Lawfare Archive: TikTok Ban at the Supreme Court

I'm Marissa Wong, internet law fair.

“Was an episode from the law fair archive”

for March 22nd, 2020. On March 5th, two investors in Alphabet and Meta filed a lawsuit in the DC circuit against the Trump administration's multiple extensions of the TikTok shutdown.

And the sale of the social media platform to a group of American and foreign investors. In their filing, the plaintiffs alleged that the administration's actions run a foul of the law requiring

TikTok to either separate from its China-based owner or face a ban in the United States. For today's archive, I chose an episode from January 13th, 2025, in which Kevin Fraser, Alan Rosenstein, and Romia

Kushnon discussed the oral arguments at the Supreme Court over the banning of TikTok. The requirements of the law in question and their predictions on how the justices may rule. [MUSIC PLAYING]

It's the law fair podcast. I'm Kevin Fraser. Law fair tarbo fellow in artificial intelligence with law fair senior editor, Alan Rosenstein, and senior staff attorney at the Knight Institute, Romia Kushnon.

An injunction is only supposed to issue if the court, certainly when you have a duly enacted act of Congress. If the court leaves that there is a likelihood-- I think maybe even a high likelihood--

that the request or will win on the merits-- which I don't think anyone thinks.

“So I think an injunction is just not on the table.”

In a live recording on January 10th, we discussed the Supreme Court or our arguments over the constitutionality of the TikTok divest or ban legislation. The arguments made in front of the court

and how the court may rule. So let's get into the weeds a little bit here. I guess we're all content manipulators now. We saw that thrown out there who's beaches it anyways. Does anyone have eyes on Jeff Bezos' family members?

I'm concerned for their health and well-being. All that more, we have a lot to discuss.

So let's kick it to Alan first.

Alan, for the folks who haven't been in the weeds of this case, you're kind of Mr. TikTok now. Can you quickly summarize the provisions of the TikTok bill and perhaps give us a sense of what the government's claimed motivations were for passing the bill?

- Sure, I do think that Mr. TikTok

“is maybe the meanest thing you've ever called me.”

- Oh, well, this clearly you don't know what I've said about you. - Yeah, exactly. - Yeah, well, the meanest thing I've ever heard you call me. So earlier last year, Congress passed the-- and I'm going to try to get the name of the bill right--

the protecting Americans from foreign adversary applications, something controlled act or Pefaka, real disappointment that they didn't do their usual background. In which Congress, by name, singled out TikTok and it's Chinese parent company by dance.

And stated that unless within 270 days of the enactment of the law, which is January 19th,

the day before Donald Trump is inaugurated for a second term,

then unless by dance divested, it's 20% stake in the company by that date, TikTok would be banned in the United States. And what a banned specifically is in this case is that app stores like Apple and Google are no longer permitted to distribute the app.

Cloud service providers like Oracle, which is TikTok's main cloud provider in the United States, are no longer permitted to host TikTok. And domain name services may also-- there's a little bit of uncertainty under the law,

may also be forbidden from essentially mapping TikTok.com to the IP address, which would be a problem if you're trying to access TikTok through your web browser. The law does not restrict individuals' access to TikTok, and it does not actually require internet service providers

to restrict access, but it would be a pretty steep barrier

to the vast majority of TikTok's 170 million American users.

And the law further imposes pretty steep penalties on the affected companies, so $5,000 per user in the case of the app stores and the cloud service writers. So that's what the law does. There's actually a second portion of the law, which

is quite interesting, but outside the scope of this particular litigation, which would allow the president to impose similar divestment or bans on companies that are controlled

defined as China, Russian, or Korea, or Iran. But that's a topic for another day.

“So Congress passed this law, TikTok immediately”

sued in the DC circuit, which is an odd place to initially sue, but the law requires all litigation

to occur in the first instance in the DC circuit.

The DC circuit heard oral argument on this. I believe in September. That oral argument went quite poorly for TikTok. We had a conversation about this after that happened. And then in December, last month, the DC circuit unanimously

30 ruled against TikTok. TikTok then appealed to the Supreme Court asking for injunctive relief. The Supreme Court, instead of granting that relief, basically treated it like a cert petition,

accepted that cert petition, and then very quickly within weeks, basically scheduled oral argument or argument happened earlier today. The other procedural thing that happened in the meantime was that President-elect Trump submitted

a friend of the court brief asking the Supreme Court to pause the law. It's not clear if it was an injunction or administrative state. It's not clear exactly what Trump was asking for. Basically to pause the law for some indeterminate amount of time

to give the incoming President a chance to exercise his famous deal-making abilities and try to put a divestment in place. So we heard oral argument today. And I'll just quickly say what the governments

may in arguments were.

“And then we'll jump to, I think, Romeo for the other side of this.”

But throughout this argument, Congress, and then the executive branch and defending this law has pointed to two main justifications for this law. One is a data privacy justification and the concern here is that TikTok, like all social media

companies, to be fair, collects massive amounts of data on Americans, but unlike most social media companies, TikTok is owned by dance and by dances and principle control by the Chinese government because it can be controlled by the Chinese government

because it's a Chinese company. And that presents, according to the government, a really profound data security threat,

or intelligence threat, and then the second concern

that the government put forward is a content manipulation concern. This is the idea that, again, because TikTok is owned by dance and by dance and principle is ultimately controllable by the Chinese government,

and that TikTok uses the by dance algorithm. The Chinese government could manipulate that algorithm potentially covertly in a way that would advance Chinese interests. As this was laws going through Congress, there were some questions about whether this was just

a general content manipulation concern. There was also a question, at least, from some members of Congress about whether or not TikTok was already doing this with respect to speech that those Congress people did not like,

you know, pro-Palestine speech or anti-America speech, which obviously raises First Amendment concerns. But basically, this duo of concerns, data privacy, and content manipulation were what Congress cited in justifying the law and the DC circuit

upheld the law on both of those grounds. And we didn't really see anything any new arguments from the government, in part because the case has been pretty well ventilated and also because the government got basically two weeks

to put this case together for the Supreme Court. So actually, no one had any time to really come up with new arguments. - And Alan, before we dive into the other side, just highlighting for the listeners,

the DC circuit opinion, what the sort of grounding was there, especially with respect to national security and perhaps the prioritization of those interests over First Amendment interests. And also, if you could give us a little bit of insight

as you've written about for law fair, yes, stainless plug for you, can you tell us about the weird quirk about some of these national security interests being redacted or some of the information

about that being redacted and how that played a part in argument today? - Sure, sure. So the DC circuit rule 30 against TikTok, but there are actually two opinions,

one written by senior judge, Ginsburg, and joined by Judge Rao, and then another concurring opinion, I think concurring in the judgment, written by Chief Judge Shrinavasa.

So this case, as many First Amendment cases does, hinges, at least in theory,

“on the question of what tier of scrutiny do you apply?”

No scrutiny, intermediate scrutiny, strict scrutiny, super duper, strict scrutiny,

they're kind of a million versions of this.

And this is actually a very hard case to fair it exactly which tier to apply. And so Judge Ginsburg, his opinion was, we're just gonna assume that strict scrutiny might apply, but even under strict scrutiny,

we think that the national security rationale is really strong and not only that, but this law actually in a sense advances First Amendment interests because part of the First Amendment

is not just having access to a platform, but making sure that that platform is not being covertly manipulated. That's what Judge Ginsburg said. So Shrinavasa, Chief Shrinavasa and said,

actually, I think we should take a position on what level of scrutiny should apply. It should be intermediate scrutiny, which actually in some sense is even worse for TikTok than what Judge Ginsburg said.

And under intermediate scrutiny, this easily applies. Now, it's true that during the briefing, both your when Congress was debating this law, they got classified briefings for the intelligence community.

And then when the Justice Department was defending this

as well, they included some classified briefing to the judges that only the judges were able to see and obviously not the parties, not TikTok and not the public. We don't know obviously what was in those briefings.

TikTok was extremely unhappy that it had to deal with secret evidence, which is understandable. But interestingly, the DC circuit in its opinion expressly said,

we are not relying on any of this secret evidence. So we're doing it entirely on the public record.

“So I think that's probably why we didn't hear a lot of that.”

Today in the Supreme Court, I assume that the Supreme Court, when it got the DC circuits materials, also got to read the classified record, but they didn't really come up,

except when Justice Gorsuch got extremely grumpy. I think understandably so and kind of sub-tweeted, or actually really just through Congress under the bus, saying, Congress, can you please pass a law that creates an avenue for parties

to be able to get classified evidence in these cases, or at least to be able to have some sort of seep a like access to it? Again, I don't think this is gonna actually in the end make any difference in the disposition of the case,

except that there will be a very grumpy. And understandably so, I will enjoy reading that. Grumpy opinion from Justice Gorsuch saying, come on, get it together, Congress. This is not, this is no way to run a hotdog stand.

- Not a way to run a hotdog stand. Okay, we've heard from Alan. Ronny, it sounds like TikTok was facing some what of an uphill battle here, obviously the loss at the DC circuit, maybe this general notion

of national security, kind of having a pervasive loss over how the justices were thinking about this issue. So what did TikTok USA try to argue? And if you could give us a sense in particular, what your read of the justices was

“with respect to this question of who's speech is it anyways, right?”

Who's speaking, what speech interests are implicated here? What level of scrutiny should be applied? - Sure, yeah, so I mean, I think TikTok faced an uphill battle before the Supreme Court much as they did before the DC circuit.

And of course, we had two advocates on TikTok side. We had Nolferensisco who was arguing for TikTok itself. And then we had Jeff Fisher who was arguing for TikTok's creators.

And they were invoking different First Amendment interests,

but I think ultimately there was a lot of overlap in their First Amendment arguments. And unsurprisingly, both of them said argued and unsurprisingly, I agree with this, that this was an easy First Amendment case.

So on the one hand, you had TikTok make the argument that it's a US subsidiary. And so it has the same First Amendment rights as any US-owned platform. And so while by dance, of course,

is headquartered in China is a foreign-owned company and may lack First Amendment rights, that it has First Amendment rights in the curation of its platform. The TikTok creators, on the other hand,

obviously, asserted their own First Amendment interests and being able to speak on the platform and being able to hear ideas, content, speech from other TikTok users, US, and abroad. And then being able to work with their--

this was language that Jeff Fisher used again. They're editor of choice, which is TikTok itself, with input from white dance. So they both argued that they had a pretty strong claim

to the First Amendment in this case.

“And so the question then was what level of scrutiny applies?”

And they argued that strict scrutiny applies, that this is a clearly content-based law. It's content-based because it singles out a subset of companies here. And notably, they said excludes, for example,

platforms whose primary purpose is to host reviews. But it's also content-based in purpose. And here, they hinged a lot on the content in the content manipulation rationale, but the government was advancing.

So there was a lot of talk about to what extent is the government's rationale about covert content manipulation versus content manipulation itself. And that said, both advocates argue that the sort of invocation of covert

was really like a post-hawk kind of rationalization

and was weak ultimately, because if the government's interest

is in protecting against covert content manipulation, that is China having potential secret influence over the way in which TikTok is moderated, then the answer to that is disclosure. It's making clear to the American public

that China is already or may influence in the future the way in which TikTok content on TikTok is moderated. And then when it comes to content manipulation itself,

They both argued, and I think quite rightly,

that this is an illicit purpose under the first amendment,

“that, and I think Jeff Fisher said at this at one point,”

that ideas are not a national security threat. The first amendment is built around an anti-Peternalism principle, which says that the answer to dangerous ideas or dangerous speeches, not suppression of those ideas and speech, but trusting people to come to their own conclusions

and ultimately trusting in the marketplace of ideas, because any answer would be worse than that. (laughs) So that was ultimately their argument. And data security, data protection,

which is allin noted was the other rational that the government invoked to shore up this law. You know, both of them argued, look, this really isn't an independent justification here. Congress, likely, would not have passed this law

based solely on data protection, and that's evident from the mountain of statements made by legislators and passing this ban. It's also evident from the government's briefing here where they seem to put most stock

in the content manipulation, rational, covert, content manipulation, rational. But even accepting that that was an interest, the truly motivated law, that it simply cannot sustain this broad prohibition on speech or divestiture,

“forced divestiture, if that's how you want to look at it.”

And that's because it's woefully underemclusive. But also, there are clear, less restrictive alternatives if you want to protect American sensitive data. And in particular, they both referenced extending the data broker law that was actually passed

as part of the same package as this Pafaka. So the law essentially prohibits data brokers from sharing Americans personally identifying information which, with foreign adversaries, including China, they said that could easily be extended

to companies like TikTok. Of course, you can pass other kinds of data privacy laws to that would also get at the same problem. So that was, I think, essentially the arguments that they made and why they thought this

was a easy first amendment case.

- Very comprehensive. Thank you very much for that. So I want to play justice for a second. Chief Justice Roberts raised some interesting counterpoints. One of which was, why isn't this just a matter

of regulating corporate structure? We're saying this is just a regulation on bike dance, we're ordering a divestiture.

“Why are we even implicating the first amendment here?”

So Ronnie, can you give us the response there and whether you thought that was persuasive? And then Alan, we can kick it back to you? - Yeah, sure. So I think, and you know, Roberts wasn't alone,

and I think making this point, I think a number of the justice is particularly when you had the advocates to take talk and take talk screened is up there. You know, I made the point that, look,

isn't this law just targeting, you know, foreign ownership or foreign adversary control? It really doesn't say anything about expression. You know, as Alan mentioned, the law doesn't mention creators.

So, you know, maybe at most this law incidentally burdens the speech of TikTok's users, but it doesn't directly go after it here. So why do we, you know, maybe why is the first amendment implicated at all?

And I think, you know, I think that TikTok had a good answer to this, which is, you know, essentially like, I mean, I think there's like an error of unreality almost debating this questioning, because, you know, the question obviously is,

well, why, why would they interested in foreign control anyway here?

And the answer is, I think, you know,

the substance of, you know, the content that TikTok is currently carrying or that my carrying the future or how, it's currently being moderated or how it might be moderated in the future.

So it ultimately comes down to this fear that Americans are going to be exposed to ideas that the government doesn't like fears Americans maybe persuaded by. And that's generally the kind of thing

that the first amendment doesn't allow. And one other thing before we switch back to Alan, I'm curious, your take, Justice Barrett again, raised briefly something she flagged in Moody, which was this concern about whether an algorithm

can be expressive. And that didn't carry a ton of conversation necessarily at oral argument, but I'm keen to hear, if you thought that got a little bit more fleshed out and whether you think that will find its way

into the ultimate decision here. - Yeah, I'm not sure. I mean, I think that there was more debate over sort of, you know, to what extent,

You know, there are some factual disputes here,

“I think about the extent to which, you know,”

TikTok is exercising its own independent judgment in deciding on its algorithm, customizing it,

and ultimately deciding, you know,

engaging in the kind of editorial decision making that Moody says is protected versus by dance really holding the shots here, because, you know, by dance is a far-own company that doesn't have first amendment rights.

And so I think there's, you know, kind of a dispute about that in the case. I'm not ultimately sure how much it will matter. And ultimately, you know, that could, one possible result though, I'm not sure how likely it is

and we can get to sort of predictions later, is you could imagine a world in which the court says the TikTok loses, but it's creators win, because it's more convinced that the creators have a first amendment interest at stake,

and that there is, you know, at least doubts over key questions when it comes to TikTok US. - All right, Ron, I mean, thanks so much for outlining all that Alan, tons of fodder here, what do you have to say, good sir?

Yeah, what I have to say is that my head hurts, and I'm glad I took a nap after this argument. And, you know, part of this is being glib, but part of this is also just first amendment is rough. I mean, it is, it is constitutional doctrine is bad enough,

and then the first amendment is just this like scholastic exercise in these extremely fine distinctions. And I think this is a perfect example where you can just go round and round and round and almost rediscribe this conduct,

or this law in like a million different ways,

because on the one hand, the chief justice is correct. Like this is, this is in a sense, a restriction on corporate ownership. And therefore, you would think that at most, the O'Brien tests would apply with, you know,

incidental effects on speech, and are there alternate channels of communication, and then you have a lito kind of, I thought hilariously, comparing TikTok to like a pair of old pants.

I think was, maybe what he said, and I guess like-- - Chet Alan, oh, shit. - Oh, shit. (laughing)

I'm like a really comfortable shirt. Like one of those like LL being flannel shirts if you like laundered a bunch of times, it's really soft, right? And I guess in this analogy like YouTube shorts

is like a nicer shirt that you'll move to, which I don't know, I find hilarious. And so in that view, like this is not that big of a deal, but then of course, from you is also totally correct that there's just air of unreality,

because of course, like the whole reason you care about the corporate ownership is because of potential content manipulation. But then you also have, well, it's content manipulation different than content based,

“and so is it actually a bad motivation that poisons it?”

And then you have this, this other motivation as well, data privacy, but also what even is a motivation when you're talking about Congress, because I think there's also a little point. Congress is that they, not in it, right?

There are hundreds of Congress people whose views you're trying to aggregate. And so, you know, and we haven't even gotten to the question, right, that I know Kevin, you wanted to tee up,

so I'm just gonna steal it if that's okay from you. But is this even a speech issue at all, right? Might this really be an associational issue, which was sort of just as Jackson's kind of interesting curveball question, but is this really a question of speech?

Because of course, if you're a tech tech user, you can speak as much as you want. The question is, do you get to choose whom you associate with, which is to say, do you get to choose? And I thought this was where Fisher at some point

said something really provocative in a way that I appreciate his candor,

but I think does not help him ultimately,

which is that what he thinks is that stake is the right of TikTok of users to be able to choose a platform that is owned by bite dance, which on the one hand is true, and I get what he's coming from,

“but it's also not a great argument, I think,”

for a Supreme Court that I think is quite sensitive to the concerns, that's pretty concerns of China, right? At some point, when I was like, live skiing this, which I think is which was Sam Bluskeye, I found a--

Are we sure that's the right phraseology? - Not great. - Okay, we should maybe revisit just as Cagan might have a thing to say about that. - Yeah, exactly. - Just as Cagan.

It's an ancient Bluskeye, please workshop this. I find a Bart Simpson meme generator of just Bart Simpson writing "But China" over and over and over again, which I think is really what this case is about. And more seriously, I mean, there are cases

like holder versus humanitarian law project that I think make this a sociational argument actually quite difficult to uphold. So, I'm actually not sure what I'm trying to say, except I think this is an absolute mess

of sort of overlapping layers of first amendment concerns, many of which point in opposite directions, it's completely unclear how you do the math, right? Like, you get three first amendment points for not being specifically targeted,

contribute to get minus four first amendment points for all those dudes in Congress complaining about propel's times speed. And how do you do all that arithmetic? And so, this is all to say that,

What is going to happen is that

“the court will assume some degree of height and scrutiny, right?”

I think they will essentially do and UNIVERSCHEGA, a lot of friends at Genevieve Lake here,

I think, basically said this on Blue Sky earlier today,

so I'm stealing from her. But I think it's right. They're going to essentially do some kind of a version of what the DC circuit did, which is that going to assume that some heightened

level of scrutiny applies. And then they're going to say, "But China is a very scary, unusual case." And so we're just going to say on these facts, we think, especially given the need

to defer to the political branches, that there are multiple grounds for this law, right? We are not comfortable setting aside the concerned judgments of the political branches, but we're not going to rule broadly.

We're going to keep this very, very narrow on the facts,

because there are a bunch of other first-known issues

we're also trying to think through with the internet, see, for example, net choice from last year and the Paxton, Texas, pornography verification law and so forth and so forth, right? That we just don't want to get into,

“which I think, you know, for people like Rameon,”

me, is going to be kind of intellectually very unsatisfying, but otherwise, it's going to require the court to answer, you know, 10 legal issues. Any one of them is an absolute brain teaser. - And hence again, why I'm okay not being a US Supreme clerk.

Just for today, we'll set that aside for today. - Rameon, when we're trying to tally up all these points that Alan discussed, one big variable that we haven't discussed was the line of questioning centered on

feasibility of divestiture and also whether or not Congress adequately considered alternatives. And here I think is a really interesting argument about whether Congress did the homework

that Fisher and Francisco were seeking of exploring, well, what if we just did put up a big banner on TikTok that said, China might be stealing your data, beware? Or what if we instead had other disclosure requirements? Would that have been some viable alternative

that should have been on the congressional agenda a little bit more frequently? Or did Congress have justification in just going more or less straight to this bill? What did you make of that?

How do you add up those points in that regard?

“- Yeah, well, I mean, I think that there are lots”

of comments and questions from the justices which pointed in different directions. So again, yeah, very difficult to sort of tally up. I think on the consideration of alternatives, you know, I think at least on the covertness

and we saw a bit more skepticism come through, I think when General Prilagat got up to defend this rationale but in particular for my think, Kagan and Gorsuch to express, I think, real sort of, yeah, doubt. I think about the covert content manipulation

because they seem to really buy this idea that if what you're concerned about is that the American people just don't know that China may be manipulating what you see on TikTok that disclosure is a less restrictive alternative.

And so I think at least on that score, you know, there was an acknowledgement from at least some of the justices that that rationale was weaker because of the availability of less restrictive alternatives.

It was interesting when you know data protection security came up, you know, there were a lot of questions about are we able to treat data protection here as an independent sort of like free standing justification? I think many of the justices make me all of them

would have much preferred if this law had come to them with just the data protection rationale because that is obviously a compelling interest that doesn't turn on content or viewpoint.

So there's a lot more first amendment friendly

but I was surprised that there wasn't sort of more skepticism about data protection when it comes to tailoring because again, and I mentioned this earlier, this seemed to be some pretty less restrictive alternatives on the table that sound more squarely in data privacy

than you know, a forced eyestature/man of TikTok. On feasibility, you know, I didn't hear much sympathy for TikToks claims that a divestature here, at least within the timeline, provided and maybe, you know, regardless of timeline,

would be infisible. And this was like part of, you know, my frustration with the argument to which is not necessarily like, oh, I think TikTok deserves a lot, it's sympathy here.

But a number of justices made this argument that, you know, nothing in the law requires TikTok

and the transfer of its algorithm and if TikTok can't use its algorithm, that's a problem of bite dances or China's own making.

TikTok can always sort of come up with its own algorithm

and if users lose their platform in the process,

“well, you know, sometimes you have to throw out”

the baby with the bath water. And you just have to divest to the baby. There's no, this is just a divestment, this is just a divestment or de-fenestration of the baby law. Yeah, it's a great prescription for any of you here

and I'm sure. (laughing) - But yeah, so I mean, I think, sure. I mean, I understand on the one hand, taking this kind of like formalist approach

of like, well, you know, TikTok can always just come up with its own algorithm, but obviously that's far fetched. And obviously the motivation behind the law was members of Congress, and obviously it's always, you know, dicey kind of talking about them

as some kind of uniform entity here, but there's a lot of evidence from legislative statements but also from the government's own defense of this law that this will happen because they don't like how content on TikTok is being edited or compiled

or they're fearful of how those things might, you know, how that might be shaped in the future by China. And so yeah, again, I just found like the sort of willingness to turn a blind eye to like actually the the law's practical operation here in pretty frustrating.

But lots of different points going in different directions there, it's a tough one, though. So Alan, any clarity there? I know, for example, one argument that was interesting

“that got brought up was, I believe it was Fitter, who said,”

well, it's known as though TikTok can just go find new engineers to dream up some new algorithm. We've got a global set of engineers. How are we gonna work with all of them? How are we gonna source?

I believe they cited Irish content. I don't know why they went to Ireland, maybe they're watching say nothing on Hulu or something. I don't know, but for you, what does the feasibility look like here?

How does it come out in your point scoring? - Yeah, I mean, so there's a feasibility question. Another is the question of alternatives, just kind of what I wanna address first. So I am perhaps, I think the government actually did a better job

defending the kind of least restrictive means part of this than Remy didn't. I thought that solicitor general Pralegar did actually a very nice job here on a couple of dimensions. So first, right, there was this question of,

well, if the concern is covert manipulation, why not just put a disclaimer somewhere and say TikTok is owned by bydans and bydans is a Chinese company, so don't trust anything you see.

And I thought Pralegar did a nice job explaining why that wouldn't work, which is the point is not informing users that in some general sense, this is all potentially controlled by China. It's on a content by content basis.

Is this particular piece of content being served to you

“because of some CCP-directed modification of the algorithm?”

There's very striking analogy that I thought you did a nice job doing, which is a disclosure in a store that sells of thousand products that one of them causes cancer is not actually helpful. The whole question is which of these products

is the one that causes cancer, right? And a law that required bydans or TikTok to include on every piece of content. Is this particular piece of content being manipulated by the Chinese government?

Well, A would be unenforceable because, of course, like the Chinese government wouldn't let TikTok know. And also, what actually raises its own first amendment issues regarding compelled speech and so forth. So I think there's actually, if you think

that avoiding covert content manipulation is a legitimate government interest. And of course, I think Fisher, who is arguing for the users,

was most powerful in saying, no, I just don't think

that that's a legitimate interest because that's paternalistic and the point is counter speech and Lamont and users have a right to gain foreign property. All that sort of stuff, which I think is a very fair point. But if you think that it is a compelling government issue,

it's actually very hard to figure out a way of dealing with that that is both effective and does not do a lot of damage to the First Amendment interest at stake here. And so I'm actually not convinced that forcing the government to get extremely involved in the day-to-day

algorithmic decisions of TikTok, which, by the way, was the main remedy that so-called Project Texas, which was this many years long negotiation between TikTok and Siffius, the US government, that failed or that Congress thought was not working

and therefore it enacted Pofaca.

I always thought that that Project Texas would have had

those First Amendment problems as well.

I should have also probably had a nice response

“to this argument that, no Francisco, the former”

former solicitor general, there was a lot of impressively good talent in that argument. That Francisco was arguing for TikTok raised about, well, if the concern is data privacy, just write a law that says TikTok cannot share data with anyone

or everyone's going to jail.

Pray LaGuard said, yep, but that would basically be

infeasable for the exact same reason you guys are saying that a divestment isn't feasible, which is that if you want TikTok to be part of this global bite-dance run network, it needs to transfer data. That's the whole point.

So I think the problem here is that if you accept the government's compelling interests, which you don't have to do, but if you do, I think it actually becomes very difficult to tailor this in a more narrow way, and you might say,

well, how can it be harder to tailor something more narrow than a band? A band seems very untalred. Well, yes, but the point of tailoring is not you have to make the remedy very small.

“You have to make it, it's rather that you have to make it”

no larger than is necessary to achieve the objective. And I just think in this case, once you accepted the objective is legitimate, if you have, it's actually extremely hard. There are a few tools that are smaller than sledge hammers

that will accomplish the goal is what I will say. All right, well, I know burning on the back of the minds of a lot of listeners has to be what the heck's gonna happen, what are y'all's predictions?

We'll get there in just one second.

One really interesting plot twist that came up during the oral argument was, let's assume the Supreme Court upholds the DC circuit's judgment, doesn't side with TikTok, right?

We enforce the law, and then come January 20th, we have a new president and the president opts not to enforce that law. Do we see that coming? What was the justice's response to anything surprised?

You all about this exchange that we saw. Ramya, I'll let you kick off the conversation here. - Yeah, so I mean, I was interested to see, I wouldn't say I was surprised, but there was a colloquy with General Polica

“about, you know, well, what if this ban goes into effect?”

Trump comes into power, can he then sort of,

you know, extend or approve a qualified divestiture, or even just kind of sit on his hands, extend, the time for divestiture, even though the ban is already meant to have gone into effect under the law. And she seemed to think that he would be able to do that.

So, you know, that is on the table. I mean, there was also an interesting call where I think Alito's the one who asked the question about whether the court had the authority to grant an administrative stay,

that would essentially postpone the January 19 deadline until after Trump takes office. And I think she said something along the lines of, you know, well, I can't point to any formal authority, but you know, of course, the court can sort of

allow itself more time to resolve the case. So what I took her to mean is that the court could do this. So I think that that option is like potentially on the table and for my money, I think either, you know, Genevieve/Allen's prediction is the most likely,

or potentially even just like a administrative stay, punting, is likely to. Let's be sure to have Alen flesh out that prediction in a second. I do just want to say though on that publicly

about enforcement. The fact that it wasn't just a one-off of my President Trump not in force law, and Pre-Larger could have said yes. But instead they got into the weeds of, okay,

but what would the reliance interest be, for example, Google and Apple, would they be able to then bring a due process claim if later we saw President Trump reverse himself and start turning force law?

That's pretty mind-blowing. You don't talk about, well, what if the President just flip-lops and what did the do pro? So that whole exchange was pretty mind-blowing. And in fact, the justices themselves at one point said,

well, maybe we should stop talking about this and move on. So, well, can I just add, you know, just, it's funny because usually courts are in the business of presuming compliance with the law. And yeah, so it was funny.

Let's, let's go into this imaginary way where we assume people are not complying with the law. - I gotta say, jokes aside, that bummed me out because, you know, look, I don't know why Justice Kavanaugh started that whole thing and maybe he was musing

and fair enough. But I certainly think Justice Sotomayor was not amused because she, I ain't pretty strongly, I couldn't tell she was rebuking like Trump

that we were all seriously talking about,

what if the president just, you know, yellow, just doesn't do it, 'cause why not? And then you relied, it was like a stoppage by latches. They're like, I don't know, I got like horrible sift pro PTSD flashbacks in that moment.

But to be clear, I do think that's just a real possibility

“that that's actually exactly what incoming president Trump does, right?”

He either tells Attorney General Bondi to not enforce this law. And then there's this weird oral argument, Dicta, that Kavanaugh has said, though there's now counter Dicta by sort of it's very weird. If you're the Apple General Council,

I mean, I don't feel bad for you, you're doing fine, generally in life, but this is stressful, actually. I guess it's very unclear what you do in this situation. Or maybe Trump just says, hey, I'm just going to announce

that there's a divestiture, right? And therefore none of this applies, or he says, I extend 90 days, even though under the statute, there needs to be a legal agreement that there's a divesture happening.

But again, maybe we're just in yellow world, like nothing matters. There's question of administrative stay. I mean, I actually, I would like, I want to understand what anyone's talking about,

because as far as I can tell, there are two ways that this room could put this guy. One thing you could do in this, I actually understand, although I don't think it works, is an injunction, right?

Where the Supreme Court says, "No, no, we are enjoying this law "until a later date at which point we will decide the merits." But the problem with an injunction is that, if he's pretty clear what the standard is, right?

And Steve Latic has written great stuff about this

for his one first newsletter, which people should read,

about TikTok and President Trump's request regarding TikTok. Which is that an injunction is only supposed to issue if the court, certainly, when you have a duly enacted act of Congress, if the court believes that there is

“a likelihood, I think maybe even a high likelihood,”

that the requestor will win on the merits, which I don't think anyone thinks. So I think an injunction is just not on the table. But then there's just something called administrative stay, which is not an injunction,

but I will admit, I'm not sure I fully understand the difference. And I'm also not sure what the administrative stay would be for. Like, as far as I understand, and Romney, please educate me, administrative stay is this like, it's like a cleanup thing. It's like, hey, there's just some stuff we have to do,

to kind of clean stuff up. So let's just not do anything until we clean it up, but you're not, there's only the cleanup here. Like, there's a question, it must be answered,

and Donald Trump may be doing something at some point

because he's like, good at deals. I don't think any of this works, but I am legitimately confused, and it did, I was not pleased that we were going down that route, because that would seriously bum me out.

If there's not anything in the administrative stay, please, please help me, Romney, just help me. I can't help you, Alan. I see you'll please for help, but I can't help you. Yeah, I mean, to be clear, I'm not saying that

issuing an administrative stay would make sense in any way that it's justified that they clearly have authority to do this. I mean, I think, you know, probably got up against the wall. Like, well, also, maybe she wasn't up against the wall, but she generally is not in the business of telling the court.

They can't do things that they want to do.

“And so it was like, if you want to do this,”

and notably, not for the reason that the president elect has said that he's a good deal maker, and there's a deal to be made here. But because you the court think that you need more time to you consider an adjudicate the weighty questions

at stake in this case. So I don't know that there's any precedent for it doing that. And it worries me too that this might be on the table, but it seems to be on the table. And to the extent that there was a lot of sort of divergence,

you know, perhaps it's clear I think from the argument that the weight of opinion on the court is with the government, not with TikTok or its users. But I think that there is still potentially a lot of disagreement about the particular pathway for the government

to win on the merits. And so that's why I say maybe the administrative stay is still on the table for that reason. Another possibility, again, I have no idea how likely this is or if there's any precedent for this kind of thing happening.

But you know, the motion for a stay is still pending. It's conceivable at least to me that it formally denies the request for the stay. But then just says that we're going to deal with this in the ordinary course and not like on an expedited basis.

But what is the stay for? What are you trying to stay? If you're trying, because if you're trying, I don't think you can stay a law. You have to enjoy in a law, right?

Or so if you're trying to stay the DC circuit, if any of that of course doesn't help TikTok, because then the DC circuit needs to stay in the law. So what are we staying exactly? You're it's a great question.

It's a fantastic question. No, I mean, I agree. I agree, it doesn't make sense. But the other option I was flagging is that it actually denies the request for a stay.

But then just makes clear that it's not actually going to act before the January 19 deadline. And I see that as a possibility, maybe because it

because granting the stay doesn't seem to make sense, because what are you actually staying? But also because it weren't a bunch of questions asking,

“you know, like, look, what is really going to happen?”

Like, the day after January 19, here, few uses. Like, aren't these uses still going to be able to use TikTok on their phones, which is how most people use TikTok? For some amount of time. And I think the government made an argument along these lines

in its opposition to the request for a stay. And so for that reason, I actually, and I think that there is maybe a majority of justices on the court who are not convinced that, like, actually TikTok goes dark in the full sense of darkness.

You know, the day after January 19. And so maybe they do that, which has the same effect as, like, granting a stay, maybe. So there's a lot to store it out. And I know Allen's a need of another nap.

So we're going to have to wrap this up pretty soon here. One thing I want to point out is that in the steel seizure case, which all Kahnah nerds know and love, they heard oral argument on May 12th, and still took five weeks later to issue a decision

in June of 1952. So five weeks is a still pretty rapid turnaround. They've got nine days. So my two-part prediction time for our two wonderful panelists is for what day do we get a decision?

And what is the decision? No pressure on either of you. But of course, because I'm kind, I'm going to make Allen go first. Nice. So OK, oh, boy.

So here's what I think is going to happen.

I think-- so the court has its next business day on Monday. And it's going to issue orders. I think on Monday, they are going to issue an order denying TikTok's requests for a stay. And then you'll say nothing else, right?

They'll say deny the stay, we've heard the oral argument. OK. So now we just are going to wait and issue our opinion and do course. What that effectively will mean is that the law will go into effect. It will go into effect because the justices

have done like a straw vote. And they're pretty confident that they're going to uphold the law. But they're not sure why. And they know that it's going to take the months and months and months to write the opinions and deal with like the 17 meta issues.

And kind of angels dance going to head of a pin first

“on the doctrine issues, then you need to figure this out.”

And so they're giving themselves flexibility because they're not yet actually ruling on anything. But everyone kind of understands that the only reason they're letting the law go into effect is because they're pretty confident that they're going to rule to uphold it.

But also then to Rumbius point, it will also give them a few months to see what's actually going to happen. Because although Francisco, I've got to surprise about this, seemed actually pretty unsure whether Tik Tok was going to go darker or not. He seemed to say that Tik Tok is going to go dark.

But Tik Tok doesn't have to go dark. Like as long as they move their cloud infrastructure abroad and they must already have foreign cloud infrastructure providers because of course, Tik Tok is global. And the apps are smart enough to find those new servers

for several weeks, if not months, you will be able to use Tik Tok on a kind of slightly screwed up basis. But you'll sort of use it, which then kind of gives everyone breathing room and allows the court to kind of give Trump the relief he wants because then Trump can still use a couple of months

to make the quote unquote deal and preserve Tik Tok that way.

“So that's what I think is going to happen.”

Probably on Monday, certainly next week and I think Tik Tok, I think Tik Tok might get three votes. I think they, you might get Gorsuch and Sotomayor, and maybe if they're having a very good day, Kagan. But I just don't see more than three votes for Tik Tok and then

the day here. That's a very long answer, but I'm also very excited to tell you. It's a detailed prediction. The best thing is come Monday. I'll be able to tell you if you're right

or wrong in some regard and that makes my weekend exciting. Around me, can you give us your prediction, please? Yeah, well, I mean, I'm going to be boring here and then I feel like, flag it, talking about this possibility myself and then here, I'll infer the flesh it out.

I think I've like convinced myself into believing that maybe this is the most likely scenario that they deny the stay, but really in the hopes that maybe something might happen to move the case when the Trump administration comes in. Or at the very least give them time to sort out the differences of opinion. Now, if we do end up having an actual decision on the merits and for my mind,

that's the second most likely option is that we get a ruling for the government

And I think if that happens, it will likely be this we're going to assume

that height and scrutiny applies and that it's satisfied and it will essentially be a humanitarian law project to be hold a mark to kind of situation where you see a lot of sort of the national security difference and an emphasis on the sort of China concerns behind this law.

“And so I think, if the court gets to the merits, that's the most likely place”

the land because I didn't actually hear that to be and obviously this might change as the justices go off to further consider the case, but I didn't hear five votes for the first amendment just doesn't come into play here.

And I'm not even sure there was a critical mass on is this, you know,

content, you troll an intermediate scrutiny applies or is this definitely content based.

“And so for that reason, they might in order to get a sort of, you know, one one opinion,”

a majority opinion sort of converge on let's just assume for the sake of things that strict scrutiny applies all of the DC circuit. Well, folks, we've got some predictions, wild times ahead, no doubt. And you'll certainly hear from us one way or another, whether Alan's right or not, who knows, we'll find out soon.

“But for now, thanks around me and Alan for joining us and talk to you all soon.”

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