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<v Speaker 1>Welcome to scot Discust, a project of the Federalist Society

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<v Speaker 1>for Law and Public Policy Studies. Our contributors joined us

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<v Speaker 1>from around the country to bring you expert commentary on

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<v Speaker 1>US Supreme Court cases as they are argued and the

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<v Speaker 1>decisions are issued. The Federalist Society takes no position on

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<v Speaker 1>particular legal or public policy issues. All expressions are those

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<v Speaker 1>of the speaker. Hello, and welcome to SCO Discust. I'm

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<v Speaker 1>your host, Kyle hammernis On, behalf of the faculty division

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<v Speaker 1>of the Federalist Society. We are here today to discuss

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<v Speaker 1>TikTok versus Garland, which was decided by the Court on

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<v Speaker 1>January seventeenth, twenty twenty five. It is my honored to

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<v Speaker 1>introduce our guests today. D'arpana Chef d'arpana is a public

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<v Speaker 1>interest litigator specializing in constitutional cases to protect free expression,

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<v Speaker 1>property rights, economic liberty, and other individual liberties. She also

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<v Speaker 1>has served as Vice president of Litigation for their found

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<v Speaker 1>for Individual Rights and Expression for four years. And with that,

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<v Speaker 1>I'd like to hand things that we try to guess.

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<v Speaker 2>Great well.

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<v Speaker 3>Thank you so much for that kind introduction, and it's

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<v Speaker 3>a pleasure to be here to talk about this important case.

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<v Speaker 3>The court upheld the federal law that would conditionally ban

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<v Speaker 3>TikTok in the United States if the applications of the

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<v Speaker 3>apps Chinese parent company byte Dance did not sell to

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<v Speaker 3>US assets. So notably, the court assumed without deciding that

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<v Speaker 3>as a threshold matter, the law triggered First Amendment scrutiny.

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<v Speaker 3>And I'll dive into this aspect in a little more

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<v Speaker 3>detail later, but the takeaway here is that if the.

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<v Speaker 2>Court decided the law did not trigger the First.

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<v Speaker 3>Amendment, then that would have sort of been the end

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<v Speaker 3>of the analysis, the end of the case. The court

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<v Speaker 3>then concluded that the challenge provisions were content neutral regulations,

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<v Speaker 3>meaning that they're not regulations that targeted the content of

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<v Speaker 3>the expression. If it had been, that would have triggered

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<v Speaker 3>the highest level of scrutiny strict scrutiny, meaning the law

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<v Speaker 3>would have had to be narrowly tailored to further a

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<v Speaker 3>compelling government interest. But because the law is content neutral,

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<v Speaker 3>the court applied intermediate scrutiny and ruled that it satisfied

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<v Speaker 3>this standard because the law further the government's important interest

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<v Speaker 3>in protecting Americans data.

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<v Speaker 2>From a foreign adversary.

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<v Speaker 3>Justices Soda Mayora and Justice Corsich issued separate concurrences.

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<v Speaker 2>But before we.

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<v Speaker 3>Get into the kind of the details there at the outset,

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<v Speaker 3>I wanted to note that how narrow the Court's opinion is,

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<v Speaker 3>and it's really limited to the unique facts in this case.

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<v Speaker 3>There were a lot of a meekest brief, a lot

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<v Speaker 3>of interest in this case on all sides, and I

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<v Speaker 3>think that the Court did a good job and really

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<v Speaker 3>narrowing its ruling to the unique facts of this case.

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<v Speaker 3>For one, you know, the Court notes that it involves

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<v Speaker 3>quote new and transformative technology. It's a case that involves

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<v Speaker 3>app that's owned and controlled by an undisputed foreign adversary,

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<v Speaker 3>therefore implicates grave national security concerns, and it involves a

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<v Speaker 3>largely unprecedented regulation. You know this, this act of forcing

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<v Speaker 3>divestiture is you know, without precedent in previous years, and

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<v Speaker 3>it's the culmination of five years of the government's efforts

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<v Speaker 3>to address this national security problem, involving two separate administrations.

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<v Speaker 2>And then of course you have the.

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<v Speaker 3>Whole procedural history involving a very expedited consideration at several places,

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<v Speaker 3>both in the Court's opinion and Justice cours of just concurrence.

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<v Speaker 3>They emphasize that the court had just two weeks to

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<v Speaker 3>review the briefing, hear arguments, and decide the case. So

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<v Speaker 3>with that background, let's look a little more closely at

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<v Speaker 3>the facts which are integral to the opinions issued today.

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<v Speaker 3>So for those who might not know, uh TikTok is

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<v Speaker 3>a social media platform that was launched in twenty seventeen.

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<v Speaker 2>It has over one hundred and seventy.

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<v Speaker 3>Million users just in the United States and over a

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<v Speaker 3>billion users worldwide. And on TikTok, people create and publish

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<v Speaker 3>videos that can be overlaid with audio or texts, so

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<v Speaker 3>it's an expressive medium. Its parent company is Byteedance, which

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<v Speaker 3>is a Chinese company that owns the platform's proprietary algorithm.

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<v Speaker 3>Now that algorithm is I guess the secret sauce. It

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<v Speaker 3>recommends videos to a user based on the user's interactions

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<v Speaker 3>with the platform. Now, under Chinese law, byte Dance is

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<v Speaker 3>required to share its data and assist and cooperate with

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<v Speaker 3>the Chinese government's intelligence work. Therein lies the national security concerns. Now,

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<v Speaker 3>the Court devotes quite a few pages to detailing the

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<v Speaker 3>background of this law that involve five years of the

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<v Speaker 3>federal government trying to address the concern that TikTok automatically

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<v Speaker 3>captures vast loss of information from its users. That information

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<v Speaker 3>includes the names, ages, phone numbers, phone contacts, social network connections,

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<v Speaker 3>precise location, internet addresses, the device used, the content of

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<v Speaker 3>the messages, and even keystroke patterns. And so in the

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<v Speaker 3>five years leading up to this law you had. In

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<v Speaker 3>August twenty twenty, under President Trump, there was an executive

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<v Speaker 3>order to.

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<v Speaker 2>Basically do the same kind of thing and require.

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<v Speaker 3>Protection of Americans data, and there was years of negotiation

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<v Speaker 3>with the Executive branch to resolve these national security concerns.

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<v Speaker 3>Those negotiations stall and it never resulted any kind of

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<v Speaker 3>final agreement on the heels of that Congress and acts,

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<v Speaker 3>the Protecting Americans from Foreign Adversary Controlled Applications Act, which

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<v Speaker 3>is the law at issue here, and it requires the

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<v Speaker 3>divestger of TikTok within two hundred and seventy days of

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<v Speaker 3>the act's passage. The Act excludes, importantly applications other apps

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<v Speaker 3>that have the primary purpose of posting product, business, or

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<v Speaker 3>travel information and reviews. The case at present is basically

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<v Speaker 3>two cases. They are consolidated cases. Consolidated cases one brought

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<v Speaker 3>by TikTok and byteedance, and the other brought by a

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<v Speaker 3>group of TikTok.

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<v Speaker 2>Users and creators.

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<v Speaker 3>And these petitioners claim that the federal law as applied

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<v Speaker 3>to them violates the First Amendment. Now, the DC Circuit

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<v Speaker 3>upheld the law on applying strict scrutiny, and the Chief

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<v Speaker 3>judge their judge Treaty Vason concurred in that result, but

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<v Speaker 3>would have upheld the law under intermediate scrutiny. The Court

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<v Speaker 3>granted start in this case on December eighteenth and held

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<v Speaker 3>oral argument last Friday, January tenth, and basically before or

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<v Speaker 3>the court it had three options whether that can strike

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<v Speaker 3>down the law, uphold the law, or stay the law,

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<v Speaker 3>which is one of the anekest briefsume that was filed

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<v Speaker 3>by the President and President of the incoming President Trump

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<v Speaker 3>to stay the law to give the administration a little

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<v Speaker 3>more time to try to work out some kind of deal. Now,

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<v Speaker 3>the threshold question in this case is whether the challenge

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<v Speaker 3>provisions are even subject to the First Amendment. Now Here,

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<v Speaker 3>the court assumes, but doesn't decide, that the First Amendment

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<v Speaker 3>is implicated.

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<v Speaker 2>In a footnote, the court clarifies.

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<v Speaker 3>That to the extent, well to the extent any clarification

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<v Speaker 3>is even needed. Foreign entities operating abroad do not have

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<v Speaker 3>First Amendment rights. So any expressive activity by byteedance that's

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<v Speaker 3>occurring abroad is not protected by the First Amendment.

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<v Speaker 2>And that's an important point.

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<v Speaker 3>That distinguishes, I think, a lot of the other hypotheticals

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<v Speaker 3>and things that were brought up in oral argument.

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<v Speaker 2>Next, the Court.

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<v Speaker 3>Notes that they're at least two ways in which the

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<v Speaker 3>First Amendment could be implicated and therefore trigger heightened scrutinary

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<v Speaker 3>heightened scrutiny. Without that, a law must only be rationally

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<v Speaker 3>related to a legitimate government interest. So the first way

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<v Speaker 3>the petitioners argue is that the law regulates expressive conduct.

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<v Speaker 3>So listeners might be familiar with the O'Brien standard.

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<v Speaker 2>This is the case of US versus.

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<v Speaker 3>O'Brien, which upheld the law criminalizing the burning of a

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<v Speaker 3>draft card under intermediate scrutinary under intermediate scrutiny because the

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<v Speaker 3>burning of the draft card is expressive conduct. Now, the

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<v Speaker 3>Court rejects this argument, saying it's not clear that the

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<v Speaker 3>Act itself directly regulates protected expressive activity. The law doesn't

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<v Speaker 3>regulate TikTok users at all, and it's only regulating the

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<v Speaker 3>corporate control of TikTok. And petitioners quote have not identified

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<v Speaker 3>any case in which this Court has treated a regulation

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<v Speaker 3>of corporate control as a direct regulation of expressive activity

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<v Speaker 3>or semi expressive conduct, and the Court hesitates to break

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<v Speaker 3>that new ground in this unique case.

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<v Speaker 2>So again the Court highlighting what a unique case this is,

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<v Speaker 2>and you know, kind of limiting its holding.

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<v Speaker 3>It's worth noting that the government's brief points out that

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<v Speaker 3>under the petitioner's argument, if you have any law.

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<v Speaker 2>That implicates.

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<v Speaker 3>Expressive activity, then if that triggers heightened scrutiny scrutiny, then

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<v Speaker 3>you would also, for example, antitrust laws could be enforced

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<v Speaker 3>against social media companies and those laws would be subject

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<v Speaker 3>to heightened First Amendment scrutiny just because it triggers it

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<v Speaker 3>affects the social media companies and their expression. The second

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<v Speaker 3>way the petitioners argue that the law triggers First Amendment

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<v Speaker 3>scrutiny is that the law imposes a disproportionate burden on

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<v Speaker 3>protected its expression. And there's a number of facets to this.

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<v Speaker 3>It burdens the generation of content, it burdens the moderation

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<v Speaker 3>of content, It burdens access.

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<v Speaker 2>To a distinct communication medium.

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<v Speaker 3>It burdens the expressive association rights, so the right to

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<v Speaker 3>associate with specific speakers, and it burdens the right to

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<v Speaker 3>receive information and ideas. And the Court notably finds that

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<v Speaker 3>it has recognized all of these facets as protected First

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<v Speaker 3>Amendment interests. Importantly, the Court says, and I quote, an

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<v Speaker 3>effective ban on a social media platform with one hundred

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<v Speaker 3>and seventy million US users certainly burdens those users expressive

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<v Speaker 3>activity in a non trivial way.

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<v Speaker 2>But the Court notes that it has.

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<v Speaker 3>Not articulated a clear framework for determining when regulation of

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<v Speaker 3>non expressive conduct that disproportionately burdens those engaged in expressive

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<v Speaker 3>activity triggers heightened re view, and it declines to do

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<v Speaker 3>so in this case. And so again the Court is

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<v Speaker 3>emphasizing the narrowness of its ruling. It specifically says that

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<v Speaker 3>a law targeting foreign adversaries control over communications platform is

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<v Speaker 3>in many ways different than the kind of regulations of

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<v Speaker 3>non expressive activity that the Court has subjected to First

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<v Speaker 3>Amendment scrutiny. So those it highlights two specific differences here.

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<v Speaker 3>First you have a congressional determination that the entity is

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<v Speaker 3>a foreign adversary, and second you have a link of

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<v Speaker 3>causal steps between the regulation and the alleged burden, And

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<v Speaker 3>both of those points I think are significant for future

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<v Speaker 3>cases or what that means in future First Amendment cases.

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<v Speaker 3>On the first point at oral argument, I think petitioners

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<v Speaker 3>raised a couple of hypotheticals, including one or a couple

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<v Speaker 3>of counterfactuals, I should say, including one about how Politico

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<v Speaker 3>is owned by a German company, and then other examples

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<v Speaker 3>of foreign owned media or communication companies. But that this

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<v Speaker 3>case involves an undisputed foreign adversary that's backed by the

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<v Speaker 3>record and years of deliberation by coordinate branches of the

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<v Speaker 3>federal government is a distinguishing feature. So you know, we're

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<v Speaker 3>not concerned about Germany or German owned companies and what

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<v Speaker 3>they might do with American data in the same way

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<v Speaker 3>we are with a foreign adversary like China. Second, the

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<v Speaker 3>important takeaway there is that the concern the court's concern

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<v Speaker 3>over the causal chain. A lot of the focus in

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<v Speaker 3>the briefing and at oral argument was that the burdens

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<v Speaker 3>on protected expression are in fact because of China's policies

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<v Speaker 3>and actions, not the regulation itself, and that concern over

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<v Speaker 3>a causal chain and kind of the First Amendment context

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<v Speaker 3>has popped up last.

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<v Speaker 2>Term, and you know, over and over again in these

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<v Speaker 2>social media cases.

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<v Speaker 3>Is so last term, listeners might recall in Murphy versus Missouri,

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<v Speaker 3>the Court was concerned that the censorship alleged a challenge

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<v Speaker 3>in that case about social media platforms was the result

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<v Speaker 3>of social media platforms themselves and their policy decisions, not

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<v Speaker 3>any actions by the government.

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<v Speaker 2>So that's the recurring theme that we may see in

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<v Speaker 2>future cases.

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<v Speaker 1>Now.

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<v Speaker 3>Just just as Soda Mayor concurred and focused on kind

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<v Speaker 3>of criticizing the Court for sidestepping this decision instead of

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<v Speaker 3>saying clearly that the Act triggers First Amendment scrutiny, kind

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<v Speaker 3>of she criticizes the Court for just assuming that without

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<v Speaker 3>deciding it. She says, the court's own cases make clear

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<v Speaker 3>that the First Amendment is implicated, and that's absolutely right.

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<v Speaker 3>As the Court itself acknowledges, you know, it acknowledges that

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<v Speaker 3>the editorial decision, the moderation of content, access to a

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<v Speaker 3>distinct communication medium, the expressive association, all of those are

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<v Speaker 3>recognized First Amendment rights, and it cites those cases.

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<v Speaker 2>But just as.

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<v Speaker 3>Sodamayor fails to address kind of the Court's distinctions that

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<v Speaker 3>it draws about why this case is different than those cases.

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<v Speaker 3>And so for those of us concerned with protecting free expression,

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<v Speaker 3>I think that's an important limiting principle of this decision. So,

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<v Speaker 3>now that the Court assumes that the law triggers First Amendment,

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<v Speaker 3>it needs to decide whether the law targets speech based

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<v Speaker 3>on its message or its content, or whether the law

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<v Speaker 3>is content neutral. It finds it rules that the law

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<v Speaker 3>is facially content neutral. The law is actually targeting the

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<v Speaker 3>corporate control by a foreign adversary.

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<v Speaker 2>It does not target speech based on content.

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<v Speaker 3>It does not regulate speech that's based on the function

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<v Speaker 3>or purpose. And third, it does not restrict, penalize, or

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<v Speaker 3>burden speech because of its content. And we know that

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<v Speaker 3>because the petitioners can't avoid the regulation by simply.

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<v Speaker 2>Altering their speech.

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<v Speaker 3>So if the algorithm was still allowed from the Chinese

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<v Speaker 3>government and TikTok is divested, they could still say all

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<v Speaker 3>of the pro Chinese speech that was on there, or

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<v Speaker 3>they could still say everything that's being said on TikTok.

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<v Speaker 3>Now it's not about the content. The petitioners argued also

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<v Speaker 3>that the law was content based on his face because

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<v Speaker 3>of that exclusion, the exclusion for apps that are primarily

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<v Speaker 3>designed for product and business reviews or travel information. But

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<v Speaker 3>the Court notes that this is because this is an

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<v Speaker 3>as applied challenge by petitioners, it doesn't need to decide

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<v Speaker 3>whether that exclusion is content based.

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<v Speaker 2>Now I'm not sure if that's exactly right.

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<v Speaker 3>I feel like there's some mental gymnastics going on there,

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<v Speaker 3>and I think just as Corsach's concurrence alludes to this

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<v Speaker 3>point that you know, maybe it is in fact the

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<v Speaker 3>law is in fact content based.

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<v Speaker 2>So I'll get to that in a bit.

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<v Speaker 3>But for the time being, the Court notes that this

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<v Speaker 3>law is at least supported by a content neutral justification,

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<v Speaker 3>and that justification is preventing China from collecting vast amounts

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<v Speaker 3>of personal sensitive data from the one hundred and seventy

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<v Speaker 3>million US TikTok users, and that purpose is completely.

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<v Speaker 2>Unrelated to the content of expression.

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<v Speaker 3>The law doesn't reference the content of speech on TikTok,

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<v Speaker 3>and it doesn't reflect disagreement with the messages on TikTok,

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<v Speaker 3>and the Court rejects the idea that the specific provisions

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<v Speaker 3>about TikTok should trigger strict scrutiny because it's a restriction

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<v Speaker 3>based on the identity of the speaker. Again, the Court

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<v Speaker 3>emphasized the narrow narrowness of its ruling, which kind of

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<v Speaker 3>goes to show that you couldn't use this ruling to

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<v Speaker 3>justify all efforts to protect data. Of course, data protection

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<v Speaker 3>and you know, privacy issues are rampant in social media

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<v Speaker 3>and online, and so I think the court's very careful

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<v Speaker 3>to note that it's not saying that kind of justification

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<v Speaker 3>would justify any regulationist speech, but that this case is unique.

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<v Speaker 3>Its focuses on TikTok scale and its susceptibility to control

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<v Speaker 3>by a foreign adversary that makes this justification okay in

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<v Speaker 3>this circumstance. The Court also rejects the argument that the

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<v Speaker 3>Act is under inclusive because of that exclusion provision. The

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<v Speaker 3>Court finds that the government had a good reason to

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<v Speaker 3>single out TikTok because of its history. I think the

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<v Speaker 3>record is very clear about the way TikTok is handled

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<v Speaker 3>American data, Americans data, and how it's shared that data

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<v Speaker 3>and the government. The Court also notes that the government

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<v Speaker 3>is not required to address all aspects of a problem

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<v Speaker 3>and one fell swoop, so it can target the problem

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<v Speaker 3>imposed by TikTok and then address maybe separately, other issues,

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<v Speaker 3>like I think one of the examples that came up

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<v Speaker 3>in oral argument was Timu and other Chinese own websites

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<v Speaker 3>that that.

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<v Speaker 2>Might also be collecting data.

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<v Speaker 3>Finally, the Court finds that the law is sufficiently tailored

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<v Speaker 3>so there is an important government interest in protecting Americans data,

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<v Speaker 3>and that interest is sufficiently sufficiently furthered by this law

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<v Speaker 3>under intermediate scrutiny. The law does not need to be

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<v Speaker 3>the least speech restrictive means. And that's a crucial distinction,

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<v Speaker 3>because if the court had found that strict scrutiny applied,

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<v Speaker 3>then it would need to make that determination that this

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<v Speaker 3>law was the least speech restrictive means. It also knows

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<v Speaker 3>that it's a conditional not outright van so the TikTok could,

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<v Speaker 3>you know, just as long as it was divesting itself

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<v Speaker 3>a foreign control, then everything would be okay. It Also,

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<v Speaker 3>the court also addresses the alternatives posed by petitioners, like

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<v Speaker 3>disclosure requirements or restrictions on data sharing, and found that

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<v Speaker 3>those alternatives don't undermine the conclusion that the law is

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<v Speaker 3>not substantially broader than necessary. And finally, the Court addresses

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<v Speaker 3>the government's other rationale, which is preventing the covert manipulation

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<v Speaker 3>of content.

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<v Speaker 2>It rejects to.

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<v Speaker 3>I guess, declines to consider this rationale, finding that the

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<v Speaker 3>law would have been passed anyway. Congress would have passed

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<v Speaker 3>the law overwhelmingly just because of the data protection rationale.

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<v Speaker 3>And the Court notes that it's an open question as

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<v Speaker 3>to what is the appropriate level of scrutinary scrutiny when

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<v Speaker 3>you have a mixed justification. So that's another important takeaway.

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<v Speaker 3>That is an open question that might have to be

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<v Speaker 3>addressed by the Court at a later time. And in

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<v Speaker 3>another case, now, as I mentioned, Justice Gorsag issued a concurrence.

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<v Speaker 3>He is a great line at the top of it.

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<v Speaker 3>He makes four points. One is that he's pleased that

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<v Speaker 3>the Court rightly refuses to consider that the government's rationale

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<v Speaker 3>about content manipulation. Echoing Justice Harlan from the seminal decision

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<v Speaker 3>of Cohen versus California, he says, one man's covert content

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<v Speaker 3>manipulation is another's editorial discretion, and of course editorial discretion

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<v Speaker 3>is protected by the First Amendment. He also notes that

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<v Speaker 3>the court rightly refuses to consider classified evidence. That was

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<v Speaker 3>an important thing that was also brought up at oral argument.

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<v Speaker 3>You know, the government below introduced a lot of classified

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<v Speaker 3>evidence that was.

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<v Speaker 2>Not privy to the petitioners in.

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<v Speaker 3>This case and their serious due process concerns by doing that,

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<v Speaker 3>in which one party doesn't have access to the information.

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<v Speaker 3>So the Court was right to reject that classified evidence

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<v Speaker 3>or not considerate in making this ruling. And third Justice

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<v Speaker 3>Gorsic raised serious concerns about whether the law is content

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<v Speaker 3>neutral and therefore escapes strict scrutiny. I think that goes

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<v Speaker 3>to kind of a heart of an issue that was

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<v Speaker 3>not decided by the courts, kind of determining the level

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<v Speaker 3>of scrutiny that applies. Where you have just just as

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<v Speaker 3>Soda Mayor and her concurrence saying, well, we should have

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<v Speaker 3>decided that this triggered First Amendment scrutiny period based on

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<v Speaker 3>the Court's decision, and then Justice Gorsage saying that.

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<v Speaker 2>You would have applied strict scrutiny and.

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<v Speaker 3>That the law does and would have upheld the law

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<v Speaker 3>under that heightened scrutiny. Under strict scrutiny because the law

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<v Speaker 3>serves the compelling interest and that it is narrowly tailored

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<v Speaker 3>to serve that interest. So that's just the wrap up

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<v Speaker 3>I guess of the Court's decision.

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<v Speaker 2>Yeah, this is a matter of full.

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<v Speaker 3>Disclosure, as I was formally involved with both FIRE and IJ.

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<v Speaker 2>They both submitted an a meekest brief.

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<v Speaker 3>In this case and argued that it was strict scrutiny

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<v Speaker 3>should apply and that the TikTok band should be invalidated

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<v Speaker 3>as a violation.

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<v Speaker 2>I think there are some you know, I.

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<v Speaker 3>Sympathize with the concerns that a lot of folks have

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<v Speaker 3>that sometimes national security is just invoked as a talisman.

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<v Speaker 2>To justify speech restrictions. I am, in.

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<v Speaker 3>My own personal capacity, I kind of agree with the

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<v Speaker 3>courts concerned about this. I think the records very clear here.

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<v Speaker 3>You know, we're not dealing with just the invocation of

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<v Speaker 3>national security. You have a five year period of Congress

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<v Speaker 3>and the federal government, both under two separate administrations, trying to.

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<v Speaker 2>Deal with this.

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<v Speaker 3>And I think the Court is respectful and notes in

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<v Speaker 3>its opinion that it owes a certain amount of deference

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<v Speaker 3>to its coordinate branches. I mean, they're not going to

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<v Speaker 3>be experts on the national security issue. That said, I

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<v Speaker 3>think that is an important thing that could distinguish this

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<v Speaker 3>case from other efforts where it is just sort of

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<v Speaker 3>national security is just invoked as a talisman, has got

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<v Speaker 3>a magic phrase to justify speech restrictions or restrictions and

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<v Speaker 3>other civil liberties.

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<v Speaker 1>Thank you for listening to this episode of SCO Discussed.

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<v Speaker 1>Go Discussed is a project of the Federalist Society, not

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