TikTok Is Cooked, Trump Is Sentenced

Summary

Amicus with Dahlia Lithwick | Law, Justice, and the Courts Episode: "TikTok Is Cooked, Trump Is Sentenced" Release Date: January 11, 2025

In this compelling episode of Amicus, hosted by Dahlia Lithwick, the Slate Podcast delves into two pivotal legal events: the sentencing of former President Donald J. Trump and the Supreme Court's decision on the TikTok ban. Co-host Mark Joseph Stern and law professor Gautam Hans join Dahlia to unpack the intricate legal battles that have captured national attention.

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1. Donald Trump's Sentencing: A Complex Outcome

Timestamp: [02:26] – [05:34]

The episode opens with the courtroom sentencing of Donald Trump by Judge Juan Merchan at his Manhattan courtroom. Trump was convicted on 34 counts of falsifying business records in the first degree. Despite the severity of the charges, Trump received an unconditional discharge, meaning he faces no jail time, fines, or probation.

Mark Joseph Stern highlights the unprecedented nature of this sentence:

"This was in many ways a huge defeat for Donald Trump. ... officially, formally, and at long last got a rap sheet that will follow him into the White House."
[03:31]

Dahlia Lithwick criticizes the Supreme Court's role in the sentencing, expressing frustration over the justices' narrow vote:

"It's a blast of reason from five justices, a blast of crazy from the four dissenters."
[07:02]

The discussion underscores the tension between upholding the rule of law and the perceived leniency towards a former president, raising questions about accountability and the integrity of the judicial system.

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2. Supreme Court Case: TikTok Ban and First Amendment Implications

Timestamp: [05:34] – [59:16]

The core of the episode examines the Supreme Court's expedited handling of the TikTok ban, a law enacted by Congress in early 2024 amid national security concerns over TikTok's Chinese ownership and data practices.

a. Background and Legislative Intent

Mark Joseph Stern provides a comprehensive overview:

"The law sort of talks about foreign adversaries and social media apps ... requires a divestiture of the company by January 19, 2025."
[19:07]

This legislation aimed to mitigate potential data security threats by mandating TikTok's divestiture from its Chinese parent company, ByteDance. If TikTok fails to comply, the app faces an immediate ban.

b. Legal Challenges and Supreme Court Dynamics

Both TikTok and its user base, including content creators, challenged the ban, citing First Amendment rights and arguing that the law was overly restrictive and not a general solution to data privacy concerns.

Dahlia Lithwick reflects on the Supreme Court's swift decision to hear the case:

"The court is also poised to decide whether you are going to literally be able to open TikTok in eight days time."
[02:49]

Despite the D.C. Circuit's unanimous decision favoring the ban, the Supreme Court's 5-4 split—with Chief Justice John Roberts and Justice Amy Coney Barrett siding with the liberal justices—led to the implementation of the ban. The dissenting justices, including Samuel Alito, argued that the law was an overreach infringing on free speech.

c. First Amendment Concerns and National Security

The conversation delves deep into the First Amendment implications, debating whether TikTok's actions constitute protected speech or an unregulated platform that can be weaponized by foreign entities.

Gautam Hans emphasizes the complexity:

"This is a content moderation case that is about not liking the speaker ... we don't have to think about analogies to old speech cases."
[42:16]

Mark Joseph Stern critiques the Supreme Court's handling:

"There was very little discussion about slippery slope ... just convert the restriction on ByteDance's ownership ... into a restriction on TikTok speech."
[34:43]

The hosts express concern over the lack of thorough judicial deliberation, fearing that the decision sets a precarious precedent for future cases where national security and free speech collide.

d. Future Implications and User Impact

As the ban takes effect, the discussion turns to its practical consequences for millions of TikTok users and content creators:

Dahlia Lithwick warns:

"I think it will die fairly quickly ... start making the transition if you haven't already."
[57:00]

Mark Joseph Stern adds:

"We have over 100 million people who use it monthly ... switch does have First Amendment costs."
[58:24]

The episode concludes with reflections on the Supreme Court's role in balancing national security with constitutional freedoms, highlighting the ongoing debate about the limits of government intervention in digital platforms.

---

Notable Quotes

• Mark Joseph Stern on Trump's sentence:

  "At this time, I impose that sentence to cover all 34 counts. Sir, I wish you Godspeed as you assume your second term in office."
  [03:16]

• Dahlia Lithwick on the Supreme Court's decision:

  "The majority decided we're not going to take that step. It gave these two reasons... it was a blast of reason from five justices, a blast of crazy from the four dissenters."
  [06:36]

• Gautam Hans on First Amendment challenges:

  "This is a content moderation case that is about not liking the speaker ... we don't have to think about analogies to old speech cases."
  [42:16]

---

Conclusion

This episode of Amicus offers a nuanced exploration of high-stakes legal battles that shape the American socio-political landscape. Through insightful analysis and expert commentary, Dahlia, Mark, and Gautam navigate the complexities of political accountability and constitutional rights, providing listeners with a comprehensive understanding of these landmark cases.

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For More Information:

• Subscribe to Amicus: Available on Apple Podcasts and Spotify.
• Join Slate Plus: Access exclusive legal analysis and ad-free listening by subscribing at slate.com/amicusplus.

Transcript

[Dahlia Lithwick]

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[Mark Joseph Stern]

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[Dahlia Lithwick]

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[Gautam Hans]

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[Gautam Hans]

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[Mark Joseph Stern]

At this time, I impose that sentence to cover all 34 counts. Sir, I wish you Godspeed as you.

[Gautam Hans]

Assume your second term in office. Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court and what the law once was and where it's headed now, and how all of that changes our lives. I'm Dahlia Lithwick. I cover the courts and the law at Slate Late. And on Friday morning, the U.S. supreme Court heard what can only be described as the most important case pitting free speech rights against national security in the modern era. In taking up Congress's impending TikTok ban and doing so at lightning speed, the high court has really inserted itself into this huge global debate about media and technology and publishing and security. And also, as you're about to hear my very favorite pasta, the court is also poised to decide whether you are going to literally be able to open TikTok in eight days time. Slate senior writer Mark Joseph Stern and I listen to the TikTok arguments together and we're going to be digging into those in a couple of minutes. Hey there, Mark.

[Dahlia Lithwick]

Hi Dalia.

[Gautam Hans]

And before we get to TikTok, in other news, the Donald J. Trump unaccountability train made its final stop in Judge Juan Merchan's Manhattan courtroom on Friday, where the president elect was finally sentenced by way of zoom. He is a felon. Donald Trump, you're before the court for.

[Dahlia Lithwick]

Sentence following your conviction by trial to.

[Gautam Hans]

34 counts of falsifying business records in the first degree for the people. As this court has noted, the defendant's.

[Mark Joseph Stern]

Conduct, quote, constitutes a direct attack on.

[Dahlia Lithwick]

The rule of law itself.

[Gautam Hans]

They all said this is not a case that should be brought.

[Mark Joseph Stern]

The protections afforded the Office of the President are not a mitigating factor. They do not reduce the seriousness of.

[Gautam Hans]

The crime or justify its commission in any way. It's been a political witch hunt. It was done to damage my reputation so that I'd lose the election, and obviously that didn't work.

[Mark Joseph Stern]

After careful analysis, in obedience to governing mandates and pursuant to the rule of.

[Gautam Hans]

Law, this court has determined that the only lawful sentence that permits entry of.

[Mark Joseph Stern]

A judgment of conviction without encroaching upon the highest office in the land is an unconditional discharge, which the New York.

[Gautam Hans]

State legislature has determined is a lawful.

[Mark Joseph Stern]

And permissible sentence for the crime of falsifying business records in the first degree. Therefore, at this time, I impose that sentence to cover all 34 counts. Sir, I wish you Godspeed as you assume your second term in office.

[Gautam Hans]

Thank you. Now, we knew this was going to be an unconditional discharge. There's no time, there's no fine. So maybe the thing to start with right now is the fact that this sentencing went ahead at all.

[Dahlia Lithwick]

Yes, this was in many ways a huge defeat for Donald Trump. I think he expected this sentence to be halted. He had asked the Supreme Court, in a rather extraordinary, an unusual order, to freeze the sentencing. And on Thursday night, by a five to four votes, the Supreme Court refused, with Chief Justice John Roberts and Amy Coney Barrett joining the three liberals and presumably Justice Samuel Alito haranguing them behind the scenes and screaming at the top of his lungs that they were betraying their God emperor and how dare they. Uh. And so on Friday morning, we were able to listen as Trump, who is about to become president, once again, was sentenced to multiple felony convictions, albeit with no jail time or fine or probation. And the man who is soon to become leader of the free world, officially, formally, and at long last got a rap sheet that will follow him into the White House.

[Gautam Hans]

And I guess I should flag for listeners that we spoke to Andrew Weissman on Thursday as we waited to hear whether the Supreme Court was going to allow the sentencing to go forward. Slate plus members, if you have not listened to this week's bonus conversation yet, it is really worth your time. And if you are not a Slate plus member yet, you can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or you can visit slate.comamicus+ to get access wherever you listen. And when Andrew and I recorded, we didn't know what the Supreme Court was going to do. And, Mark, I just want to say again, the fact that this was five to four, four came down late Thursday night was a little tiny bit crazy. Crazy that there were four justices on the Supreme Court who are going to say, hey, this is a state matter, it's a criminal matter. It's not resolved or final in any way. But Trump is awesome.

[Dahlia Lithwick]

Yeah. I mean, of course, it should have been 9 to 0. Right. And as the court pointed out in its very short order, Trump still has appeals available to him through the regular appellate process. What he was seeking here was an incredibly bizarre and unusual kind of exception from the rules to just run over to his friends in black robes at SCOTUS and say, I don't want to have to do all that later. Just freeze the sentencing now and effectively put it off indefinitely, maybe forever. And the majority decided we're not going to take that step. It gave these two reasons. First, again, because the sentence can be appealed, he still has all these avenues available to him in New York court. And second, because the imposition on his duties as president elect are incredibly minor, all he had to do was zoom into the courtroom and sit there for a few minutes, and he ended up saying something. But he could have pretty much just stayed silent and stared at Judge Merchan. And as the majority explained, even if we accept the premise that there is some constitutional power of president elects who are not yet president, who do not yet have Article 2 authority to escape from a court proceeding or a criminal prosecution because they're preparing to become president, that. That this minimal burden on Trump does not meet that standard. So it was a blast of reason from five justices, a blast of crazy from the four dissenters. And at at a bare minimum, yes, I have to say something nice about Robertson Barrett, which is that they at least drew a line in the sand and declined to extend the terrible presidential immunity decision from last summer to an entirely new set of facts and circumstances. They cabined it within some reason, unlike the four dissenters, Thomas, Alito, Gorsuch and Kavanaugh, who would have just turned it into a cudgel to let Trump get out of any accountability in any circumstance whatsoever.

[Gautam Hans]

Yeah, I mean, on the one level, it feels a little bit like, you know, John Roberts, who wrote that immunity opinion, and Amy Coney Barrett, who would have really cabined it and was clear about that. At the time are slightly walking back the absolutely sweeping decision. But there's a way in which this didn't matter. I mean, it matters. It's incredibly consequential that at minimum, there was a sentencing. At minimum, there was a moment at which some accountability, possibly the only accountability, was leveled. But Mark, I gotta say, like, to give them plaudits for being like, hey, we were super crazy, but we weren't that crazy just feels very on the nose. It also feels, I gotta tell you, extremely on the nose that in the sort of reality show, you're fired version of how we do law now, we essentially had a sentencing hearing in which it was pronounced, yes, you're a felon. Yes, you did all this really bad stuff. And, yes, it doesn't matter. Congratulations, next week, you're the president. It feels very, very, very of this moment. But let's go on to the sentencing hearing itself, because having allowed the thing to go forward, it did in fact go forward on Friday morning.

[Dahlia Lithwick]

Dalia, I understand that the sentencing was in some ways an anticlimax, right for him to be given no real punishment except the label of felon. After all this, it feels a bit like a letdown. But I guess what, it excites me. That's not the right word. What tantalizes me is the possibility that maybe John Roberts and Amy Coney Barrett aren't going to be in his camp for every single little favor that he asks them for over the next few years. Like, I think there's a theory of the Chief especially, that he is a reactive justice, that he is a pendulum that swings back and forth depending on who's in the White House. With Biden in the White House, he swung far to the right. Maybe with Trump in the White House, he'll swing a little bit more toward the center. And so while I get people sort of mourning the death of the rule of law, that Trump effectively walks away without any meaningful penalties, I guess I'm just going to keep my eye on the chief. Maybe I'm Lucy with the football. You can tell me that I am. But I will hope and pray that he has recovered some of the faculties that somehow escaped him through four years of Joe Biden's presidency.

[Gautam Hans]

Again, my friend, I think I just want to say, having been the prime mover behind all three. All three Trump cases last year and written the opinions, the idea that John Roberts is like, wait, what? This sentencing hearing, this is a bridge too far. Absolute immunity, totally okay. But this too much. Okay, I'm going to give you you're not, Lucy. There's no football. But I'm just saying I am not. I am not changing my orientation toward what happened last June based on the like, very trivial win that was that an entirely discredited, ridiculous Hail Mary to try to get this sentencing to not happen only one by one vote. Thank you, John Roberts. Okay, Mark, let's talk.

[Dahlia Lithwick]

I deserve that.

[Gautam Hans]

No, I. Let's talk. We're talking about these last gasps of criminal accountability, and now we're not even talking about that. We're not. We're now talking about the last grasp of historical accuracy, which is now in the hands somehow of some like melange of the eleventh Circuit, alien Cannon, and possibly the Supreme Court. Can we just get a reading on whether you and I and the rest of the people who want to know the things will ever get to see the Jack Smith Reports, Part one, Part two. Mark, you wrote so eloquently earlier this week about what the hell was Judge Cannon doing with this case. Where do we stand as of this moment?

[Dahlia Lithwick]

So I think someone must have switched my allergy medication with hopium because I think that we will see the Jack Smith report, or at least the volume of the Jack Smith report that involves Trump's attempted election subversion on January six. To recap, Trump and his former co defendants had asked both Judge Cannon and the 11th Circuit to block the Justice Department from releasing any part of Jack Smith's report, even though under Justice Department regulations, when a special counsel has wrapped up their case, they are supposed to transmit that report to the Attorney General, who gets to decide whether to release it to Congress and the public. Judge Cannon jumped ahead of the 11th Circuit and issued a remarkable injunction that prohibited the Justice Department from issuing the report, even though she no longer had jurisdiction over the case, which had been appealed and was literally powerless to act. That has never stopped her before. I didn't stop her this time. She acted anyway. She issued an injunction. But then on Thursday night, the 11th Circuit stepped in and said, you know what? We don't think so. The 11th Circuit denied that same request from Trump and his co defendants. The 11th Circuit said, We will not be blocking the Justice Department from releasing any part of the Smith report. And this is the real icing on the cake. The 11th Circuit invited the Justice Department to appeal Judge Cannon's injunction and with a very big wink, basically suggested that it will OOVERTURN that injunction ASAP. So this is a big vindication for Jack Smith and Merrick Garland. Merrick Garland has indicated that he wants to release this report. About election subversion to the public as quickly as possible. Now there's a second volume of the report that is all about the classified documents case. Garland says he doesn't want to release that to the public yet because the co defendants still face criminal charges and it could prejudice the case against them. But he wants to release it to Congress, and I think if he releases it to Congress, there's a very good chance that the public will eventually see it. All that really matters now is that when Trump and his co defendants ask the Supreme Court to step in and block the release of the report, the Supreme Court doesn't run out the clock. It acts promptly. It denies the request. And then, even if it's at 11:59am on January 20, we are getting our hands on at least some of Jack Smith's final report. It's happening.

[Gautam Hans]

It's happening. We are going to take a short break and when we come back, Mark and I will be joined by Gautam Hans, law professor, First Amendment expert and signatory, onto one of the amicus briefs supporting TikTok in the giant case that the court heard on Friday. It is winter, which can feel long, and this winter feels especially long already. But I like to soften the edges of the season with snuggly and chic cashmere from Quince. I have a Mongolian cashmere V neck and a gorgeous pair of cashmere sweatpants that are my winter work from home uniform. But the sweater is also amazing with jeans and boots for a kind of weekend celebrity mom vibe. Quince's cashmere sweaters start at $50. In fact, all Quince items are priced 50 to 80% less than similar brands. By partnering directly with top factories and cutting out the cost of the middleman, they pass the savings on to you. Treat yourself this winter without the luxury price tag. Go to quince.comamicus for 365 day returns plus plus free shipping on your order. That's Q-U-I-N-C-E.comamicus to get free shipping and 365 day returns. Quints.comamicus Americans throw away 25% more trash from Thanksgiving to New Year's. Turn your New Year's resolutions into actions that make a difference by switching to blue. I don't know about you, but when another plastic bottle ends up in my recycling, sometimes described as wishcycling, I feel pretty awful. Trashing the planet to clean my home just feels bad. Blueland is on a mission to eliminate single use plastics by reinventing cleaning essentials that are better for you and the planet. They offer refillable cleaning products with an absolutely beautiful design. And you fill your reusable bottles with water, drop in the tablets and wait for them to dissolve. Refills start at just $2.25. Blueland has a special offer for listeners right now. Get 15% off your first order by going to blueland.comamicus. you won't want to miss this. Blueland.comamicus for 15% off. That's blueland.comamicus to get 15% off. Okay, so now we are going to turn to 1 First street and the First Amendment and TikTok and Mark you and I listened to the arguments on Friday morning and so did Gautam Hans, who joins us now. Gautam is a clinical professor of law and founding director of the Civil Rights and Civil Liberties Clinic at Cornell Law School. He analyzes through research and advocacy how new and developing technologies implicate constitutional law, priv and data protection and public policy. Gautam, we want to just start by WELcoming you to Amicus. Thank you for joining us to thrash out whatever it was that happened in Friday's TikTok case.

[Mark Joseph Stern]

Thank you both for having me. I'm a longtime listener but a first time caller and looking forward to discussing Friday morning's mess.

[Gautam Hans]

So I wondered if you would just start for our listeners who maybe are not as read into what this is all about with a tiny bit of table set. And can you describe the ban and describe the divestiture obligation component of the ban and just tell us what sort of Congress was thinking and when all this is meant to go into effect, which is like pro tip, it's really soon.

[Mark Joseph Stern]

So this issue has a fairly long gestation because some followers of of the TikTok federal government interaction may remember that President Trump tried to ban the app or do something similar to divestiture in his first term that was blocked by the courts because it was a purely executive action. It was not authorized by Congress. It was an overstep according to the courts. We have a change of administration. President Biden, that administration initiated some discussions with the company to try to sort of lead to a divestiture of some sort or some kind of remedy for the problems. There was a long negotiation between the executive branch and the company, unsuccessfully. Then about a year ago, in early 2024, Congress steps in and enacts the law that's at issue in the case that was argued on Friday. This law has a really long name which I never remember. We just call it the TikTok ban. That law was supported on a bipartisan basis. The claim was that there were national security concerns about TikTok's ownership structure because TikTok US is controlled by a Chinese based company. And as we know, the Chinese government has a lot of obligations on its companies to share data in ways that the US was concerned about. It's affecting national security. So the law sort of talks about foreign adversaries and social media apps or technology companies that are controlled by foreign adversaries as a general matter. But as a specific matter for TikTok requires a divestiture of the company by January 19, 2025. And if that divestiture doesn't happen, then what we, you know, call the ban basically will go into effect and maybe.

[Gautam Hans]

Just one more beat on the table set, which is just describe who challenges ban and what happens at the DC circuit below.

[Mark Joseph Stern]

Right. So there are two groups that are challenging the ban. The first is TikTok itself. The company, you know, argues various things at the D.C. circuit. One thing that's, I think a bit relevant here is that this law is a little weird that it allowed for an expedited review. There was no trial court findings in this case. The statute authorized the company to challenge it immediately in the, in the court of Appeals in the D.C. circuit. So this happened really fast without any fact finding. The other group that is challenging the law are the users of TikTok. The users, the creators, they have First Amendment interests in sharing and experiencing content on the app. And so they have a separate claim based on the First Amendment. And because of the sort of foreign versus domestic dynamics that ended up getting some airtime in the argument, those cases were consolidated. The arguments were done in the fall of 2024 decision issued in December of 2024, six weeks or so before the ban was supposed to go into effect, led to the very expedited review in the Supreme Court with briefs, unfortunately for the parties and for me, as an amicus supporting the company due at the end of December and oral argument in the beginning of January 2025 and the D.C. circuit.

[Gautam Hans]

Mark, you can explain really quickly, but the D.C. circuit pretty cross ideological panel, just straight up thumbs up for the Biden administration.

[Dahlia Lithwick]

Yeah, that's right. It was a three judge panel, two conservative judges, one liberal judge, unanimously sided against TikTok. And the majority, the two conservative judges said even if strict scrutiny applies the highest standard of judicial review, this law survives strict scrutiny. The concurring judge, the liberal judge, Judge Srinivasan, said, well, I think that we should apply intermediate scrutiny, which is a little bit more relaxed. And the law clearly survives intermediate scrutiny across the board. You know, very strong opinions for the Biden administration, which at least for the next, like nine days, is responsible for defending this law. And TikTok appealed to the Supreme Court, which very, very quickly took up the case and set it on its rocket docket. It acted much more quickly on this than on, say, the Trump immunity case, which shows that when the justices really want to decide something fast, they know how to do it.

[Gautam Hans]

Yeah, one of the ironies listening to the arguments was that they were able to f track this oral argument and get the briefing in and do it all really quickly. And yet there are no time limits left at oral arguments. And so it sprawled on for what felt like 200 million years. I spent a good amount of the argument googling, how long did Bush v. Gore really take to be argued? I just want to flag for listeners who was arguing the cases. TikTok was represented by former Solicitor General Noel Francisco. The content creators, in other words, people who say, look, I am a content creator, creator. I need TikTok to get my message out. I can't be nearly as salient and forceful and important on other platforms. That was represented by Jeff Fisher. And the Biden administration was represented by Solicitor General Elizabeth Prelogger in her last oral argument. I want to add just one more kind of precatory. What does this all mean? And this is for you, Gautam. But I think that part of what is really, really complicated in this case is that there's two different justifications for the law and it's sort of looming over everything. And one is this, you know, national security justification. Look, this is, you know, a foreign entity. It is a enemy of the United States. We know what they're doing with our data. And then there's this other kind of very squishy First Amendment. We kind of don't like this stuff that they may be encouraging. And I would love it if you could sort of parse through for us because I think, as you suggested, this was a drumbeat throughout the entire argument that these two justifications don't necessarily kind of rub along together with equal force.

[Mark Joseph Stern]

My main takeaway from this argument is that this is why, like, judicial deliberation is a virtue in many situations. There are so many complicated issues in this case that I think really deserved a lot of time, preferably not in a two hour, 40 minute oral argument on an expedited basis. And there are important governmental interests. I think basically Everyone concedes national security is one. What is the tailoring that's appropriate? Would the law of general applicability be better or worse? Because, as I mentioned, this law specifically names TikTok in its legislative language. This is not a law that applies across the board. Do we think that there are real problems with the data economy of collecting massive amounts of data and not really deleting it? How do we think about corporate structures? You know, does the foreign ownership dynamic versus domestic ownership make a difference? Is that why the users maybe, you know, had a better shot? I think during the argument, the lawyer for the users, Professor Jeff Fisher at Stanford, I think, got a better treatment than Noah Francisco, the former Solicitor General under President Trump when he was representing TikTok. This is a big swirl, and I get it. You know, this is a complicated case. But as a really baseline matter, my feeling is that. That I started out as a privacy attorney. I am really concerned about data collection. I understand that national security is an issue. I understand the foreign political economy. Those are all good justifications. But this law doesn't do a great job of answering the moment, and that's where I think the First Amendment problems reside.

[Dahlia Lithwick]

So can I just sort of distill from that? I mean, I agree completely. Those were all of the issues swirling around. I think the Solicitor General tried to reach out and grab all of these disparate justifications and issues and put them into two buckets. Right? There was a first justification for the law that said, this is about data protection, data security, that the Chinese government has access to TikTok's data, and TikTok is collecting a massive amount of data from its users about their age and location and activity and all of this really sensitive stuff. And the government of America is worried that the government of China is going to access that data and somehow weaponize it, maybe blackmail users, maybe turn them into spies against the U.S. u.S. Government. And then there's the second justification, which is the one that I think gives us all heebie jeebies and definitely disturbs the justices, which is the idea that the Chinese government can manipulate the speech on TikTok in order to further the interests of the Chinese Communist Party and somehow undermine America. And so the. The second justification here seems to be aimed at suppressing speech, right? Aimed at saying, we don't like this speech and we want less of it, or we want to manage it differently, or we to ban it and tell me if I'm wrong. But I felt like that got more airtime and seemed to rankle several of the justices across ideological lines.

[Mark Joseph Stern]

I think that is correct. I think that part of the challenge with this law and this issue is that it's all swirled up with politics. Now I'm of the opinion that most laws are swirled up with politics, but we have during the time of its enactment, former representative Mike Gallagher saying this is digital fentanyl. They're coming for our kids. Want someone please think of the children. We have other congresspeople complaining or stating that the app is biased in favor of Palestinians. These are all class of first amendment problems. And so what you get is I think some really politically inflected concerns about China and also in addition to some politically infected concerns about China, larger sort of who can influence the American populace. There was a joke about people not really agreeing very much anymore these days.

[Gautam Hans]

Oh, go ahead.

[Mark Joseph Stern]

I was just going to say.

[Gautam Hans]

Did I understand you to say a.

[Mark Joseph Stern]

Few minutes ago that one problem is that ByteDance might be through TikTok trying.

[Gautam Hans]

To get Americans to argue with each other? That it might be just trying to.

[Dahlia Lithwick]

If they do, I say they're winning or dissent.

[Mark Joseph Stern]

I'll just say in regards, Mark, to your first point about the Chinese data collection, I think the solicitor general conceded or admitted that some of this is future looking. Right. This idea that someday the future president, like the fact that they were liking things on TikTok that maybe were a little prurient is going to be a problem. That's not a TikTok only concern what happens if Iran buys Facebook, right. Or some other. Or we go to war with Sweden and Spotify wrapped ends up being something that's humiliating. I think those future concerns, I understand it, but what's the limiting principle and why are we sing out one company when we could be doing some, I think, better thought out more generally applicable regulation? I agree with you on the second point about the concerns about foreign propaganda manipulation is just editorial discretion by another name. I agree with that. And I think that the challenges here are going to be as they often are in first Amendment cases, line drawing ones. And the lines I think are not nearly as stable as the court might want us to believe.

[Gautam Hans]

Right. This is in a weird way, and the argument really felt like this. It was like a national security case and a First Amendment case. Walk into a bar like they were two totally different cases and you could feel everybody toggling back and forth depending on which of those they thought they were gonna win in the moment. But I think all three of us agree that the Biden administration won. And you could see that in you know, all the real time kind of reflections on this. This felt like a rout. And at least for while both Francisco and Fisher were arguing the case, it felt like people were like, is this 8:1 or 7:2? Like, this is, you know, TikTok, it's over. And yet, what was really interesting, and these are the sort of confounding questions you're both raising. The Court certainly roughed up Elizabeth Prelogger. They were not, I think, in the main, mollified by the answers she was giving. And I think that it suggested to me, and maybe this part of what you're trying to tell us, Gautam, is that this might come out as a very, very simple answer to a set of problems that the Court was clearly uncomfortable with both sides.

[Mark Joseph Stern]

I agree with your view that the company is going to lose, which is what I thought beforehand. I thought it would be closer. It was not. I mean, there's lots of clues as to why the company's going to lose lose. But one that I think is really salient for the First Amendment piece, even though I agree that Solicitor General Prelogo had a tougher time at points than one might have guessed based on the company and creator arguments, is that there was very little discussion about Supri Slope, which is a classic First Amendment concern. What we do in this case is going to reverberate along for many other speakers. Were, I think, the company and the creators going to prevail, there would be, I think, more discussion about why they have to win, because if they don't, everyone else is going to lose in the long run. You didn't really get that. You didn't really get the troubling hypotheticals for the Solicitor General. Well, like, if you do this, what's going to stop Congress from doing that? You know, the people, remember probably from the Trump immunity cases, the SEAL Team 6, assassinating political enemies as the really scary hypothetical. There was none of that in this argument, which I think demonstrates that the justices don't see a slippery slope. We'll just, you know, create an easy answer, probably based on the foreign ownership dynamic is my immediate guess. But even that, too, I think, has some slippery slope dynamics that didn't really get addressed and I think should concern people who have fears about what A Congress that wants to designate people as national security threats or organizations or foreign governments as national security threats, where that limit might lie.

[Gautam Hans]

My sense was that certainly through Noel Francisco's argument and through Jeff Fisher's argument, there was this kind of, like, shadow of this ownership Problem of, you know, this is just a foreign corporation and this is just, you know, a subsidiary, and there's no free speech rights that attaches to that. Like, this is all really simple. There's no First Amendment issue here. That took up a lot of oxygen for at least the first half of the argument. Mark.

[Dahlia Lithwick]

Yeah, I mean, it's confusing because TikTok is the named plaintiff and TikTok is an American company, but TikTok is owned by ByteDance, which is a Chinese company. And the Supreme Court has said that foreign citizens and foreign corporations operating on foreign soil don't have First Amendment rights that they can vindicate in federal court here in the United States. And so Clarence Thomas asked right out of the gate, and I think it's an important question. Question is tick tock an American company really just trying to vindicate the free speech rights of ByteDance, a Chinese company?

[Mark Joseph Stern]

You're converting the restriction on ByteDance's ownership of the algorithm and the company into a restriction on TikTok speech. So why can't we simply look at it as a restriction on by white dance?

[Dahlia Lithwick]

And then Justice Katanji Brown Jackson asked a similar series of questions about whether TikTok is sort of defending its right to associate with a Chinese owned foreign company. And I don't think we have really good answers to those questions because the facts of the case are so curious here. I mean, it does seem to me that an American company should not forfeit its First Amendment rights just because it's owned by a foreign company. And this was something that Justice Neil Gorsuch brought up again and again. He had his libertarian hat very much on on Friday, and I think it's a genuine concern. On the other hand, this is, I think, a unique feature of the threat here, which is that Chinese law requires Chinese companies to share data upon demand. And so even though TikTok is an American corporation, we all know corporations are people. No one is really disputing that here. No one is really focusing on the corporate speech aspect. We all believe in Citizens United. Now, you know, everyone agrees TikTok tok can speak. But if TikTok is speaking and simultaneously turning over data to ByteDance, which is turning over data to the Chinese Communist Party, then that is a problem. And I don't know that I saw the justices feel their way out of this maze. Gautam, I'm curious if you did. I feel like it was this huge unresolved question that a bunch of justices, you know, Thomas, Jackson, Gorsuch, just as Amy Coney Barrett as well, kept poking at to not very much success.

[Mark Joseph Stern]

Yeah, I agree with that. This came up a little bit when it comes to sort of the least restrictive means component and narrow tailoring of First Amendment analysis. And I think that the company would say, well, you know, the issue here is that even if you're concerned about this data sharing question, and even if you don't think that a generally applicable law covering all, you know, data collected companies would work, then the limit is prevent the company from sharing information or use, use that national security agreement negotiation that the Biden administration administration failed to come to agreement on with the company. There were other methods of doing this. I think that the foreign ownership piece I had the wise decision or unwise. I've never taken corporations in law school, so this is not my area, but I was trying to think of some hypotheticals and there was some talk of this about the foreign Communist Party and what came to mind for me, this is not fully baked, so I might revise it with some more rest. What if the U.S. government said, well, Ethel Rosenberg is an agent of the USSR and the Soviet Communist Party, and yet she might be an American citizen, but really we all know that she's just some plant by the Soviets and they're controlling her, so we're going to sentence her to death or we're going to put her in civil confinement. That seems to me maybe an analogous situation that we, I think, from a First Amendment matter would have some concerns about, you know, whether or not corporations are people. They seem to be for now. And so for me, the sort of ByteDance TikTok US relationship is a bit of a red herring, or at least it's a path to go down that I think is hard to disentangle. Which is maybe why I think, Dalia, you were right to say there's going to be an off ramp that's very, I think, limited in scope and just says maybe we didn't want to get into this mess and like, what's the fastest way off the freeway? Because we don't actually have the time or the capacity or the record to really delve into the sort of Gordian knot that this case and these issues present.

[Gautam Hans]

We are going to take a short break. This episode is brought to you by Shopify. Upgrade your business with Shopify, home of the number one checkout on the planet Planet Shop. Pay boosts conversions up to 50%, meaning fewer carts going abandoned and more sales going cha ching. So if you're into growing your business, get a commerce platform that's ready to sell wherever your customers are. Visit shopify.com to upgrade your selling today. Build a routine with Ollie that supports.

[Dahlia Lithwick]

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[Dahlia Lithwick]

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[Gautam Hans]

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[Dahlia Lithwick]

This product is not intended to diagnose, treat, cure, or prevent any disease.

[Mark Joseph Stern]

I'm Leon Naifak and I'm the host of Slow Burn Watergate Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters clacking away. And then there's this rapid montage of.

[Dahlia Lithwick]

Newspaper stories about campaign aides and White.

[Mark Joseph Stern]

House officials getting convicted of crimes. About audio tapes coming out that prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years. Five men were arrested early Saturday while trying to install eavesdropping equipment known as the Watergate Incident. What was it like to experience those two years in real time? What were people thinking and feeling as the break in at Democratic Party headquarters.

[Dahlia Lithwick]

Went from a weird little caper to.

[Mark Joseph Stern]

A constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course of eight episodes, this show is going to capture what it was like to live through the greatest political scandal of the 20th century.

[Dahlia Lithwick]

With today's headlines once again full of.

[Mark Joseph Stern]

Corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now, wherever you get your podcasts.

[Gautam Hans]

And we are back talking TikTok and national security and the First Amendment with Mark Joseph Smith Stern and Gautam Hans. So Gautam, you actually mentioned that the really hinky issue here is the First Amendment. Content based. You can't get away from it. And I just want to play a little bit of audio. Here is Justice Kagan saying to Solicitor General Elizabeth Prelogger, more or less, dude, you keep talking about content based manipulation. That's a content based rationale. I think you've just given your thing away because content manipulation is a content Based rationale. We think that this foreign government is going to manipulate content in a way that will, that concerns us and may very well affect our national security interests. Well, that's exactly what they thought about Communist Party speech in the 1950s, which was being scripted in large part by international organization or directly by the Soviet Union. I mean, this is in some sense, as you've said from the jump here, the strongest rationale. Right. You can't say we don't like the content based manipulation that is coming from the platform and we're gonna pretend that this is a content neutral decision. Right?

[Mark Joseph Stern]

Yeah. Which I think is not really supported by the precedent, most notably the cases from last year involving Texas and Florida's social media law, NetChoice cases, which I also was involved in as an amicus sign on. I think that the NetChoice cases made editorial discretion for Internet companies pretty clearly protected by the First Amendment. The implications of that holding and that choice, I think are relevant to the TikTok case. And yet I don't think the justices were there yet in their questioning. So what that means is that maybe upon further reflection, although when that happens and with what deliberation remains unclear, that should come to light, I think that the sort of inside out going after content manipulation or sorting is actually a conduct based distinction was starting to, you know, come to light for the justices, which I think either means that it will get engaged with on a meaningful level, or maybe more likely that we'll get a short opinion that defers for another day the complexities that we've been grappling with today.

[Dahlia Lithwick]

Can I say I did have a little bit of a problem with Justice Kagan's hypothetical here. I mean, I get the appeal of this analogy, but it reminds me a bit of when. When gun extremists Compare muskets to AR15s in Second Amendment cases and say, well, if they didn't ban muskets, then we can't ban assault rifles today. I mean, yes, the Soviets were pushing American Communists in the 1950s to publish certain pro Soviet stuff in magazines. Okay, how many people really read those magazines? What was their reach? We're talking here about a social media platform that people are addicted to that 170 million some odd Americans use. And that has an extraordinary and immediate reach. And we also know that there are connections between social media and a whole lot of problems in our society. Like, let me just pluck one out of thin air, eating disorders. Right. We know there can be a connection between eating disorders and social media use and social Media glorifying eating disorders and unrealistic body image. What if the Chinese government said, one way we're going to undermine our adversary, America is to try to accelerate the epidemic of eating disorders, and they just pummeled TikTok by tweaking the algorithm with content that glorified eating disorders, all aimed at teenage girls, and they know which of their users are teenage girls, and they just direct all of this content that is known to, or very likely to encourage disordered eating at a specific subset of users for the purpose of trying to ruin their lives and harm their families and ultimately, like, destabilize America. I know it sounds a little weird. This whole case is about hypotheticals, but there is no comparison between that and what the Soviet Union could have done with crappy little magazines handed out like door to door by pathetic Communists in the 1950s who really wanted a revolution that was obviously never going to happen. I just don't see it. And so I feel like this brings us to the limit of analogies between modern technology and the old speech cases. It seems to me we're just in a different world, and at a certain point, the speech issues become so fundamentally distinct that they can't be reasoned out by analogy to pen and paper publications that just do not apply to the digital age.

[Mark Joseph Stern]

I am sympathetic with the dynamic that you're describing. The limits of analogy are, you know, really contested in the scholarly space. And, you know, we could teach a seminar on this together, Mark, if you want to start committing to Ithaca. But I think that as an analytical matter and a doctrinal matter, this is not the world in which we are in. And welcome to what it means for me as a, like, progressive civil libertarian, which is to say that I live in a world where I disagree heavily with a lot of what the First Amendment doctrines are, and yet I have to litigate and analyze and think about that world. I would love for there to be a moment in which we radically rethink the First Amendment architecture in which we all are forced to live. This case should not be that moment for many reasons, one of which is the fact that we're talking about disfavored speakers. When I mentioned the Israel Palestine issue that was raised, one of which is the alacrity with which this case came to us, and one of which is the speed at which the court's gonna have to make a decision. And I think the real hesitance to go into the deeper of this pool means that we're not gonna get that kind of really thoughtful, necessary re Architecting of free speech that I think we all agree needs to happen. So the world in which we're in, I think we have to figure out what the right answer is within that world.

[Gautam Hans]

It's tempting. There were so many moments in the case where I thought of, you know, the famous garage door opener tech case, right? Like, where the justices are like, I don't know what I'm talking about right now. And there were certainly moments today. It seemed as though sort of the scope, the tech scope of what was going on was elusive for some of them, whereas the national security scope was really clear. And I wonder if that's why, like, when you get a national security case and a First Amendment tech case walking into a bar and you kind of don't understand some fundamentals, that it gets easier to sort of put your thumb on the scale of national security. I do want to sort of of at least say that I think, you know, if, as Mark suggested up top, you know, there's two rationales here. There's an easy one and a hard one. And the easy one is, oh, my God, they're collecting our data and using it in nefarious ways that we may or may not be able to explain or know about. And then this really, really very hard one, which is this is kind of a content moderation case that is about not liking the speaker. And it feels to me as though at some point Brett Kavanaugh kind of challenged Elizabeth Prelogger to say, like, more or less, and we'll just play it here like, I don't know how you want us to think about those two rationales. They're two completely different things. Which one wins in a foot race?

[Mark Joseph Stern]

How are we supposed to think about the two different rationales here and how they interact? The data collection rationale, which seems to me at least very strong, the COVID content manipulation rationale, as the hypotheticals have illustrated, raise much more challenging questions for you about how far that goes. And if that alone, if you didn't have the data collection piece, you only had the COVID content manipulation piece as. And then Mr. Fischer's point, Mr. Francisco's, that Congress would not have enacted this just based on the data collection rationale alone, just your understanding of how the two arguments fit together.

[Gautam Hans]

Mark, how does this shake out?

[Dahlia Lithwick]

I think it shakes out in Solicitor General Prelogger tacitly acknowledging maybe that the data privacy rationale is stronger. I think that for institutional reasons, she couldn't pick a favorite child here. But I do think that throughout the course of her argument, she was leaning more and more toward that rationale as the justices expressed concern about the sort of direct attack on speech that is potentially present in the other rationale. I just want to add, like, I think that there is an open question of whether the law can be sustained on one ground alone. TikTok and the content creators argued vociferously that Congress, Congress relied on both of these rationales, and if one of them is illegitimate, then the law has to fall and that they're sort of intertwined with each other. I don't know if I agree with that. I'm curious what Gautam thinks. I mean, to me, that would be a strong argument if this were like a regulation published in the Federal Register by the Department of Commerce. But this is an act passed by Congress, signed by the president, duly passed into law, that reflects the bipartisan concerns of the lawmakers who we have elected to represent and to protect our country. And I'm not one for mindless deference to the political branches, and I'm not one for endless flag waving in the face of serious free speech concerns, but it does seem to me that if these two rationales can be disentangled plausibly and one of them stands up on its own, then the court has got to let it stand up and not try to sort of bootstrap the forbidden justification to kill the whole law. I mean, Got him. Disagree with me if I'm wrong, but it seems to me that at least some deference here is owed to the decisions of Congress and that we shouldn't be encouraging five lawyers in robes to overrule their decision that easily.

[Mark Joseph Stern]

Yeah, I think that the disentangling question is hard because, you know, think back to the Obamacare cases when there was the debate about Commerce Clause power versus the taxing power. Those were very discreet, discrete, understandable, doctrinally distinct justifications. And ultimately the taxing power justification won out and the Commerce Clause won. Did not wrongfully, in my view, but that's what happened. I don't think this case is like that. I think that separating this is not like, you know, picking the nuts out of the salad. We're talking about some, like, sad frittata that none of us really want to be eating right now. You know, you can't just get the, you know, get the cheese out and be like, oh, I don't like eggs today. For me, I think at a fundamental level, I would really love the court to be more thoughtful about not overruling Congress or an agency all the time just because they don't like it. This is not the case where I want them to start doing that, because what's going to happen is what we fear about in the First Amendment, which is where the court is, oh, which speaker do we like today and which do we not do? I think the court does that all the time. Absolutely. I'm only some of a fool. I understand how these things work, but I don't think we should validate that kind of, you know, ad hoc decision making when it comes to sort of feelings. And we know that's where we are, but we don't have to agree that's where we should be. I do think that for me, there are more or less doctrinally justified ways that the court could go. I've always thought that they're not going to go the way that I want them to. And then there's the question about how do we stand bleeding? And I sensed that at the end of the argument, there was a little bit more awareness of that dynamic, that there might be some, like I said, cleaner off ramps that would be better for the messy sort of doctrinal questions that didn't really get the development over the course of years that this case would have taken in a normal situation. So, you know, we'll see if five people want to be prudent in the, the coming days and weeks, because as we also have, I think, some understanding, the timeline here is like, really fast, but also unclear as to how this is going to play out and when we can expect any kind of stay or decision or further action from the court.

[Gautam Hans]

Right. That's exactly where I think we should end on this question of the court's gonna do what the court's gonna do. And then in a very compressed amount of time, Donald Trump is gonna do what Donald Trump is gonna do. And this case all sort of slams right into. You mentioned this at the beginning, Gautam, but, you know, Trump was for the ban and then he was against the ban, and then he filed a brief saying he wanted to fix all the things with his, like, deal making ability. So he's everywhere and nowhere in this case. In some ways. How is this gonna play out in the next two weeks? What is gonna happen pragmatically, almost regardless? And there was a lot of conversation, is this going to go? Could they even divest? What happens if they don't divest? Do we get the pause? How does this play out in the very, very uncertain transition to an administration that really feels differently about this, at least today?

[Mark Joseph Stern]

My guess, and we're really in the realm of guesswork. So if and when I'm wrong, I'm happy to admit it, is that I expect that we will get a discretion decision on the stay request from TikTok and the creators pretty quickly to say that the stay is not going to be granted. The reason I think that that is probably going to happen pretty quickly is that I don't think there are other votes for a stay. There weren't before the argument and there certainly aren't after. So the close to zero possibility of a sale I think still is close to zero, if not zero. And the court maybe wants the company to continue to explore this divestiture avenue because that would prevent the shutdown. A decision could happen at any point. That's more reason, depending on how much depth the court wants to go into. And I think we're still unclear as to what they would do on that front. I have still sort of guessed that we might get a relatively short unsigned per curiam opinion next week before the ban would go into effect. That would give a better explanation as to why a state wasn't going to happen. Trump's amicus I think the technical term was messy and confusing, and I don't think there was a lot of appetite for that at our argument. I don't think that the future Trump administration's claims that they would enforce it or might not enforcement mean very much because there are other companies, Oracle, Apple, Google that are implicated by this law. And I don't think that those companies are going to rely upon the claims of a Justice Department that they're not enforcing it, given what it would mean to be out of compliance with a federal law that rests on national security grounds. So I think with all those sort of politics pretty obvious even to the justices, I would expect something that makes the future options for the company clear to the company so that they can figure out what, if anything, they want to do.

[Gautam Hans]

Same question to you, Mark. Just to play us home here, am I going going to be able to open my TikTok app? Ghan talked about briefly like nuts and salad and there was some cheese there and now all I can think about is TikTok pasta with feta. Am I going to be able to get my recipe next week?

[Dahlia Lithwick]

Mark, I think that you will not. I think that what will happen is, as Gautam said, the court will issue a short order or procure an opinion that allows the ban to take effect on January 19th. And you know, the way the law actually operates is that it prohibits app stores from continuing to carry TikTok. There's an open question of whether you'll be able to use it for a limited period of time even after the app stores shut it down. But I think it will die fairly quickly if the court allows it to. Then the big question again, as Gautam said, is, well, what if Trump comes in and says, surprise, Tik Tok is back. I'm ignoring this law. There were some gestures toward that possibility at oral arguments. I think the answer again is nobody knows, but that the app stores and big tech companies are going to be very hesitant to potentially subject themselves to penalties if Trump tries to suspend the law and the courts later shut him down. So I would say everybody, I know that Instagram reels is an inferior product. I know that you will never get as good a recipe for feta pasta, especially one pot feta pasta on reels as you did on TikTok. But start making the transition if you haven't already. Because otherwise, if you haven't switched to Instagram by January 19th, then you might not have a video app at your disposal at all and you might actually have to read a book and that is the worst fate of all.

[Mark Joseph Stern]

I would just say that that situation is probably what's going to happen. But that remains a First Amendment problem for the users who I think really can't be overlooked in this context. We have, you know, over 100 million people who use it on a monthly basis and I agree that sure there are other venues for experiencing similar front facing camera content, but just as I think Mark and Dalia, you would not say that I'm going to get the same experience listening to strict scrutiny or 5, 4. That also I think applies to TikTok versus Instagram and YouTube. Different speakers and different platforms have their own first amendment environment and a switch does have first amendment costs. That I think is what we're gonna have to keep in mind as we see how this fast moving situation plays out over the coming weeks.

[Gautam Hans]

Man, we were just hoist on the petard of rival Supreme Court podcasts. Mark, I'm just gonna sit in the nut based reality of that gottem. Hans is a clinical professor of law and founding director of the Civil Rights and Civil Lib Clinic at Cornell Law School. He analyzes through research and his advocacy how new and developing technologies implicate constitutional law, privacy and data protection, and public policy. And I really, really want to thank you for being here with us. It is clear we're all just formulating our thoughts on what just happened. And Mark Joseph Stern is of course, my co pilot on Amicus, Mark and Gautam, thank you both very, very much. This has been quite a marathon as oral arguments go and there is nobody I would have preferred to talk about it with. Thanks.

[Dahlia Lithwick]

Thanks Dalia.

[Mark Joseph Stern]

Thanks to you both and see you on the Internet.

[Gautam Hans]

And that is all for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions. You can keep in touch with [e-mail] or you can find [e-mail] Amicus podcast. As we said on our plus episode that was taped on Thursday night, our hearts and our thoughts are with our friends in LA in Southern California. We hope you are okay and that your families are okay. This week's Amicus plus bonus episode episode is already in your feeds. I am talking to the great Andrew Weissman about the Jack Smith Reports and about the Supreme Court's relationship with Donald J. Trump. You can always subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Or you can visit slate.comamicus+ to get access wherever you listen. Sara Burningham is Amic, Amicus is senior producer. Our producer is Patrick Fort, Alicia Montgomery is vice president of audio at Slate, Susan Matthews is Slate's executive editor and Ben Richmond is our senior director of operations. We will be back with another episode of Amicus next week. Until then, hang on in there.