of circumstances. As gleeful disinformation figures like Alex Jones gain power — and the sheer scale of these platforms begins to overwhelm moderation efforts — the problems have only gotten uglier and harder to ignore. At the same time, the hard questions of moderation are only getting harder.
We don’t know exactly what they discussed, but the US President-elect says it was a “very good” call. Until we hear otherwise from the Supreme Court or President Joe Biden, the TikTok ban is set to take effect on January 19th — one day before Trump’s inauguration. “It is my expectation that we will solve many problems together, and starting immediately,” says Trump.
[Truth Social]
The Supreme Court’s site has added text saying it “may announce opinions” at 10AM ET tomorrow. I’m going to be furious if we don’t find out the fate of TikTok two days before the scheduled ban. I will also grudgingly respect the top-tier troll effort.
Everyone (including yes, The Verge) is watching for a Supreme Court decision on the TikTok ban today, but there’s another big oral argument being heard at 10AM ET: Free Speech Coalition v. Paxton, which could reset a 21-year-old precedent effectively barring strict online age verification and decide the fate of numerous state laws. Audio, as usual, will be streamed on the Supreme Court site.
Tiffany Cianci was finishing a TikTok live stream to 70,000 people when we met in the elevator after a press conference. She was in good spirits even after camping out in her van outside the Supreme Court beginning at 2 AM. “I don’t see it as hopeless right now, and I don’t think that they’ve already decided,” she says. Creator and petitioner Tim Martin also feels “very excited and optimistic” after today’s oral arguments, saying their attorneys “did an incredible job.”
Legal writer Eric Goldman pens his expert take on the state of internet law going into the new year, including generative AI, online speech, and Section 230:
Section 230 is on the extinction watch list in 2025. I will be shocked if it survives to see 2026. If you don’t already have a Section 230 tattoo, now is probably not the time to get one.
The silver lining is that I have a “no monuments to the living” tattoo policy, so apparently it’s exactly the right time.
[Technology & Marketing Law Blog]
TikTok lawyer Noel Francisco comes back for a brief rebuttal, and he’s pushing the court to stay the law even without making a determination about whether TikTok could succeed. This, obviously, would push its enforcement into the domain of President-elect Donald Trump, who has promised to save the app.
Prelogar says the court shouldn’t buy the argument that TikTok hasn’t been given enough time to sell, pointing to Musk’s acquisition of Twitter as a sign of how quickly deals can go through.
In response to Justice Kavanaugh, Prelogar says Congress was clearly and “sincerely” motivated by data privacy concerns, and even if you discount the questions about propaganda and manipulation, that’s enough to make the law stand up. She says TikTok is totally off-base in claiming that motivation is “tainted” if the propaganda-related arguments don’t hold up.
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.”
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.
The Supreme Court will hear oral arguments in the case against the TikTok divest-or-ban bill on Friday, which will determine the future of the app in the US.
The Meta CEO is pushing back on critics who say the company is only making its content policy changes because it’s “too hard for people to leave.” Zuckerberg shot back that he’s “counting on these changes actually making our platform better,” and while some may leave for “virtue signaling,” most users will enjoy the changes.
The ten fact-checking organizations will continue to receive payments until August, and those who haven’t signed 2025 contracts could get severance, Business Insider reports. Meta told members of the International Fact-Checking Network that their partnerships were ending just 45 minutes before it publicly announced sweeping changes to its content moderation and fact checking policies.
