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.
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.
Poor Mark Zuckerberg. Imagine calling the 2024 election a “cultural tipping point” for “prioritizing speech” and then the guy who got elected starts bragging about how he threatened you into self-censorship. At least Trump won’t throw him in jail?
Free Speech Coalition v. Paxton will be heard on January 15th. Vox explains what’s at stake in this battle over a Texas law requiring age verification to access sites with pornography
The Supreme Court will consider TikTok’s case against a divest-or-ban law early next year, and a wave of filings has hit the docket this afternoon — from the parties involved as well as numerous institutions and public figures, including President-elect Donald Trump. If you want a firsthand look, the full list is linked below.
[www.supremecourt.gov]
Incoming FCC chair Brendan Carr is excited to start using the spectrum licensing system to punish broadcasters for airing criticism of his boss, and now he wants Disney CEO (and ABC owner) Bob Iger to know it. Nice TV network you’ve got there, Bob. Sure would be a shame if something happened to it.
The House is focused on averting a government shutdown, and there’s no sign of KOSA — a bill that, as my colleague Lauren Feiner recently wrote, has exhausted just about everyone:
“I personally am not going to feel bad if KOSA doesn’t pass this year,” [Facebook whistleblower Frances Haugen] tells me on Monday. “And that’s because my expectations for what is possible in the United States anymore are really, really low.”
The Kids Online Safety Act was supposed to fix (or break) the internet. Now, after nearly three years of rewrites, it’s got days left to pass.
The American Civil Liberties Union, Electronic Frontier Foundation, and Knight First Amendment Institute are asking the court to pause the law that could ban TikTok on January 19th while considering the case. They “urge the Court to see the Act for what it is: a sweeping ban on free expression that triggers and fails the most exacting scrutiny under the First Amendment.”
[www.supremecourt.gov]
Leaders of the House panel that led the divest-or-ban bill against TikTok warned the CEOs to be ready to comply once the bill takes effect — assuming it’s not stopped before then. The warning comes after a federal court ruled the bill is constitutional. Under the law, app marketplaces could get in trouble for letting users download the app.
[Select Committee on the CCP]
That’s after Sen. Tom Cotton (R-AR) blocked Senate Majority Leader Chuck Schumer’s short-lived bid to pass the Protect Reporters from Exploitative State Spying Act by unanimous consent of the chamber. If passed, it would shield reporters from being forced by the government to reveal their sources.
404 Media is fighting a subpoena from Texas Attorney General Ken Paxton to seize confidential reporting material:
In order to do our job well, journalists need to be independent from the government and from outside corporate interests. ... Our sources—many of whom are particularly vulnerable—share information with us specifically because we are independent from the state.
As we’ve said before: tell your Senator to pass the PRESS Act.
TikTok is running out of time and legal recourse to avoid a US ban unless its China-based parent company ByteDance sells it. Here’s the tl;dr on why a three-judge panel unanimously ruled to uphold the law that could expel TikTok, and what comes next.
Not spending ad dollars on a website because its owner keeps spouting weird conspiracy theories is a very serious antitrust problem, and as usual, Texas Attorney General Ken Paxton is on it. Surely the best use of law enforcement’s time and money.
