Justice Kagan Acknowledges Bluesky, And Other Notes From The TikTok Oral Argument
On Friday I attended the oral argument in the TikTok ban case in person, seated in the second row behind the table where the government's lawyers were sitting, and only about 15-20 feet away from the justices themselves. There's something kind of profound about being a normal human distance from them, instead of just in the reach of their radiated power.
Argument was scheduled for two hours but it ran much longer. While both sets of petitioners had each been assigned 30 minutes of argument, with the government getting an hour, each petitioner ended up with at least an hour, with the government only getting in the neighborhood of its original time. Which seems like a good sign, because the extra time was spent with the justices engaging with the petitioners' arguments, seemingly to look for ways to agree with them, or at least be careful not to do harm if they ruled against them on some basis. Whereas if they had been inclined to simply accept the government's defense of the law it all could have been over with much more quickly. But the hearing length seemed to reflect recognition by the Court that there was a lot at stake, affecting even more than just the petitioners. For instance, in the discussion about foreign ownership it came up a few times that Politico had a German owner, and American filmmakers often worked with the BBC. And the justices seemed to realize that if the rule the government was trying to push were that it could supersede First Amendment-protected speech interests because foreign ownership was involved, it would have enormous effect beyond this case.
It was long hearing also because it was a combined case, with both TikTok and a group of TikTok users appealing the DC Circuit's decision that blessed a law that, if not found unconstitutional, or even just enjoined in some way (which was discussed as an option), would cause TikTok to divest itself by the 19th of January or be breaking the law. Whether such a law amounted to a ban of TikTok was also discussed, with TikTok arguing that, yes, it would be a ban, as it would be infeasible to divest on any sort of time scale, even one longer than 270 days (however I wish TikTok had also argued more explicitly that being forced to divest under duress should itself be something constitutionally intolerable on any time scale).
Also discussed was what would happen as of Jan. 19 if TikTok had not divested. Could Trump rescue it on January 20? No, came the answer from the petitioners, because a non-divested TikTok would be breaking the law by the time he takes office (and Justice Sotomayor commented how she was not keen on a president refusing to enforce a duly passed law). The platform would be likely to go dark" by then. And what does it mean to go dark, the justices asked? The answer: basically, no one could use TikTok anymore because no one would be able to help it provide its services. But could users simply use some other platform, asked Justice Alito? No, came the answer again. Other platforms have been trying to develop their own TikTok-like solutions, but so far users have never found a suitable substitute - losing TikTok would be a loss to their ability to communicate.
While it is impossible to read the tea leaves from oral argument, I came away feeling cautiously optimistic. My concern is less that TikTok be saved, although I think it needs to be because this is a bad law with bad effects on expressive interests. The concern is that whatever reasoning is used to address the law, especially if it is reasoning that upholds it, not be reasoning that undermines the First Amendment protections everyone else counts on to be able to avoid other forms of censorial state actions. And I felt I could count at least five justices who recognized the impact this ban had on expressive interests. And probably at least five who recognized that if this law could be allowed to affect them here it would reverberate in other ways later on other expressive interests.
One big question the hearing wrestled with was whether the ban could be allowed just because there was a compelling enough reason for at least part of it. The government's stated concerns about how the app collected user data and shared it with China had a lot of traction with the justices, and Justice Kavanaugh especially (although Justice Gorsuch excoriated the use of secret evidence to underpin those concerns, in addition to lamenting that the factual record was still being laid even at this stage of the case). But TikTok pointed out that if protecting Americans' data is the actual concern then Congress should have passed an actual data protection statute, and one that would actually protect Americans' data. Whereas this law didn't even seem to do a very good job at it. After all, if the data collection practices of Chinese-owned platforms were the real concern, then why was only this platform targeted and not any of the other Chinese-owned platforms that collect user data, like Temu?
By singling out only TikTok the law seemed to just be cover for a facially impermissible concern of the government: that content was being moderated in ways the government did not seem to like, which at minimum seems to have meant covertly." But what does covertly" even mean, and how does banning TikTok address it? It doesn't, argued the petitioners. Not only is it not a thing the government gets to care about, but even if it did, the concern could be addressed much less destructively to the expressive interests the ban affects, like perhaps with mandatory disclosures that the moderation practices were accountable to China.
Of course, such compelled speech might implicate its own constitutional issues, but fewer than an outright ban would. And, even then, such a law should still be evaluated on its own terms, and how that evaluation would happen was a big part of the argument and the most important thing at stake in the case. Whether my optimism will be born out is contingent on the justices recognizing that when a law implicates speech interests, as this one does, evaluating whether it's constitutional requires heightened scrutiny, and that scrutiny should be strict rather than intermediary scrutiny. Also we need the justices to recognize that this law could not survive such scrutiny, if that scrutiny were to be as meaningful as the Constitution requires (the DC Circuit had done the first part - recognizing that strict scrutiny applied - but failed on the second, by essentially applying a much more rigorous test than strict scrutiny necessitated).
But my optimism may mostly be fueled by other things I heard, including the implicit (and perhaps even explicit) acceptance by at least a number of the justices of a few key points that we've been working hard to argue before them and other courts for several years now (and will be continuing to argue), including:
(1) That platforms themselves have First Amendment rights in the editorial discretion they exercise over how they moderate their platforms, which was an issue argued in the NetChoice cases, and
(2) That algorithmic moderation is a way of expressing that editorial discretion, which is an issue that will likely soon be before them, and has been befuddling some lower courts (like the Third Circuit, which got it wrong, but not the Second Circuit, which got it right). The petitioners argued this point further, and it seemed like it generally landed without much pushback.
And that's good news, because this TikTok case is not the last Internet law case that will be before the Court, even this month! It was not so long ago when at an oral argument Justice Kagan observed that the justices were not like the nine greatest experts in the Internet." But developing that expertise is a big part of what motivated us to drop everything and write a brief in this case: because every case that appears before them teaches them something they will need to know in order to successfully adjudicate the next one too.