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Slow Burn Watergate Watergate. Before

0:30

I started working on this show, everything

0:32

I knew about Watergate came from the

0:34

movie All the President's Men. Do you

0:36

remember how it ends? Woodward and

0:38

Bernstein are sitting with their typewriters

0:40

clacking away. And then there's this

0:43

rapid montage of newspaper stories, about

0:45

campaign aids and White House officials

0:47

getting convicted of crimes, about audio

0:49

tapes coming out that proved Nixon's

0:51

involvement in the cover-up. The last

0:53

story we see is Nixon resigns. It

0:56

takes a little over a minute in

0:58

the movie. In real life, it took

1:00

about two years. Five men were arrested

1:02

early Saturday while trying to install eavesdropping

1:04

equipment. It's known as the Watergate incident.

1:06

What was it like to experience those

1:08

two years in real time? What were

1:10

people thinking and feeling as the break-in

1:12

at Democratic Party headquarters went from a

1:14

weird little caper to a constitutional crisis

1:16

that brought down the president? The

1:18

downfall of Richard Nixon was stranger,

1:21

wilder, and more exciting than you

1:23

can imagine. Over the course of

1:25

eight episodes, this show is going

1:27

to capture what it was like

1:29

to live through the greatest political

1:31

scandal of the 20th century. With

1:33

today's headlines once again full of

1:36

corruption, collusion, and dirty tricks, it's

1:38

time for another look at the

1:40

gate that started it all.

1:42

Subscribe to Sloburn now, wherever

1:44

you get your podcasts. At this

1:46

time, I impose that sentence to

1:48

cover all 34 counts. Sir, I

1:51

wish you God speed as you

1:53

assume you second term in

1:55

office. Hi and welcome

1:58

back to Annica. This is Slate's

2:00

podcast about the courts and the

2:02

law and the Supreme Court and

2:04

what the law once was and

2:06

where it's headed now and how

2:09

all of that changes our lives.

2:11

I'm Dolly Lithwick. I cover the

2:13

courts and the law at Slate

2:15

and on Friday morning, the US

2:17

Supreme Court heard what can only

2:19

be described as the most important

2:21

case pitting free speech rights against

2:24

national security in the modern era.

2:26

In taking up Congress's impending tick-tock

2:28

ban and doing so at lightning

2:30

speed, the High Court has really

2:32

inserted itself into this huge global

2:35

debate about media and technology and

2:37

publishing and security, and also, as

2:39

you're about to hear, my very

2:42

favorite... pasta, the court is also

2:44

poised to decide whether you are

2:46

going to literally be able to

2:49

open TikTok in eight days time.

2:51

Slate senior writer Mark Joseph Stern

2:53

and I listen to the TikTok

2:56

arguments together and we're going to

2:58

be digging into those in a

3:00

couple of minutes. Hey there

3:03

Mark. Hi Dahlia! And

3:05

before we get to

3:08

TikTok, in other news,

3:10

the Donald J. Trump,

3:13

on accountability train, made

3:15

its final stop in

3:18

Judge Juan's Manhattan courtroom

3:21

on Friday, where

3:23

the president-elect was

3:25

finally sentenced by

3:27

way of Zoom.

3:30

He is a

3:32

felon. As this court

3:34

has noted, the defendant's conduct,

3:36

quote, constitutes a direct attack

3:38

on the rule of law

3:40

itself. They all said, this

3:43

is not a case that

3:45

should be brought. The protections

3:47

afforded, the office or the

3:49

president, are not a mitigating

3:51

factor. They do not reduce

3:54

the seriousness of the crime

3:56

or justify its commission in

3:58

any way. It's been

4:00

a political witch hunt. It

4:02

was done to damage my

4:04

reputation, so that I'd lose the

4:06

election, and obviously that didn't

4:08

work. After careful analysis and

4:11

obedience to governing mandates

4:14

and pursuant to the rule of law,

4:16

this court has determined

4:18

that the only lawful

4:20

sentence that permits entry

4:22

of a judgment of

4:24

conviction, without encroaching upon

4:26

the highest office in

4:28

the land, is an

4:30

unconditional discharge, which the

4:32

New York State legislature

4:34

has determined is a

4:36

lawful and permissible sentence

4:38

for the crime of

4:40

falsifying business records in

4:42

the first degree. Therefore,

4:44

at this time, I impose

4:47

that sentence to cover all

4:49

34 accounts. Sir, I wish

4:51

you Godspeed as you assume

4:53

the second terminal office.

4:55

Thank you. Now we knew

4:57

this was going to be an

4:59

unconditional discharge. There's no time. There's

5:02

no fine So maybe the thing

5:04

to start with right now is

5:06

the fact that this sentencing went

5:08

ahead at all Yes, this was

5:10

in many ways a huge

5:12

defeat for Donald Trump. I

5:14

think he expected the sentence

5:17

to be halted. He had

5:19

asked the Supreme Court in

5:21

a rather extraordinary and unusual

5:23

order to freeze the sentencing

5:25

and on Thursday night by

5:27

a five to four votes,

5:29

the Supreme Court refused with

5:31

Chief Justice John Roberts and

5:33

Amy Coney Barrett joining the

5:35

three liberals and presumably Justice

5:37

Samuel Alito Haringing. them behind

5:39

the scenes and screaming at the

5:42

top of his lungs that they

5:44

were betraying their god emperor and

5:46

how dare they. And so on

5:49

Friday morning we were able to

5:51

listen as Trump who is about

5:53

to become president once again was

5:56

sentenced to multiple felony convictions, albeit

5:58

with no jail time. or fine

6:00

or probation, and the man who is

6:02

soon to become leader of the free

6:05

world officially, formally and at long last,

6:07

got a rap sheet that will follow

6:09

him into the White House. And I

6:12

guess I should flag for listeners

6:14

that we spoke to Andrew Weisman

6:16

on Thursday as we waited to

6:18

hear whether the Supreme Court was

6:20

going to allow the sentencing to

6:22

go forward. Slate Plus members, if

6:24

you have not listened to this

6:26

week's bonus conversation yet, it is

6:29

really worth your time. And if

6:31

you are not a Slate Plus

6:33

member yet, you can subscribe directly

6:35

from the amicus show page on

6:37

Apple Podcast and Spotify, or you

6:39

can visit slate.com slash. Amicus Plus

6:41

to get access wherever you listen.

6:44

And when Andrew and I recorded,

6:46

we didn't know what the Supreme

6:48

Court was going to do. And

6:50

Mark, I just want to say

6:53

again, the fact that this was

6:55

five to four came down late

6:57

Thursday night was a little tiny

6:59

bit crazy. crazy that there were

7:01

four justices on the Supreme Court

7:04

who are going to say, hey,

7:06

this is a state matter, it's

7:08

a criminal matter, it's not resolved

7:10

or final in any way, but

7:13

Trump is awesome. Yeah, I mean, of

7:15

course it should have been nine

7:17

to zero, right? And as the

7:19

court pointed out in its very

7:21

short order, Trump still has appeals

7:24

available to him through the regular

7:26

appellate process. What he was seeking

7:28

here was an incredibly bizarre and

7:30

unusual kind of exception from the

7:32

rules to just run over to

7:35

his friends in black robes at

7:37

Skotis and say, I don't want

7:39

to have to do all that

7:41

later, just freeze the sentencing now.

7:43

and effectively put it off indefinitely,

7:46

maybe forever. And the majority decided

7:48

we're not going to take that

7:50

step. It gave these two reasons.

7:52

First, again, because the sentence can

7:54

be appealed. He still has all

7:56

these avenues available to him in

7:59

New York court. because the imposition

8:01

on his duties as president-elect are

8:03

incredibly minor. All he had to

8:05

do was zoom into the courtroom

8:08

and sit there for a few

8:10

minutes. And he ended up saying

8:12

something, but he could have pretty

8:14

much just stayed silent and stared

8:16

at Judge Mershon. And as the

8:18

majority explained, even if we accept

8:21

the premise that there is some

8:23

constitutional power of president-elects who are

8:25

not yet president, who do not

8:27

yet have article to authority, to

8:29

escape from a court proceeding or

8:31

a criminal prosecution because they're preparing

8:34

to become president, that this minimal

8:36

burden on Trump does not meet

8:38

that standard. So it was a

8:40

blast of reason from five justices,

8:42

a blast of crazy from the

8:44

four dissent from the four dissenters.

8:47

And at a bare minimum, I

8:49

guess I have to say something

8:51

nice about Roberts and Barrett, which

8:53

is that they at least drew

8:55

a line in the sand and

8:58

declined to extend the terrible presidential

9:00

immunity decision from last summer to

9:02

an entirely new set of facts

9:04

and circumstances. They cabined it within

9:06

some reason, unlike the four dissenters,

9:08

Thomas, Alito Gorsuch, and Kavanaugh, who

9:10

would have just turned it into

9:12

a cudgel to let Trump get

9:14

out of any accountability in any

9:16

circumstance whatsoever whatsoever. Yeah, I mean

9:18

on the one level it

9:20

feels a little bit like,

9:23

you know, John Roberts who

9:25

wrote that immunity opinion and

9:27

Amy Coney Barrett, who would

9:29

have really cabined it and

9:31

was clear about that at

9:33

the time, are slightly walking

9:35

back the absolutely sweeping decision.

9:37

But there's a way in

9:39

which this didn't matter. I

9:41

mean, it matters. It's incredibly

9:43

consequential that at minimum, there

9:45

was a sentencing, at minimum,

9:47

there was a moment at

9:49

which some accountability, possibly the

9:51

only accountability, was leveled. But

9:53

Mark, I gotta say, to

9:55

give them plot it for

9:57

being like, hey, we were.

10:00

super crazy, but we weren't

10:02

that crazy. Just feels very

10:04

on the nose. It also

10:06

feels, I gotta tell you.

10:08

extremely on the nose that

10:10

in the sort of reality

10:12

show your fired version of

10:14

how we do law now

10:16

we essentially had a sentencing

10:18

hearing in which it was

10:20

pronounced yes you're a felon

10:22

yes you did all this

10:24

really bad stuff and yes

10:26

it doesn't matter congratulations next

10:28

week you're the president it

10:30

feels very very very of

10:32

this moment. But let's go on

10:35

to the sentencing hearing itself because

10:37

having allowed the thing to

10:39

go forward, it did in fact

10:42

go forward on Friday morning. Dahlia,

10:44

I understand that the sentencing was

10:46

in some ways an anti-climax, right?

10:49

For him to be given no

10:51

real punishment except the label of

10:53

felon after all this, it feels

10:55

a bit like a letdown, but

10:58

I guess what it... That's not

11:00

the right word. What tantalizes me is

11:02

the possibility that maybe John Roberts and

11:04

Amy Coney Barrett aren't going to be

11:06

in his camp for every single little

11:08

favor that he asks them for over

11:10

the next few years. Like I think

11:13

there's a theory of the chief especially

11:15

that he is a reactive justice, that

11:17

he is a pendulum that swings back

11:19

and forth depending on who's in the

11:21

White House. With Biden in the White

11:24

House, he swung far to the right.

11:26

Maybe with Trump in the White House.

11:28

he'll swing a little bit more toward

11:30

the center. And so while I get people

11:32

sort of mourning the death of the rule

11:34

of law that Trump effectively walks away without

11:37

any meaningful penalties, I guess I'm just going

11:39

to keep my eye on the chief. Maybe

11:41

I'm Lucy with the football. You can tell

11:43

me that I am. But I will hope

11:45

and pray that he has recovered some of

11:48

the faculties that somehow escaped him through four

11:50

years of Joe Biden's presidency. Again, my

11:52

friend, I think I just

11:54

want to say having been the

11:56

prime mover behind all three,

11:58

all three Trump. cases last year

12:01

and written the opinions, the idea

12:03

that John Roberts is like, wait,

12:05

what, this sentencing hearing, this is

12:07

a bridge too far, absolute immunity,

12:10

totally okay, but this, too much.

12:12

Okay, I'm going to give you,

12:14

you're not Lucy, there's no football,

12:16

but I'm just saying I am

12:18

not, I am not changing my

12:21

orientation toward what happened last June

12:23

based on the like very trivial

12:25

win that was that an entirely

12:27

discredited ridiculous Hail Mary to try

12:30

to get this sentencing to not

12:32

happen. One by one vote. Thank

12:34

you, John Roberts. Okay, Mark, let's

12:36

talk. I deserve that. No, let's

12:38

talk. We're talking about these last

12:41

gasps of criminal accountability. And now

12:43

we're not even talking about that.

12:45

We're not, we're now talking about

12:47

the last grasp of historical accuracy,

12:49

which is now in the hand

12:52

somehow of some like, like, melage

12:54

of the 11th circuit, alien canon,

12:56

and possibly the Supreme Court. Can

12:58

we just. get a reading on

13:00

whether you and I and the

13:03

rest of the people who want

13:05

to know the things will ever

13:07

get to see the Jack Smith

13:09

reports, part one, part two. Mark,

13:11

you wrote so eloquently earlier this

13:14

week about what the hell was

13:16

Judge Cannon doing with this case.

13:18

Where do we stand as of

13:20

this moment? So I think someone

13:23

must have switched my allergy medication

13:25

with Hopium because I think that

13:27

we will see the Jacksmith report.

13:29

that involves a Trump's attempted election

13:31

subversion on January 6th. To recap,

13:34

Trump and his former co-defendants had

13:36

asked both Judge Cannon and the

13:38

11th Circuit to block the Justice

13:40

Department from releasing any part of

13:42

Jack Smith's report, even though under

13:45

Justice Department regulations when a special

13:47

has wrapped up their case, they

13:49

are supposed to transmit that report

13:51

to the Attorney General, who gets

13:53

to decide whether to release it

13:56

to Congress and the public. Judge

13:58

Cannon jumped ahead of the 11th

14:00

Circuit and issued a remarkable injunction

14:02

that prohibited the Justice Department from

14:05

issuing the report, even though she

14:07

no longer had jurisdiction over the

14:09

case, which had been appealed, and

14:11

was literally powerless to act. That

14:13

has never stopped her before. It

14:16

didn't stop her this time. She

14:18

acted anyway. She issued an injunction.

14:20

But then on Thursday night, the

14:22

11th Circuit stepped in and said,

14:24

you know what, we don't think

14:27

so. The 11th Circuit denied that.

14:29

same request from Trump and his

14:31

co-defendants. The 11th Circuit said, we

14:33

will not be blocking the Justice

14:35

Department from releasing any part of

14:38

the Smith report. And this is

14:40

the real icing on the cake.

14:42

The 11th Circuit invited the Justice

14:44

Department to appeal Judge Cannon's injunction

14:46

and with a very big wink,

14:49

basically suggested that it will overturn

14:51

that injunction A.S.AP. So this is

14:53

a big vindication for Jacksmith and

14:55

Merritt Garland. indicated that he wants

14:58

to release this report about election

15:00

subversion to the public as quickly

15:02

as possible. Now there's a second

15:04

volume of the report that is

15:06

all about the classified documents case.

15:09

Garland says he doesn't want to

15:11

release that to the public yet

15:13

because the co-defendants still face criminal

15:15

charges and it could prejudice the

15:17

case against them, but he wants

15:20

to release it to Congress. And

15:22

I think if he releases it

15:24

to Congress, there's a very good

15:26

chance that the public will eventually

15:28

see it. All that really matters

15:31

now is that when Trump and

15:33

his co-defendants ask the Supreme Court

15:35

to step in and block the

15:37

release of the report, the Supreme

15:40

Court doesn't run out the clock,

15:42

it acts promptly, it denies the

15:44

request, and then even if it's

15:46

at 11.59 a.m. on January 20th,

15:48

we are getting our hands on

15:51

at least some of Jacksmith's final

15:53

report. It's happening. We are going

15:55

to take a short break, and

15:57

when we come back, Mark and

15:59

I will be joined by Adam

16:01

Hans. professor, first amendment expert, and

16:03

signatory onto one of the amicus

16:06

briefs supporting Tiktak in the giant

16:08

case that the court heard on

16:10

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17:27

Okay, so now we are going

17:29

to turn to one first street

17:32

and the First Amendment and Tiktok

17:34

and Mark you and I listened

17:36

to the arguments on Friday morning

17:38

and so did Gottam Hans who

17:40

joins us now Gottam is a

17:42

clinical professor of law and founding

17:45

director of the Civil Rights and

17:47

Civil Liberties Clinic at Cornell Law

17:49

School. He analyzes through research and

17:51

advocacy how new and developing technologies

17:53

implicate law, privacy, and data protection

17:56

and public policy. God, we want

17:58

to just start by welcoming you

18:00

to Amicus. Thank you for joining

18:02

us to thrash out whatever it

18:04

was that happened in Friday's TikTok

18:06

case. Thank you both for having

18:09

me. I'm a long-time listener, but

18:11

a first-time caller, and looking forward

18:13

to discussing Friday mornings mess. So

18:15

I wondered if you would just

18:17

start for our listeners who maybe

18:19

are not as read into what

18:22

this is all about with a

18:24

tiny bit of table set. And

18:26

can you describe the ban and

18:28

describe the divestiture obligation component of

18:30

the ban and just tell us

18:33

what sort of Congress was thinking

18:35

and when all this is meant

18:37

to go into effect, which is

18:39

like Pro Tip, it's really soon.

18:41

So this issue has a fairly

18:43

long gestation because some followers of

18:46

the TikTok federal government interaction may

18:48

remember that President Trump tried to

18:50

ban the app or do something

18:52

similar to divestiture in his first

18:54

term. That was blocked by the

18:56

courts because it was a purely

18:59

executive action. It was not authorized

19:01

by Congress. It was an overstep

19:03

according to the courts. We have

19:05

a change of administration. President Biden,

19:07

that administration. initiated some discussions with

19:10

the company to try to lead

19:12

to a divestiture of some sort

19:14

or some kind of remedy for

19:16

the problems. There was a long

19:18

negotiation between the executive branch and

19:20

the company unsuccessfully. Then about a

19:23

year ago in early 2024, Congress

19:25

steps in and enacts the law

19:27

that's at issue in the case

19:29

that was argued on Friday. There's

19:31

law has a really long name

19:33

which I... never remember, we just

19:36

called the TikTok Band, that law

19:38

was supported on a bipartisan basis.

19:40

The claim was that there were

19:42

national securities... about tech talks about

19:44

ownership structure because tech talk US

19:46

is controlled by a Chinese-based company

19:49

and as we know the Chinese

19:51

government has a lot of obligations

19:53

on its companies to share data

19:55

in ways that the US was

19:57

concerned about and affecting mass security.

20:00

So the law sort of talks

20:02

about foreign adversaries and social media

20:04

apps or technology companies that are

20:06

controlled by foreign adversaries as a

20:08

general matter, but as a specific

20:10

matter. for Tiktok requires a divestiture

20:13

of the company by January 19th,

20:15

2025, and if that divestiture doesn't

20:17

happen, then what we, you know,

20:19

call the ban basically will go

20:21

into effect. And maybe just one

20:23

more beat on the table set,

20:26

which is just describe who challenges

20:28

the ban and what happens at

20:30

the DC circuit below. Right. So

20:32

there are two groups that are

20:34

challenging the ban. The first is

20:37

Check Talk itself. The company argues

20:39

various things in the DC circuit.

20:41

One thing that's I think a

20:43

bit relevant here is that this

20:45

law is a little weird that

20:47

it allowed for an expedited review.

20:50

There was no trial court findings

20:52

in this case. The statute authorized

20:54

the company to challenge it immediately

20:56

in the court of appeals in

20:58

the DC circuit. So this happened

21:00

really fast without any fact finding.

21:03

The other group that is challenging

21:05

the law are the users. to

21:07

talk, the users, the creators, they

21:09

have First Amendment interests in sharing

21:11

and experiencing content on the app,

21:14

and so they have a separate

21:16

claim based on the First Amendment,

21:18

and because of the sort of

21:20

foreign versus domestic dynamics that ended

21:22

up getting some airtime in the

21:24

argument, those cases were consolidated, the

21:27

arguments were done in the fall

21:29

of 2024 decision issued in December

21:31

of 2024, Bam was supposed to

21:33

go into effect, led to the

21:35

very expedited review and... Supreme Court

21:37

with briefs, unfortunately, for the parties.

21:40

And for me, as an amicus

21:42

supporting of a company due at

21:44

the end of December and or

21:46

argument at the beginning of January

21:48

2025. And the DC Circuit, Mark,

21:51

you can explain really quickly, but

21:53

the DC Circuit pretty cross ideological

21:55

panel just straight up thumbs up

21:57

for the Biden administration. Yeah, that's

21:59

right. It was a three-judge panel,

22:01

two conservative judges, one liberal judge,

22:04

unanimously sided against TikTok, and the

22:06

majority, the two conservative judges, said

22:08

even if strict scrutiny applies, the

22:10

highest standard of judicial review, this

22:12

law survives strict scrutiny. The concurring

22:14

judge, the liberal judge, Judge Shrina

22:17

Vassen, said, well, I think that

22:19

we should apply intermediate scrutiny, which

22:21

is a little bit more relaxed,

22:23

and the law clearly survives intermediate

22:25

scrutiny. across the board, you know,

22:28

very strong opinions for the Biden

22:30

administration, which at least for the

22:32

next like nine days is responsible

22:34

for defending this law, and TikTok

22:36

appealed to the Supreme Court, which

22:38

very, very quickly took up the

22:41

case and set it on its

22:43

rocket docket. It acted much more

22:45

quickly on this than on, say,

22:47

the Trump immunity case, which shows

22:49

that when the justices really want

22:51

to decide something fast, they know

22:54

how to do it. Yeah, one

22:56

of the irony listening to the

22:58

arguments was that they were able

23:00

to fast track... this oral argument

23:02

and get the briefing in and

23:05

do it all really quickly. And

23:07

yet there are no time limits

23:09

left at oral arguments. And so

23:11

it's sprawled on for what felt

23:13

like 200 million years. I spent

23:15

a good amount of the argument

23:18

Googling. How long did Bush Vigor

23:20

really take to be argued? I

23:22

just want to flag for listeners

23:24

who was arguing the cases. Tiktak

23:26

was represented by former solicitor General,

23:28

Noel Francisco, the content creators, in

23:31

other words, people who say, look,

23:33

I am a content creator, I

23:35

need Tiktak to get my message

23:37

out, I can't be nearly as

23:39

salient and forceful and important. on

23:42

other platforms, that was represented by

23:44

Jeff Fisher, and the Biden administration

23:46

was represented by Solicitor General Elizabeth

23:48

Prelogger in her last oral argument.

23:50

I want to add just one

23:52

more kind of precatory, what does

23:55

this all mean, and this is

23:57

for you, got them, but I

23:59

think that Part of what is

24:01

really, really complicated in this case

24:03

is that there's two different justifications

24:05

for the law. And it's sort

24:08

of looming over everything. And one

24:10

is this national security justification. Look,

24:12

this is a foreign entity. It

24:14

is an enemy of the United

24:16

States. We know what they're doing

24:18

with our data. And then there's

24:21

this other kind of very squishy

24:23

first amendment. We kind of don't

24:25

like this stuff that they may

24:27

be encouraging. And I would love.

24:29

it if you could sort of

24:32

parse through for us because I

24:34

think as you suggested this was

24:36

a drumbeat throughout the entire argument

24:38

that these two justifications don't necessarily

24:40

kind of rub along together with

24:42

equal force. My main takeaway from

24:45

this argument is that this is

24:47

why like traditional deliberation is a

24:49

virtue in many situations. There are

24:51

so many complicated issues in this

24:53

case that I think really deserved

24:55

a lot of time, preferably not

24:58

in a two-hour, 40-minute-old argument on

25:00

an expedited basis. And there are

25:02

important governmental interests. I think basically

25:04

everyone concedes. National Security is one.

25:06

What is the tailoring that's appropriate?

25:09

Would the law of general applicability

25:11

be better or worse? Because as

25:13

I mentioned, this law specifically names

25:15

TikTok and its legislative language. This

25:17

is not a law that applies,

25:19

you know, across the board. Do

25:22

we think that there are real

25:24

problems with the data economy of

25:26

collecting massive amounts of data and

25:28

not really deleting it? How do

25:30

we think about corporate structures? You

25:32

know, does the foreign ownership dynamic

25:35

versus domestic ownership make a different?

25:37

Does that why the users maybe

25:39

had a better shot? I think

25:41

during the argument the lawyer for

25:43

the users Professor Jeff Fisher at

25:46

Stanford I think got a better

25:48

treatment than Noah Francisco the former

25:50

solicitor general under President Trump when

25:52

he was representing TikTok? This is

25:54

a big swirl and I get

25:56

it. You know, this is a

25:59

complicated case, but as a really

26:01

baseline matter, my feeling is that

26:03

I started out as a privacy

26:05

attorney. I am really concerned about

26:07

data collection. I understand that national

26:09

security is an issue. I understand

26:12

the foreign political economy. Those are

26:14

all good justifications, but this law

26:16

doesn't do a great job of

26:18

answering the moment, and that's where

26:20

I think the First Amendment problems

26:23

reside. So can I just sort

26:25

of distill from that? I mean,

26:27

I agree completely those were all

26:29

of the issues swirling around. I

26:31

think the Solicitor General tried to...

26:33

reach out and grab all of

26:36

these disparate justifications and issues and

26:38

put them into two buckets. There

26:40

was a first justification for the

26:42

law that said this is about

26:44

data protection, data security, that the

26:46

Chinese government has access to Tiktok's

26:49

data and Tiktok is collecting a

26:51

massive amount of data from its

26:53

users about their age and location

26:55

and activity and all of this

26:57

really sensitive stuff. And the government

27:00

of America is worried that the

27:02

government of China is going to...

27:04

that data and somehow weaponize it.

27:06

Maybe blackmail users, maybe turn them

27:08

into spies against the US government.

27:10

And then there's the second justification,

27:13

which is the one that I

27:15

think gives us all hippie-G-B's and

27:17

definitely disturbed the justices, which is

27:19

the idea that the Chinese government

27:21

can manipulate the speech on Tik-talk

27:23

in order to further the interests

27:26

of the Chinese Communist Party and

27:28

somehow undermine America. And so the

27:30

second justification here seems to be

27:32

aimed at suppressing speech, right, aimed

27:34

at saying we don't like this

27:37

speech and we want less of

27:39

it or we want to manage

27:41

it differently or we want to

27:43

ban it and tell me if

27:45

I'm wrong, but I felt like

27:47

that got more air time. and

27:50

seem to wrangle several of the

27:52

justices across ideological lines. I think

27:54

that is correct. I think that

27:56

part of the challenge with this

27:58

law and this issue is that

28:00

it's all spiraled up with politics.

28:03

Now, I'm of the opinion of

28:05

them. Most laws are rolled up

28:07

with politics, but we have, during

28:09

the time of the tenactment, former

28:11

representative Mike Gallagher, saying, this is

28:14

digital fentanyl, they're coming for our

28:16

kids, want someone, please think of

28:18

the children, we have other Congress

28:20

people complaining or stating that the

28:22

app is biased in favor of

28:24

Palestinians, you know, these are all

28:27

class of First Amendment problems, and

28:29

so what you get is... I

28:31

think some really politically inflected concerns

28:33

about China, and also in addition

28:35

to some politically infected concerns about

28:37

China, larger sort of who can

28:40

influence the American populace. There was

28:42

a joke about people not really

28:44

agreeing very much anymore these days.

28:46

Oh, go ahead. I was just

28:48

going to say, did I understand

28:50

you to say a few minutes

28:53

ago that one problem that bite

28:55

is a bite dance might be

28:57

through TikTok? trying to get Americans

28:59

to argue with each other. That

29:01

it might be just trying to

29:04

fill in. If they do, I

29:06

say they're winning. I'll just say

29:08

in regards, Mark, to your first

29:10

point about the Chinese data collection,

29:12

I think the Solicitor General conceded

29:14

or admitted that some of this

29:17

is future-looking, right? This idea that

29:19

someday the future president, like the

29:21

fact that they were, you know,

29:23

liking things not ticked out, that

29:25

maybe were a little purrion is

29:27

going to be concerned. What happens

29:30

if Iran buys buys buys buys

29:32

Facebook? Right, or some other, or

29:34

we go to war with Sweden

29:36

and Spotify, you know, wrapped ends

29:38

up being something that's humiliating. I

29:41

think those, those future concerns, like

29:43

I understand it, but what's the

29:45

limiting principle and why are we

29:47

singling out one company when we

29:49

could be doing some like, I

29:51

think, a better thought out more

29:54

generally. regulation. I agree with you

29:56

on the second point about the

29:58

concerns about foreign propaganda manipulation. It's

30:00

just editorial discretion by another name.

30:02

I agree with that and I

30:04

think that the challenges here are

30:07

going to be, as they often

30:09

are, in First Amendment cases, line

30:11

drawing ones, and the lines I

30:13

think are not nearly as stable

30:15

as the court might want us

30:18

to believe. Right, this is in

30:20

a weird way and the argument

30:22

really felt like this. It was

30:24

like a national security case and

30:26

a First Amendment case walk into

30:28

a bar. Like they were two

30:31

totally different cases and you could

30:33

feel everybody toggling back and forth

30:35

depending on which of those they

30:37

thought they were going to win

30:39

in the moment. But I think

30:41

all three of us agree that

30:44

the Biden administration one and you

30:46

could see that in you know

30:48

all the real-time kind of reflections

30:50

on this this felt like a

30:52

route and at least for while

30:55

both Francisco and Fisher were arguing

30:57

the case it felt like people

30:59

were like is this eight one

31:01

or seven two like this is

31:03

you know tick-tog it's over and

31:05

yet what was really interesting and

31:08

these are the sort of confounding

31:10

questions you're both raising The court

31:12

certainly roughed up Elizabeth Prelogger. They

31:14

were not, I think, in the

31:16

main, mollified by the answers she

31:18

was giving. And I think that

31:21

it suggested to me, and maybe

31:23

this is part of what you're

31:25

trying to tell us, Gotham, is

31:27

that this might come out as

31:29

a very, very simple answer to

31:32

a set of problems that the

31:34

court was clearly uncomfortable with both

31:36

sides. I agree with your view

31:38

that the company is going to

31:40

lose, which is what I thought

31:42

beforehand. I thought it would be

31:45

closer. It was not. I mean,

31:47

there's lots of clues as to

31:49

why the company is going to

31:51

lose, but one that I think

31:53

is really sailing for the First

31:55

Amendment piece, even though I agree

31:58

that Solicitor General Prelogor had a

32:00

tougher time at point. than one

32:02

might have guessed based on the

32:04

company and creator arguments, is that

32:06

there was very little discussion about

32:09

super slope, which is a classic

32:11

First Amendment concern. You know, what

32:13

we do in this case is

32:15

going to reverberate along for many

32:17

other speakers. Were I think the

32:19

company and the creators going to

32:22

prevail, they would... be, I think,

32:24

more discussion about why they have

32:26

to win because if they don't,

32:28

everyone else is going to lose

32:30

in the long run. You didn't

32:32

really get that. You didn't really

32:35

get the troubling hypotheticals for the

32:37

solicitor general. Well, like, if you

32:39

do this, what's going to stop

32:41

Congress from doing that? You know,

32:43

the people remember probably from the

32:46

Trump immunity cases, the seal team

32:48

six assassinating political enemies as the

32:50

really scary hypothetical. There was none

32:52

of that in this argument, which

32:54

I think demonstrates demonstrates that The

32:56

justices don't see a slippery slope

32:59

will just create an easy answer.

33:01

Probably based on the foreign ordership

33:03

dynamic is my immediate guess, but

33:05

even that too I think has

33:07

some slippery slope dynamics that didn't

33:09

really get addressed and I think

33:12

should concern people who have fears

33:14

about what a Congress that wants

33:16

to designate people as national security

33:18

threats or organizations or foreign governments

33:20

as national security threats where that

33:22

limit might lie. My sense was

33:25

that certainly through Noel Francisco's argument

33:27

and through Jeff Fisher's argument, there

33:29

was this kind of like shadow

33:31

of this ownership problem of, you

33:33

know, this is just a foreign

33:36

corporation and this is just, you

33:38

know, a subsidiary and there's no

33:40

free speech rights that attaches to

33:42

that, like, this is all really

33:44

simple. There's no First Amendment issue

33:46

here. That took up a lot

33:49

of oxygen for at least the

33:51

first half of the arguments. Mark.

33:53

Yeah, I mean, it's confusing because

33:55

TikTok is the named plaintiff and

33:57

TikTok is an American company, but

33:59

TikTok is owned by Bight. which

34:02

is a Chinese company, and the

34:04

Supreme Court has said that foreign

34:06

citizens and foreign corporations operating on

34:08

foreign soil don't have First Amendment

34:10

rights, that they can vindicate in

34:13

federal court here in the United

34:15

States. And so Clarence Thomas asked

34:17

right out of the gate, and

34:19

I think it's an important question.

34:21

Is Tik Talk an American company

34:23

really just trying to vindicate the

34:26

free speech rights of bite dance?

34:28

A Chinese company. You're converting the

34:30

restriction on bite dance's ownership

34:32

of the algorithm and the

34:34

company. into a restriction on

34:36

Tiktak speech. So why can't

34:38

we simply look at it

34:41

as a restriction on Baitans?

34:43

And then Justice Katanji Brown

34:45

Jackson asked a similar series

34:47

of questions about whether Tiktak

34:49

is sort of defending its

34:51

right to associate with a

34:53

Chinese-owned foreign company. And I

34:55

don't think we have really

34:58

good answers to those questions

35:00

because the facts of the case are

35:02

so curious here. I mean, it does

35:04

seem to me. that an American company

35:06

should not forfeit its First Amendment rights

35:09

just because it's owned by a foreign

35:11

company. And this was something that Justice

35:13

Neil Gorsuch brought up again and again.

35:15

He had his libertarian hat very much

35:18

on Friday, and I think it's a

35:20

genuine concern. On the other hand, this

35:22

is, I think, a unique feature of

35:24

the threat here, which is that Chinese

35:26

law requires Chinese companies to share data

35:29

upon demand. And so even though Tiktok

35:31

is an American corporation, we all know

35:33

corporations are people. No one is really

35:35

disputing that here. No one is really

35:38

focusing on the corporate speech aspect. We

35:40

all believe in Citizens United now. You

35:42

know, everyone agrees TikTok can speak. But

35:44

if TikTok is speaking and simultaneously turning

35:46

over data to bite dance, which is

35:49

turning over data to the Chinese Communist

35:51

Party, then that is a problem. And I

35:53

don't know that I saw the justices feel

35:55

their way out of this maze. Got them,

35:57

I'm curious if you did. I feel like

35:59

it was this. huge unresolved question that

36:01

a bunch of justices, you know,

36:03

Thomas, Jackson, Gorsuch, just as Amy

36:05

Coney Barrett as well, kept poking

36:07

at to not very much success.

36:09

Yeah, I agree with that. This

36:11

came up a little bit when

36:13

it comes to sort of the

36:16

least restrictive means component and narrow

36:18

tailoring of First Amendment analysis. And

36:20

I think that the company would

36:22

say, well, you know, the issue

36:24

here is that Even if you're

36:26

concerned about this data sharing question,

36:28

and even if you don't think

36:31

that a generally applicable law covering

36:33

all data collected companies would work,

36:35

then the limit is prevent the

36:37

company from sharing information or use

36:39

that national security agreement negotiation that

36:42

the Biden administration failed to come

36:44

to agreement on with the company.

36:46

There are other methods of doing

36:48

this. I think that the foreign

36:51

ownership piece, you know, I... had the

36:53

wise decision of maybe or unwise I've

36:55

never taken corporations in law school so

36:57

this is not my area. But I

36:59

was trying to think of some

37:01

hypotheticals and there was some talk of

37:04

this about the you know foreign communist

37:06

party you know and what came to

37:08

mind for me and this is not

37:10

fully baked so I might revise it

37:12

with some more rest. What if the

37:15

US government said, well Ethel Rosenberg is

37:17

an agent of the USSR and the

37:19

Soviet-communist party and yet she might be

37:21

an American citizen, but really we all

37:23

know that she's just some, you know,

37:26

planned by the Soviets and they're controlling

37:28

her? So we're going to sentence her

37:30

to death or we're going to put

37:32

her in civil confinement. That seems to

37:34

me maybe an analogous situation that we,

37:37

I think from a First Amendment matter,

37:39

would have some concerns about, you know.

37:41

whether or not corporations are people, they

37:43

seem to be for now. And so,

37:45

for me, the sort of bite-dance, Tiktak-U-S relationship

37:47

is a bit of a red herring, or

37:50

at least it's a path to go down

37:52

that I think is hard to disentangle, which

37:54

is maybe why, I think Dahlia, you're a

37:56

right to say, there's going to be an

37:58

off-ramp that's very... I think limited in

38:01

scope and just says maybe we

38:03

didn't want to get into this

38:05

mess and like what's the fastest

38:07

way off the freeway because we

38:09

don't actually have the time or

38:12

the capacity or the record to

38:14

really delve into the sort of

38:16

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tech. And we are back

39:56

talking TikTok and National Security

39:58

and the First Amendment. Gotam

40:00

Hans. So, Gotam, you actually

40:02

mentioned that the really hinky

40:05

issue here is the First

40:07

Amendment content-based. You can't get

40:10

away from it. And I

40:12

just want to play a

40:14

little bit of audio. Here

40:17

is Justice Kagan saying to

40:19

Solicitor General Elizabeth pre-logger, more

40:22

or less. Dude, you keep

40:24

talking about content-based manipulation. That's

40:27

a content-based rationale. I think

40:29

you've just given your thing

40:31

away, because content manipulation is

40:34

a content-based rationale. We think

40:36

that this foreign government is

40:38

going to manipulate content in

40:40

a way that will, that

40:42

concerns us and may very

40:45

well affect our national security

40:47

interests. Well, that's exactly what

40:49

they thought about. Communist Party

40:51

speech in the 1950s, which

40:53

was being scripted in large

40:56

part by international organizations or

40:58

directly by the Soviet Union. I

41:00

mean, this is in some

41:02

sense, as you've said from

41:04

the jump here, the strongest

41:06

rationale, right? You can't say,

41:08

we don't like the content-based

41:10

manipulation that is coming from

41:12

the platform and we're going

41:14

to pretend that this is

41:16

a content-neutral decision, right? Yeah, which

41:19

I think is... Not really supported

41:21

by the precedent, most notably the

41:23

cases from last year involving Texas

41:25

and Florida's social media laws, the

41:27

net choice cases, which I also

41:29

was involved in as an amicus

41:31

sign-on. I think that the net

41:34

choice cases made editorial discretion for

41:36

internet companies pretty clearly protected by

41:38

the First Amendment. The implications of

41:40

that holding and that choice I

41:42

think are relevant to the Tiktah

41:44

case and yet I don't think

41:46

the justices were there yet in

41:48

their questioning. So what that means is

41:50

that maybe upon further reflection, although when

41:53

that happens and with what deliberation remains

41:55

unclear, that should come to light. I

41:57

think that the sort of inside out

41:59

going out after content manipulation or

42:01

sorting is actually a content-based distinction

42:03

was starting to come to light

42:05

for the justices, which I think.

42:07

either means that it will get engaged

42:10

with on a meaningful level or maybe

42:12

more likely that we'll get a short

42:14

opinion that defers for another day the

42:16

complexities that we've been grappling with today.

42:19

Can I say I did have a

42:21

little bit of a problem with Justice

42:23

Kagan's hypothetical here? I mean I get

42:25

the appeal of this analogy but it

42:28

reminds me a bit of when gun

42:30

extremists compare muskets to AR-15s and second

42:32

amendment cases and say well if they

42:35

didn't ban muskets then we can't ban

42:37

assault rifles the Soviets were pushing

42:39

American communists in the 1950s to

42:41

publish certain pro-Soviet stuff in magazines.

42:43

Okay, how many people really read

42:45

those magazines? What was their reach?

42:48

We're talking here about a social

42:50

media platform that people are addicted

42:52

to, that 170 million some odd

42:54

Americans use, and that has an

42:56

extraordinary and immediate reach. And we

42:58

also know that there are connections

43:00

between social media and a whole

43:03

lot of problems in our society.

43:05

one out of thin air, eating

43:07

disorders, right? We know there can

43:09

be a connection between eating disorders

43:11

and social media use and social

43:13

media glorifying eating disorders and unrealistic

43:16

body image. What if the Chinese

43:18

government said, one way we're going

43:20

to undermine our adversary America is

43:22

to try to accelerate the epidemic

43:24

of eating disorders? And they just

43:26

pummeled Tik Talk by tweaking the

43:29

algorithm with content that glorified eating

43:31

disorders all aimed at teenage girls.

43:33

And they know which of their

43:35

users are teenage girls. And they

43:37

just direct all of this content that

43:39

is known to or very likely to

43:42

encourage disordered eating at a specific subset

43:44

of users for the purpose of. to

43:46

ruin their lives and harm their families

43:48

and ultimately destabilize America. I know it

43:50

sounds a little weird, this whole case

43:53

is about hypotheticals, but there is no

43:55

comparison between that and what the Soviet

43:57

Union could have done with crappy little

43:59

magazines. like door-to-door by pathetic communists

44:01

in the 1950s who really wanted

44:04

a revolution that was obviously never

44:06

going to happen. I just don't

44:08

see it. And so I feel

44:10

like this brings us to the

44:13

limit of analogies between modern technology

44:15

and the old speech cases. It

44:17

seems to me we're just in

44:19

a different world. And at a

44:22

certain point, the speech issues become

44:24

so fundamentally distinct that they can't

44:26

be reasoned out by analogy to

44:29

pen and pen. paper publications that

44:31

just do not apply to

44:33

the digital age. I am

44:35

sympathetic with the dynamic that

44:37

you're describing. The limits of

44:39

analogy are, you know, really

44:41

contested in the scholarly

44:43

space and, you know, we could

44:46

teach it. a seminar on this together,

44:48

Mark, if you want to start committing

44:50

to Ithaca. But I think that as

44:52

an analytical matter and a doctrinal matter,

44:55

this is not the world in which

44:57

we are in. And welcome to what

44:59

it means for me as a progressive

45:01

civil libertarian, which is to say that

45:04

I live in a world where I

45:06

disagree heavily with a lot of what

45:08

the First Amendment doctrines are, and yet

45:10

I have to litigate and analyze and

45:13

think about that world. I would love

45:15

for there to be a moment

45:17

in which we radically rethink the

45:19

First Amendment architecture in which we

45:21

all are forced to live. This

45:23

case should not be that moment

45:25

for many reasons, one of which

45:27

is the fact that we're talking

45:29

about disfavored speakers when I mentioned

45:31

the Israel-Palestine issue that was raised,

45:33

one of which is the alacrity

45:35

with which this case came to

45:37

us, and one of which is

45:39

the... speed at which the court's

45:41

going to have to make a

45:43

decision, and I think that the

45:45

real hesitants to go into the

45:47

deep end of this pool means that we're

45:49

not going to get that kind of really

45:52

thoughtful, necessary re-architecting of free speech

45:54

that I think we all agree

45:56

needs to happen. So the world

45:58

in which we're in. I think

46:00

we have to figure out what the

46:02

right answer is within that world.

46:04

It's tempting. There were so many

46:06

moments in the case where I

46:08

thought of the famous. garage door

46:11

opener tech case, right? Like where the

46:13

justices are like, I don't know what

46:15

I'm talking about right now. And there

46:17

were certainly moments today where it seemed

46:19

as though sort of the scope, the

46:21

tech scope of what was going on

46:24

was elusive for some of them,

46:26

whereas the national security scope was

46:28

really clear. And I wonder if

46:30

that's why like when you get

46:32

a national security case and a

46:34

First Amendment tech case walking into

46:36

a bar and you kind of

46:38

don't understand. stand some fundamentals, that

46:40

it gets easier to sort of

46:43

put your thumb on the scale

46:45

of national security. I do want

46:47

to sort of at least say

46:49

that I think, you know, if,

46:51

as Mark suggested up top, you

46:53

know there's two rationales here there's

46:55

an easy one and a hard

46:57

one and the easy one is

46:59

oh my god they're collecting our

47:02

data and using it in nefarious

47:04

ways that we may or may

47:06

not be able to explain or

47:08

know about and then this really

47:10

really very hard one which is

47:12

this is kind of a content

47:14

moderation case that is about not

47:16

liking the speaker and it feels

47:19

to me as though at some

47:21

point Brett Kavanaugh kind of challenged

47:23

Elizabeth pre-logger to say, like, more

47:25

or less, and we'll just play

47:27

it here. I don't know how

47:29

you want us to think about

47:31

those two rationales. They're two completely

47:34

different things. Which one wins in

47:36

a foot raise? How are we

47:38

supposed to think about the

47:40

two different rationales here and

47:42

how they interact? The data

47:44

collection rationale, which seems to

47:46

me at least very strong.

47:49

The covert content manipulation rationale,

47:51

as the hypotheticals have illustrated,

47:53

raised much more challenging. questions

47:55

for you about how far

47:57

that goes and if that

47:59

alone If you didn't have the

48:01

data collection piece, you only had

48:03

the covert content manipulation piece. And

48:05

then Mr. Fisher's point, Mr. Francisco,

48:07

is that Congress would not have

48:09

enacted this just based on the

48:11

data collection rationale alone. Just your

48:14

understanding of how the two arguments

48:16

fit together. Mark, how does this

48:18

shake out? I think it shakes

48:20

out in Solicitor General Pre-Logger tacitly

48:22

acknowledging maybe that the data privacy

48:24

rationale is stronger. I think that

48:26

for institutional reasons, she couldn't pick

48:28

a favorite child here. But I

48:30

do think that throughout the course

48:32

of her argument, she was leaning

48:34

more and more toward that rationale.

48:36

I just want to add like,

48:38

I think that there there's an

48:40

open question of whether the law

48:43

can be sustained on one ground

48:45

alone. Tiktok and the content creators

48:47

argued vociferously that Congress relied on

48:49

both of these rationales and if

48:51

one of them is illegitimate, then

48:53

the law has to fall and

48:55

that they're sort of intertwined with

48:57

each other. I don't know if

48:59

I agree with that. I'm curious

49:01

what Godham thinks. I mean, to

49:03

me, that would be a strong

49:05

argument if this were like a

49:07

regulation published in the Federal Register

49:09

by the Department of Commerce, but

49:12

this is an act. passed by

49:14

Congress, signed by the president, duly

49:16

passed into law, that reflects the

49:18

bipartisan concerns of the lawmakers, who

49:20

we have elected to represent us

49:22

and to protect our country. And

49:24

I'm not one for mindless deference

49:26

to the political branches, and I'm

49:28

not one for endless flag waving

49:30

in the face of serious free

49:32

speech concerns. But it does seem

49:34

to me that if these two

49:36

rationales can be disentangled plausibly, and

49:39

one of them stands up on

49:41

its own, then the court has

49:43

got to let it stand up

49:45

and not try to sort of

49:47

bootstrap the forbidden justification to kill

49:49

the whole law. I mean, got

49:51

him dis- I disagree with me

49:53

if I'm wrong, but it seems

49:55

to me that at least some

49:57

deference here is owed to the

49:59

decisions of Congress and that we

50:01

shouldn't be encouraging five lawyers in

50:03

robes to overrule their decision that

50:05

easily. Yeah, I think that the

50:08

disentangling question is hard because, you

50:10

know, think back to the Obamacare

50:12

cases when there is the debate

50:14

about the commerce clause power versus

50:16

the taxing power. Those were very

50:18

discreet, understandable, doctrinally distinct justifications and

50:20

ultimately the taxing power and justification

50:22

went out and the commerce clause

50:24

one did not, wrongfully in my

50:26

view, but that's what happened. I

50:28

don't think this case is like

50:30

that. I think that separating this

50:32

is not like, you know, picking

50:34

the nuts out of the salad.

50:37

We're talking about some like sad

50:39

frata that none of us really

50:41

want to be eating right now.

50:43

You know, you can't just get

50:45

the, you know, get the cheese

50:47

out and be like, oh, I

50:49

don't like eggs today. For me,

50:51

I think at a fundamental level,

50:53

I would really love the court

50:55

to be more thoughtful about not

50:57

overruling Congress or... an agency all

50:59

the time just because they don't

51:01

like it. This is not the

51:04

case where I want them to

51:06

start doing that because what's going

51:08

to happen is what we fear

51:10

about in the First Amendment, which

51:12

is where the court is, oh,

51:14

which speaker do we like today

51:16

and which do we not? Do

51:18

I think the court does that

51:20

all the time? Absolutely. I'm only

51:22

some of a fool. I understand

51:24

how these things work, but I

51:26

don't think we should validate that

51:28

kind of ad hoc decision making

51:30

when it comes to sort of

51:33

feelings. And we know that's where

51:35

we are, but we don't have

51:37

to agree that's where we should

51:39

be. I do think that for

51:41

me, there are more or less

51:43

doctrinally justified ways that the court

51:45

could go. I've always thought that

51:47

they're not going to go the

51:49

way that I want them to,

51:51

and then there's the question about

51:53

how do we stand should bleeding?

51:55

My sense that at the end

51:57

of the argument, there was a

51:59

little bit more awareness of that

52:02

dynamic, that there might be some,

52:04

like I said, cleaner off ramps

52:06

that would be better for the

52:08

messy sort of doctrinal questions that

52:10

didn't really get the development over

52:12

the course of years that this

52:14

case would have taken in a

52:16

normal situation. So, you know, we'll

52:18

see if five people want to

52:20

be prudent in the coming days

52:22

and weeks. because as we also

52:24

have I think some understanding the

52:26

timeline here is like really fast

52:29

but also unclear as to how

52:31

this is going to play out

52:33

and when we can expect any

52:35

kind of stay or decision or

52:37

further action from the court. Right

52:39

that's exactly where I think we

52:41

should end on this question of

52:43

the court's going to do what

52:45

the court's going to do and

52:47

then in a very compressed amount

52:49

of time, Donald Trump is going

52:51

to do what Donald Trump is

52:53

going to do. And this case

52:55

all sort of slams right into,

52:58

you mentioned this at the beginning,

53:00

got him, but you know, Trump

53:02

was for the ban and then

53:04

he was against the ban and

53:06

then he filed a brief saying

53:08

he wanted to fix all the

53:10

things with his like deal making

53:12

ability. So he's everywhere and nowhere

53:14

in this case in some ways.

53:16

How is this going to play

53:18

out in the next two weeks?

53:20

What is going to happen? Pragmatically,

53:22

almost regardless, and there was a

53:24

lot of conversation about, how is

53:27

this going to go? Could they

53:29

even divest? What happens if they

53:31

don't divest? Do we get the

53:33

pause? How does this play out

53:35

in the very, very uncertain transition

53:37

to an administration that really feels

53:39

differently about this, at least today?

53:41

you know, guess and we're really

53:43

in the realm of guesswork. So

53:45

if and when I'm wrong, I'm

53:47

happy to admit it, is that

53:49

I expect that we will get

53:51

a decision on the stay request

53:54

from TikTok and the creators pretty

53:56

quickly to say that the stay

53:58

is not going to be granted.

54:00

The reason I think that that

54:02

is probably going to happen pretty

54:04

quickly is that I don't think

54:06

there are other votes for a

54:08

stay. there weren't before the argument

54:10

and there certainly aren't after. So

54:12

the close to zero possibility of

54:14

a sale, I think still is

54:16

close to zero, if not zero,

54:18

and the court maybe wants the

54:20

company to continue to explore this

54:23

divestiture avenue because that would prevent

54:25

the shutdown. A decision could happen

54:27

at any point that's more reason,

54:29

depending on how much depth the

54:31

court wants to go into. And

54:33

I think, you know. were still

54:35

unclear as to what they would

54:37

do on that front. I have

54:39

still sort of guessed that we

54:41

might get a short, relatively short,

54:43

unsigned, pericurium opinion next week before

54:45

the ban would go into effect

54:47

that would give a better explanation

54:49

as to why a state wasn't

54:52

going to happen. Trump's amicus, I

54:54

think the technical term was messy

54:56

and confusing. And I don't think

54:58

there was a lot of appetite

55:00

for that at all argument. I

55:02

don't think that the future Trump

55:04

administration's claims that they wouldn't enforce

55:06

it or my non-enforcement mean very

55:08

much because there are other companies,

55:10

Oracle, Apple, Google, that are implicated

55:12

by this law. And I don't

55:14

think that those companies are going

55:16

to... rely upon the claims of

55:19

a justice department that they're not

55:21

enforcing it given what it would

55:23

mean to be out of compliance

55:25

with the federal law that rests

55:27

on national security grounds. So I

55:29

think with all those sort of

55:31

politics pretty obvious even to the

55:33

justices I would expect something that

55:35

makes the future options for the

55:37

company clear to the company so

55:39

that they can figure out what

55:41

if anything they want to do.

55:43

Same question to you Mark just

55:45

to play us home here. Am

55:48

I going to be... able to

55:50

open my tick-tock app, got them

55:52

talked about briefly like nuts and

55:54

salad and there was some cheese

55:56

there and now all I can

55:58

think about is tick-tock pasta with

56:00

feta. going to be able to

56:02

get my recipe next week more?

56:04

I think that you will not.

56:06

I think that what will happen

56:08

is, as Gottam said, the court

56:10

will issue a short order or

56:12

a procuring opinion that allows the

56:14

ban to take effect on January

56:17

19th. And you know, the way

56:19

the law actually operates is that

56:21

it prohibits app stores from continuing

56:23

to carry TikTok. There's an open

56:25

question of whether you'll be able

56:27

to use it for a limited

56:29

period of time even after the

56:31

app stores shut it down, but

56:33

I think it will die fairly

56:35

quickly if the court allows. it

56:37

to. Then the big question, again,

56:39

as Gottam said, is, well, what

56:41

if Trump comes in and says,

56:44

surprise, TikTok is back, I'm ignoring

56:46

this law. There were some gestures

56:48

toward that possibility at oral arguments.

56:50

I think the answer, again, is

56:52

nobody knows, but that the app

56:54

stores and big tech companies are

56:56

going to be very hesitant to

56:58

potentially subject themselves to penalties if

57:00

Trump tries to suspend the law

57:02

and the courts later shot him

57:04

down. So I would say everybody,

57:06

I know that Instagram Reels is

57:08

an inferior product. I know that

57:10

you will never get as good

57:13

a recipe for feta pasta, especially

57:15

one pot feta pasta on reals

57:17

as you did on Tiktok, but

57:19

start making the transition if you

57:21

haven't already because otherwise if you

57:23

haven't switched to Instagram by January

57:25

19th, then you might not have

57:27

a video app at your disposal

57:29

at all and you might actually

57:31

have to read a book. And

57:33

that. is the worst fate of

57:35

all. I would just say that

57:37

that situation is probably what's going

57:39

to happen, but that remains a

57:42

First Amendment problem for the users

57:44

who I think really can't be

57:46

overlooked in this. context. We have

57:48

over a hundred million people who

57:50

use it on a monthly basis.

57:52

And I agree that sure, there

57:54

are other venues for experiencing some

57:56

other front-facing camera content. But just

57:58

as I think Mark and Dahlia,

58:00

you would not say that I'm

58:02

going to get the same experience

58:04

listening to District Scrutiny or 5-4.

58:06

That also, I think, applies to

58:09

TikTok versus Instagram and YouTube. Two,

58:11

different speakers and different platforms have

58:13

their own First Amendment environments, and

58:15

a switch does have First Amendment

58:17

costs. That I think is what

58:19

we're going to have to keep

58:21

in mind as we see how

58:23

this fast-moving situation plays out over

58:25

the coming weeks. Man, we were

58:27

just hoist on the petard of

58:29

rival Supreme Court podcast, Mark. I'm

58:31

just going to sit in the

58:33

nut-based reality of that. Gotham Hans

58:35

is a clinical professor of law

58:38

and founding director of the Civil

58:40

Rights and Civil Liberties Clinic at

58:42

Cornell Law School. He analyzes through

58:44

research and his advocacy how new

58:46

and developing technologies implicate constitutional law,

58:48

privacy, and data protection, and public

58:50

policy. And I really, really want

58:52

to thank you for being here

58:54

with us. It is clear we're

58:56

all just formulating our thoughts on

58:58

what just happened. And Mark Joseph

59:00

Stern is, of course, my co-pilot

59:02

on Amicus Mark, and Godam, thank

59:04

you both very, very much. This

59:07

has been quite a marathon as

59:09

oral arguments go, and there is

59:11

nobody I would have preferred to

59:13

talk about it with. Thanks. Thanks,

59:15

Dahlia. Thanks to you both, and

59:17

see you on the internet. And

59:21

that is all for this

59:23

episode of Amicus. Thank you

59:25

so much for listening in.

59:27

Thank you so much for

59:29

your letters and your questions.

59:31

You can keep in touch

59:33

with us at Amicus at

59:35

slate.com or you can find

59:37

us at facebook.com/Amicus podcast. As

59:39

we said on our plus

59:41

episode that was taped on

59:43

Thursday night, our hearts and

59:45

our thoughts are with our

59:47

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59:49

California. We hope you're okay

59:51

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59:53

okay. This week's Amicus Plus

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59:59

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The Queen, tells the story

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and maybe even a murderer.

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She was also given the

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