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--:-- Host (Kate Leinbaugh): Welcome to The Journal, our show about money, business, and power. I'm Kate Leinbaugh. It's Friday, January 10th.
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--:-- Host (Kate Leinbaugh): Today, the Supreme Court took up the TikTok ban. We will hear argument this morning in case 24656, TikTok versus Garland, and the consolidated case. The justices will determine whether or not the law banning TikTok in the U.S. will go ahead. It's slated to go into effect January 19th.
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--:-- Host (Kate Leinbaugh): Today was an exciting hearing at the Supreme Court. The courtroom was filled, but no, it was tense and it was interesting and it dealt with some very important issues. That's our colleague Jess Bravin, who covers the Supreme Court.
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--:-- Jess Bravin: Big picture, what's at stake in this hearing? Well, what's at stake here is the future of TikTok, the viral social media app that 170 million Americans use each month.
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--:-- Jess Bravin: The government says that TikTok presents a national security threat to the United States if it remains in the control of China, a designated foreign adversary. But TikTok says no, those threats are overblown. And a group of American users of the app also challenged the law, saying that their free speech rights are infringed if the app they love is taken away.
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--:-- Host (Kate Leinbaugh): Welcome to The Journal, our show about money, business, and power. I'm Kate Leinbaugh. It's Friday, January 10th. Coming up on the show, will the Supreme Court uphold the TikTok ban?
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--:-- Host (Kate Leinbaugh): After Congress passed a law last year that threatened TikTok, people on the platform had big reactions. I've learned so much on TikTok. I have made so many friends on TikTok. I've made so many connections. They're not taking this away from me. Influencers aren't out of touch for crying about the TikTok ban. You're out of touch for not realizing this is a real industry. We will be fine without TikTok, but I don't want to have to be.
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--:-- Host (Kate Leinbaugh): TikTok went to court to block the law. And that's how this case got to the Supreme Court today.
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--:-- Host (Kate Leinbaugh): First up was TikTok. The company's lawyer, Noel Francisco, laid out TikTok's arguments that the law was a violation of the First Amendment, of TikTok's freedom of speech.
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--:-- Noel Francisco: The act requires it to go dark unless ByteDance executes a qualified divestiture. Whether you call that a ban or a divestiture, one thing is clear. It's a burden on TikTok speech. So the First Amendment applies.
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--:-- Noel Francisco: He argued that TikTok is a U.S. company, meaning the subsidiary of ByteDance that operates in the U.S. It's not directly run by the Chinese parent company, and that it has First Amendment rights, and that it should be able to use the algorithm that ByteDance has to promote this content throughout the U.S.
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--:-- Noel Francisco: And that it said the government didn't seriously explore less restrictive ways to achieve its national security ends. And he suggested that, say, having disclosure about risks of using the app would be one solution.
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--:-- Jess Bravin: How did the justices respond to the TikTok argument? They were skeptical. They seem to look at the government's solution, that being divestiture, as being not particularly novel. Divesting assets is a very typical way that the government achieves certain goals.
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--:-- Jess Bravin: So I would say that he ran into some trouble in arguing that TikTok USA was really so different from ByteDance in Beijing.
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--:-- Justice Samuel Alito: Yeah he had a pretty tough row to hoe there.
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--:-- Justice Samuel Alito: Here Justice Samuel Alito in questioning saying that because ByteDance is a foreign company the First Amendment doesn't apply. It's true. The court has never held that a foreign government has free speech rights. And if we were to hold that, I would think it would be because speech by a foreign government, particularly one with enormous resources, is not protected.
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--:-- Jess Bravin: Another question that the court really grappled with was whose speech and what is the speech that is at issue in this case? For example, there is not a restriction on what Americans are saying or can say on this platform. And what seems to be the speech is the confidential algorithm that ByteDance uses to serve up videos to TikTok users.
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--:-- Jess Bravin: And so what is that algorithm and how is its speech? And the analogy that the TikTok side gave was, well, try to think of it as like, you know, several floors in a magazine or newspaper offices where you have a collection of brilliant editors who are, you know, choosing the content that the publication will have that is just so unique and so well edited and selected that people will want to use it.
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--:-- Jess Bravin: And so that itself is a form of expression, a form of speech, and that is what is at issue here. And that if TikTok were severed from ByteDance, it could no longer use that confidential algorithm. And the nature of the app and the nature of what people can see will change.
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--:-- Justice Elena Kagan: Justice Elena Kagan asked TikTok's lawyer outright if ByteDance's algorithm can be separated from the platform.
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--:-- Noel Francisco: No, Your Honor. ByteDance has control of the algorithm that serves TikTok users their videos.
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--:-- Justice Ketanji Brown-Jackson: I mean, if TikTok were to post-divestiture or whatever, pre-divestiture, come up with its own algorithm, right, then when the divestiture happened, it could still operate. It doesn't say TikTok, you can't speak.
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--:-- Noel Francisco: I think that's theoretically correct, Your Honor, but I think that also understores the content-based nature of the restriction.
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--:-- Justice Ketanji Brown-Jackson: No, but the fact that that's true suggests that you're wrong about the statute being read as saying, TikTok, you have to go mute.
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--:-- Jeffrey Fisher: After the justices were done grilling Francisco, Jeffrey Fisher, a lawyer representing creators on TikTok, stepped up.
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--:-- Jeffrey Fisher: Fisher argued against the ban and called TikTok the most vibrant speech forum in the U.S. And the act, therefore, is inescapably subject to strict scrutiny because of the First Amendment implications.
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--:-- Jeffrey Fisher: And the act fails that test and indeed any level of scrutiny under this court's case law because the act and the reasons behind it defy our history and tradition as well as precedent.
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--:-- Jess Bravin: What did you make of the arguments from Jeffrey Fisher, the lawyer for the TikTok creators?
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--:-- Jess Bravin: Jeffrey Fisher had a somewhat easier way with the court because he was really representing people who are Americans. And there's no dispute that Americans have First Amendment rights and suppressing their ability to say things or hear things does run into constitutional problems.
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--:-- Jess Bravin: The question, though, was were his clients really the ones whose speech was being affected? And a number of justices said, well, you know, if this is ByteDance's speech through its algorithm, a foreign adversary doesn't have any First Amendment rights in the United States.
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--:-- Jess Bravin: The fact that there are some collateral consequences that some third parties, their interests are also harmed. Well, that's just kind of the way it goes. I mean, that happens with all kinds of legal decisions and divestitures and what have you when, you know, ownership changes.
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--:-- Jess Bravin: And so, you know, how much attention should the court have to pay to the impact on these third parties?
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--:-- Justice Clarence Thomas: After his opening statement, Fisher faced questions from justices, starting with Clarence Thomas.
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--:-- Justice Clarence Thomas: How exactly are the creator's speech being impeded?
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--:-- Jeffrey Fisher: So two ways, Justice Thomas. First I just point you to the text of the statute which directly regulates text images communicate real communications videos my clients the creators are the ones creating that speech and posting it to speak to other Americans
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--:-- Jeffrey Fisher: But it doesn't say anything about creators or people who use the site. It's only concerned about the ownership and the concerns that data will be manipulated or there will be other national security problems with someone who's not a citizen of this country or a company that's not here.
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--:-- Noel Francisco: TikTok's lawyer Francisco also suggested that if the court doesn't throw out the law, it should at least postpone it. President-elect Trump had asked the court to pause the TikTok shutdown until after he takes office.
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--:-- Noel Francisco: At the end of the hearing, Francisco had a final thought. What we're talking about is ideas. And my friends on the other side, when you cut through everything else, are ultimately worried that the ideas that appear on the TikTok platform could in the future somehow manipulate Americans, could somehow persuade them, could somehow get them to think something that they ought not be thinking.
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--:-- Noel Francisco: Well, that whole notion is at war with the First Amendment. If the First Amendment means anything, it means that the government cannot restrict speech in order to protect us from speech. That's precisely what this law does from beginning to end.
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--:-- Jess Bravin: Overall, how convincing do you think the lawyers were for TikTok and the creators?
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--:-- Jess Bravin: The lawyers for TikTok and the creators brought up significant First Amendment questions that really, I think, touched at this court's vigilant defense of free speech in most contexts and its great skepticism of government actions that appear to restrict speech.
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--:-- Jess Bravin: So those, I think, were effective, and the court would not be cavalier in its approach to resolving them. But they had a much, much harder time dealing with the data collection issue.
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--:-- Host (Kate Leinbaugh): Coming up, what the government argued and how the Supreme Court justices responded. This episode is brought to you by State Farm. Checking off the boxes on your to-do list is a great feeling. And when it comes to checking off coverage, a State Farm agent can help you choose an option that's right for you. Whether you prefer talking in person, on the phone, or using the award-winning app, it's nice knowing you have help finding coverage that best fits your needs. Like a good neighbor, State Farm is there.
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--:-- Host (Kate Leinbaugh): The government's argument for upholding the law banning TikTok rests on national security. The Chinese government's control of TikTok poses a grave threat to national security. That's the U.S. Solicitor General, Elizabeth Prelogger.
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--:-- Elizabeth Prelogger: The Chinese government could weaponize TikTok at any time to harm the United States. TikTok collects unprecedented amounts of personal data. And as Justice Sotomayor noted, it's not just about the 170 million American users, but also about their non-user contacts who might not even be engaging with the platform. That data would be incredibly valuable to the PRC.
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--:-- Jess Bravin: How did the justices respond to the government's case? The justices pushed very hard on the free speech question, and they raised a number of precedents and practices from the past, which have seen the Supreme Court refuse to endorse restrictions on what Americans can say or listen to, even when they were connected to foreign adversary governments.
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--:-- Justice Neil Gorsuch: Justice Neil Gorsuch pushed back on the idea that TikTok users didn't know the risks of using the app. Isn't that a pretty paternalistic point of view? I mean don't we normally assume that the best remedy for problematic speech is counter speech?
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--:-- Elizabeth Prelogger: That won't work because it is such a generic generalized disclosure that it wouldn't put anyone reasonably on notice about when it's actually happening.
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--:-- Justice Neil Gorsuch: And the example I've been thinking about is... That's your best argument is that the average American won't be able to figure out that the cat feed he's getting on TikTok could be manipulated, even though there's a disclosure saying it could be manipulated.
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--:-- Jess Bravin: Solicitor General Elizabeth Prelogger had some trouble pushing that line of argument that this really was about ownership rather than content. But she was on stronger ground and got a much more receptive audience on the intelligence dossier angle.
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--:-- Elizabeth Prelogger: The idea that this app sitting on millions of cell phones was busily collecting information for Chinese intelligence that could be exploited in years or decades in the future, that is something that the justices seemed to believe was a very legitimate national security concern.
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--:-- Elizabeth Prelogger: And the question being, is this law sufficiently respectful of free speech rights to allow it to go into effect?
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--:-- Elizabeth Prelogger: Finally, with respect to the question of whether ByteDance has taken action on the PRC's demands, there is evidence in the record that Congress consulted to demonstrate that outside of China, ByteDance has taken action to misappropriate data at the PRC's request.
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--:-- Jess Bravin: Jess expects the justices to rule on this case before January 19th.
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--:-- Jess Bravin: Right. So after listening to all of these arguments and the questioning, and as a veteran Supreme Court reporter, how do you read the tea leaves for what's going to happen? It seems to me that the court does not want to second guess national security concerns that have such widespread support in Washington.
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--:-- Jess Bravin: The bill that President Biden signed was passed by large bipartisan majorities of Congress after the lawmakers got briefings from intelligence agencies. But I think the court is also very concerned about setting a precedent that would open the door to further speech restrictions in the United States.
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--:-- Jess Bravin: And I think that whatever the court does decide, whichever side it goes on, it will write its opinion in a way that is as narrow as possible to make it as limited as possible to this particular instance involving this app and this law without saying much more about future regulation of speech in the internet era.
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--:-- Host (Kate Leinbaugh): That's all for today, Friday, January 10th. The Journal is a co-production of Spotify and The Wall Street Journal. The show is made by Katherine Brewer, Pia Gadkari, Rachel Humphries, Ryan Knudsen, Matt Kwong, Jessica Mendoza, Annie Minoff, Laura Morris, Enrique Perez de la Rosa, Sarah Platt, Alessandra Rizzo, Alan Rodriguez-Espinosa, Heather Rogers, Pierce Singhi, Jivika Verma, Lisa Wang, Catherine Whalen, Tatiana Zemis, and me, Kate Leinbaugh, with help from Trina Menino. Our engineers are Griffin Tanner, Nathan Singapak, and Peter Leonard. Our theme music is by So Wiley. Additional music this week by Thanks for listening. See you Monday.
