SCOTUS Turns TikTok Ban Case Into TikTok-Style Short Attention Span Theater
from the scotus-dance-moves? dept
TikTok is famous for its short attention span theater aspect of just watching some very short videos, without often having the time to go all that deep. The Supreme Court, however, is more known for being slow and methodical. However, the Supreme Court surprised many people yesterday by embracing its inner vertical screen dance moves, by doing the 20-second clip version of taking a case: it issued an order with an extraordinarily accelerated timeline to hear a challenge to the TikTok ban law.
It’s something the Supreme Court didn’t need to do, but did. And it’s going to ruin a lot of lawyers’ holidays.
A couple of weeks ago, the DC Circuit upheld the TikTok ban, which is set to go into effect a month from today. As we noted at the time, the ruling has massive problems regarding the First Amendment, mainly in taking the government’s word that as long as they say “national security” enough times, the government is allowed to get past any First Amendment concerns. This sets a dangerous precedent that the mere invocation of national security, without substantiation, is enough to curtail free speech.
To understand how crazy this is, just think of how the Pentagon Papers case would have turned out had that been the prevailing wisdom at the time.
TikTok had asked the DC Circuit to stay the ruling while it could appeal to the Supreme Court, and the DC Circuit refused. It then immediately went to the Supreme Court’s (don’t call it the) Shadow Docket to ask for an injunction to stop the law from going into effect.
In that filing, TikTok’s lawyers noted that they were specifically asking for an injunction to prevent the law from going into effect on January 19th, but were also willing for the Justices to consider the filing to be a cert petition to move the case from the shadow docket to the regular docket.
Furthermore, this Court may wish to consider construing this application as a certiorari petition and granting it
What the lawyers almost certainly meant was that if the Supreme Court was interested in doing a full briefing and oral arguments on this case it should (1) issue the injunction as requested and (2) simultaneously schedule briefing and oral arguments sometime in the coming months (already an accelerated pace).
But the underlying idea was that there should be more thoughtful consideration of this issue, not a rushed process within the next four weeks.
The Justices went in a different direction though, issuing an order that doesn’t issue the injunction, but instead calls for oral arguments on January 10th and asks for briefs (both sides’ openings, plus amici briefs) by December 27th, next week.
None of the timing on this makes any sense at all.
The parties are directed to file electronically simultaneous opening briefs, limited to 13,000 words, and a joint appendix on or before 5 p.m. (EST), Friday, December 27, 2024. Reply briefs, limited to 6,000 words, are to be filed electronically on or before 5 p.m. (EST), Friday, January 3, 2025. Any amicus curiae briefs are to be filed electronically on or before 5 p.m. (EST), Friday, December 27, 2024.
TikTok has existed in the US for years. We’ve had four years of (mostly moral panic-driven nonsense) debate over the alleged risks of TikTok, and they all remain entirely hypothetical. Even the DC Circuit ruling more or less admitted that the supposed harms were hypothetical. At some point in the future, everyone claims, the Chinese government could abuse its power to demand info on TikTok users, or they could start tweaking the algorithm to push a narrative they prefer.
But there’s no indication that either thing is happening today. If TikTok is pushing pro-China messaging, it’s doing an absolutely terrible job of it, as American opinions of China are at all-time lows. You’d think if China was really using TikTok for propaganda, they’d at least try to make themselves look good.
So, really, there’s no compelling reason not to grant an injunction, schedule briefing on a still-accelerated, but non-crazy timeline for some point in the spring, and let everyone get on with their lives.
Instead, SCOTUS is doing a rush job, where a bunch of lawyers (many of whom are underpaid civil society/public interest lawyers, not wealthy corporate lawyers) are going to have to ruin their holidays to brief a case that never should have gone this way in the first place.
The failure to issue an injunction at least suggests the Justices are not predisposed to overturn the DC Circuit’s opinion, but there are a lot of unknowns. I’ve now talked to half a dozen lawyers and the general summary about how the Justices are likely to come down in this case generates a giant ¯\_(ツ)_/¯. Nobody knows. It could be a 9-0 decision. It could be a weird 5-4 decision where the usual groupings are all mixed up.
But it’s going to be done in a rushed fashion, without anything approaching the normal time to prepare.
Filed Under: 1st amendment, free speech, strict scrutiny, supreme court, tiktok ban
Companies: bytedance, tiktok
Comments on “SCOTUS Turns TikTok Ban Case Into TikTok-Style Short Attention Span Theater”
Well, at least Scotus is gonna listen.
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Or, more accurately, give the appearance of listening.
I have long since abandoned all hope of this Supreme Court in the current composition actually ruling on merits of cases.
Even if China decided to do that today (or yesterday). AFAIK usage of, and sending data to, TikTok is entirely consensual (that is: it is not legally required, nor is something like a virus holding your data hostage).
So any “ill gotten” gain for China would be… with the subjects (likely uninformed) consent. I can’t see how a Federal ban makes ANY sense. MAYBE there should be disclosure requirements…. but I think we already have such laws in the US.
This has always sounded like people struggling (and failing) to invent a convincing reason to panic (and shut off their brains).
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Even if TikTok did collect user information (spontaneously voluntarily, or through a contract of adhesion) … even if TikTok did change its algorithm to some preferred narrative…
How does the government justify violating the First Amendment to prevent this? There is no “National Security” rider to free speech. (See: Brandenburg, overriding the reasoning in Schenck. )
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It’s been reported that if you click a link while in TikTok, it will open the link using the TikTok app. Now you’re on some other website yet still on TikTok, and if you enter, say, your password, TikTok has the ability to know what you typed.
I think that’s enough to justify a ban on government devices, but not a general ban.
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Facebook has been caught doing the same thing, and no one batted an eye for more than the week it was in the news. I think TikTok’s attention-seeking algorithm is disgusting, but it’s not different from what Metabook is doing. In fact, we have documented evidence of Zuck scandals such as Cambridge Analytica or their Onovo “VPN”, but they’re still here.
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It would be enough to justify a ban on Facebook on government devices too, then. Although the government would be within its rights to say that it’s more concerned about the Chinese company than the American one.
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No, that’s not how that works.
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What is your Password on TechDirt?
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It’s swordfish, apparently.
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Reported by whom?
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Strict scrutiny, which has three prongs: compelling government interest, narrowly tailored, and least restrictive means. National security does fall under a “compelling government interest”.
You can find the D.C. Circuit’s justification/analysis here starting on page 24.
Re: 'It's not bad when WE do that sort of stuff, but they're... you know...'
This has always sounded like people struggling (and failing) to invent a convincing reason to panic (and shut off their brains).
Oh the reason’s been pretty obvious from the outset, the supporters of the bill just don’t like to say it out loud because it would require admitting that it’s basically entirely racist with a dash of lining the pockets of whatever american company is ‘given’ the platform.
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What’s your Password on TechDirt?
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It’s swordfish, apparently.
So, TikTok would become as biased as X?
Nonsense, TikTok is earning money, that would completely kill its business.
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Isn’t it interesting that Musk purchasing Twitter killed its value and TikTok is still going strong, in spite of the push to force a sale. It looks like people, (government idiots excepted) trust a company owned by China more than a company owned by Musk.
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One is a propaganda farm run by corrupt foreign influence.
The other is Tiktok.
I wouldn’t be so sure about that. I could very easily see it swinging the other way. Also, keep in mind that SCOTUS doesn’t do normal fact finding. That happens in lower courts. The glacial pace SCOTUS normally moves at isn’t really necessary, in most cases.
In the US, and on TikTok specifically * . It’s only hypothetical with respect to specifically TikTok and specifically in the US.
On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States. On the other hand, the Government is aware “that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China.” The Government concludes that ByteDance and its TikTok entities “have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC.” Notably, TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC.
But there’s an extra asterisk there, given that we wouldn’t easily be able to know if it were happening. You’re also ignoring all the times the PRC happily coerced other entities.
We also still don’t know if there was anything in the classified filings, since the DC circuit relied only on public filings.
There is a middle ground where the government gets some deference on national security, without being complete capitulation. The ruling doesn’t say that simply saying national security is enough, it cites specific facts.
These aren’t really comparable, given the differences in whether a particular law was being invoked (there wasn’t in the PP case), and whether this constitutes prior restraint.
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The conservative justices need the time to figure out how they’re going to give their team the win while failing utterly to justify it in a coherent and logical manner.
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I’m sure some of the delays are caused by waiting for their pretzel shaped pens to arrive…
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…. SCOTUS has ALWAYS been a political body, staffed by political appointees, and acting politically & arbitrarily.
Welcome to the real world of oligarchic government.
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your techdirt password please?
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Sure, global censorship is depressingly common. The US dominates the board of course, with the .com registry located in Virginia, the eastern district of Virginia is a busy little beaver. But Canada, Australia, India and France have been making strides as well in the last few years, among others.
Oh right, you were probably talking about the evil Chinese global censorship, not the good and noble American global censorship. In that case, yes it is only hypothetical, and I’m sure the US government is furious that even after enlisting Oracle to get direct access to data flows, they still can’t find any evidence. Credit where credit is due, China is either better than us, or “better” than us.
… But the current Congress & President are the primary villains here in enacting this unconstitutional TIK TOK edict — have you also long abandoned hope in their integrity ??
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go be a defeatist else where
Of course it does. They want to issue a ruling before the law takes effect.
The failure to issue an injunction suggests that they think the injunction is unnecessary because they will have ruled before the law takes effect.
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Except if SCOTUS upholds the ruling, they won’t have time to sell by the deadline. The injunction would be needed to push back the clock so they’d have more time to find buyers.
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How does that work? Normally preliminary injunctions dissolve once the court rules, so if the court ruled against them they’d immediately be out of compliance.
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Even if they chose to uphold the law they could still delay its implementation in their ruling.
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Is that something they do? Do they ever say “we have made a final ruling on the merits: this law is perfectly valid. But we’re adjusting the date on it”?
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Yes, courts have delayed the implementation of laws and rules in the past.
This looks a lot like a 21st Century hostile takeover to me. Remember how Ballmer got the Clippers? I see this ending with TikTok merging with “X” for “national security reasons”. You didn’t think Musk spent all that money buying the election just to help his buddy Trump win, did you? Soon we’ll discover what ELSE he wants. I recommend hiding the virgins, if you have any….
A Dissenting View
I’m a big fan of Mike Masnick and a longtime member of both ACLU & EFF. Having read the briefs of Merrick Garland, Mike Masnick, ACLU/EFF & several others, I have to point out some important things Masnick & ACLU/EFF etc. are overlooking.
Firstly, TikTok is not a hypothetical threat: take a look at the recent election in Romania, where Russia & China improperly influenced Romania’s presidential election via TikTok. See https://cepa.org/article/romanias-shady-tiktok-election/
Secondly, per Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), “[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.”
Thirdly, the CRINK (China, Russia, Iran and North Korea) are collectively engaged in an existential war against democracy in general and the United States in particular, and this will be the defining feature of world affairs for decades to come. Both Europe and North America have grossly underestimated the gravity of this threat and are currently struggling to make up for lost / wasted time.
Here, Merrick Garland’s brief correctly analyzes the situation. The Goverment’s interest in protecting national security and the survival of the US Constitution is not just a compelling interest, it is an existential interest. And the provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act are narrowly tailored to further this existential interest in a way that reasonably minimizes First Amendment concerns.
Masnick & ACLU/EFF do raise a very important point: “Data collection practices are an area of genuine policy concern”. It’s very true that further legislation is urgently needed to properly regulate data collection and data management. But in this context, that’s just a ‘red herring’ having no meaningful relevance to the issue at hand.
Masnick and ACLU / EFF come at this question with strong knowledge of the First Amendment, but also, it appears, with very great naïveté regarding the depth and the practical capabilities of the virulent evil currently residing in Beijing, Moscow, Tehran and Pyongyang.
This case requires a proper balance between the First Amendment and the practical reality of this existential conflict between the CRINK and democracy itself. Merrick Garland and the Protecting Americans from Foreign Adversary Controlled Applications Act quite correctly strike that proper balance.
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Nice to know that the right to privacy is a red herring to be so easily ignored. I’d hate if that pesky thing ever got in the way of anything.
YouTube is based in the United States, right? If the US Government were to force YouTube to alter their algorithm, or demand my information from them (something that is done with regularity in this country!), it would harm me, a US citizen. Therefore, YouTube is violating my First Amendment rights, and must be taken down!