Will the Supreme Court Save TikTok?
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Emily Baker White is in the middle of writing a book. Would you describe yourself as a last minute, up to the deadline kind of person? Or are you do it ahead of time? I'm not a last minute up to the deadline person. But in this particular case, one cannot finish a book about a story that is literally happening right now.

Emily's book is about TikTok. And one of the most important chapters in TikTok's story is happening right now at the Supreme Court. The justices hear oral arguments on Friday about whether TikTok will be banned in the United States. The ban was signed into law this spring and is set to take effect on January 19th. And the Supreme Court would have to stop the law from going into effect by issuing a ruling against TikTok.

And it seems that the Supreme Court really wants to hear arguments and have the case fully briefed in time that they can prevent the law from going into effect if they decide that they want to. Emily, who's a reporter for Forbes, has been covering TikTok for years. And that means covering all the back and forth in Washington and across the country about whether the app, which is owned by the Chinese company ByteDance, is a national security risk.

And now we have this make or break case. It's worth noting that the Supreme Court takes about 1% of the cases that come up to it. And it has taken this case. And that just sort of shows how big a deal this is. The Supreme Court doesn't touch most things. They say the lower courts ruling stands leave us alone. And they didn't do that here because this is a case that has huge ramifications for a huge number of people.

Yes, the 170 million Americans who use TikTok, but also anyone who cares about free speech. Today on the show, this is it. The TikTok ban's big moment in court. I'm Lizzie O'Leary, and you're listening to What Next TBD, a show about technology, power, and how the future will be determined. Stick around. ♪

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TikTok is based in Singapore and L.A., but its parent company, ByteDance, is Chinese. Lawmakers in both parties have worried that ByteDance could be asked to turn TikTok data over to the Chinese government. Under Chinese law, it might have to. India made the decision to ban TikTok in June of 2020. In August of that year, the Trump administration followed suit.

And Trump says, we're going to ban TikTok. And the only way we can avoid banning TikTok is if ByteDance sells TikTok to a U.S. company.

So ByteDance goes and starts negotiating with a bunch of U.S. companies, mostly Microsoft, Oracle, and at the last moment, Walmart, a little bit about what a potential sale would look like. ByteDance doesn't really want to sell. They want to do something short of a sale. They want to do a partnership. Maybe a U.S. company could handle the cybersecurity functions of TikTok or whatever. But hopefully in ByteDance's eyes, they don't have to totally sell this company.

They get really close. There's a deadline ticking down, right? They have a certain number of days by which they have to sell under the Trump administration's executive orders. And at the very last minute, when they get really close to a sale, the Chinese government swoops in and says, actually, we're changing our export rules. And you can't export, you can't sell to a foreign company a recommendations algorithm unless you get a license from us.

And that's the thing. The recommendations algorithm is the ballgame. Totally, totally. The for you algorithm that makes TikTok what it is, that is the algorithm. The Chinese government was like, yeah, you can only sell it if we're going to let you sell it. And like the subtext there was there was no chance that they were going to get that license to sell that thing. And so ByteDance can't sell. They can't comply with the U.S. law. They challenge it in court. And the

The courts side with TikTok and they say, yeah, the Trump administration's way of going about this was like really haphazard in legal language. They say it was arbitrary and capricious. Right. They didn't undertake a careful process here. They were just sort of slapdash targeting TikTok.

That kicked off a long and torturous process in both the Trump and Biden administrations to try to segment American TikTok user data in a way that would satisfy U.S. concerns. The effort spanned literally years, but after endless rounds of negotiating, it failed. And meanwhile, bipartisan suspicion of TikTok just continued to grow. In 2023, Congress grilled the app's CEO.

We do not promote or remove content at the request of the Chinese government. The question is, are you 100% certain that they cannot use your company to promote such messages? It is our commitment to this committee and all our users that we will keep this free from any manipulation by any government. If you can't say 100% certain, I take that as a no.

After that, U.S. legislators passed this law to ban TikTok. TikTok sued. They lost an appeals court last month. And now, here we are. Emily says ByteDance's argument for keeping their app is all about the First Amendment.

We're talking mostly here about First Amendment rights. TikTok, ByteDance, and TikTok creators are saying we have the right to speak and to express ourselves on the platform we choose, in the way that we choose. And Congress banning this app is an undue restriction on our speech. There are people in the United States who work at TikTok. There is a U.S. TikTok entity. And then there are people who work at TikTok and ByteDance overseas.

People overseas do not have the same First Amendment rights that people within the United States do. And so TikTok, the U.S. entity, is saying we have First Amendment rights here. We are doing speech. Every time we make a content moderation decision, that is speech. It's done by people in the United States. It's done sort of within the First Amendment protections of U.S. corporations and U.S. persons.

then there is also speech that ByteDance is doing overseas, including the speech that determines that recommendations algorithm. So because the recommendations algorithm is developed, at least in part, overseas, that speech isn't protected under the First Amendment in the same way. Then additionally, you've got people in the United States who made a small business on TikTok, who are speaking on TikTok, and they have the First Amendment rights of a U.S. person.

And so the Supreme Court, the district or the appeals court before the Supreme Court has to sort of parse out, OK, who has what rights here? And then in what circumstances is the government allowed to infringe on those rights? Because the First Amendment, First Amendment law, like most law, is about balancing stuff. Right. We don't actually have a completely unfettered right to say whatever we want at any time under the First Amendment. Right.

It's just that if the government is going to restrict our speech, especially if it's, you know, really core political speech, they have to have a very, very good reason to do it. And the way that they restrict it has to be as sort of narrow as possible. They can't restrict it any more broadly than they need to in order to make sure that they're achieving their purpose. So that's the big squishy balancing test that the courts have to look at here with all of these various speech rights.

We should say the appeals court sided with the government here. Yeah. The appeals court actually said a really interesting thing about the First Amendment. It said that in an era where these big global companies have so much power over our information ecosystem,

Some regulation, including this regulation, might actually be necessary. Some regulation of speech, limitations on speech, might be necessary to protect the sort of free speech ecosystem for a sort of healthy speech ecosystem in the United States. That's a really interesting kind of inverted weird way of thinking about the First Amendment. And it also opens the door because if all of a sudden we actually sort of need to regulate speech in various ways to make sure that we have a good speech ecosystem, then

Who's defining what a good speech ecosystem is and what kind of regulations might the government undertake with that aim? And it's not hard to see how that could become problematic down the line. The government in their briefs, um,

are really leaning on the specter of foreign interference. There's this part where the government brief says the first amendment would not have required our nation to tolerate Soviet ownership and control of American radio stations during the cold war. Um,

I mean, they're going hard on China is an adversary and this is a danger to American national security. Any tea leaves you care to read from precedent or the appeals court on that argument? Well, I'll just say like on the other side, on the First Amendment side, we don't ban, we never banned even during the Cold War, Russian propaganda. Right.

We don't ban Chinese propaganda. We don't ban Sputnik and RT. Those Russian news stations, yes. Yeah. Part of our First Amendment idea is that people in the United States should be able to consume foreign propaganda if they want to. There are rules in the United States today about who can own broadcast TV stations. In fact, Rupert Murdoch had to become a citizen of the United States before he was able to buy Fox News, right? And so a lot of people are making that analogy.

The government wants this to be about who owns the pipes because they're on much firmer ground in restricting who owns the pipes. When it comes to like who has a right to consume what information, Americans have the right to consume pretty much any information they want with some limitations. And that includes foreign propaganda. And that's a right that's been enshrined in First Amendment law for a long time.

And that's what this group of users who we've been talking about, you know, they filed an amicus brief basically saying, like, look, as long as we know there might be Chinese propaganda or influence on here, like, we know, you know, user beware. So let us do it. Right. And that's a thing that TikTok has brought up, too, right? So when I talk about, is this an absolutely necessary regulation? One question that the post court talked a little bit about and that TikTok has talked about is a surgeon general label, right? Yeah.

if what's important here is making sure that everybody knows what they're consuming. What if there were a big prominent label on TikTok saying the US government says this thing might be influenced by the Chinese government. And every time you click it, you can imagine a really aggressive label, right?

Would that be sufficient? Would that tell U.S. persons that they might be receiving this misinformation on this platform? Would that be a lesser, a less restrictive means that the government could take that would solve their problem? Because if the government can do something less extreme, that's what they're supposed to do under First Amendment law. When we come back, Trump once tried to ban TikTok. Now he says he wants to save it.

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It is very clear that the incoming president, Donald Trump, is trying to position himself as the person who saved TikTok. He's made a lot of statements to that effect, you know, even though in the previous administration he tried to ban the app. But we're moving beyond that. He tried to ask the Supreme Court to, you know, temporarily block the law so he could deal with this. Yeah.

He takes office a day after the deadline for divestment. Does he have any power in this very complicated equation? The timing is just really comedic. He does not have much power before January 19th. He is a private citizen. He has filed an amicus brief, which

As a private citizen saying, here's what should happen. He can go on all the news stations he wants and ask the court to do things, but it's in the court's hands before then. Once he comes to power, the bill has in it a provision that allows the president to grant a one-time three-month extension if TikTok and ByteDance can show that they're making meaningful movement toward divestment.

There is some question about whether President Biden would have to do that because President Trump would have to issue that one time extension after the law had gone into effect. It's not totally clear he can do that, but it's not totally clear he can't. And he might try. So if the Supreme Court says the law stands, TikTok is banned if it's not divested, everybody go home.

And the next day, Trump gets inaugurated, comes to power. It seems possible to me that he will try to say, all right, I'm certifying to Congress. I'm doing the thing under the law. I'm giving them three months. I think even if his ability to do that is a little bit shaky, I think he might try to do it anyway. And who would stop him, probably, since he would then be DOJ? Um...

But the thing is, under the law, he only gets those three months. And TikTok and ByteDance could get those three months to try to broker a sale. But if the Chinese government says you can't sell, go home, like, you're kind of stuck. Unless Trump can work something out with the Chinese government on that front. So...

The best case scenario for Trump for like political ends is TikTok goes down on January 19th. Trump comes to power. He brings it back for three months. He says, I saved it. Look at me. I saved it. I fulfilled my campaign promise. And then if TikTok isn't sold within three months, he can say, well, I saved it. They should have sold. They didn't. That's their fault. Blame them.

There have been murmurs of interest from various deep-pocketed buyers, consortia of wealthy people. Can they, like if they say, yeah, I want to buy the assets, can they even do that? Like,

There's like nine days between oral argument and the deadline, but also the export limitations that you've been talking about. Like, what is that even possible? I would be astonished and would say it's practically impossible for a sale of TikTok in any meaningful way to occur before January 19th. At this point, that sounds basically impossible. The biggest hurdle in their dream of buying TikTok is that ByteDance says it's not for sale.

And until ByteDance entertains bids for TikTok in any sort of serious way, it's hard to get really excited about the idea that it might be sold.

It seems like ByteDance and TikTok, the U.S. entity, have sort of put all of their eggs in the court basket. And if the court rules against them, I expect there to be another big flurry of, OK, well, can we sell? What exactly would we be allowed to sell? Because then they've said that if they lose, they will leave the U.S. market and that will be that.

When there's money on the table and you can't operate anyway, things might shift. But again, they have a lot of business in China and they're probably not going to sell if that would end their business in China. And if they do something like sell TikTok against CCP orders, they could be in real danger in China.

Support in the U.S. for a TikTok ban has declined pretty steadily. And I wonder if the court upholds this law and the platform is banned, what does that mean? What does that mean for the people who wake up and, you know, open up the app? And what does that mean for kind of perception of this thing in the first place?

For people who wake up and open the app, they're probably going to see if the Supreme Court upholds the law and the app has to go down, they're probably going to see a short message like the message you get in India or the message you get in Hong Kong, right? Where TikTok is not available that says something like your government banned TikTok and we can't operate here anymore.

There will be an insane scramble by people who have made their livelihoods on TikTok onto other platforms. That scramble has begun a little bit. People have sort of started making plans, but I think there's little acknowledgement of just how big that would be. I think we also have to have to talk about the fact that if this app is banned, it will be the first time that the U.S. government banned a major social media app. And it will not be the last time that they talk about doing that.

And that has sort of seismic impacts for how we think about speech platforms and how we think about government control over speech platforms. And we will be talking about whether we can or should ban other apps. And people will try to use that for political ends. They will try to use it for geopolitical ends and so on.

Banning apps is a scary thing that we haven't done up until now. And if we cross that Rubicon, it's not easy to come back. It's not possible to come back. It's very hard not to have this conversation and think about the fact that the owner of a social media app, Elon Musk and X, very close with the incoming president and banning apps is

might be something that works in his favor in this presidency or not in another presidency. There's been a lot of conversation this week, Mark Zuckerberg talking about speech on the internet. Like, I don't know how to parse out what this court decision might mean for other social media platforms or for platforms that haven't even been built yet because

But it seems like this decision has the potential to completely rearrange what the online ecosystem is. Yeah, it does. And...

Again, if the government can now ban apps, you may see a lot of people who have apps behaving very differently toward the government. Right. We're already seeing that. They already are. We are already seeing that, but we will just see it more. We will see more kowtowing to the U.S. government by people in tech if they are worried that the U.S. government could shut their app down.

And to your point about Musk, Musk has said he's against a TikTok ban, I think in part because he has his own foreign influence problems. He has a lot of business in China. He is close to the Chinese government. He also has a lot of business and investors in the Middle East. And I think he's just generally worried about people looking too hard into how social media executives might be cozy with foreign leaders, right?

Putin, obviously, there's been a lot of reporting about his ties to Putin. But I think in the next four years, it is basically inevitable that we will see a lot of wheeling and dealing where the president tries to do favors to those who are helpful to him politically and financially and tries to hurt people who he thinks are not helpful to him politically or financially. And this decision, if it gives the government this power, would certainly be a part of that calculus.

And if it doesn't, if the Supreme Court strikes down the law, is it, you know, status quo? Or does that have big ramifications too? It's closer to status quo for most people. But I think it would be pretty important in the way that we think about the balance of power between the government and social media companies. And

You know, it's really hard because I think probably a lot of your listeners are listening to this being like, I don't trust the government very much. I'm nervous about giving the government this power. But then they also are probably feeling like there are a lot of unchecked private companies absolutely wild and out there in Silicon Valley with our data and our information ecosystem. And that's not great either. Right. And so, like, I think.

When we are worried about the power that either of those parties, both of those parties have over our speech ecosystem and over the information that we consume, over how we understand the world around us, balancing the power between two potentially fickle, problematic groups is the challenge here. And a lot of the outcomes are unsatisfying.

As this episode is going out, listeners might be listening right now, oral argument taking place at the same time. What key things should a regular old person who is interested in the future of this app be listening for? Yeah, so there's going to be a lot of talk about levels of scrutiny. And levels of scrutiny are really just the court trying to decide how important it is that the government can regulate this thing. Like, how compelling is the government interest here?

And then they're also trying to decide how narrowly tailored, how precise must the law be to address that issue. So when you hear all this talk about whether you're in strict scrutiny or intermediate scrutiny or rational basis review, that's what that means. And then I think...

It's just important to listen for the court's ideas about what speech online means, because we are speaking in these privately owned channels.

And there is lots of private control over how we consume information. That's generally how the First Amendment wants it to be, right? We can choose which private channels to engage with. Those private channels can engage in their own speech in determining sort of what to promote.

But there's no transparency right now. We don't understand how and why social media platforms choose to show us X, Y, or Z thing. And I don't even know what they're showing you. I don't know what the 10 most popular TikToks are today. And so it's really hard for me to know whether there's an influence operation going on. When we all used to tune into the nightly news, I at least knew what everybody was hearing. Now we don't know that.

And so when we think about what speech means online and what information consumption means online, we're missing a really important sort of basic locus of like common facts. And I think that's gotten us into a lot of trouble in a lot of different ways. And I'm curious how the Supreme Court is thinking about that challenge. Emily Baker-White, as always, it is great to talk to you. Great to talk to you, too.

Emily Baker White is a tech reporter at Forbes and is currently writing a book about, yes, TikTok. That is it for our show today. But one very important piece of news is that our friends at Amicus, Slate's Dahlia Lithwick and Mark Joseph Stern, are listening to this oral argument. They are going to break it down on their show, Amicus. New episodes of Amicus come out on Saturday mornings, so just search Amicus wherever you listen.

What Next TBD is produced by Evan Campbell, Patrick Fort, and Shana Roth. Our show is edited by Paige Osborne. Alicia Montgomery is vice president of audio for Slate, and TBD is part of the larger What Next family. And if you want to support this show and our independent journalism, the number one best thing you can do is join Slate Plus. You get all your Slate podcasts ad-free, and you will never hit the paywall on the Slate site.

So just head over to slate.com slash whatnextplus to sign up. All right, I will be back on Sunday with another episode. I'm Lizzie O'Leary. Thanks for listening.