Sharp China with Bill Bishop
Bonus Episode: TikTok Gets a Hearing at the Supreme Court
Date: December 18, 2024
Hosts: Andrew Sharp (A) & Bill Bishop (B)
Overview
In this emergency bonus episode, Andrew Sharp and Bill Bishop discuss the news that the US Supreme Court will hear the TikTok/ByteDance appeal regarding the Protecting Americans from Foreign Adversary Controlled Applications Act. The hosts analyze the unprecedentedly fast timeline, legal stakes, First Amendment issues, and political implications as the United States grapples with the prospect of banning TikTok. The episode dives into the Supreme Court’s order, the intricate legal and political backdrop, and the broader context of US-China tech relations.
Key Discussion Points & Insights
1. Supreme Court Grants Certiorari to TikTok/ByteDance
- [00:26] The Supreme Court has granted cert, agreeing to hear TikTok and ByteDance's appeal about the constitutionality of the TikTok ban.
- The main question: Does banning TikTok under the Protecting Americans from Foreign Adversary Controlled Applications Act violate the First Amendment?
- Expedited Timeline:
- Briefs due: December 27
- Replies: January 3
- Oral arguments: January 10
- Decision expected before January 19, prior to the administration change.
Quote:
"The Supreme Court has officially granted cert to TikTok and ByteDance... An extremely expedited schedule. Any thoughts on where we stand here?"
— Andrew Sharp [00:26]
2. The Stakes for TikTok
- [01:24] Bill notes this is a "good news for TikTok" as they're getting their days in court with hope of prevailing.
- The decision will eliminate ambiguity about the process and the constitutional validity of the law.
Quote:
“I'm actually really glad that this will be decided by the Supreme Court because it will leave no room for doubt about the process and the constitutional validity of the law. And the act of banning TikTok is a really big deal.”
— Andrew Sharp [01:46]
3. Legal Intricacies: First Amendment and Algorithms
- They discuss the unresolved legal questions:
- Does TikTok US, as a ByteDance subsidiary, have First Amendment rights?
- What level of constitutional scrutiny should apply?
- Does targeting the algorithm amount to content-based speech regulation?
- The court’s NetChoice decision earlier this year found algorithms to be “expressive conduct,” complicating government attempts at regulation.
4. D.C. Circuit’s Ruling & Its Implications
- Sharp reads key passages from the D.C. Circuit Court’s opinion, emphasizing:
- The law targets foreign adversary control, not content censorship.
- Content could, in principle, remain unchanged after divestiture.
- TikTok hasn’t squarely denied manipulating content at the PRC's direction; this silence is described as “striking.”
- [07:04] Bill and Andrew express interest in whether Supreme Court justices will directly ask TikTok about PRC-directed content manipulation.
Quote:
“Notably, TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC. Its silence on this point is striking...”
— D.C. Circuit opinion read by Andrew Sharp [06:32]
5. Political Context & Trump Administration Dynamics
- Speculation about how a potential Trump administration would handle TikTok, and whether he’d attempt to undo the law or offer only token compliance.
- Sharp notes the history of people trying to control Trump and ending up being controlled by him.
- Political tension within the Republican Party, with some members instrumental in passing the law now possibly joining a Trump administration.
Quote:
“When you look back at the last 10 years of Trump in politics, there have been a lot of people who have partnered with Trump thinking that they could control him or change him, only to turn around and find out that Trump was actually changing them or controlling them.”
— Andrew Sharp [09:10]
6. Broader US-China Tech and Trade Reciprocity
- Bill points out the hypocrisy of US tech access in China versus Chinese apps' (like TikTok) access in the US.
- Discussion of "reciprocity" in trade and digital access: platforms like Meta, Google, YouTube are banned in China while TikTok operates freely in the US.
Quote:
“It's a quite glaring sort of spotlight on the hypocrisy here.”
— Bill Bishop [12:13]
7. Integrity of the Process & Rule of Law
- Both hosts underscore the importance of transparent, legal U.S. proceedings, contrasting this with lack of recourse for U.S. firms in China.
- They agree the Supreme Court’s action ensures TikTok/ByteDance has a fair and exhaustive hearing.
Quote:
“Not many [American companies] have had their day in court in China. That's one of the reasons, like, the integrity of the process here is important...”
— Andrew Sharp [14:30]
8. Practical Consequences & Legal Workload
- Lighthearted note on how the hurried schedule is “great news for the partners” at the law firms, but awful for associates who will have a ruined holiday season.
Quote:
“It's really terrible news for the poor four associates at Jones Day who just had their holidays completely nuked...”
— Andrew Sharp [15:57]
Notable Quotes & Memorable Moments
| Timestamp | Speaker | Quote | |-----------|---------|-------| | 01:46 | A | "I'm actually really glad that this will be decided by the Supreme Court because it will leave no room for doubt about the process and the constitutional validity of the law." | | 06:32 | A (reading) | “Notably, TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC. Its silence on this point is striking…” | | 09:10 | A | “...people who have partnered with Trump thinking that they could control him or change him, only to turn around and find out that Trump was actually changing them or controlling them.” | | 12:13 | B | “It's a quite glaring sort of spotlight on the hypocrisy here.” | | 14:30 | A | “Not many [American companies] have had their day in court in China. That's one of the reasons, like, the integrity of the process here is important...” | | 15:57 | A | “It's really terrible news for the poor four associates at Jones Day who just had their holidays completely nuked...” |
Important Timestamps
- 00:26 — Supreme Court grants certiorari and sets an expedited schedule
- 03:06 — Discussion on potential timing and process for a Supreme Court decision
- 06:32 — Reading and analysis of D.C. Circuit’s First Amendment reasoning
- 09:10 — Trump’s history of upending the expectations of people trying to “control” him
- 12:13 — Discussion on US-China digital access and the principle of reciprocity
- 14:30 — Emphasis on integrity of the US legal process compared to China
- 15:57 — Impact on lawyers due to the Supreme Court’s briefing schedule
Tone & Language
- Reflective, analytical, occasionally irreverent and humorous—typical Sharp China banter.
- Mixes high-level policy/legal analysis with candid appraisals of the political players.
Conclusion
This Sharp China bonus episode draws out the legal, political, and international complexities of the U.S. Supreme Court’s hearing on the TikTok ban. Bill and Andrew highlight the stakes for US-China relations, due process, digital trade hypocrisy, and the unpredictability of Trump-era politics. They agree the Supreme Court’s involvement ensures legitimacy and transparency in this consequential tech showdown—while sending some lawyers scrambling through their holidays.