This Week in Google 802: A Sycophant in Your Pocket – Podcast Summary

Release Date: January 16, 2025

Hosts:

• Leo Laporte
• Jeff Jarvis
• Paris Martineau

Guest:

• Kathy Gellis – Attorney and Supreme Court Court Observer

1. Introduction and Guest Background

The episode begins with Leo Laporte introducing the regular hosts—Jeff Jarvis, Paris Martineau—and welcoming a special guest, Kathy Gellis. Kathy is notably present for two pivotal Supreme Court hearings: one concerning TikTok's potential shutdown and another addressing the constitutionality of age verification requirements for PornHub.

Notable Quote:
Leo Laporte (00:00): "Kathy Gellis was actually in the Supreme Court hearing the oral arguments on the TikTok case. She'll give us her report for that."

2. Kathy Gellis’ Experience at the Supreme Court

Kathy shares her firsthand experience attending the Supreme Court hearings. Despite initial logistical challenges—such as almost not securing a chair—she underscores the profound impact of witnessing the Justices' human side, including their facial expressions and body language.

Notable Quote:
Kathy Gellis (04:40): "These are the human beings that are deciding everything."

3. Overview of the TikTok Supreme Court Case

The core of the discussion revolves around the Supreme Court hearing on TikTok's bid to stay the enforcement of Congress's order requiring its divestment to a U.S.-owned entity or complete shutdown. Kathy explains that the case consolidated petitions from both TikTok and its user base, emphasizing the platform's precarious position.

Notable Quote:
Kathy Gellis (06:31): "TikTok's life hangs in the balance here, at least in the United States."

4. First Amendment Arguments and Legal Scrutiny

Kathy delves into the First Amendment implications of the case, highlighting TikTok's stance on free speech against the government's national security concerns regarding data privacy ("slurpage"). She critiques the D.C. Circuit's application of rational basis scrutiny instead of the more stringent strict scrutiny, arguing that the latter would likely deem the law unconstitutional due to its broad and collateral impacts on free speech.

Notable Quote:
Kathy Gellis (09:54): "For strict scrutiny, the government must have a compelling reason and use the narrowest means possible."

5. Judicial Perspectives and Future Implications

The conversation touches on the varied approaches of Supreme Court Justices, noting that while some may see validity in national security arguments, others recognize the profound First Amendment concerns. Kathy anticipates that the Court may issue stays to delay enforcement, allowing more time for legal deliberation.

Notable Quote:
Kathy Gellis (16:06): "One of the things that I put in the blog post was the potential for the court to press pause on the law."

6. Implications for Other Platforms and Free Speech

Kathy extends the discussion to the broader implications of the TikTok case on other platforms like The Guardian, Financial Times, and BBC. She argues that stringent rulings could set dangerous precedents, allowing the government to influence editorial decisions across globally-owned platforms, thereby stifling free expression.

Notable Quote:
Kathy Gellis (12:21): "Congress can't decide the speech preference for the government without infringing on the First Amendment."

7. Jawboning, DMCA, and Platform Censorship

Transitioning to the topic of "jawboning," Kathy explains how the government indirectly pressures platforms to censor content. Using the DMCA as an example, she illustrates how takedown notices can lead platforms to remove content without directly addressing the speaker, thus creating a form of indirect censorship.

Notable Quote:
Kathy Gellis (129:00): "The DMCA basically works as a form of jawboning because instead of going after somebody, we put pressure on the platforms to remove content."

8. Future of Social Media Platforms and Censorship

The hosts discuss the fragmented landscape of social media platforms, debating the balance between innovation and regulation. Kathy emphasizes the need for multiple platforms to coexist to prevent monopolistic control, while also cautioning against the unchecked power of centralized entities to dictate speech.

Notable Quote:
Kathy Gellis (79:12): "We need to have multiple places to go to, and that's okay, but it's also important to prevent any single platform from having undue influence."

9. Discussion on AI Recording Devices

Towards the episode's end, Leo introduces an AI device he's wearing that records conversations and generates daily summaries. Kathy raises concerns about privacy and the legal implications of such devices, especially in sensitive environments like courtrooms.

Notable Quote:
Kathy Gellis (87:20): "At the Supreme Court, you can't bring an electronic device of any kind into the courtroom."

10. Conclusion and Final Thoughts

The episode wraps up with the hosts reflecting on the balance between technological progress and ethical considerations. Kathy advocates for responsible innovation, emphasizing the importance of anticipating and mitigating potential harms associated with new technologies.

Notable Quote:
Kathy Gellis (114:07): "We have to think about the consequences of our actions and weigh the potential harms against the benefits."

Key Takeaways:

• First Amendment at Stake: The TikTok case serves as a critical examination of free speech rights versus national security concerns in the digital age.

• Judicial Scrutiny Levels: The application of strict scrutiny is crucial in cases involving substantial free speech implications to ensure laws are narrowly tailored.

• Jawboning and DMCA: Indirect government pressure on platforms via mechanisms like the DMCA poses significant First Amendment challenges.

• Platform Fragmentation: A diverse ecosystem of social media platforms is essential to safeguard free expression and prevent centralized censorship.

• Ethical Innovation: Balancing technological advancement with ethical responsibility is imperative to mitigate unintended societal harms.

Notable Quotes Overview:

• Kathy Gellis on Humanizing Justices: "These are the human beings that are deciding everything." (04:40)

• First Amendment Focus: "It was entirely a First Amendment case." (08:25)

• Judicial Scrutiny Explanation: "For strict scrutiny, the government must have a compelling reason and use the narrowest means possible." (09:54)

• Jawboning via DMCA: "The DMCA basically works as a form of jawboning because instead of going after somebody, we put pressure on the platforms to remove content." (129:00)

This comprehensive summary encapsulates the episode's critical discussions on the intersection of technology, law, and ethics, providing valuable insights for listeners unfamiliar with the full podcast conversation.