The First Amendment and the Trade-Off Between Facebook, Twitter, and TikTok: A Judgment on the Indirect Detection of a Social Media Platform
The justices note that their decision should be seen as “narrowly focused” and applies strictly to TikTok. The platform collects a lot of sensitive data, and scale and susceptibility to foreign adversary control make differential treatment of national security concerns justified.
Justices Sonia Sotomayor and Neil Gorsuch offered their own statements, concurring in the final judgment. Sotomayor disagreed that the court need not determine that the law implicates the First Amendment because she thinks it’s obvious it does. She agrees that the law can survive scrutiny.
The buyers are hoping that the ruling will change ByteDance’s thinking on a sale. Billionaire Frank McCourt’s Project Liberty, for example, wants to buy the app without the algorithm to run on its own social network protocol. But it’s still not clear if China would allow a sale, even without the coveted algorithm — perhaps betting that the US will eventually relent or that it can continue to thrive in other countries around the world. Reports this week suggest that the Chinese government is considering getting Musk to broker a deal or act as a buyer, as unnamed sources told several outlets.
Trump has said he’d try to save the app, though it’s not clear how — and he won’t be sworn into office until a day after the sale deadline. The app won’t just disappear from users’ phones; TikTok has reportedly planned to go beyond the law’s requirements and go dark should the ban be upheld.
The opinion states that it is not clear if the Act regulates protected activity or conduct with an expression component. It regulates Bytedance and TikTok only if they sell their interests to another party.
“There is a Bush v. Gore aspect to the decision in that it’s a one-off and not meant to have greater precedential value,” said Chander, referring to the landmark 2000 ruling. “But this will be a very important decision,” he said. “And it gives enormous power to Congress to act on data privacy questions.”
The only justice to voice concern about the free speech implications of a ban was Neil Gorsuch, who called banning TikTok to remove the China threat a “paternalistic point of view.”
“I mean, don’t we think that counter speech is the best remedy for speech that is problematic?” he asked, after noting that TikTok might include a note on its app that indicates that some content could be covertly manipulated by China.
U.S. Solicitor General Elizabeth Prelogar, representing the federal government, quickly shot that down with this analogy: “Imagine if you walked into a store and I had a sign that said one of 1 million products in this store causes cancer,” she told the court. “That is not going to put you on notice about what product is actually jeopardizing your health.”
The Supreme Court’s Decision on the Biden-Biden Correlation Measurement Act: It’s up to the incoming administration to implement it
After the Supreme Court’s ruling, Biden’s press secretary issued a statement saying that it was up to the incoming administration to implement the law. “Given the sheer fact of timing, this administration recognizes that actions to implement the law simply must fall to the next administration, which takes office on Monday,” she said.
Donald Trump is now the focus of attention. He asked the Supreme Court to delay its ruling so that he could cut a deal that would resolve the national security concerns.
Indeed, under the law, the president can delay the ban for a 90-day period, but only in the event that progress has been made toward a sale away from ByteDance.
On Friday, Trump said he hadn’t made a decision yet. “The Supreme Court decision was expected, and everyone must respect it. I must have time to review the situation, as my decision on TikTok will be made in the not too distant future. Stay tuned!”
“I think that when pushed, these restrictions will fundamentally alter the landscape with respect to what Byte Dance is willing to consider, and it may be just the shock that Congress had in mind when they drafted the legislation,” she said.