Report from Platform Economy Insights
In Brief – The US Supreme Court heard oral arguments earlier today on the constitutional challenges filed by TikTok and a group of content creators against the federal law that requires the business to be sold by China-based ByteDance to a new owner not based in an “adversarial country”. The justices allowed arguments to go more than two-and-a-half hours. You can listen here. The collection of briefs is available here. And reporter teams from the Washington Post and New York Times gave running commentary.
As we’ve been saying for months, this is a really tough case. There has never been a communications platform like TikTok that is allegedly controlled by a near-peer adversarial foreign power, that has such massive reach in the United States, and that has the content manipulation and data collection capabilities inherent in modern social media platforms. The federal law in question was crafted to force the platform to be sold to an owner not based in an adversarial country, meaning China, Russia, Iran, and North Korea. TikTok argues that a sale can’t happen and the law is a de facto ban. As we’ve noted, Supreme Court precedents related to adversarial propaganda, such as from the Cold War regarding communist content, point to the law having big First Amendment problems. However, the federal courts have been historically wary of challenging the two elected branches on national security.
The arguments were everything that should have been expected. The justices are very sharp legal minds that tend to give both sides a tough time. That was the case today. Depending on when you listened in, you could think the side being questioned was up against it. Early on, the justices kept pressing the plaintiffs on whether the law was about ByteDance, which is a foreign company without First Amendment rights, and platform ownership rather than speech. Later, Solicitor General Prelogar was pressed time after time on the law being a transparent effort to block speech the US Government did not like, the biggest First Amendment no no. If I were speculating about individual justices, I think Justice Gorsuch is the one who tipped his hand most, and that would be against the law’s constitutionality. Maybe Sotomayor on that side as well.
Prediction – Besides reminding everyone that making a prediction of a Supreme Court decision based on oral arguments is a bad idea, I recall political prognosticator Nate Silver saying the week before last November’s election to not trust anybody’s gut feeling, including his, and that his gut feeling was that Trump would win. I have the same view regarding gut feelings in a Supreme Court case like this, especially my gut. And my gut feeling following the arguments is that TikTok will get a let-off of some type and the law will not go into effect on January 19. Mostly, I fall back on this court’s track record of avoiding big digital policy decisions when there is a way out legally or procedurally, and an administrative delay past the 19th is likely to offer that kind of out. But I could be wrong.