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Strict Scrutiny
SCOTUS Unanimously Upholds TikTok Ban
00:38:05
In the first emergency episode of 2025, Kate, Leah, and Melissa break down the Court’s unanimous decision to uphold the upcoming TikTok ban in the United States. They cover the implications and possible unintended consequences, and Leah bids farewell to her personal Chinese spy.
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- [00:00]
Leah Littman
This show is sponsored by BetterHelp. What do you want your 2025 story to be? Every January brings you 365 blank pages waiting to be filled, and we know at least some of them are going to be in the horror genre this time around. But you still have to write your own narrative within that. So in 2025, maybe you're ready for a plot twist. Or maybe there's a part of your story you've been wanting to revise. You can think of therapy as your editorial partner, helping you write new chapters and create the story you deserve to live. I've personally benefited from therapy. In fact, one of my favorite people's favorite pieces of advice is that every lawyer needs at least one therapist. There's therapy for the small stuff, everyday stuff, just to cope with all of the bs. I'm not going to name names here. Then there's therapy for the big stuff. I know I added on some a lot of extra therapy in the wake of my accident this past summer and after as I'm figuring out what my new normal is going to be. One huge plus for BetterHelp is that it's fully online, which makes finding time to do an appointment so much easier because you can do it from anywhere. You can also easily switch therapists anytime at no extra cost, and that helps you find someone you really click with. Write your story with better help. Visit betterhelp.comstrict to get 10% off your first month. That's BetterHelp. H E L P. Mr. Chief justice, please report.
- [01:28]
Melissa Murray
It's an old joke, but when I.
- [01:31]
Leah Littman
Argue man argues against two beautiful ladies.
- [01:33]
Melissa Murray
Like this, they're going to have the last word.
- [01:37]
Leah Littman
She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Foreign.
- [02:07]
Melissa Murray
Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.
- [02:15]
Leah Littman
I'm Leah Whitman.
- [02:16]
Kate Shaw
And I'm Kate Shaw. It is only the third week of 2025 and we are somehow already issuing emergency episodes for reference. That didn't happen until Febr of 2024, so that may give you some indication of what we are likely in for the occasion.
- [02:31]
Leah Littman
For this one is the Supreme Court's decision in the Tick Tock case, Tick Tock versus Garland, though I think we're going to shorten it to Tick Tock Block. I don't know, a little, right Tick.
- [02:40]
Kate Shaw
Tock Divestiture block I think is more accurate, but that doesn't have the same.
- [02:43]
Leah Littman
That doesn't to it.
- [02:44]
Melissa Murray
Okay, that does not work.
- [02:46]
Kate Shaw
Just trying to be accurate. We are, we are dispensing reliable.
- [02:50]
Melissa Murray
What is accuracy on the algorithm? Kate?
- [02:52]
Leah Littman
Nothing Exactly. Alternative facts. TikTok block. A week after the oral argument in the case, the court released its per curiam opinion. Per curiam just means the opinion was unsigned. It doesn't identify the author. The opinion is also unanimous, joined by all of the justices, although Justices Sotomayor and Gorsuch wrote separate concurring opinions as well.
- [03:11]
Melissa Murray
And as expected, because all joy must die at 1 First street, the court denied TikTok and TikTok's users request for an emergency injunction against the law that will effectively ban TikTok in the United States. This means that the law will go into effect in two days, at which point it will be illegal for US applications and platforms like Apple or Android to host and service TikTok. So in other words, the app isn't just going to disappear from your phone if you already have it, but it is going to become relatively unusable in a relatively short period of time because those platforms where you get your apps and your updates won't be able to provide an update for TikTok. And TikTok issues updates updates for its app probably around twice a week. So it's going to be obsolete relatively soon.
- [04:00]
Kate Shaw
But just as Melissa was saying, to be clear, the law doesn't operate directly on users, so it does not become unlawful for you to continue to check tick tock in the interim. But also, as Melissa was just saying.
- [04:09]
Melissa Murray
Unless I'm your mother and then it.
- [04:11]
Kate Shaw
Does and then it's gonna, it's definitely criminal not telling, gonna tell my kids.
- [04:18]
Melissa Murray
It'S a total ban.
- [04:19]
Kate Shaw
A total ban.
- [04:20]
Melissa Murray
Can't use.
- [04:21]
Kate Shaw
But okay, in terms of what this means on the ground, we're gonna, in this short emergency episode, go through what happens or might happen next. So again, more of the practical fallout and also of course, the opinion and what it said.
- [04:31]
Leah Littman
And it will be sprinkled in with my anguished, forlorn messages about the demise of TikTok. Hopefully they will reach my Chinese spy, my personal Chinese spy who literally got me through my elbow accident and gave me the will to live. Like, I have to say, I knew this was coming and yet it still made me very sad. Like I woke up this morning and watched and looked at extra TikTok. You know, I've previously obviously like referred to it as like a dance app. It's so much more than that, as will become clear throughout the episode. Like the love notes, the Recent posts on TikTok from everyone to their Chinese spy, like they're hilarious. They have just left me gagged. I love it. No apologies.
- [05:15]
Melissa Murray
I think I'm a little more sanguine about the demise of TikTok, mostly because literally my children would rather watch TikTok videos than read books and that leaves me feeling some kind of way but for the constitutional aspects in the court, yes, I'm with you Leah. For everything else, I don't know, like I hope you all find maybe I'll.
- [05:34]
Leah Littman
Convince you by the end.
- [05:35]
Melissa Murray
Maybe again, like I'm in the middle somewhere. Not. Not really sure how to feel. But let's talk about what might happen next for TikTok. So TikTok might come to an end in a slightly different way than what you might anticipate given the court's opinion. So not just that it might become unusable or obsolete. According to some reports, the company plans to take the platform completely offline on Sunday once the ban goes into effect. And because we live in the most chaotic of times, there's just a good deal of uncertainty about what might happen next. So let's tick through a couple of scenarios.
- [06:13]
Leah Littman
Tik Tok Tick through Tik Tok. Tik Tok on the clock.
- [06:17]
Kate Shaw
Here we go. So one just in terms of injecting real uncertainty into the discourse, NBC has reported that the Biden administration does not plan to levy billions of dollars in fines against companies that allow access to TikTok in the U.S. according to two administration officials. Quote, the administration has decided to defer implementation of the law banning Tik Tok in the US to the incoming Trump administration. So I think what this means is, even though by its terms the law goes into effect on January 19, Wall Biden is still the president. They're just going to pretend it doesn't and just pass the hot potato to the Trump administration to do something about this mess. Which I just want to say that all strikes me as great on the eve of Trump's inauguration for the outgoing administration to openly embrace the position that laws passed by Congress are optional. So nice work, guys.
- [07:08]
Leah Littman
Love to see it. But in any case, it's not even like that promise, or even if Donald Trump made a similar promise promise not to enforce the law, that any of that would ensure TikTok's continued availability because the law imposes $5,000 in fines per user with a statute of limitations of five years. So that would be billions of dollars in liability. And because the statute of limitations is five years, the next next administration, whoever that is, could still seek to impose those fines even if the incoming Trump administration does not.
- [07:39]
Melissa Murray
Now President elect slash consummate dealmaker Donald Trump is also reportedly making trying to keep TikTok available in the United States. There are reports that Trump is exploring ways to extend the deadline of the law. The act permits the President to grant a one time extension of no more than 90 days with respect to the prohibition's effective date if the President makes certain certifications to Congress that there is enough progress toward a qualified divestiture. And it's not entirely clear how Donald Trump would do this or what all of that would entail. But perhaps anticipating that there is some kind of executive action forthcoming, Congress debated the possibility of an extension on Thursday. And let's just say that not everyone in the Republican coalition is in line with the President Elect with regard to their affinity for TikTok. Let's hear from Senator Tom Cotton.
- [08:35]
Leah Littman
TikTok isn't just another social media platform. TikTok is a Chinese communist spy app that addicts our kids, harvests their data, targets them with harmful and manipulative content, and spreads communist propaganda. So let me be crystal clear. There will be no extensions, no concessions, and no compromises for TikTok.
- [08:58]
Melissa Murray
Real question will TikTok be the straw that broke the camel's back of the conservative coalition? Please say yes.
- [09:05]
Leah Littman
Raw Next question. But you know, no matter the answer to that question, I want to ensure one Samuel Alito that it will be okay. People will still be able to read the stories that are available on pornhub. And if you you don't understand that reference, stay tuned for our next episode.
- [09:22]
Kate Shaw
So Trump is also reportedly considering making a determination that would allow Tik Tok to continue not just temporarily but, you know, indefinitely in the United States. The law, by its terms, says that TikTok cannot operate unless there's a substantial divestment from ByteDance, the Chinese company. So if the President determines that there has been substantial steps toward that divestment, then the platforms would be able to host and service Tik Tok. The way the law works is that a qualified divestiture is supposed to be one that the President determines will result in the application no longer being controlled by a foreign adversary. And if Trump goes this route, he's likely to make this determination, but unclear whether that will actually rest on a real substantial divestment. But hey, the law is optional anyway.
- [10:06]
Leah Littman
And facts don't matter. We know that from The Supreme Court too. Right. So it's all just kind of up for grabs. Another thing that is in the works is Donald Trump is, as his solicitor general nominee told the Supreme Court, attempting to negotiate some kind of deal. And since he is also, according to his solicitor general nominee, the consummate dealmaker, who knows what will come of that?
- [10:28]
Melissa Murray
I'm really hoping that one thing that comes from it is a new Mark Burnett show, the Apprentice TikTok version where contestants vie to run TikTok for Donald.
- [10:38]
Kate Shaw
Trump and we can the president that we're going to have in 20 years. And I really, that's how it's going to work.
- [10:45]
Melissa Murray
That's how we pick presidents these days.
- [10:47]
Leah Littman
I don't want to experience that show without TikTok though. Right. Because like, it makes those things all the more fun when you have all of these different people piling on and satirizing them and. Yeah. Anyways, so all of this is to say that in what may end up being one of the more remarkable self owns, Democrats may have turned themselves into the party that attempted to kill TikTok and Trump will be the one to have saved it. Truly genius move. Sam Alito is literally cackling to himself. And you know, Donald Trump could get credit even though he was the first president to explore banning TikTok. You know, he tried to do it with an executive order that was blocked by courts.
- [11:27]
Kate Shaw
Okay. As is probably clear from this discussion, the point is that there is a lot that is in flux and the situation is quickly developing. We are recording this, you know, about an hour after the Supreme Court issued its order on Friday. So maybe let's turn to that now. What did the Supreme Court say in this order to get to this result? So it assumed that the law triggered some kind of First Amendment scrut scrutiny, but it concluded that the law was content neutral, which meant the law wasn't subject to strict scrutiny, but rather intermediate scrutiny.
- [11:54]
Melissa Murray
The standard of review, I. E. Whether strict scrutiny or intermediate scrutiny or the lowest level review, rational basis review applies, is really important here because the standard of review dictates how closely the court will look at the law and whether the court will make extra sure that the government's stated purpose for the law is in fact its actual purpose, or and whether the court will look closely to see whether the law's restrictions on speech advance those stated aims and do so in a way that is no more restrictive than necessary to advance those aims. So here, for example, the court rejected the petitioner's proposed alternatives that would have been less restrictive to TikTok, like, for example, having a disclosure requirement that disclosed that TikTok and ByteDance had some kind of ties to the Chinese government. The court rejected that argument on the view that there is latitude that the courts afford the government for designing regulatory solutions. And these are entirely pertinent when you're in that intermediate standard of review. So not as strict as strict scrutiny, not as deferential as rational basis. But even in that intermediate area, there's some latitude that the government is owed.
- [13:04]
Leah Littman
Some third thing where the government apparently just wins when it says national security.
- [13:09]
Melissa Murray
Feels a little bit like rational basis, but.
- [13:11]
Leah Littman
Right, exactly. So why did the court conclude that this law was content neutral? You know, a content. Content based regulation is something that applies to particular speech because of the topic or message, whereas a content neutral law is one that still restricts speech, but not because of its content. So here the government said it was restricting speech because a platform was effectively owned and controlled by a foreign adversary who was determined to be hostile to the United States.
- [13:36]
Kate Shaw
So the court focused in its discussion on the data protection data collection rationale and found that that was sufficient to uphold the law. And this is kind of how we predicted when we discussed the oral argument in the case. So the government had actually offered two just justifications for the law. First, that the ban prevented China from collecting data that it might use for blackmail, corporate espionage, things like that. And then the second justification was that the ban prevented China from covertly manipulating what content users see. The first of these rationales, the data collection rationale, is much more removed from the content of what's available on TikTok, what the algorithm recommends, and therefore it is just further afield from the First Amendment, so that it merits a less stringent standard of review.
- [14:18]
Melissa Murray
Although some might argue that the content manipulation rationale is in fact content based. But in this case, the court said it didn't have to consider whether that rationale would trigger strict scrutiny because, quote, the record before us adequately supports the conclusion that Congress would have passed the challenge provisions based on the data collection justification alone, end quote. So nothing to see here, folks.
- [14:45]
Leah Littman
So that part of the opinion is a little concerning to me because it made me wonder, are they going to, in other cases allow governments to basically hide or get away with content based justifications motivations by covering them up with and citing content neutral justifications as well?
- [15:02]
Kate Shaw
Well, in particular ones that sounded national security rationales, right? Yeah, I think that's genuinely concerning.
- [15:07]
Melissa Murray
Yes. This is me staring in Arlington Heights. This is basically what the court does in Situations where you have facially neutral laws that have discriminatory impact on the courts. Like, no big deal because you didn't actually write into the letter of the law that you were going to be discriminating. And so here we go. Same thing.
- [15:24]
Leah Littman
Yeah. So as to that content neutral data collection rationale, the court emphasize about how the reporting has suggested TikTok's data collection practices include gathering stuff like age, phone number location, Internet address, phone contacts, social network connections, and the content of private messages, you know, that are sent through the application as well as the videos people watch. And it rejected the suggestion that the law was problematic because there was not yet evidence that China was using the data for blackmailer espionage or because there wasn't yet evidence China manipulated the algorithm. The court wrote, quote, even if China has not yet leveraged its relationship with ByteDance to access US TikTok users data, petitioners offer no basis for concluding that the government's determination that China might do so is not at least a reasonable inference based on substantial evidence. End quote.
- [16:14]
Kate Shaw
So the court avoided grounding its ruling on the idea that the law operates only on bite dance. And the court also didn't say that the law was fine because it merely regulated the owner of the platform. So the court seemed to recognize that laws favoring some speakers over others sometimes do reflect a view about content, but that other times they don't. And the court did take pains repeatedly to emphasize the narrowness of its ruling. So here's one representative quote. TikTok scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justified differential treatment to address the government's national security concerns. And in a few passages, it actually drove me insane. I don't know about you guys, but the court defensively was like, this is all pretty tentative and sketchy because we had so little time to consider and decide the case. This is really one of these ticket for one ride only kinds of opinions. Don't take much First Amendment content from.
- [17:04]
Leah Littman
What we are saying, which take anything we say seriously. It's not like law in the real sense.
- [17:10]
Kate Shaw
It's like my guys, you know, first of all, like, you did not have to take this case at all. This was a case the D.C. circuit had already decided and had already upheld the law. So all the Supreme Court did was take the case, write a very rushed opinion saying, yeah, D.C. circuit, you got it right. The D.C. circuit also used intermediate scrutiny.
- [17:32]
Leah Littman
They didn't even differ.
- [17:33]
Kate Shaw
No, they did nothing very different, except for they casually dropped A lot of, you know, first amendment doctrine that again, they are trying to control the application of. But good luck with that. So awesome.
- [17:42]
Melissa Murray
It's a he, Pete. It's a hep heat. And they are literally sloppy. We didn't have enough time. If this is really sloppy, it's because we were rushed. They rushed us.
- [17:50]
Leah Littman
I mean, yeah, very masculine energy in this he peat.
- [17:55]
Kate Shaw
In some ways, that's the most masculine energy.
- [18:00]
Melissa Murray
Well, we're going to get there. But Neil Gorsuch has some real conservative grievance energy in his concurrent strength too.
- [18:07]
Leah Littman
So we'll get there.
- [18:08]
Melissa Murray
Tie a knot.
- [18:11]
Leah Littman
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- [21:49]
Melissa Murray
All right, so this is just an opinion about the First Amendment the Court repeatedly says, and what the government can do when it comes to speech by just invoking national security. And it does all of this on the eve of the second Trump administration. So. So despite the Court's professed narrow decision, it does feel like this is really consequential and indeed, maybe giving the Trump administration going forward some real ammunition in which to be fast and loose about First Amendment concerns in the context of national security. And again, the court seems to be saying, like, national security might be a get out of jail free card. I know we keep saying that, but there are a lot of get out of jail free cards going around.
- [22:30]
Leah Littman
Yeah, they love to dish them out, either to Trump directly or on the eve of his administration. It's just like a really great time, guys, to be emphasizing the large amount of deference given to the federal government whenever it invokes national security in the context of a constitutional challenge. I can't imagine what could possibly go wrong here.
- [22:48]
Kate Shaw
Right. And to go back to what I just said, you know, they didn't have to take it at all. They didn't have to take it and decide it. And. But maybe actually they did because they wanted to just write something as a little inauguration Eve gift to Trump that says you get a lot of leeway if you just say these magic words.
- [23:01]
Leah Littman
It's got real. That guy in your law school section. Energy. Right. The Court always insists they need to be the ones to say something, even if doing so makes it worse. Well, it's actually.
- [23:13]
Melissa Murray
It's that guy. Energy. Two minutes before class is supposed to end.
- [23:16]
Leah Littman
Yes.
- [23:17]
Melissa Murray
Yeah. I mean, that's the guy, and that's the energy. Yeah.
- [23:22]
Leah Littman
So I wanted to highlight one additional passage from the opinion, which is near the opening, where the Court said, quote, as justice Frankfurter advised 80 years ago in considering the application of established legal rules to the, quote, totally new problems raised by the airplane and radio, we should take care not to, quote, embarrass the future, end quote.
- [23:40]
Melissa Murray
Too late.
- [23:41]
Leah Littman
Right. You guys already do that enough in your other opinions and extracurriculars, so I guess you didn't want to do so here.
- [23:48]
Kate Shaw
But don't they embarrass the present as well?
- [23:50]
Leah Littman
Yes.
- [23:50]
Kate Shaw
It's not just past and the past.
- [23:52]
Leah Littman
Future. Right. They do not discriminate. Content neutral, history neutral, time neutral, all of it.
- [24:02]
Melissa Murray
Let's talk about the separate writing. So Justice Sotomayor wrote a very short concurrence in which she made clear that while she joined most of the Court's opinion, she didn't join all of it. She would not have joined Part 2A, I think it was, which is where the Court talked about whether or not the First Amendment was implicated. She said, there really is no question here, based on our precedent, that the First Amendment is, in fact implicated. The procurement opinion of the Court Assumed without deciding that the First Amendment was implicated. She was like, yes, correct. Move on.
- [24:36]
Leah Littman
Justice Gorsuch spent 4ish pages, several of them bitching about how quickly the court had to act in the case, which prevented him from writing more of his usual drivel. He said, quote, we have had a fortnight to resolve finally, and on the merits, a major First Amendment dispute affecting more than 170 million Americans. Given those conditions, I can sketch out only a few and admittedly tentative observations, end quote. If they're tentative, why bother sharing them? Work them out on the remix. My guy.
- [25:09]
Kate Shaw
He can't help himself.
- [25:10]
Leah Littman
No, he can't.
- [25:10]
Melissa Murray
Love the use of Fortnite.
- [25:12]
Leah Littman
Like, ahoy, you stay. You keep Taylor Swift out of your fucking mouth, Neil. He also says he's not sure the law doesn't trigger strict scrutiny. What? And doesn't like deciding what level of scrutiny applies. Like being forced to do actual law is kind of a drag on him.
- [25:31]
Kate Shaw
Okay, wait, can I actually just like weirdly come to the defense of Neil Gorsuch? Some of the energy in that separate concurrence was a little bit. Justice Stevens. Like, sometimes these, like, tiers of scrutiny, we like, pretend, create these sort of formal categories in the world. So that is the charitable reading is he was. At least he was evincing some, I think.
- [25:46]
Leah Littman
Consider the source, Kate.
- [25:48]
Kate Shaw
Consider the source. There is like a kernel of insistence.
- [25:52]
Leah Littman
No, it needs to be read in the context of these Trump appointed judges being like, let's just do away with the tears of scrutiny and do history and tradition instead. Right. That is what Neil Gorsuch. Right. Is gesturing.
- [26:02]
Kate Shaw
Not in the tradition of John Paul Stevens.
- [26:04]
Leah Littman
No. Okay.
- [26:05]
Melissa Murray
And to be fair, this is a four page writing where I think the most important thing he wanted to get out was that we didn't have enough time. Like, this isn't my best work.
- [26:15]
Leah Littman
Right.
- [26:15]
Melissa Murray
Right.
- [26:16]
Leah Littman
I wanted to do 40 pages.
- [26:20]
Melissa Murray
Less on the tears of scrutiny, more on like, this isn't Neil at his best and fair.
- [26:25]
Leah Littman
Right. It isn't Neil, the conservative grievance energy. He is always the victim. Right.
- [26:29]
Melissa Murray
He did talk about their own scheduling choices.
- [26:32]
Kate Shaw
He is the victim of that.
- [26:33]
Leah Littman
He's a victim of John Roberts. That's. So he talked about that.
- [26:37]
Melissa Murray
I mean, he talked about the importance of these issues because there are so many social media platforms that engage in the censorship of conservative viewpoints. So that is in there. And he made sure to put it in.
- [26:49]
Leah Littman
But he concluded even though strict scrutiny might apply, he wasn't so sure that the law would be constitutional under any level of scrutiny, as Kate was suggesting. Charitably, to me, this wasn't the most annoying Neil Gorsuch separate writing, but I just wasn't in the mood for it right now on the eve of TikTok. Not the guy I wanna hear from.
- [27:09]
Melissa Murray
It's raw for you right now.
- [27:10]
Kate Shaw
It's true.
- [27:11]
Leah Littman
No, it's not raw for me right now in the sense in which I invoked it earlier.
- [27:17]
Melissa Murray
I just think you're in your feelings right now.
- [27:19]
Leah Littman
Yes. No, I am in my feelings because now we are going to be experiencing the release of reputation. Taylor's version without TikTok, without all of these TikTok sleuths to find all of the amazing Easter eggs and nuggets in there. I mean, again, my personal Chinese spy gave me the will to live this summer by showing me all of the Eras tour surprise songs from the night before whenever I would wake up to do my physical therapy. Without TikTok, I wouldn't know what color Taylor Swift's nails were at all of these things. We wouldn't have the Apple Dance. We wouldn't have just like all of these, like, amazing different communities that are fun, funny, entertaining. And again, I understand the problems with social media. TikTok in particular. I think people should both read books and use social media. But it's a loss for me. I am sad.
- [28:12]
Kate Shaw
But it may just be that you're gonna have some broligarch and his algorithm.
- [28:16]
Leah Littman
Yeah.
- [28:17]
Kate Shaw
Trying to cheer you up first thing in the morning. Right.
- [28:19]
Melissa Murray
So I also want to emphasize, for whoever might be listening, the Chinese spy is a metaphor. Like she is just joking around. Don't. Actually, it's a joke.
- [28:27]
Leah Littman
Again, it goes to something that came up during the argument, which is everybody on TikTok knows that there's some affiliation between the platform and the Chinese government because people were just TikToks that are jokingly addressed to my personal Chinese spy, evincing. Right. Their awareness that China is in fact watching and monitoring them. And it is. You know, they were also. Well, I'll get to what they were also doing a little bit later, but back to the tech oligarchy, because one possibility coming out of all of this is this is going to become another kind of manifestation or expansion of the tech oligarchy. So the platform's CEO, Shozi Chu, was among the many tech executives who visited Trump's country club Mar a Lago last month.
- [29:16]
Melissa Murray
Can I just add, like, this is the same guy who appeared before Congress and Tom Cotton, whose views about. Oh, yeah, we have now shared, literally peppered Him. Not even just like. Like, kind of assaulted him with questions about.
- [29:29]
Leah Littman
He was like, aren't you Chinese?
- [29:30]
Melissa Murray
He's like, no, dude, I'm from Singapore. Have you ever had another passport? Nope. Just Singapore.
- [29:35]
Kate Shaw
Nope.
- [29:35]
Melissa Murray
Ever applied for citizenship anywhere else? Nope. Just Singapore. Yeah, I mean, it was a lot, but I'm just like. But he's at Mar A Lago, bending the knee, like, right?
- [29:45]
Leah Littman
And at the same time, you know, Shozi Chu is there. Mark Zuckerberg. Mark Zuckerberg, way cuddler. He is the bear.
- [29:54]
Melissa Murray
Don't choose that bear.
- [29:56]
Leah Littman
Yeah, don't choose that bear. Choose the other bears. Mark Zuckerberg signed bears. Any bear, really, who leads Meta, you know, owns Facebook and Instagram, is also right. Groveling before Donald Trump and potentially stands to benefit from a TikTok ban. And this law could maybe shift control over TikTok to a US billionaire and an aspiring or current oligarch. You know, these considerations pull in different directions when you're thinking about what they might lead Donald Trump to do. But the point is, the appearance of corruption influencing the decision is both stark and foul.
- [30:31]
Kate Shaw
And in addition to the Mar A Lago visits that you just mentioned, I'm pretty sure all these guys are going to be at the inauguration on Monday. So as the master dealmaker assumes control of the nuclear codes and the world's most powerful military, maybe he can do a side deal to see which brologarch is going to get the rose to become the next head of TikTok. So, you know, get a lot done in one day.
- [30:54]
Melissa Murray
Okay, that is truly dark and deep. Let's identify some of the unintended consequences of the TikTok ban, things that maybe the court did not really anticipate coming when they issued this decision. So one thing that has happened is because of the impending ban, the most downloaded app among leading app stores in the United States this week. Week was another Chinese social media app, this one called Xiaohengshu, which means little red book, like Mao say tongues Little red book, but it uses as its English name RedNote, and this one is actually run by the Chinese government. So kind of an epic fail here, guys. The app's terms reportedly include things like, you have to agree to be a member of the Chinese Communist Party and.
- [31:48]
Kate Shaw
Uphold socialist values, and America's young people are just flocking.
- [31:53]
Melissa Murray
Yes. Like, did John Roberts see this coming? I don't know. Amanda Hess of the New York Times described what is happening on Red Note in this way. Quote, Chinese power users and American newbies are spontaneously performing a Mocking burlesque of national security policy. End quote. Great job, America.
- [32:15]
Leah Littman
You're great. Yeah. So Those are the TikTok refugees already mentioned. You know, the Chinese spy videos that people are making on TikTok. People are also making videos where they are literally just sharing their personal information on TikTok. Like, here's my email address. Here's my date of birth, right? Like, China, FYI, they are mockingly simulating sending care packages to the Chinese Communist Party, which they enclose like a cheek swab and a hair. They are, you know, becoming very angry about how the US Federal government doesn't protect their data anyways. And, you know, the Red Note videos are generating, like, truly unhinged videos about how China is just immensely better than the United States.
- [33:07]
Melissa Murray
And there was one that was so funny. Like, there was a post that I saw on Blue sky where I think American users were inviting Chinese users to explain what's, like, the weirdest thing about the United States to them. And a Chinese user apparently wrote, why do you eat like your health care is free?
- [33:29]
Leah Littman
Sick burn, Sick burn. And again, like, these are the kinds of conversations and, like, fun, mocking jibes that are happening on TikTok and are now happening on a social media platform actually owned by the Chinese, literally called Little Red Book. Right? And Donald Trump has just given us the warning that he's already working on it. So on his own social media platform, True Social, he said, quote, the Supreme Court decision was expected and everyone must respect it. My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay tuned. Exclamation mark.
- [34:15]
Melissa Murray
Big Neil Gorsuch Energy. I need time for this.
- [34:18]
Kate Shaw
It's also just inviting. Like, y'all lobby me and worse.
- [34:22]
Leah Littman
Yes, because exactly.
- [34:23]
Kate Shaw
We're about to be over.
- [34:24]
Leah Littman
Show me how much you want it. Yeah, right.
- [34:27]
Melissa Murray
Mar A Lago has a private jet landing strip, so come on down, fellas.
- [34:32]
Kate Shaw
Yeah, or catch me in D.C. monday. So there we are.
- [34:36]
Leah Littman
Donate to my inaugural fund still open. I am not personally making videos to my Chinese spy, even though I was jokingly speaking to them over the airwaves on this episode. But I did want to just take this moment to briefly share the music that everyone on TikTok is using as background for their odes to their Chinese spies. So people who are not on TikTok and haven't experienced this can get a flavor of, again, the humor and whatnot that is happening on the app. So here you go. Melissa, Have I changed your mind? Have I softened you on TikTok a little.
- [35:17]
Melissa Murray
I mean, I just. Again, like, just give me this a little. Okay. I mean, thank you. Mostly for the free speech. Yes, I'm here for the free speech.
- [35:26]
Leah Littman
Well, I documented all of the amazing free speech that was happening. Some of it anyways. No, but seriously, like, people are sharing about how, you know, they helped realize they were, like, bisexual or lesbian. Right. Because of the content that was available to them on TikTok. You know, at a time when Facebook is censoring minors from searching for LGBT rights issues and, you know, a bunch of other stuff goes on, and it just. It makes me sad.
- [35:53]
Melissa Murray
I mean, if my kids were using TikTok to find recipes to make dinner, like, I would be entirely more inclined. But, like, mostly it's just like how to do avatar makeup, watching basketball videos, like, just flooding the zone, really.
- [36:08]
Leah Littman
You need to elevate their joy in the shit. Right. Because, like, I watch Ellie the elephant do dances and other things. Right. Exactly. Exactly. I had previously posted things. I basically stopped. I'm not good at creating content, but I love consuming it, so.
- [36:23]
Kate Shaw
You are great.
- [36:24]
Leah Littman
Don't worry.
- [36:24]
Kate Shaw
Melissa's daughter. But I know TikTok wasn't. It wasn't your metier.
- [36:28]
Melissa Murray
It's not your metier.
- [36:29]
Leah Littman
No, it's not.
- [36:30]
Melissa Murray
Not your.
- [36:31]
Leah Littman
You know. It is my metier. If you want to pre order my book Lawless, you can do so. We will include a link in the show note and on social media, the platforms we are allowed to continue to use.
- [36:43]
Melissa Murray
Stay tuned for booktok on Lawless. Also coming at you.
- [36:47]
Leah Littman
It will only be Book Talk. T. Ok. There will only be Book tv.
- [36:50]
Melissa Murray
Maybe it'll be red Book Book Talk. And you can do it there.
- [36:54]
Leah Littman
The COVID is like a salmon pink, so, yeah, it's a good cover.
- [36:59]
Melissa Murray
Thanks so much for joining us for this emergency episode. I know it's weird to have it so early in the year. It's January, but this is how we do. So thank you, One first street, for giving us an occasion to get together twice on a single day. Good job.
- [37:15]
Leah Littman
Strict Scrutiny is a crooked media production, hosted and executive produced by me, Leah Littman, Melissa Murray and Kate Shaw. Produced and edited by Melody Ryan Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Haringer and Ari Schwartz. Matt de Groat is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matoski, our production staff is proudly unionized with the Writers Guild of America east subscribe to strict scrutiny on YouTube. To catch full episodes, find us@YouTube.com strictscrutinypodcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.