Speaker 1: Welcome to scot Discust, a project of the Federalist Society
Speaker 1: for Law and Public Policy Studies. Our contributors joined us
Speaker 1: from around the country to bring you expert commentary on
Speaker 1: US Supreme Court cases as they are argued and the
Speaker 1: decisions are issued. The Federalist Society takes no position on
Speaker 1: particular legal or public policy issues. All expressions are those
Speaker 1: of the speaker. Hello, and welcome to SCO Discust. I'm
Speaker 1: your host, Kyle hammernis On, behalf of the faculty division
Speaker 1: of the Federalist Society. We are here today to discuss
Speaker 1: TikTok versus Garland, which was decided by the Court on
Speaker 1: January seventeenth, twenty twenty five. It is my honored to
Speaker 1: introduce our guests today. D'arpana Chef d'arpana is a public
Speaker 1: interest litigator specializing in constitutional cases to protect free expression,
Speaker 1: property rights, economic liberty, and other individual liberties. She also
Speaker 1: has served as Vice president of Litigation for their found
Speaker 1: for Individual Rights and Expression for four years. And with that,
Speaker 1: I'd like to hand things that we try to guess.
Speaker 2: Great well.
Speaker 3: Thank you so much for that kind introduction, and it's
Speaker 3: a pleasure to be here to talk about this important case.
Speaker 3: The court upheld the federal law that would conditionally ban
Speaker 3: TikTok in the United States if the applications of the
Speaker 3: apps Chinese parent company byte Dance did not sell to
Speaker 3: US assets. So notably, the court assumed without deciding that
Speaker 3: as a threshold matter, the law triggered First Amendment scrutiny.
Speaker 3: And I'll dive into this aspect in a little more
Speaker 3: detail later, but the takeaway here is that if the.
Speaker 2: Court decided the law did not trigger the First.
Speaker 3: Amendment, then that would have sort of been the end
Speaker 3: of the analysis, the end of the case. The court
Speaker 3: then concluded that the challenge provisions were content neutral regulations,
Speaker 3: meaning that they're not regulations that targeted the content of
Speaker 3: the expression. If it had been, that would have triggered
Speaker 3: the highest level of scrutiny strict scrutiny, meaning the law
Speaker 3: would have had to be narrowly tailored to further a
Speaker 3: compelling government interest. But because the law is content neutral,
Speaker 3: the court applied intermediate scrutiny and ruled that it satisfied
Speaker 3: this standard because the law further the government's important interest
Speaker 3: in protecting Americans data.
Speaker 2: From a foreign adversary.
Speaker 3: Justices Soda Mayora and Justice Corsich issued separate concurrences.
Speaker 2: But before we.
Speaker 3: Get into the kind of the details there at the outset,
Speaker 3: I wanted to note that how narrow the Court's opinion is,
Speaker 3: and it's really limited to the unique facts in this case.
Speaker 3: There were a lot of a meekest brief, a lot
Speaker 3: of interest in this case on all sides, and I
Speaker 3: think that the Court did a good job and really
Speaker 3: narrowing its ruling to the unique facts of this case.
Speaker 3: For one, you know, the Court notes that it involves
Speaker 3: quote new and transformative technology. It's a case that involves
Speaker 3: app that's owned and controlled by an undisputed foreign adversary,
Speaker 3: therefore implicates grave national security concerns, and it involves a
Speaker 3: largely unprecedented regulation. You know this, this act of forcing
Speaker 3: divestiture is you know, without precedent in previous years, and
Speaker 3: it's the culmination of five years of the government's efforts
Speaker 3: to address this national security problem, involving two separate administrations.
Speaker 2: And then of course you have the.
Speaker 3: Whole procedural history involving a very expedited consideration at several places,
Speaker 3: both in the Court's opinion and Justice cours of just concurrence.
Speaker 3: They emphasize that the court had just two weeks to
Speaker 3: review the briefing, hear arguments, and decide the case. So
Speaker 3: with that background, let's look a little more closely at
Speaker 3: the facts which are integral to the opinions issued today.
Speaker 3: So for those who might not know, uh TikTok is
Speaker 3: a social media platform that was launched in twenty seventeen.
Speaker 2: It has over one hundred and seventy.
Speaker 3: Million users just in the United States and over a
Speaker 3: billion users worldwide. And on TikTok, people create and publish
Speaker 3: videos that can be overlaid with audio or texts, so
Speaker 3: it's an expressive medium. Its parent company is Byteedance, which
Speaker 3: is a Chinese company that owns the platform's proprietary algorithm.
Speaker 3: Now that algorithm is I guess the secret sauce. It
Speaker 3: recommends videos to a user based on the user's interactions
Speaker 3: with the platform. Now, under Chinese law, byte Dance is
Speaker 3: required to share its data and assist and cooperate with
Speaker 3: the Chinese government's intelligence work. Therein lies the national security concerns. Now,
Speaker 3: the Court devotes quite a few pages to detailing the
Speaker 3: background of this law that involve five years of the
Speaker 3: federal government trying to address the concern that TikTok automatically
Speaker 3: captures vast loss of information from its users. That information
Speaker 3: includes the names, ages, phone numbers, phone contacts, social network connections,
Speaker 3: precise location, internet addresses, the device used, the content of
Speaker 3: the messages, and even keystroke patterns. And so in the
Speaker 3: five years leading up to this law you had. In
Speaker 3: August twenty twenty, under President Trump, there was an executive
Speaker 3: order to.
Speaker 2: Basically do the same kind of thing and require.
Speaker 3: Protection of Americans data, and there was years of negotiation
Speaker 3: with the Executive branch to resolve these national security concerns.
Speaker 3: Those negotiations stall and it never resulted any kind of
Speaker 3: final agreement on the heels of that Congress and acts,
Speaker 3: the Protecting Americans from Foreign Adversary Controlled Applications Act, which
Speaker 3: is the law at issue here, and it requires the
Speaker 3: divestger of TikTok within two hundred and seventy days of
Speaker 3: the act's passage. The Act excludes, importantly applications other apps
Speaker 3: that have the primary purpose of posting product, business, or
Speaker 3: travel information and reviews. The case at present is basically
Speaker 3: two cases. They are consolidated cases. Consolidated cases one brought
Speaker 3: by TikTok and byteedance, and the other brought by a
Speaker 3: group of TikTok.
Speaker 2: Users and creators.
Speaker 3: And these petitioners claim that the federal law as applied
Speaker 3: to them violates the First Amendment. Now, the DC Circuit
Speaker 3: upheld the law on applying strict scrutiny, and the Chief
Speaker 3: judge their judge Treaty Vason concurred in that result, but
Speaker 3: would have upheld the law under intermediate scrutiny. The Court
Speaker 3: granted start in this case on December eighteenth and held
Speaker 3: oral argument last Friday, January tenth, and basically before or
Speaker 3: the court it had three options whether that can strike
Speaker 3: down the law, uphold the law, or stay the law,
Speaker 3: which is one of the anekest briefsume that was filed
Speaker 3: by the President and President of the incoming President Trump
Speaker 3: to stay the law to give the administration a little
Speaker 3: more time to try to work out some kind of deal. Now,
Speaker 3: the threshold question in this case is whether the challenge
Speaker 3: provisions are even subject to the First Amendment. Now Here,
Speaker 3: the court assumes, but doesn't decide, that the First Amendment
Speaker 3: is implicated.
Speaker 2: In a footnote, the court clarifies.
Speaker 3: That to the extent, well to the extent any clarification
Speaker 3: is even needed. Foreign entities operating abroad do not have
Speaker 3: First Amendment rights. So any expressive activity by byteedance that's
Speaker 3: occurring abroad is not protected by the First Amendment.
Speaker 2: And that's an important point.
Speaker 3: That distinguishes, I think, a lot of the other hypotheticals
Speaker 3: and things that were brought up in oral argument.
Speaker 2: Next, the Court.
Speaker 3: Notes that they're at least two ways in which the
Speaker 3: First Amendment could be implicated and therefore trigger heightened scrutinary
Speaker 3: heightened scrutiny. Without that, a law must only be rationally
Speaker 3: related to a legitimate government interest. So the first way
Speaker 3: the petitioners argue is that the law regulates expressive conduct.
Speaker 3: So listeners might be familiar with the O'Brien standard.
Speaker 2: This is the case of US versus.
Speaker 3: O'Brien, which upheld the law criminalizing the burning of a
Speaker 3: draft card under intermediate scrutinary under intermediate scrutiny because the
Speaker 3: burning of the draft card is expressive conduct. Now, the
Speaker 3: Court rejects this argument, saying it's not clear that the
Speaker 3: Act itself directly regulates protected expressive activity. The law doesn't
Speaker 3: regulate TikTok users at all, and it's only regulating the
Speaker 3: corporate control of TikTok. And petitioners quote have not identified
Speaker 3: any case in which this Court has treated a regulation
Speaker 3: of corporate control as a direct regulation of expressive activity
Speaker 3: or semi expressive conduct, and the Court hesitates to break
Speaker 3: that new ground in this unique case.
Speaker 2: So again the Court highlighting what a unique case this is,
Speaker 2: and you know, kind of limiting its holding.
Speaker 3: It's worth noting that the government's brief points out that
Speaker 3: under the petitioner's argument, if you have any law.
Speaker 2: That implicates.
Speaker 3: Expressive activity, then if that triggers heightened scrutiny scrutiny, then
Speaker 3: you would also, for example, antitrust laws could be enforced
Speaker 3: against social media companies and those laws would be subject
Speaker 3: to heightened First Amendment scrutiny just because it triggers it
Speaker 3: affects the social media companies and their expression. The second
Speaker 3: way the petitioners argue that the law triggers First Amendment
Speaker 3: scrutiny is that the law imposes a disproportionate burden on
Speaker 3: protected its expression. And there's a number of facets to this.
Speaker 3: It burdens the generation of content, it burdens the moderation
Speaker 3: of content, It burdens access.
Speaker 2: To a distinct communication medium.
Speaker 3: It burdens the expressive association rights, so the right to
Speaker 3: associate with specific speakers, and it burdens the right to
Speaker 3: receive information and ideas. And the Court notably finds that
Speaker 3: it has recognized all of these facets as protected First
Speaker 3: Amendment interests. Importantly, the Court says, and I quote, an
Speaker 3: effective ban on a social media platform with one hundred
Speaker 3: and seventy million US users certainly burdens those users expressive
Speaker 3: activity in a non trivial way.
Speaker 2: But the Court notes that it has.
Speaker 3: Not articulated a clear framework for determining when regulation of
Speaker 3: non expressive conduct that disproportionately burdens those engaged in expressive
Speaker 3: activity triggers heightened re view, and it declines to do
Speaker 3: so in this case. And so again the Court is
Speaker 3: emphasizing the narrowness of its ruling. It specifically says that
Speaker 3: a law targeting foreign adversaries control over communications platform is
Speaker 3: in many ways different than the kind of regulations of
Speaker 3: non expressive activity that the Court has subjected to First
Speaker 3: Amendment scrutiny. So those it highlights two specific differences here.
Speaker 3: First you have a congressional determination that the entity is
Speaker 3: a foreign adversary, and second you have a link of
Speaker 3: causal steps between the regulation and the alleged burden, And
Speaker 3: both of those points I think are significant for future
Speaker 3: cases or what that means in future First Amendment cases.
Speaker 3: On the first point at oral argument, I think petitioners
Speaker 3: raised a couple of hypotheticals, including one or a couple
Speaker 3: of counterfactuals, I should say, including one about how Politico
Speaker 3: is owned by a German company, and then other examples
Speaker 3: of foreign owned media or communication companies. But that this
Speaker 3: case involves an undisputed foreign adversary that's backed by the
Speaker 3: record and years of deliberation by coordinate branches of the
Speaker 3: federal government is a distinguishing feature. So you know, we're
Speaker 3: not concerned about Germany or German owned companies and what
Speaker 3: they might do with American data in the same way
Speaker 3: we are with a foreign adversary like China. Second, the
Speaker 3: important takeaway there is that the concern the court's concern
Speaker 3: over the causal chain. A lot of the focus in
Speaker 3: the briefing and at oral argument was that the burdens
Speaker 3: on protected expression are in fact because of China's policies
Speaker 3: and actions, not the regulation itself, and that concern over
Speaker 3: a causal chain and kind of the First Amendment context
Speaker 3: has popped up last.
Speaker 2: Term, and you know, over and over again in these
Speaker 2: social media cases.
Speaker 3: Is so last term, listeners might recall in Murphy versus Missouri,
Speaker 3: the Court was concerned that the censorship alleged a challenge
Speaker 3: in that case about social media platforms was the result
Speaker 3: of social media platforms themselves and their policy decisions, not
Speaker 3: any actions by the government.
Speaker 2: So that's the recurring theme that we may see in
Speaker 2: future cases.
Speaker 1: Now.
Speaker 3: Just just as Soda Mayor concurred and focused on kind
Speaker 3: of criticizing the Court for sidestepping this decision instead of
Speaker 3: saying clearly that the Act triggers First Amendment scrutiny, kind
Speaker 3: of she criticizes the Court for just assuming that without
Speaker 3: deciding it. She says, the court's own cases make clear
Speaker 3: that the First Amendment is implicated, and that's absolutely right.
Speaker 3: As the Court itself acknowledges, you know, it acknowledges that
Speaker 3: the editorial decision, the moderation of content, access to a
Speaker 3: distinct communication medium, the expressive association, all of those are
Speaker 3: recognized First Amendment rights, and it cites those cases.
Speaker 2: But just as.
Speaker 3: Sodamayor fails to address kind of the Court's distinctions that
Speaker 3: it draws about why this case is different than those cases.
Speaker 3: And so for those of us concerned with protecting free expression,
Speaker 3: I think that's an important limiting principle of this decision. So,
Speaker 3: now that the Court assumes that the law triggers First Amendment,
Speaker 3: it needs to decide whether the law targets speech based
Speaker 3: on its message or its content, or whether the law
Speaker 3: is content neutral. It finds it rules that the law
Speaker 3: is facially content neutral. The law is actually targeting the
Speaker 3: corporate control by a foreign adversary.
Speaker 2: It does not target speech based on content.
Speaker 3: It does not regulate speech that's based on the function
Speaker 3: or purpose. And third, it does not restrict, penalize, or
Speaker 3: burden speech because of its content. And we know that
Speaker 3: because the petitioners can't avoid the regulation by simply.
Speaker 2: Altering their speech.
Speaker 3: So if the algorithm was still allowed from the Chinese
Speaker 3: government and TikTok is divested, they could still say all
Speaker 3: of the pro Chinese speech that was on there, or
Speaker 3: they could still say everything that's being said on TikTok.
Speaker 3: Now it's not about the content. The petitioners argued also
Speaker 3: that the law was content based on his face because
Speaker 3: of that exclusion, the exclusion for apps that are primarily
Speaker 3: designed for product and business reviews or travel information. But
Speaker 3: the Court notes that this is because this is an
Speaker 3: as applied challenge by petitioners, it doesn't need to decide
Speaker 3: whether that exclusion is content based.
Speaker 2: Now I'm not sure if that's exactly right.
Speaker 3: I feel like there's some mental gymnastics going on there,
Speaker 3: and I think just as Corsach's concurrence alludes to this
Speaker 3: point that you know, maybe it is in fact the
Speaker 3: law is in fact content based.
Speaker 2: So I'll get to that in a bit.
Speaker 3: But for the time being, the Court notes that this
Speaker 3: law is at least supported by a content neutral justification,
Speaker 3: and that justification is preventing China from collecting vast amounts
Speaker 3: of personal sensitive data from the one hundred and seventy
Speaker 3: million US TikTok users, and that purpose is completely.
Speaker 2: Unrelated to the content of expression.
Speaker 3: The law doesn't reference the content of speech on TikTok,
Speaker 3: and it doesn't reflect disagreement with the messages on TikTok,
Speaker 3: and the Court rejects the idea that the specific provisions
Speaker 3: about TikTok should trigger strict scrutiny because it's a restriction
Speaker 3: based on the identity of the speaker. Again, the Court
Speaker 3: emphasized the narrow narrowness of its ruling, which kind of
Speaker 3: goes to show that you couldn't use this ruling to
Speaker 3: justify all efforts to protect data. Of course, data protection
Speaker 3: and you know, privacy issues are rampant in social media
Speaker 3: and online, and so I think the court's very careful
Speaker 3: to note that it's not saying that kind of justification
Speaker 3: would justify any regulationist speech, but that this case is unique.
Speaker 3: Its focuses on TikTok scale and its susceptibility to control
Speaker 3: by a foreign adversary that makes this justification okay in
Speaker 3: this circumstance. The Court also rejects the argument that the
Speaker 3: Act is under inclusive because of that exclusion provision. The
Speaker 3: Court finds that the government had a good reason to
Speaker 3: single out TikTok because of its history. I think the
Speaker 3: record is very clear about the way TikTok is handled
Speaker 3: American data, Americans data, and how it's shared that data
Speaker 3: and the government. The Court also notes that the government
Speaker 3: is not required to address all aspects of a problem
Speaker 3: and one fell swoop, so it can target the problem
Speaker 3: imposed by TikTok and then address maybe separately, other issues,
Speaker 3: like I think one of the examples that came up
Speaker 3: in oral argument was Timu and other Chinese own websites
Speaker 3: that that.
Speaker 2: Might also be collecting data.
Speaker 3: Finally, the Court finds that the law is sufficiently tailored
Speaker 3: so there is an important government interest in protecting Americans data,
Speaker 3: and that interest is sufficiently sufficiently furthered by this law
Speaker 3: under intermediate scrutiny. The law does not need to be
Speaker 3: the least speech restrictive means. And that's a crucial distinction,
Speaker 3: because if the court had found that strict scrutiny applied,
Speaker 3: then it would need to make that determination that this
Speaker 3: law was the least speech restrictive means. It also knows
Speaker 3: that it's a conditional not outright van so the TikTok could,
Speaker 3: you know, just as long as it was divesting itself
Speaker 3: a foreign control, then everything would be okay. It Also,
Speaker 3: the court also addresses the alternatives posed by petitioners, like
Speaker 3: disclosure requirements or restrictions on data sharing, and found that
Speaker 3: those alternatives don't undermine the conclusion that the law is
Speaker 3: not substantially broader than necessary. And finally, the Court addresses
Speaker 3: the government's other rationale, which is preventing the covert manipulation
Speaker 3: of content.
Speaker 2: It rejects to.
Speaker 3: I guess, declines to consider this rationale, finding that the
Speaker 3: law would have been passed anyway. Congress would have passed
Speaker 3: the law overwhelmingly just because of the data protection rationale.
Speaker 3: And the Court notes that it's an open question as
Speaker 3: to what is the appropriate level of scrutinary scrutiny when
Speaker 3: you have a mixed justification. So that's another important takeaway.
Speaker 3: That is an open question that might have to be
Speaker 3: addressed by the Court at a later time. And in
Speaker 3: another case, now, as I mentioned, Justice Gorsag issued a concurrence.
Speaker 3: He is a great line at the top of it.
Speaker 3: He makes four points. One is that he's pleased that
Speaker 3: the Court rightly refuses to consider that the government's rationale
Speaker 3: about content manipulation. Echoing Justice Harlan from the seminal decision
Speaker 3: of Cohen versus California, he says, one man's covert content
Speaker 3: manipulation is another's editorial discretion, and of course editorial discretion
Speaker 3: is protected by the First Amendment. He also notes that
Speaker 3: the court rightly refuses to consider classified evidence. That was
Speaker 3: an important thing that was also brought up at oral argument.
Speaker 3: You know, the government below introduced a lot of classified
Speaker 3: evidence that was.
Speaker 2: Not privy to the petitioners in.
Speaker 3: This case and their serious due process concerns by doing that,
Speaker 3: in which one party doesn't have access to the information.
Speaker 3: So the Court was right to reject that classified evidence
Speaker 3: or not considerate in making this ruling. And third Justice
Speaker 3: Gorsic raised serious concerns about whether the law is content
Speaker 3: neutral and therefore escapes strict scrutiny. I think that goes
Speaker 3: to kind of a heart of an issue that was
Speaker 3: not decided by the courts, kind of determining the level
Speaker 3: of scrutiny that applies. Where you have just just as
Speaker 3: Soda Mayor and her concurrence saying, well, we should have
Speaker 3: decided that this triggered First Amendment scrutiny period based on
Speaker 3: the Court's decision, and then Justice Gorsage saying that.
Speaker 2: You would have applied strict scrutiny and.
Speaker 3: That the law does and would have upheld the law
Speaker 3: under that heightened scrutiny. Under strict scrutiny because the law
Speaker 3: serves the compelling interest and that it is narrowly tailored
Speaker 3: to serve that interest. So that's just the wrap up
Speaker 3: I guess of the Court's decision.
Speaker 2: Yeah, this is a matter of full.
Speaker 3: Disclosure, as I was formally involved with both FIRE and IJ.
Speaker 2: They both submitted an a meekest brief.
Speaker 3: In this case and argued that it was strict scrutiny
Speaker 3: should apply and that the TikTok band should be invalidated
Speaker 3: as a violation.
Speaker 2: I think there are some you know, I.
Speaker 3: Sympathize with the concerns that a lot of folks have
Speaker 3: that sometimes national security is just invoked as a talisman.
Speaker 2: To justify speech restrictions. I am, in.
Speaker 3: My own personal capacity, I kind of agree with the
Speaker 3: courts concerned about this. I think the records very clear here.
Speaker 3: You know, we're not dealing with just the invocation of
Speaker 3: national security. You have a five year period of Congress
Speaker 3: and the federal government, both under two separate administrations, trying to.
Speaker 2: Deal with this.
Speaker 3: And I think the Court is respectful and notes in
Speaker 3: its opinion that it owes a certain amount of deference
Speaker 3: to its coordinate branches. I mean, they're not going to
Speaker 3: be experts on the national security issue. That said, I
Speaker 3: think that is an important thing that could distinguish this
Speaker 3: case from other efforts where it is just sort of
Speaker 3: national security is just invoked as a talisman, has got
Speaker 3: a magic phrase to justify speech restrictions or restrictions and
Speaker 3: other civil liberties.
Speaker 1: Thank you for listening to this episode of SCO Discussed.
Speaker 1: Go Discussed is a project of the Federalist Society, not
Speaker 1: for profit educational organization of conservative and libertarian law students,
Speaker 1: law professors, and lawyers, founded upon the principles that the
Speaker 1: state exists to preserve freedom, that the separation of governmental
Speaker 1: power is essential to our constitution, and that it is
Speaker 1: emphatically the province and duty of the judiciary to say
Speaker 1: what the law is, not what it should be. Don't
Speaker 1: forget to subscribe to our podcast series, including Scotscasts and
Speaker 1: Practice group podcasts, on iTunes or Google Play. For an
Speaker 1: archive of past podcasts, as well as audio and video
Speaker 1: of past Federalist Society events, please visit our website at
Speaker 1: FEDSOC dot org slash multimedia. That's f E d s
Speaker 1: OC dot org slash multimedia.
Speaker 2: This has been a FEDSOC audio production,