POLITICO Tech Podcast Summary: “It’s TikTok Day at the Supreme Court”
Release Date: January 10, 2025
Host: Stephen Overleight
Guest: Alan Rosenstein, Law Professor at the University of Minnesota Law School and Senior Editor at Lawfare
1. Introduction to TikTok’s Supreme Court Hearing
In this pivotal episode of POLITICO Tech, host Stephen Overleight delves into the imminent Supreme Court hearing concerning TikTok’s potential ban in the United States. Scheduled to be decided within nine days from the episode's release, the case centers on whether TikTok should remain accessible on major app stores like Apple and Google.
Stephen Overleight explains the gravity of the moment:
"TikTok is finally getting its moment in front of the Supreme Court... today, the company will try to convince the court to strike the ban down or at least put it on hold for now." [00:30]
2. TikTok’s Legal Battle and Past Court Decisions
Alan Rosenstein provides a historical context, recalling TikTok’s previous challenges against the ban at the D.C. Circuit Court, which resulted in a unanimous 3-0 decision against TikTok in December.
Alan Rosenstein expresses skepticism about TikTok’s chances:
"I'm skeptical that TikTok will get a better reception in the Supreme Court... but obviously we'll have to wait and see later this morning what the justices think of TikTok's argument." [01:58]
3. Potential Supreme Court Outcomes
The discussion outlines three potential actions the Supreme Court could take regarding the TikTok ban:
- Uphold the Law: The ban goes into effect.
- Strike Down the Law: Reversing the D.C. Circuit’s decision, allowing TikTok to remain operational.
- Pause the Law: Temporarily halting the ban to facilitate negotiations or find a compromise.
Rosenstein remains doubtful about an unprecedented pause:
"I'm very skeptical that the Supreme Court will do that... based on traditional legal principles... there is no basis in law for the Supreme Court to pause a duly enacted and otherwise constitutional act of Congress." [03:24]
4. Political Influences and Trump's Involvement
The episode highlights President-elect Donald Trump’s intervention, requesting the Supreme Court delay the ban until after his inauguration to explore potential solutions with ByteDance, TikTok’s parent company.
Overleight probes the influence of Trump's request:
"How likely are they to kind of factor Trump's wishes into their decision? And is there any kind of precedent for that happening?" [04:38]
Rosenstein responds cautiously:
"So the last question is easiest to answer, and the answer is no, there's not really any precedent for something like that to happen..." [05:14]
He emphasizes that Supreme Court justices, regardless of political appointments, do not feel beholden to Trump and are likely to decide based on legal merits rather than political pressure.
5. First Amendment vs. National Security
A significant portion of the discussion centers on the fundamental legal debate: the First Amendment rights of TikTok users versus national security concerns posed by the app’s Chinese ownership.
Rosenstein elaborates on this dichotomy:
"You have TikTok, which is a US company and it has free speech rights... on one side, you have the national security concerns, concerns about data privacy and concerns about manipulation of the algorithm and the platform by the Chinese." [07:41]
He explains that the D.C. Circuit upheld the ban by emphasizing that national security overrides the free expression rights in this context, a nuance he expects the Supreme Court to consider similarly.
6. Evaluation of Government Evidence
Stephen Overleight raises concerns about the Biden administration and Congress’s presentation of evidence supporting the national security threats allegedly posed by TikTok.
Overleight:
"It seems to me the Biden administration and Congress have not fully laid out the evidence that they have for why TikTok and its parent company, ByteDance, pose a national security threat." [09:59]
Rosenstein counters by clarifying that much of the critical evidence is classified and was already presented to the D.C. Circuit. He asserts that despite the lack of "smoking gun" evidence, the cumulative risks justify the ban.
"There's no smoking gun, but there's a gun, it's loaded, it's pointed at us, the finger is on the trigger." [10:35]
7. Public Opinion and Political Ramifications
The conversation shifts to the broader implications for President-elect Trump, who will inherit the ban upon taking office. The potential public backlash from TikTok’s 170 million American users poses a significant political challenge.
Rosenstein speculates on user reaction and platform resilience:
"I suspect people will be extremely angry for a while... but I'm skeptical that it's orders of magnitude better [replacements]." [16:26]
He questions the long-term viability of the ban, suggesting that market alternatives might mitigate TikTok’s disappearance, thereby reducing sustained public dissent.
8. Conclusion and Future Outlook
As the Supreme Court’s decision looms, Rosenstein remains uncertain about the immediate and long-term outcomes. He underscores the complexity of balancing national security with free speech and anticipates that the Court will uphold the ban, reinforcing the precedence that national security concerns can supersede certain constitutional rights.
Rosenstein:
"It's very hard to predict and we'll just have to see how this shakes out." [17:21]
Overleight concludes the episode by emphasizing the significance of the upcoming weeks in determining the future of TikTok in the United States.
This episode of POLITICO Tech provides an in-depth analysis of a landmark case at the intersection of technology, law, and international politics, offering listeners comprehensive insights into the potential ramifications of the Supreme Court’s decision on TikTok’s American presence.