Thread by @jrhuddles

Okay here we go TikTok v. Garland D.C. Circuit live tweet thread

Background of my previous work on this topic in this thread

https://x.com/jrhuddles/status/1835673674340323418

My thread on what I'm particularly listening for and why this case is worth paying attention to regardless of if you like/use TikTok or not here:

https://x.com/jrhuddles/status/1835638556334727412

Also for legal procedure nerds this case is starting at the circuit court not the district court due to particulars of the statute which in itself is an interesting twist and raises some interest and what will be seen as the lower court record in this case

TikTok leads its argument by stating that the law should be subject to strict scrutiny and fails due to the law's illegitimate interest based on grounds that are not constitutional and that no compelling reason exists in singling out the speakers from the other elements

First question is about is the curation occurring abroad impacting the content? and we get a NetChoice cases shoutout

Asks if a foreign entity is able to object to restrictions on its curation

Attorney emphasizes that TikTok Inc is a US entity and that those rights need to be considered and pushes back on claims of potential Chinese control pressure and the impact on US speakers

USAID case comes up and TikTok's attorney argues that such decision does not resolve the question and the law would certainly impact First Amendment protected speech

When asked about evidence of ties to China, points to the declaration that makes clear that the moderation is occurring in the United States

Judge Rao brings up a 1988 case that argues that the Palestine Information Office could be shut down due to connection to PLO.

TikTok's attorney notes that the government isn't arguing there is control just that there could be.

Rao points to Barret's concurrence in NetChoice

TikTok's attorney returns to the importance of this being analyzed under strict scrutiny and the burden on First Amendment rights as well as the broader impact that declaring foreign ownership undermining such rights could impact far more publications.

Open Society has come up several times as pointing to no presumption of foreign control

Judge Rao asks directly why not intermediate scrutiny?

TikTok responds the platform is clearly targeted and points to News America as standing for that proposition and that such heightens scrutiny

Also points to Citizens United as supporting strict scrutiny

TikTok notes that we don't know the findings that led to this law regarding the national security concerns

Question of if the law was only about data security would strict scrutiny applies?

TikTok says yes because still targeting a specific speaker of TikTok US

Question of if at war could a foreign country own a media source?

TikTok says still strict scrutiny but maybe such a scenario is the type that could survive it, but not the rationale here

Notes that the exclusions are specifically about user content and its potential impact

Sidebar: a reminder that a different standard regarding the First Amendment applies to broadcast for a variety of reasons

*and as soon as I typed the attorney (finally) brought it up

TikTok brings up the second element of strict scrutiny the less restrictive means and points to the disclosure alternative and that even in that case the government would have to show the predicate of Chinese control

The question of imminent comes up and that a test would still have to apply in a disclosure requirement but that it would be less restrictive

Question of if concerns are about covert influence is disclosure always an option?

Says government has to show why disclosure is not a sufficient less restrictive means and Congress did not even consider it

Debate/questions about if the act is aimed at expressive activity or foreign ownership and can these two be separated

TikTok emphasizes distinct because it is foreign ownership only of a particular speaker regardless of if divestiture or ban

I won't lie, I'm surprised how frequently the recent NetChoice decision has come up in this case

"There are multiple forms of curation" can we please have this conversation more generally outside of the context of this case please. An often forgotten element of content moderation.

Questions about Project Texas versus the concerns and the law's requirements

The issue that other apps also have ties to China comes up. Question of what if any other companies would be subject to the second procedure in the act

TikTok notes that the statute provides discretion around foreign adversary control so hard to determine who would be covered

We're back at the difference in broadcast licenses and the lesser scrutiny standard for broadcast under various elements

Notes that many other foreign ownership laws do not impact First Amendment interests

Argues that this case is still strict scrutiny and distinguishes between foreign ownership/interest and foreign control

Notes that disclosure allows Americans to make the choice even in concerns about covert influence

Question of what is the best argument under intermediate scrutiny?

TikTok points out that there is no evidence that alternatives were even considered

Says the government interest is very targeted and related to content where there is no evidence of foreign influence what so ever

Notes that the record shows far broader speech considerations and motivations beyond stated national security concerns

Rao notes its like you're "asking to remand or vacate to Congress for more findings"

But as a note from me that may be because that is basically the only record we have because of the some what odd procedural posture so I get why it feels that way

Unsurprisingly a lot of the argument has been about why strict scrutiny should apply and why those burden hasn't been met

For the first time the Chinese law and concerns about the enforcement of requirements for data or manipulation might be

TikTok points that still must be less restrictive means

Moving on to TikTok creators case

Attorney argues that there is an independent implication on American speakers to speak, associate, and listen

Notes that any holding against could impact a range of actions beyond TikTok

The attorney notes that the government's content manipulation rationale taints the whole act and that even the data privacy interest doesn't survive

Notes that these justifications are insufficient both for strict and intermediate scrutiny and that the data security argument does not reflect the voluntary acts or the reality of the data at play

User/creators' attorney argues under Arkansas Writers the singling out means the law would not survive strict or intermediate scrutiny

Question of does the creators' argument depend on divestiture is impossible?

Attorney responds it depends on working with the publisher of their choice and that they therefore are impacted

Question about analogy to foreign ownership of broadcast?

Attorney responds by pointing to Lamont and Whitney and still the First Amendment applies and concerns about viewpoint based restrictions

"This isn't just a case about a foreign speaker... this case is American speakers who want to speak to other Americans on an American platform"

Creators attorney when asked about Barrett concurrence emphasizes the speech is not Chinese speech in this scenario it is clearly Americans speech

We're back to the if we were literally at war would it matter but notes that protest against the war is protected

Attorney notes strict scrutiny would apply and in the heat of war would deserve careful analysis if it meets the standard

I did not have GW's Farewell Address on my bingo card but the creators' attorney notes that regardless of beware of foreign influence the answer was not suppress foreign speech

Creators' attorney points out that again and again in American history that the answer is not suppression of speech

Creators' attorney notes that TikTok is unique and why they choose that audience and platforms and that the nature of the speech is distinct

The creators' attorney notes he's not being histrionic but questions of could foreign ownership be enough to prevent First Amendment claims and the concerning implications for all publishing and speech if that stands beyond TikTok or even online platforms

Push back from the judges that Barrett's concurrence in NetChoice indicates the analysis might be different

Creators' attorney says even if analysis is different than conclusion under 1A would still be the same for the speakers

Question of if in strict scrutiny foreign adversary v foreign in general makes a difference?

Notes that in Lamont and Whitney you were discussing similar concerns about communism and propaganda that failed

Creators' attorney notes that the statute is content based in multiple ways that trigger strict scrutiny

Sorrell and the practical implication of how the law would impact speakers comes up

Creators' attorney notes an impermissible motive regarding the First Amendment and so even if the data security side discovers intermediate scrutiny that shouldn't be dismissed

Creators' attorney notes that even if you could get to intermediate scrutiny the creators do not have true alternatives that couldn't be satisified

Now to the government's argument
Says the motivations and intentions are related to the value of TikTok's data to a foreign adversary including the content related data and the covert content manipulation by ByteDance

Government emphasizes if there is expression in content moderation it is by Chinese engineers not an American company or American users

The court points out the government must rely on Chinese control and that if it was a heartland company such clearly fails under NetChoice

Further it is pointed out that "content manipulation" indicates a First Amendment analysis is needed

Government says the core point is that this code is written in China

"If that relevant stuff was going on in the US. That's a big problem under NetChoice"

Emphasis that this law is still targeting curation

And we have a Murthy reference
Government relies on it when discussing recipients as well as speakers question

Government says you don't have to say the First Amendment doesn't apply in this case but suggests separating the various petitioners when considering

Government says ByteDance/TikTok is foreign and creators speech may be effected but that it is an indirect effect

Government questions if it is expression v protected expression
Argues that cases on counter speech rely on it being protected expression

Government says if there is a range of national security concerns some of which rely on unprotected expression that the standard of scrutiny is lower

In response to how far that could go, could government ban all foreign speech
Government says it must be narrower than that and tied to the interest and says as a result Lamont does not hurt their case because it was broader

Asked if the government recognizes TikTok US's rights as a separate corporate entity
Government says yes but they are also incidental

Government responds to claims that it singles them out that that is unrelated to their own First Amendment activity

Government says the relevant First Amendment question in regards to whose targeted is if it depends on the expressive activity of the regulated entity and says no because that's done by ByteDance not TikTok US

Is the government making an argument that separation is a sham?
Government says its not but that its about the activities not the entities

From Judge Srinivasan "When the reason itself is "content manipulation"... it's not a happen to be situation" notes that the rationale is bound up on the potential influencing Americans and that that language would indicate a 1A concern

Government argues there is a difference in saying there is content we like and don't like and that we don't want China to be in charge of what is seen

Asked about if it was a US company and that the info was potentially being manipulated that there would be no doubt that switching the ownership to another owner would be a 1A issue

Government in its response indicates that it believes disclosure wouldn't work because of things being done in China and thus not responsive to US disclosure requirements

Government says problems of China changing the nature of content and the data security concern are not absolved by the national security agreement, Project Texas, or other discussed alternatives

The breadth of a 20% or more foreign control if it was broader than China requiring divestiture due to concerns about foreign content manipulation is brought up.

Government claims that is a very different situation and says there was a record before Congress and the court

Government says the distinction is the application of the scrutiny that would apply and says that such would lack the national security evidence supporting its compelling scrutiny

Government states that what is being targeted is not protected expression and thus distinct from the hypothetical
Claims any level of scrutiny would current law would survive

Sorry guys I went to respond to a message about something else for a moment but now there is apparently a convo about Lamont versus Murthy in the analysis of listeners

Government says the arguments about listeners should be rejected under Murthy

TikTok's attorney rebuttal discusses that TikTok's algorithm's content is tied to a US speaker asks for example the impact on someone showing a foreign movie
Focuses on what is being burden which is US speech by US users and US decisions

TikTok rebuttal says that GPS data not collected and user contact list data is voluntary and anonymized

Notes that there are numerous quotes about Congress's concerns and the concerns about those rationales in 1A context

TikTok's attorney notes that to rule for the government would require some unprecedented things including resolving factual disputes and disregarding the failure to consider less restrictive means

Creators' attorney notes that their users have requested more information distinct from Murthy and more like Lamont emphasizes the heart of the claim is to work with publisher of choice

Creators' attorney says the impact is more than indirect effect and the singling out of that type of speech targets these users directly

Creators' attorney gets a question about if a bookstore wasn't meeting closed would there be an exception for the impacted readers?
Attorney says there would be standing even if they ultimately failed

Creators' attorney notes that disclosure could look many ways including the government issuing its own warning and that that would be a lot different than shutting down the platform

Creators' attorney responds that this is not an unprecedented threat but that the courts have handled this before distinguishing between issues where there was imminence versus today where there's a much more attenuated risk and points to Brandeis in Whitney

"what we're talking about in this case is ideas...it is tradition in our country to protect those ideas"

and with that oral arguments are done