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Steve we'll take care of your equipment okay I can talk yes want to call cpan cameras live outside the Supreme Court for the case dealing with Tik Tok and the potential ban of the app in the United States also let you know over on seaspan today we could see President elect Donald Trump scheduled to be sentenced on felony charges 10 days before he's inaugurated for his second term and if we hear from those exiting the courthouse today from Juan maran's sentencing there we will take you there live that's that'll be over on C-Span versus Garland

and the consolid validated case Mr Francisco Mr chief justice and may it please the court under the act one of America's most popular speech platforms will shut down in nine days that shouldn't happen for three reasons first Tik Tock Incorporated is a US company speaking in the United States the ACT requires it to go dark unless bite dance executes a qualified divesture whether you call that a ban or a divesture one thing is clear it's a burden on Tik Tock speech so the first amendment applies second the ACT is content-based from beginning to end it

applies only to social media platforms that have user generated content except for business product and travel reviews within that content-based Universe it singles out a single speaker for uniquely harsh treatment and it does so because the government fears that China could in the future indirectly pressure Tik Tok to disseminate foreign misinformation and propaganda finally the ACT can't satisfy any standard of scrutiny the government has no valid interest in preventing foreign propaganda and its fallback that it seeks merely to prevent covertness makes no sense since that could be addressed with a risk disclosure the government's real

Target rather is the speech itself it's fear that Americans even if fully informed could be persuaded by Chinese misinformation that however is a decision that the First Amendment leaves to the people given that the government's data security rationale cannot independently sustain the act it is also grossly under inclusive and ignores the most obvious less restrictive alternative simply Banning tick toop Incorporated from sharing any sensitive user data with anyone in short this act should not stand at a minimum you should preliminarily enjoin it which will allow you to carefully consider this momentous issue and for the

reasons explained by the president elect potentially moot the case I welcome your questions uh exactly what is uh Tick Tock speech here Tik Tock your honor uses an algorithm that in its view reflects the best mix of content what the ACT does is it says Tik Tock cannot do that unless bite dance executes a qualified investure that's a direct burden on Tik Tock speech much less of a burden than the one that this court struck down in the Simon and Schuster case where all the author had to do was take a certain amount of proceeds

and put it into an escrow account for a short period of time to satisfy a civil judgments so why does a restriction on bite dance uh which is not a citizen uh is not located in the US a restriction on Tik Tock because what the law says to Tik Tock is that Tik Tock you cannot use the algorithm that you prefer to use unless bite dance executes a qualified devestator so the law therefore falls directly on Tik Tock itself it imposes a burden on Tik Tock speech again a much less a much more significant burden

than the one that was struck down in Simon and Shuster there you're converting the restriction on bite Dan's ownership of the uh algorithm and the company uh uh uh into a restriction on Tik Tock speech so why can't we simply look at it as a restriction on uh bite dance because because I think the burden falls directly on Tik Tok and I can use a hypothetical that helps illustrate the point suppose that China used its leverage over Jeff bezos's International Empire including his Chinese businesses uh to force W The Washington Post to write whatever China

wanted on the front page of the post surely the could government couldn't come in and say Jeff Bezos you need to either sell the Washington Post or shut it down that wouldn't just violate Mr bezos's First Amendment rights that would also violate the Washington Post First Amendment rights because they're ultimately the one that's suffering the burden under that law because they have to go dark and close up their books Council you began by saying this is a US company operating in the United States yes you're but the ultimate company that controls it bite dance uh

was found uh by Congress and I quote this to be subject to Chinese laws that require it to assist or Co or cooperate with the Chinese government's intelligence work quotes uh and to ensure that the Chinese government has the power to access and control private data that the company holds so are we supposed to ignore the fact that the ultimate parent is in fact subject uh to doing intelligence work for the Chinese government well you're honor uh I don't think you are supposed to ignore that at all but I also don't think that it changes

the analysis for a couple of reasons look Tik Tock and well just a holy second well as I said you began by saying this is a US company operating in the United States and it seems to me that you're ignoring the major concern here of Congress which was Chinese manipulation of the content and uh acquisition and harvesting of uh of the content sure and I'll start by saying that Tik Tock Incorporated is a United States subsidiary operating in the United States with its own set of free speech rights do you dispute the fact that bite

dance is ult has ultimate control of Tik Tock in its corporate organization uh yes your honor I do dispute that but I also don't think that it matters because even if China could exercise overwhelming power against Tik Tock versus bite dance I don't think it would change the analysis and I can take that Washington Post hypothetical and Ratchet it up a little bit to help illustrate the point let's suppose that the Chinese government had actually taken the Bezos children hostage and it was using that leverage in order to force Bezos and the Washington Post to

publish whatever they wanted on the front page of the post so China effectively has total control I still don't think that Congress could come in and tell Bezos either sell the post or shut it down because that would violate bezos's rights and the Washington Post rights maybe what they could do is come in and say you need to disclose the fact that you're under this amount of coercion so that the people who are looking at the Paper Understand it and can make their own assessment but I think the First Amendment rights of both Bezos and

the post would be directly implicated not withstanding that China in that scenario has effectively total control over what what what gets printed in the Washington Post Council um let me break this down I understand your argument that there is a First Amendment right that the US company has I'll go that far with you okay I'll take because we're affecting their ability to talk in some in whatever way they choose um The Washington Post could choose without any um influence uh or threat against the children of Mr Bezos um to promote Chinese policy and our first

amendment would permit them to do that if they chose it independently correct yes now the question becomes so it's not that's just a given that they have a First Amendment right the next question is assuming when they do what's the level of scrutiny we apply isn't that what the issue here uh that is certainly one of the issues your honor all right so if we get to that side of the issue that tiktock USA has some sort of First Amendment right um taking your example if the government said no speaker is free to speak under

comp under a criminal compuls by someone else because of extortion because of kidnapping um we are doing this because it is the only way to ensure the safety of people that they are not going to be kidnapped or or threatened their lives threatened you don't think that the government has a compelling State interest in saying if there is a threat a a physical criminal threat against someone to do some activity that the government couldn't say I'm not questioning whatever the content is of that activity I'm simply saying we in our governmental Powers have a right

to say you can't do that you can't speak sure your honor so to take your question in pieces I do think that they would have a compelling interest in that scenario to do something but what I don't think is that they could simply Target speakers in speech take for example generally applicable laws like the so you think in that situation that it that the only thing the government could do is tell the Washington Post disclose to the public that you are saying this because you are being forced to so that's that's the only remedy the

government could undertake no no your honor but I want to make sure I understand the hypothetical the compelling interest is in uh preventing this kind of compulsion coercion and ultimately harm to children and I think that the government has a lot of different ways they can address that through speech neutral laws and I was going to point to things like the trading with the Enemy act or Russia sanctions you can broadly say and attack problems they haven't been very effective well that we're still having people kidnapped we're still having coercion and be that as it

may you can say to Americans you cannot collaborate with our enemies at all and if you do that you're going to be severely punished for doing that we go on to the effectiveness of the remedy but the point is I believe that even if your first amendment rights are impinged and there is some protection the question is is what at what level of scrutiny yes your honor and whether that the action is content neutral or not I I agree that that is the way that the analysis proceeds here we believe that the level of scrutiny

uh should be strict scrutiny what is the um relevance of the history chief judge shason in his opinion in the DC circuit emphasized that there is a long tradition of preventing foreign ownership or control of media in the United States going back uh radio television and what have you I would think no matter the level of scrutiny that history has to be um important and I want to get your response to it uh I don't actually think it's important in this context because that history all arises in the context of bandwidth scarcity and in that

context you have the government that's in in the position of Doling out a limited number of licenses and when you have to Dole out a limited number of licenses you buy definition have to pick winners and losers and when you have to do that you get a certain amount of discretion I think that's the whole basis of those cases you can't really take those cases and keep going you can't really take those cases and extend them to an area where there is no scarcity like the worldwide web because once you do that there's really no

limiting principle there's no reason why that wouldn't also apply to really popular books or magazines or newspapers or chains of newspapers the bandwidth scarcity I think is really what uh justifies the greater discretion that the government gets in that area Mr Francisco let me see if I can break this down suppose that Tik Tock were outright owned by the People's Republic of China would you make the same argument uh I wouldn't be making the same argument your honor there why not because there you would have to confront a very different question whether a foreign government

that was speaking in the United States has First Amendment rights and I don't know that uh the court has ever uh addressed that but here we've got a no I understand that I just want to see where you draw the line so uh it's true the court has never held that a foreign government has free speech rights and if we were to hold that I would think it's be it would be because speech by a foreign government particularly one with enormous resources uh is not protected it allowing that is does not serve the underlying interests

of the First Amendment which are are among other things fostering Democratic self-government and furthering the the TR the search for truth so let's assume that that's we start with that all right what if Tik Tock were then not owned by the foreign government but it was Undisputed that Tik Tock was totally controlled by the foreign government could not do one thing without the approval of the foreign government uh that's different I do think that it is different your your honor for example you know I've given the hypothetical that I've given but there are a lot

of companies in this country that have foreign owners not just companies like Politico with is which is German owned or Al jazer which is partly owned by the government well I understand that but what would be the reason for drawing that line sure if there's a good reason for saying that a foreign government particularly an adversary does not have free speech rights in the United States why would it all change if it was simply hidden under some kind of contrived a corporate structure because it is a US speaker uh I'll give you another example AMC

movie theaters used to be owned by a Chinese company under this Theory Congress could order AMC movie theaters to censor any movies that Congress doesn't like or promote any movies that Congress wanted and I think the reason is that here where it's conceded you actually have a Bonafide us company it is not simply a Chinese cutout that is uh the Chinese government speaking itself independent United States let's say this is not a complete answer to uh to your first amendment argument but would you be willing to concede that this is a very important factor that

should be taken into account in deciding whether there's a First Amendment violation well your honor I think that it does help Supply a compelling governmental interest but I still think you have to March through the strict scrutiny analysis and analyze their interests I do not think that they have a compelling governmental interest in in uh in the manipulation of content I think that is in the teeth of the First Amendment and if you look at the government's brief and the rest of the record in this case that's really what it's focused on their complaint is

the fear that the content could be critical of the United States government or could undermine our democracy yes your honor Mr Francisco I just wanted to follow up on on that line of question with just some fact questions because it seems to me there are a couple of things that the parties still dispute about facts in this court which is a little unusual uh the government says that Tik Tock us has no Authority or ability to alter the algorithm or recommendation engine but must simply follow bite Dan's directives you disagree with that in your reply

brief somebody has to be right and somebody has to be wrong about that what's what's the fact what does the record show well your honor we are here on a record and there is nothing in the record that says that Tik Tock like any other subsidiary doesn't have its own independent making Authority if you look at their record sites what they point to is the ordinary types of control that a parent company has over a subsidiary company but it doesn't change the fact what is the fact are you prepared to make a representation yes your

honor the fact is that Tik Tock incorporated as a US company does have a choice over the algorithm now it would be an incredibly Bad Business decision for them to abandon this algorithm and they uh very doubtful would ever do it but they have that Authority what they clearly have the authority to do is shut down the platform in the face of Chinese pressure that's actually what they agreed to do in the National Security agreement I think that underscores why Tik Tock incorporated as a US company does have its own set of First Amendment rights

okay and then another fact question uh before the DC circuit you you argued that the Chinese government has made clear in public statements that it would not permit a forced devest divestment of the recommendation engine does that mean that some key component of the recommendation engine is under Chinese control no your honor what it means and this might warrant a little more explanation what it means is that there are lots of parts of the source code that are embodied in intellectual property that are owned by the Chinese government and they would restrict like the United

States restricts the sale of those types of things uh to foreign governments it doesn't alter the fact that this is uh being operated in the United States by Tik Tock Incorporated so I I got I got it and then um you represent that the divesture is not feasible within the a time frame I'm sorry for these fact questions I just want to understand what's before us um would it be feasible in any time frame I I take the government doesn't dispute that it's infeasible in the 270 days provided by law but would it be your

honor uh I think at least as we understand how they've interpreted the qualified devestator provision it would be exceedingly difficult under any time frame for two principal reasons the first is that there's a global team of Engineers that are some in China some in Europe some in the United States that maintain and update the original source code and as we understand their interpretation a qualified devest would prohibit any kind of coordination with that Global team of Engineers the other reason is because uh as we understand how they're interpreting it a qualified divesture would divorce the

US platform from the global content so for example there are videos created in the United States there are videos created in Ireland in order to get Global content we need access to the Irish videos they need access to the US videos we understand that couldn't happen Okay so you think it's probably not feasible in any timeline well your honor I think it'd be extraordinarily difficult okay last last fact question then I'll yield the floor here the the government admits that it has no evidence that Tik Tok has engaged in covert content manipulation in this country

but says that bite dance has responded to PRC demands to censor content outside of China in other countries again you deny that in your reply brief somebody has to be right about that well you're honor the problem there is everything that follows what you just read is redacted and so I don't know what it says what the record shows is two things the record shows first what you just said they haven't done anything here in the United States with a respect to Tik Tok Incorporated and second the record also shows through our transparency reports that

we haven't removed or restricted content on the Tik Tock platform in other parts of the world and Tik Tok doesn't operate in China it operates in other parts of the world we haven't removed a restricted content at the request of China that's what we put out in our regular transparency restricted though doesn't necessarily cover Co covert content manipulation though right well your honor I'm limiting my response to what's in the record uh it's very difficult for me to respond to things that I where I don't know what the accusation other questions about the secret evidence

in this case but we'll get to that later thank Mr Francisco can I ask you a question about the relevant speech here so it strikes me that this is a little different than your Bezos example because there it's clearly content discrimination because we're talking about the ability to post particular articles versus other articles am I right that the algorithm is the speech here uh yes your honor the well I I would say it's you the algorithm is a lot of things the algorithm has built within it it's it it's basically how we predict what our

customers want to see the editorial discretion yeah the editorial discretion it also has built within it the moderation elements all of this kind of comes together when the source code is translated into executable code in the United States in the United States that executable code is then subject to vetting review moderation through content moderation algorithms and that so It ultimately lands on the Tik Tok platform got but what we're what we're talking about as as a net choice is the editorial discretion that underlies the algorithm and and I just want to be clear a lot

of your examples talk about including the basos swan the right of an American citizen to repeat what a foreign entity says or say you know I'm hitching my wagon to China I want to say everything China does here the concern is about the covert content manipulation piece of the algorithm that is something that bite dance wants to speak right well your honor uh I think that ultimately it's Tik to's Choice whether to put it on the platform and you don't want that are you is your client disclaiming we absolutely resist any kind of content manipulation

by China at all but what I do want to focus in on is what their asserted interests here they do talk about covertness but it can't possibly be that all they're concerned about is mere covertness if all you were concerned about was the covertness untethered from the underlying content that's something that could be easily addressed through a risk disclosure that goes to scrutiny the level the application I'm trying to I mean let's say that I agree with you the first amendment is implicated and I'm trying to figure out what level of scrutiny applies and I'm

trying to figure out what content if any discrimination is going on here you know there's a disproportionate burden I let's say that I agree with you about that um no one is preventing you I mean you're seeking access to a particular source code engineering the recommendation feature it's it's the technology that you want you're not trying to repeat as in the Bezos example if we take the speech that the government's concerned about to be the covert the covert content manipulation rationale you're not seeking to utter that speech what what we that's correct your honor what

we are seeking to do is use an algorithm that displays the combination of content that we prefer our users to see on the platet and the government doesn't care about that I mean the government the government is fine with you doing that you can invent it yourself it doesn't even care what content that displays cat videos or whatever yeah but but I think that the way that the analysis has to unfold is first you ask is this law burdening our speech I think we agree that the law is burdening our speech then you have to

look at whether the law itself is somehow content based not just what their motivations are but whether the law is content-based and here the trigger for this law the one thing that gets it going is if you operate a social media platform that has user generated content unless that content takes the form of a product travel or Business Review then within that Universe of content it says there's one speaker we're particularly concerned about and we're going to hammer home on that one speaker and then just to make the rubble bounce they come in and tell

us that one of the reasons they're targeting that speaker is because they're worried about the future content on that platform that it could in the future somehow be critical of the United States or undermine democracy to pull examples from the government's brief so I think there's no way to get around the fact that this is a content-based speech restriction and you do have to go directly to what their interests are now their principal interest is could I I think I'm I'm a little bit surprised by one of the answers that you gave to Justice Barrett

I had understood that Tik tok's essential complaint here is that that they wouldn't be able to use the algorithm that bite dance has invented and that they want to use the algorithm that b Dan is invented 100% And if I if I was unclear on that your honor I apologize that is Absol think Justice Barrett was saying to you is like what's the problem here because bite dance is a foreign company um or maybe this isn't what Justice Barrett says it's just what I say bite dance is a foreign company and you started off with

justce celo saying you know well we would be making a different argument and of course that's true I mean I would think that Alliance for open society makes it pretty clear that you have to be making a different argument with respect to a foreign state or a foreign company so let's see let's say that they don't have First Amendment rights the only First Amendment rights lie in Tick Tock which does have First Amendment rights um and I I I guess my question is how are those First Amendment rights really being implicated here this this statute

says the foreign company has to divest whether or not that's feasible however long it takes Tick Tock still has the ability to use whatever algorithm it wants doesn't it uh no your honor and their rights are implicated at a most basic level in 10 days Tik Tock wants to speak in 10 days because this law was passed Tick Tock cannot speak unless bite Dan executes a qualified devestator that's not just bite Dan's choice that is a that is a condition it definitely has effects on Tik Tok if bite dance acts in the way that you

are assuming it will act um so uh so this is not to say that the First Amendment isn't involved because Tik Tock is going to suffer some pretty severe incidental effects but they are incidental aren't they because the statute only says to this foreign company divest or else and um and leaves Tik Tock with the ability to do what every other actor in the United States can do which is go find the best available algorithm I I very much disagree that the effects are incidental because the way that this law works is it is only

triggered if somebody is engaging in speech based on their content user generated content except for business product and travel reviews it then singles out a single speaker and you have the concession for the government that one of the reasons they' singled out that speaker a lot of emphasis on the idea of just like uh you know I think what you're basically saying is that all speaker-based restrictions um generate strict scrutiny I'm not sure that we've ever said anything like that um you know let's put aside the fa your argument that this is facially content-based it

seems to me that your stronger argument or least the one that most interested me was this argument of look if the government is doing something specifically for the purpose of changing the content that people see um uh that has to be subject to strict scy but I don't see that as as affecting Tick Tock as opposed to as affecting bite dance well no no I I very much do see it as affecting Tik Tock because they choose this algorithm because it reflects the mix of content the government's fear is that China could come in and

pressure Tik Tock Tik Tock through bance to Tik Tok to alter that mix of content to make it too pro-chinese or to anti-American that is very much directly a content-based charge straight at Tik Tok the other point I would like I hear you that it might very well have that effect I guess what I'm suggesting is that the law is only um uh targeted at this foreign corporation which doesn't have First Amendment rights whatever effect it has it has you know maybe bite dance will figure out a way to like put this on open source

and then Tik Tok will be able to use the so your honor if I could take that on directly because uh to the I think Tik Tock has First Amendment rights to the extent bite Dan is speaking in the United States it I believe has First Amendment rights if you conclude that neither has First Amendment rights then surely the creators have First Amendment rights but if you take a step back what their position is is that none of these entities this is the universe of entities affected by this law none of these entities have the

authority to assert First Amendment rights which means that the government really could come in and say I'm going to shut down Tik Tock because it's too pro- Republican or too pro Democrat or won't disseminate the speech I want and that would get no First Amendment scrutiny by anybody that cannot possibly be the case yet that is the the effect of their position the last point I'd like to emphasize though is this law like the Playboy case like the Hobby Lobby case has built within it a less restrictive alternative which is the general provision by definition

designed to protect against the very harm the government is identifying suppose New York State passes an asbest abatement law they say these types of buildings have to AB as Abate asbest in addition New York Times you have to Abate asbest in your building and they say there are two reasons for this one we want to Abate asbest to we hate the New York Times editorial page surely at the very least what you're going to say is you can't Target the New York Times directly what you can do is throw them into the general process we

think that's the minimum that should be done here thank you Council we we've been talking about connection between the regulation of of Tik Tock and the uh burden on expressive conduct uh and your basic position is that interfering with the ownership of Tik Tock uh constitutes a direct uh uh regulation of the expressive conduct of other other people what what is your best example in our precedent of a situation where we've a regulation of corporate structure or something else has been treated as a direct regulation of expressive conduct uh the regulation of a corporate structure

as a uh your honor I I I don't have a case in my fingertips I can can consult I don't have one at my fingertips or any other rebuttal but I but I think it's quite clear though that if you're saying to a company you have to stop talking unless somebody else does something and that's imposed by the force of law it directly affects that company's speech that's it's it's again I don't I don't know if it's directly affecting the company speech or the speech of third parties and I'm not sure what you know where

your your emphasis is uh uh but again I'm not sure there's another case where we've said that regulating a company has should be others expression should should be treated as direct uh imposition on their speech in terms of the standard of review for example uh when it's based on derivative regulation of corporate structure of somebody else well your honor I think that it's I I would concede that this is a pretty unprecedented case I'm not aware of any time in American history where the Congress has tried to shut down a major speech platform but I

I think that if a law imposes a a direct regulation on a third party that turn results in shutting down somebody else's speech and they do it for content-based Viewpoint based reasons and in particular on this record because the speaker that is ultimately being shut down they don't like the speech of that particular platform that's a real problem so well it may be a real problem or may not but I just am wondering if there's any precedent where we have that same connection and that it affects the standard of review for example you would treat

it as a direct restriction on expression even the only thing the law does is say in this case somebody other than the Chinese government has to own so so so we don't have any direct precedent along the lines that you're citing but we do have precedents we have cases like aara and what aara says is if the law is totally speech neutral then that's one thing we have cases like O'Brien which say if the law doesn't care about speech but happens to draw in speech that's another thing both of those cases made clear however is

that when the law is concerned concerned with the content of the speech when the justification is based on the content of the speech that's cases like Reed too then you do trigger strict so then I think your argument comes down to is this direct concern with speech or is it concerned with the potential for Chinese interference uh uh with the um uh level of interference in indirectly in other words they're not coming back the Chinese government as Tik Tock doesn't care what the people are saying on Tik Tok that's not the the concern the concern

is that they are regulating uh a particular channel of communication and I just wonder if there's any precedent for that type of thing they're not saying we're going to restrict this contact content and that content but not this they're just saying we're going to be in a position where we can control what happens whether it's based on expression whether it's based on anything else so your honor I disagree and I think if you take a step back and look at this record I think it is quite clear that it is focused on both current and

potential future content on Tik Tok Tik Tok Incorporated here you don't have just an act that is based on speakers and speech it's triggered by speech it's focused on a single speecher Tik Tock incorporate speaker Tik Tock Incorporated Justice Thomas anything for justice Alo what if Congress uh if there were nothing in this act about content uh um moderation or covert manipulation what if it was just just about uh preventing uh what Congress viewed as an enormously powerful popular application from Gathering an arsenal of information about American citizens and they said this is the worst

offender and we're going to require divestiture by this offender would there be a First Amendment problem there and if you think there would be what would the level of scrutiny be yes there would be a First Amendment problem if you had a law like this that was only focused on speakers those who use user generated content other than product traveler business well Congress Congress concludes that this particular entity is the worst this is the worst offender and it happens to be uh an entity that is involved with speech uh if all you had so I

want to make sure I understand the hypothetical the only provision you have is one that says this company has to shut down because of data security right I would have a different set of arguments I think it would still implicate the First Amendment particularly where you have strong evidence that they were being targeted in part at least because of their speakers and speech suppose Congress passed the law that you but you're changing the you're changing the hypothetical by by injecting Congressional concern about the okay well I'll put that to the side so what would your

argument be it would be an equal protection argument no no still be saying I still be saying that aara itself makes clear that where a law disproportionately burdens just a speaker we have to subject that to scrutinies to sus it out to sus out whether the asserted interest is the actual interest there the asserted interest is in data security I think I would have a couple of arguments under whatever form of scrutiny you wanted apply whether it is strict scrutiny or intermediate scrutiny in that context I would say first that that law is dramatically uh

under inclusive because it categorically exempts e-commerce apps that this record shows have comparable ties you say you say I don't want to prolong this too much you you say this is not like arara I think primarily because you say that uh uh uh the divesture requires uh the new company to cease using the algorithm right no I think it's not like arara for a much more fundamental sense aara involved a totally speech neutral law it didn't go after speakers at all if you had a law in aara that said we're going to prohibit prostitution in

bookstores only then I think that a car would have come out differently there would have at least been you know some kind of intermediate scrutiny potentially strict well that's the law that I think is your hypo away from the hypothetical that I for the purpose of narrowing in on what your on what your argument is uh my I understood you to say that it this that would not be a solution to the problem because one of congress's motivations was was the content was based on the content of Tik Tok am I wrong in that did

I read your argument incorrectly uh well I think that I want to make sure I understand what you're saying I I certainly think that because one of the motivations was content that is an enormously important fact I was trying to answer your hypothetical where we were trying to take that out of the mix and the reason why aara is different is because arara didn't just simply say no prostitution in bookstores that's what your hypothetical effect says it says no data security problems in speakers or in this particular speaker and I think that that would trigger

at the very least intermediate scrutiny all right thank you thank you Dr Sor that goes to my question which is Justice um uh the Chief Justice asked you whether or not um we've ever had a case where uh pure ownership was at issue uh and not speak uh and I don't think we've had one like that you're right but I don't think that your uh question that the question gets to the essence of your argument is it um the essence of your argument is you're being asked to um divest because of speech correct correct all

right so if I get past that if I go to Justice uh alto's point which is I don't think it's just about speech it's about data control mhm um if it's about data control um and assume for the sake of argument that I believe intermediate scrutiny applies to the data control provision then your arguments would be different wouldn't they they would be under inclusiveness they would be other arguments correct well you I think they'd be very similar because I think the nature of our arguments work just as well under intermediate and strict scrutiny if I

could unack that no I'm not going to because we're going to run out of time because we're going to need to figure out what intermediate scrutiny means but I'm not sure it means what you do which is I don't think any of our cases have ever suggested that we have to use the least restricted means under intermediate scrutiny in fact our cases have said we have to use a reasonable means and if I could respond to that point specifically I completely agree it's not a least restrictive means alternative your honor but you do have to

at least consider alternatives here if the concern let's take the data security concern which you put your finger on I I know you want to keep going on but I can't let you cuz I can't monopolize the argument okay um but let me just get to the bottom of that all right you seem to suggest that Congress has to actually look at all of the Alternatives and say no I don't think we have a case that says that I I am not from the record it's clear that Alternatives won't be adequate for whatever set of

reasons isn't that enough if the record were clear on that that might be enough here on the now let me go to the next question and the last if if I could you honor just one sentence if on the key less restrictive Alternatives they had actually considered them and said what you suggested this would be a different case but our point is that on the key most obvious less restrictive Alternatives a law for example that simply prohibits Tik Tock Incorporated from sharing any sensitive user data with bite dance or anyone else there's nothing in the

record that suggests they even considered it and that's why it would fail under even intermediate scr we have we have a different problem which is that the record shows that there is no sharing that could happen that wouldn't put the data at security we can go P that's incorrect actually no because the NSA doesn't what's very I'm not talking about the NSA or or even anything else but putting that aside one last question assuming that um the covert manipulation issue is one um I think that what remains is um to the chief's question and Justice

Al's questions um if the covert manipulation is a concern then the question becomes what kind of Burden does it put on Tick Tock USA and I think your point is that that requires strict scrutiny because it doesn't permit them to speak to the Chinese government through the algorithm and promote whatever speech it wants to promote through the algorithm correct it doesn't prit permit them to speak to the American public through the algorithm and promote whatever type of speech they want to promote on the algorithm and I I also think that this covert manipulation is a

little bit odd they're not concerned just with covertness if all you were concerned I'm going to ask she about that how do you disentangle the two things thank you your honor Justice Kate Justice Gorsuch just kavanau just on the data collection interest uh I think Congress and the president were concerned that China was accessing information about millions of Americans tens of millions of Americans including teenagers people in their 20s that they would use that information over time to develop spies to turn people to Blackmail people people who a generation from now will be working in

the FBI or the CIA or in the state department is that not a realistic assessment by Congress and the president of the risks here well your honor I'm not disputing the risks I'm disputing the means that they have chosen one way way the most direct way to address that all of this user data sits on data servers in Virginia controlled by Oracle I'm not talking about the National Security agreement what I'm talking about is a law that simply says to Tik Tock Incorporated and its us employees you cannot share that user data with anybody you

can't give it to bite Dan you can't give it to China you can't give it to Google you can't give it to Amazon you cannot give it to anybody under threat of massive penalties they never even consider that most obvious alternative and so whether you apply intermediate scrutiny or strict scrutiny it's not a least restrictive means test but you got to at least consider the most obvious alternative so you acknowledg the risk that Congress and the president were concerned about you're just saying the means they chose to address that risk were um incorrect not permissible

I mean I I certainly acknowledge the risk but I think there are lots of reasons not just the one I just gave but there are lots of reasons why that risk still can't justify the law when it sits alongside of the impermissible covert manipulation risk I think it falls under Mount Healthy it's no different if they came in and said we passed this law one for data I understand that but just on the on the data collection that seems like a huge concern for the future of the country uh and your honor again it is

a concern two responses first it is a concern that can be addressed directly the reason why there's no evidence in this record about whether that kind kind of direct prohibition on Tik Tock Incorporated from sharing sensitive user data with anybody including bite dance the reason why the record is devoid of any evidence of that it's because Congress never considered the other side of the balance and that's the minimum that Congress has to do Under the First Amendment it's got to at least consider uh the the consequences of shutting down a speech platform used by 170

million Americans against the benefits of an alternative like simply saying to Tik tok's employees you're essentially going to get m findes potentially jail sentences if you share any of that sense of user data with anybody not Tik tock not bite I'm sorry not bite dance not China not anybody else in the world yet there's nothing in this record that suggests they even considered that alternative what happens after January 19th if you lose this case can you just spell that out at least as I understand it we go dark essentially the platform shuts down unless there's

a div unless there's a divesture unless president Trump exercises his authority to extend it by but but he can't do that on January 19th on January 19th we still have President Biden and on January 19th as I understand it we shut down it is possible that come January 20th 21st 22nd we might be in a different world again that's one of the reasons why I think it makes perfect sense to issue a preliminary injunction here and simply buy everybody a little breathing space this is an enormously you mean by shut down too can you just

spell that out so uh if if you the the app one the app is not available in the App Stores that's at a minimum but in addition what the ACT says is that all of the other types of service providers can't provide service either now uh there's enormous consequences for violating that for the service providers so essentially you know what they're going to say is that you know I think we're not going to be providing the service is necessary to have you see it so it's essentially going to stop operating I think I think that's

the consequence of this law which again is why uh a short reprieve here would make all the sense in the world it's an enormously consequential decision and it and and I think all would benefit if it weren't necessary thank you just spirit so I just want to it's kind of following up on Justice Kavanaugh's questions let's say I agree with you that some level of scrutiny applies and I'm trying to figure out which level of scrutiny applies and I'm trying to figure out if there's content discrimination and let me ask you different question than I

did before about the algorithm I mean you keep saying shut down the law doesn't say Tik Tok has to shut down it says bite dance has to devest if bite dance divested Tik Tock we wouldn't be here right if if if bite dance was willing to let you go and willing to let you take the source code with you that would be fine right we would not be here well your honor if bite dance devesta then the law wouldn't fall on Tik Tock but the law will the law not bite Dan but because choice right

I mean this is like justice kagan's point I mean I'm trying to figure out how we account for the reality of thirdparty choices and the choices of third parties that the whole reason for the law being passed in the first place yeah your honor I I I still don't I I think that the way the analysis works is step one is there a First Amendment violation right step two you get to the question that we're grappling with what standard of scrutiny do you apply typically what you do is you ask is this law content based

is it content B based on its face is it content based in its decision here we know it's content based on its face because it says what it says we know it's content based in its motivation because the government concedes its content based in its motivation well that's not quite what I'm asking I mean let's see that's the dispute between in the government is is it content-based if it's about divestiture and not about telling Tik Tok What content it can display on the platform and I think it has to be because that's I think that

that really goes to the first question does the burden fall on the speaker if the burden falls on the speaker that triggers the speaker's First Amendment rights but the law is in fact content based whether it comes in the form of a divesture or something else when the law specifically says it's content-based we're worried about the content on the platform and when the government tells you that one of our reasons one of the things that we're worried about is Tik tock not bite dance but Tik Tock Incorporated and Tik Tock in the United States will

absent the divesture uh have a mix of content that we find objectionable they will mix around their videos in a way that is too pro-chinese or too anti-American and that is Tik Tok the platform let me just ask you one last question why is it impossible to devest in the 270 days even assuming that the Chinese government hadn't said you couldn't sure and this is the exchange I was having with Justice gorch there there are two basic reasons the first is that the underlying source code that's the source code that comes in here and then

has to be converted but that's what Justice G said just not ever so it's not really that you can't do it within the time frame it's that you really couldn't ever divest because you never are going to get the source so well let me unpack that a little bit um no it's that with the underlying source code it takes a team of Engineers to update and maintain that it would take us many years to reconstruct a brand new team of Engineers to do that with respect to the source code with respect to the sharing of

content that was the different reason in theory we could kind of send our salesmen around the world go to Ireland go to Finland go to every country and say look you used to automatically get our content but now you got to separately sign up for our platform last last Point let me make sure I understand what you're saying it's not that you couldn't execute the disentanglement you could say we're independent you just can't recreate Tik Tok in any kind of way well I think that any new Tik Tok would be a fundamentally different platform with

different content which is yet another reason why I think this is a content-based restriction that falls directly on Tik Tok Incorporated itself in our platform justice jackon so I guess I'm um back to some of the questions that Justice Barrett and Justice Kagan asked about the sort of threshold issue that you point out which is uh is there a burden on the speaker I'm trying to understand what the burden is that you are articulating and whether it really isn't about Association and not speech you say you have in your brief some cases that talk about

American speakers being free to choose whether to affiliate with foreign organizations and the poqu you had with Justice Cen made me think that what you're really complaining about is the inability to associate with bite dance and its algorithm that it's not really about you know if Tik Tock came up with its own algorithm or bought an algorithm from some other company or devised it or whatever this law would have nothing to do with them uh from your perspective but the problem I think you're articulating and this is I'm I'm seeking your clarification sure the problem

I think you're articulating is that you want to use bite Dan's algorithm and therefore associate with bite dance and Congress has prohibited that by requiring divesture so isn't this really a right of Association case under the first I think it's I think it's both your honor I do think that that is a component of it we want to use the algorithm that we think reflects the best mix of content that's the algorithm that reflects the best mix of content what this law says is we can't do that unless bite dance exercise is a qualified divesture

but I also think more directly what this law does is it says to tick talk Incorporated if bite dance doesn't exercise a qualified divesture you have to go mute you cannot speak at all no I don't think it says that though I mean if if if Tik Tock were to uh post divesture or whatever pre- divesture come up with its own algorithm right then when the divesture happened it could still operate doesn't say TI to I think that's theoretically correct your honor but I think that also understo the content based nature of the Restriction to

change exuse me the fact that that's true suggests that you're wrong about the statute being read is saying Tik Tock you have to go mute because Tik Tock can continue to operate on its own algorithm on its own terms as long as it's not associated with bite dance so isn't this really just all about Association uh your honor I think it is is partly about Association but I'm going to take another shot at explaining why it's not just about Association okay well let me just take you down the association path for a second because if

it is about the association of tick tock with bite dance then don't we have cases that seem to undermine um your view that Congress can't do this I mean I thought we had cases about Congress uh prohibiting association with terrorist organizations prohibiting association with foreign adversaries and so why doesn't this fall into that kind of group of of our Juris well at least as I understand all of those cases they applied strict scrutiny uh the the the material support statute most definitely applied and and ultimately upheld the law so fine but sure and if I

think if we go down the strict scrutiny Road here I don't see that this law can possibly be satisfied under the interests that they assert here but I do want to emphasize why this is also about Tik Tock speech even under your hypothetical word theoretically they can say something differently than they are say saying today that in and of itself is a direct restriction on Tik Tock speech they can't engage in the speech they want to engage in they have to engage in a different kind of speech the speech they don't want to engage in

that is a direct burden on Tick Tock Incorporated speech all right I think I understand that argument let me ask you a question about your colloquy with uh justice cab did I understand you to concede that there is a compelling interest and that the problem is really tailoring I mean you said I understand the risks I don't hear you suggesting that the risks don't exist I so it sounds like we've gotten past even if we're in strict scrutiny World we've gotten past the compelling interest part of this no your honor uh what I was saying

is that all you had standing alone were the data security that would be a different case here when you have the content manipulation sitting right right alongside of the data security that taints the data security rational if Congress came in and said we're passing this law for two reasons one we really care about data security and two we hate the speech on Tik Tock the data security wouldn't alone sustain that law under cases like Mount pleas I understand but why why you're equating we don't want foreign adversaries to be able to manipulate the content on

this platform you're equating that with we hate the content and I'm just trying to understand sure why because content manipulation is by definition a content-based distinction look everybody manipulates content there are lots of people who think CNN Fox News The Wall Street Journal the New York Times Are manipulating their content that is core protected speech that's why they put so much weight on this mere covertness right but that's that but that analysis is just about content based versus content neutral and therefore whether you apply strict scrutiny I'm in the strict scrutiny World okay I'm assuming

that you're right that strict scrutiny applies and now prong number one in that world is do does the government have a compelling interest and and so I'm trying to understand why the government's argument that we have data manipulation concerns which I understood you in colloquy with Justice Kavanagh to say is a risk and we are concerned based on what Justice Gorsuch says when he's looking at the facts um you know that the government contends that there's this real problem with this foreign adversary doing manipulation in other places are you saying those are not compelling government

interests I am 100% saying that content manipulation is not just not a compelling governmental interest it is an impermissible governmental interest you could not go to CNN or Fox News and say we're going to regulate you because you're manipulating the content in the way that we don't like that is per se impermissible can I just ask you one last thing um you you say with respect to the tailoring issue that disclosure um you think is a possible uh uh more narrowly tailored uh way of handling some of this and I guess I'm just wondering whether

disclosure under this Court's case law and the law of other uh lower courts doesn't carry its own First Amendment uh complications that don't we have wouldn't we have compelled speech problems uh if disclosure was required in this situation sure your honor now look I might think so because I think that the factual predicate is wrong but they think the factual predicate is right and if the factual predicate is right then there are no First Amendment problems at all under Zer and the cases that you're suggesting and that underscores the larger problem here not all disclosures

are perfect I'm not here to argue that they are but you've always got to consider what the alternative is and here the alternative is shutting down one of the largest speech Platforms in the America the reason there's no evidence in this record as to disclosures is because Congress never even undertook that balancing in the first place the bare minimum that has to be done before we take an unprecedent unprecedented step of shutting down the voices of 170 million Americans thank you thank you Council Mr fiser Mr chief justice and may it please the court wholly

apart from the company's legal interests here the ACT directly restricts the rights the First Amendment rights of American creators to participate and speak and with a court a little less than a decade ago called the modern Public Square and what you might say today is the most vibrant speech Forum in the United States of America and the ACT therefore is inescapably subject to strict scrutiny because of the First Amendment implications and the ACT fails that test and indeed any level of scrutiny under this Court's case law because the ACT and the reasons behind it defy

our history and tradition as well as precedent American creators have long and always enjoyed the right to speak in conjunction with foreign speakers or work with foreign Publishers uh Americans even have the right under the Lamont case to receive information from foreign speakers indeed foreign governments uh the so that leaves the the government uh with its implication and his uh and its use of the phrase National Security in this context but that just simply doesn't change the calculus throughout our history we've faced ideological campaigns by Foreign adversaries yet under the First Amendment mere ideas do

not constitute a national security threat restricting speech because it might so doubt about our leaders or undermine democracy are kind of things our enemies do it is not what we do in this country and so we think the court should reverse and I would welcome the Court's questions how exactly is uh are the Creator's speech being uh impeded so two ways Justice Thomas first I just point you to the text of the statute which directly regulates uh text images communic real-time Communications videos my clients the creators are the ones creating that speech and posting it

to speak to other it doesn't anything about creators or people who use the site it's only concerned about the ownership and the uh concerns that uh uh data will be manipulated or uh there will be other uh national security problems with someone who's not a citizen of this country or a company that's not here so so there's two ways and I think the sell case is where you look for the analysis of the First Amendment burden here as I said the text of the St statute regulates our speech and then you point out ownership and

this was talked about a lot in the first part of the argument here so let me be very clear the American creators have a right to work with the publisher of their choice so imagine somebody wanted to work on post speech on Twitter now known as X and Congress passed a law saying we don't like the current owner of X the current owner of X has to sell that platform or else it has to shut down people who post on that platform and who indeed some of them make a living commentating engaging on current events

news politics would have a First Amendment claim to work with using that argument you could have said that about the breakup of AT&T you could say that about the foreign foreign limitations of on foreign ownership of broadcast companies well no I think that you have to dig a Little Deeper Than That Justice Thomas It's Not Mere foreign ownership and it's certainly the broadcast cases I'll get to in a moment uh but it's foreign ownership because of a particular perspective if you boil it down to an Essence the owner of a print media or online media

publication is is is the essence of the Viewpoint of that publication uh the current owner of X or the current owner of Fox News or the current owner of MSNBC has a particular perspective and working with that particular platform is shot through with the ownership from top to bottom but why couldn't Congress uh prohibit Americans from associating with certain foreign organizations that have interests that are hostile to the United States I mean I thought that's what holder versus hum humanitarian law project allowed so I don't really understand what you mean right so I'm glad you're

bringing that up yes so when it comes to this National Security you are right that Congress can prohibit Americans to use that case as an example from associating with terrorist organizations or other organizations that pose a clear and present danger to this country this case Justice Jackson is fundamentally different what the government tells you in its own brief that it is worried about here are the ideas that might be expressed on Tik Tok we might undermine us leadership we might sew doubts about democracy we might have pro-china views and so if you look to whether

that is legitimate interest my fundamental submission and this I think goes to the last cqu you were having with Mr Francisco is that is an impermissible government interest and you look throughout our history and tradition and I think the place I would point you most directly would be the opinions of justice brandise and Whitney and Justice Holmes and Abram I guess I don't understand how that's distinguishable from what's happening in holder um in in so can you just say a little bit it goes to the nature of the national security threat so my position is

the government just doesn't get to come in and say National Security in the case is over or you don't get to associate you have to dig underneath what is the National Security claim and what Justice Holmes said in his Abrams descent and I know that was a descent these are hard issues but that has been Vindicated over time is that it's not enough to say National Security you have to say what is the real harm is it you know is it terrorism is it where where our battleships are loc Jus as Kavanaugh present did a

number of potential risks right with with foreign adversaries using covert uh manipulation of the data platforms that are being used by uh youths today that would then make it more likely that people would turn into spies and do terrible things to the United States this is a hypothetical but you know what I'm saying I I get it so I think if I understood J as Kavanaugh correctly he was talking about the data security argument so let me just pull these apart you first have an argument and the government itself separates these two arguments in its

brief the first argument the one I'm focusing on initially is the content manipulation argument and that argument is that our national security is implicated if the content on Tik Tok is anti-democracy undermines trust in our leaders uh there they use various phrases like that in the brief so my primary submission is that is an impermissible government interest that taints the entire act now there's a secondary argument the government makes and we say you don't even get to that because once you have an impermissible motive like that the law is unconstitutional but even if you could

get to that Justice Jackson I do grant that data security and in the way Justice Kavanaugh spelled it out is compelling that is compelling but that's not the question you just don't ask in the air you know was Congress worried about data security or could it reasonably be worried about data security you say can this act the act before you be sustained on data security grounds and our answer to that has to be no don't have to look any further than the the investure provision itself which says that the content recommendation algorithm cannot be used

in the future well that has nothing to do with data security so the core feature of the uh devestator provision is going at content manipulation which I said is impermissible you can't you can't uphold that under data security grounds and the rest of the act when you look at the covered companies provision Justice Jackson if this were primarily a data security law what you think you'd find is what kind of data is procured how is it stored is it shared those are the things you think you'd find under covered companies but you don't find that

what you find is are text images shared is content being shared between users is it being created and posted in the social media platform so I don't dispute for one second that data security is a very important thing and Congress in this very law regulated data security in other ways with the do with data Brokers that's perfectly permissible but the question before you today was narrower the question is is this law before you sustainable on data security grounds and that answer has to be no Congress doesn't care uh about what's on Tik Tok they don't

care about the expression that's shown by the remedy they're not saying Tik Tok has to stop they're saying the Chinese uh have to stop controlling um uh Tik Tock so it's it's not any a direct burden on uh the expression at all Congress is fine with the expression they're not fine with a foreign adversary as they've determined it is uh uh Gathering all this information about the 170 million people who use Tik Tok well again Mr chief justice if I may let me separate the the where you started which was the content manipulation and then

go to the data security part of it so well the first part it was not I'm not talking about the content manipulation I'm talking about the content harvesting I I when you say content harvesting do you mean people's data got all the information whatever they whatever algorithms they want uh that has access to the personal information or at least information that is not readily available about 170 million Americans and whether they're going to use it in 10 or 15 years when those people grow up and uh you know uh you know have different jobs in

different places or whether they're going to use it now U that at least as I look at the Congressional Record uh is what Congress was concerned about well I think and they're not concerned about the fact that it is available as I said the remedy is just somebody else has to run Tik Tok so they're not concerned about the content they're concerned about what the foreign adversary is doing so if I I may I think I still to answer your question properly I think I have to separate two things one is the content recommendation algorithm

and that's what I was speaking about a moment ago that has nothing to do with data security that doesn't itself procure data that just determines what videos people see on their feed on Tik Tok as to that I think the answer is inescapably that the government and Congress itself was worried about content the government itself is here saying National Security so like a mix of cat videos uh or dance videos doesn't affect National security what no matter what happens the only thing that can affect dated security I'm sorry National Security uh are the substance of

those videos and when the government's press in its briefing it outright tells you that it says what we're really worried about is sewing doubts about us leaders Etc so let me turn then to data security uh yes you know there were various Congress persons and in the record that we have in the DC circuit there were conversation about the problem of data security here um as I said I don't dispute that that is a valid government interest so I think you address whether that alone can sustain the act in two steps first you would ask

if you have an impermissible motive and a permissible one can we sustain the ACT based on the impermissible B based simply on the permissible motive and I think for the reasons Mr Francisco said and we lay out in our brief that alone the answer is no under Hunter Underwood and other cases even if you could get just to the data security question again you'd have to ask the question would this law have been passed by Congress for data security reasons because you're asking being asked to uphold a law based on that single governmental interest and

when you look through the provisions like the content recommendation algorithm provision like the covered company Provisions the answer is no and if you're still in doubt on that just go back to the underinclusiveness problem what a congress really worried about these very dramatic risks leave out a e-commerce site like temu that has 70 million Americans using it and every bit the connection have to go all or nothing on that I mean it doesn't have to go all or nothing they isolate a particular problem and they could they might be getting to what you're talking about

next who knows but uh you're really sitting up there and saying Congress would not pass the devest law if data security were the only interest and so I'm saying it would not have passed this divesture law if if if if data security were the only interest it's very curious why you just single out Tick Tock alone and not other companies with tens of millions of people having their own data uh taken you know in the process of engaging with those websites and equally if not more available to Chinese control uh so I'm not trying to

say that Congress has to do everything at once I'm trying to say that once you've concluded that content manipulation for the reasons I've said as a matter of our history and tradition has to be impermissible is there another site like uh this one that covers half the American population I don't I I I don't think just by way of sheer numbers just a so to my or uh that the answer has to be no but 70 million seems like a lot 170 million is a lot but put that aside and answer and then go to

the next question which is how many of these sites have all of the data collection mechanisms that Tik Tock has from what I understand from the briefs not only is it getting your information it's asking and most people give it permission to access your contact list whether that contact list has permitted them to or not so they can now have data about all of your contacts and anything you say about them how many other sites gather information by keystrokes to be able to do voice and um finger ID information if they choose and there's a

whole lot of data stuff that was discussed in the brief that I don't think any any other website gathers so wouldn't this be a unique site if I viewed the evidence that way how would this be under inclusive Justice Sor I I I don't think a lot of the suppositions you're making actually Bear out and just as Gorsuch was pointing out one of the obviously the real challenges in this case is it comes to you without an ordinary trial record compiled and all the rest um so we have only limited amounts of information but absolutely

Ely these other websites are taking much the same kind of information if not more and as to the as to the contact list thing I think you also that points out one other aspect of this that is voluntary decision by an American user to share that information you know in the Riley Cas but not informed and even if that could be Sol if you don't think it's informed that could be solved by War because for the United States the threat of using that information is what is that issue it's not whether the user thinks it's

okay it's whether the US believes that it could put sites at issue but let me ask you one last question in fundamental question assuming that content that content neutral data collection concerns were congress's is one of congress's Provisions divest because of this why can't we separate that out from how we the algorith algorithm question and couldn't we sever the two Provisions to say div divesture is right but you can't force them not to discuss algorithm well I think the reason why you can't do that is is is was Mr Francisco explained I thought I'd direct

you to a case like Hunter against Underwood and just anal and analogize it to this situation if what you had is the government saying we we are shutting down Tik Tok or requiring Dev vesture for two reasons one because we think it helps the Democratic party too much and number two because we're concerned about data I think that first interest would be a poison pill uh that would be an impermissible or because we think it you know there's too much Pro Catholic content on Tik Tok I think there are some interests that are just so

constitutionally verboten that I think that that just makes the ACT unconstitutional and you can't go looking for other interests you send it back to Cong look if you want to pass the data security law free and clear of this impermissible interest you go ahead and do it can I say one other thing just s to my or just because I think it is uh also telling here that even if you didn't buy that poison pill argument and you just asked whether Congress would have passed this law something else that I think you might notice is

even if all this act goes into effect and the and the law goes through Tik Tok gets to keep all the data uh so wouldn't a data security law require them to expunge that data or get rid of it or something I mean it's a very weird law if you're just looking at through a data security lens and maybe Congress could do better Mr fer um you know often we require divesture for any trust reasons for example and as I take it your argument here and we don't think of those as normally implicating the First

Amendment interests of users or people who might speak or right associate with editors and and and the difference here is as I understand it in your mind that this law is motivated by a content based interest is that is that a fair summary I I think that and the only thing I would add to it is just the prior step which it is it is regulating the speech itself for Content based reasons yeah yes and we don't do that in the anti trust area but say this law does okay exactly and and it does on

on the content covert content manipulation side do you think that's a compelling interest or not forget about the tailoring for a moment no my point is is that preventing content manipulation whether it's covert or not simp impermissible if what you mean by content manipulation are the kinds of interests the government is saying like undermining trust in our leaders uh you know undering TR that's Whitney and Abrams and like those cases I got it I got it so just a couple more I'm sorry I'll finish up real quick and so that would take us to the

tailoring question and there you say disclosure um and alerting Americans that there is covert content manipulation possibility putting aside the the data collection part of it telling Americans that there there is content covert content manipulation going on in Tik Tock or at least it's possible and the government says that's just simply not enough and the DC circuit did too and I wanted to give you a chance to respond to that right so I think that's the only aspect of the governmental interest that could be permissible the the the covert part and my answer as you

just said is disclose your Sol that problem and and and you have a law a longstanding law which we haven't haven't talked about yet today that gives you that example again under a history and tradition test you look at not just precedent but laws and traditions of our country look at the foreign agent registration Act passed that passed in the runup to World War II and the concern was Americans would be controlled by Foreign agents to speak and Advocate certain causes we didn't ban them we did not ban them all you did is requ you

Congress all Congress did was require disclosure certainly wasn't I wasn't around for that on the secret evidence Point um I'm concerned about the government's attempt to Lodge secret evidence in this case without providing any mechanism for opposing Council to review it and I I expressed that concern in Zaba and I noted that there are mechanisms to read in Council and that other countries including our allies often do that I just wanted to give you a chance to give me your thoughts on that uh yes jce guch we made all those arguments in the DC circuit

so there was a FL of motion practice about whether or not the government could rely on classified evidence uh those motions were never resolved but the DC circuit did I think you probably noticed from the decision is say we're going to decide this case solely based on the public record and my understanding is that's how it comes to this court if the court were ever can it's interesting that Congress hasn't acted in this field I mean we have in the fisa area you know lots of opportunity they have regulated this area and it does seem

like an area that Congress might want to to pay attention to given the increased uh um appeals to secret evidence that the government has made in recent years um last question for you could the new Administration after January 20th Mr Francisco suggested that it might be able to extend the deadline even though it if you were to lose here by January 19th is that possible as you read the law I'm not sure it is I'm not sure uh maybe maybe that's a question for the solicitor general but oh it certainly is I I thought maybe

I'd give you a chance too uh the so you know as I understand the law it's 270 days unless extended and once that time runs I'm not sure you're talking about an extension anymore okay you know there's Expos facto law that kind of does this stuff thank you I take you back Mr Fischer um let's say I agree with you that if you're talking about content manipulation that's an inherently content-based rationale for acting so if Congress had passed a law that says we hate the content manipulation that Tick Tock is doing uh that's strict scrutiny

land and uh I don't know that the government um can do that however important and you know the the the the interest but that's not what Congress is doing here and this is the same kinds of questions that I asked Mr Francisco um because if if uh let's take it as a given that Congress actually can do whatever it wants with respect to a wholly foreign corporation or a foreign government and so Congress could act with the intent to U interfere with the content manipulation that a uh foreign corporation is doing and so now we're

in this strange world where we're saying they can't act with respect to TI Tock they could act with respect to bite dance why isn't this Congress acting with respect to bite dance in the sense that all it's doing is saying bite dance has to divest and then Tik Tok can go about its business use whatever algorithm it wants use whatever content moderation policies it wants just like everybody else does choosing from everything that's available on the open market so I let me answer that question in two parts from the perspective of the Creator Americans who

want to use this platform to speak to other Americans so the first thing is what the ACT does as you said Justice Kagan is prevent us from working with a application that is owned by bite dance that uses this algorithm well that's exactly what we want to do that's our editor and publisher of choice that we think best disseminates our speech yeah but what I'm saying to you is if you just assume a world without Tik Tock that where it's only bite dance and you were trying to uh you were trying to say well we

really want to work with bite dance and Congress was saying we think bans presents National Security interests and they don't have First Amendment rights they're just a foreign corporation um I think that in that case the government I mean tell me if you think this is wrong it just doesn't matter that you have creators who want to work with bite dance cuz bite dance is a foreign corporation with no First Amendment rights is that what your contestant so that is what I'm contesting so you said two things though so I could be clear there's two

aspects do we have a First Amendment right to work with a foreign company or even a foreign country to publish our speech and then there's a national security part that you put into that which goes to the justification forget that forget that yes let's do that so if that is right Justice Kagan then American creators have no right to P to make documentaries with the BBC they can't they can't work with uh Al jazer uh if Congress wants to prevent that any number of other Publications that are state-owned wholly or partially and even under Lamont

remember you're not even creating speech you're just listening you know that was Speech from China uh that the court said you have a First Amendment right to re would I be right to say that your position is that um because of the users who want to associate and want to partner with this foreign corporation the foreign corporation ends up having in your view the exact same First Amendment rights as your users do in other words it's it's irrelevant that the foreign corporation doesn't have First Amendment R I don't think it's irrelevant because you could imagine

a situation where no American distributor or speaker wants to work with that but the let me let me put it to you this way the Communist Manifesto written by KL Marx has no First Amendment standing on its own in America but if a bookstore wants to sell that publication I don't think Congress can prevent it from doing so well oh sorry go ahead no I'm I'm fine no no no is I'm good okay so I want but I want to pressure a little bit on the distinction because in Lamont the the the prohibition worked directly

on the American like you have to specifically request this information that comes this is working kind of as Justice kagan's questions were were pressing you this is working on bite dance it's not saying to your creators you can't post on bite dance that's that's indirectly going to happen if bite dance chooses itself not to permit Tik Tock to walk away with the code so does that matter that distinction between Lamont and this case no for two reasons one under the surel case he looked to not just the law itself but its practical operation and the

Practical operation is prevent us from working with bite dance uh so that's one answer and you you bring up Lamont and Lamont's actually a very important case I'm sure you all recognize here um it's important to look not just at the Court's opinion but look at the briefing in that case the government itself never came in and argued uh there's no right to receive this information uh that's sort of Greater argument all the government argued was of course Americans have a right to receive this but it's just not so much of a burden to require

them to raise their hand to get it so archal Cox when he was a solicitor general said to the court quite explicitly in the brief we're not even going to make this argument because we think it's so contrary to history and tradition uh all we're going to argue is the burden isn't enough now what happened is the DC circuit kind of turned that upside down and said oh Lamont's just a case about the burden well that's because that's the only argument the government was even willing to make in this court uh there was no argument

that Americans didn't have the right to hear that speech what about so I think this goes to Justice gorsuch's questions about anti trust investure let's say that let's say that for any trust reasons or or let's let's even say not for that let's say for um suspect First Amendment reasons Congress tells Jeff Bezos that he has to devest in the Washington Post you know he can no longer own the post and let's say that neither Bezos nor the post challenges that but let's say that you represent clients who really like the post as it was

who really want to keep receiving the post who really want to publish op beds in the post would you have standing like what kind of a claim would you be making that I I believe so Justice Barett and the court has cited Lamont in other cases in more recent years to say we've recognized the right of American listeners to receive information from others and remember even that is a lot that's only a small part of the argument I'm making on behalf of the creators you know I don't mean to diminish Francisco's arguments on behalf of

the company and bite dance but the core speech in front of you in this case are the videos uh and other forms of communication that people like my clients are posting by the millions every day on this platform to share with other Americans can you win if is it possible for you to win and Mr Francisco to lose or you rise or fall together no I think it's possible uh I mean I don't think we should uh uh but uh but was it possible for you to to win and him to lose let me put

it this way if you were to conclude that something about the corporate ownership structure and I think there's some conversation about this earlier impeded uh Mr Francisco from being able to assert full throated First Amendment rights in this case I would step in and say well certainly we can do that and get you to the strict scrutiny and then the arguments pretty much line up then you're in a question of can the government satisfy strict scrutiny and I think Mr chief justice you asked about do we have cases for this and that I think that

the idea is yes we have cases that say once you're in strict scrutiny that regulating the content because you don't think it's going to be pro-american enough or it's going to be too pro- foreign interest is just verboten under the First Amendment that's the history and tradition and just as Kavanaugh when you asked about the broadcast cases they're they're grounded not just in scarcity um but they're grounded in scarcity in a particular way it has to do with the absolute need Congress has for Licensing in a world of scarce resources and so that's the very

small carve out that even in Turner the court wouldn't extend to cable television that exists for broadcast licensing and if you look on the 200 plus years of our country for any other example of foreign ownership of media being regulated by Congress let alone being permitted in the case law you are not going to find it and I think the reason why is because everybody has understood that if you're not in a world of scarcity where licensing is impossible you cannot give the government and in this in this more extreme example the president himself unbridled

discretion to choose who is a proper owner of a speech platform in this country uh because it is so hand inand with Viewpoint as I said earlier any number of owners of big media Enterprises whether they be Americans or foreign citizens could be accused of having a particular viewpoint but speakers who engage in those platforms have choices they can make and so you know on behalf of our creator clients we find it um we find it not at all satisfactory to be told well look just go post somewhere else you know it's not enough to

tell a writer well you can't publish an oped in the Wall Street Journal because you can publish it in the New York Times instead uh just like here to say you can publish it on Instagram or some other platform uh not just Tik Tok Tik Tok has a distinct editorial and publication perspective and it particularly benefits people like my clients who are not famous people they're not actors from Hollywood who have a lot of people following them they're ordinary American citizens whose content that they create on the platform gets privileged by way of the quality

of that content that's what's so powerful about the platform so whether you're an ordinary American citizen or I might add whether you're a presidential candidate in our last election if you want to reach new and different audiences Tik Tok is the place people go this may not make any difference for constitutional purposes but just out of curiosity I'd like you to explain what the Practical consequences would likely be for your clients if Tick Tock went dark as Mr Francisco put it there there I assume is a great demand for what Tik Tock provides and if

Tik Tock was no longer there to provide what your clients really want is there a reason to doubt that some other social media company would not jump in and take advantage of this very lucrative Market uh there are two reasons justce Alo one is many of the Declarations from my clients actually explain they've tried on other platforms to generate the kind of audience and engagement they've been able to on Tik Tok and they've Fallen dramatic yeah I know they haven't so far and I I'm just you know I'm just wondering whether this is like uh

somebody's attachment to an old article of clothing I mean I really love this old shirt because I've been wearing this old shirt but I could go out and buy something exactly like that but no I like the old shirt is that what we have here or is there some some reason to think that only by dance has this can the BL dance has devised this magical algorithm that all of the Geniuses at Ma and all of these other social media companies they couldn't no matter they put their minds to it they couldn't come up with

this magical thing I I think empirically the other companies have been trying for a few years to catch up with Tik Tok and replicate it and have been very unsuccessful and so that ought to tell you something and so just imagine the algorithm here as a collection of thousands of editors you know imagine the floors of an office building being filled with a collection of editors you could imagine a situation where that collection of Genius that is on a particular floor cannot be replicated by another group of people and that's kind of what you have

here all right I understand that thank you Council uh justice Thomas anything further justice Leo yeah one other one other question I'm intrigued by your M healthy Hunter versus Underwood argument I mean maybe you're right but uh Mount Healthy arose in an entirely different context where you're trying to get to an employer's motivation hun vers versus Underwood involved an extreme situation where the court looked at the records of a state Constitutional Convention and came to the conclusion apparently that racism was the only motivation for what was done but it does seem to me to be

potentially quite unworkable and contrary to what we've generally said about legislative intent to apply the Mal healthy framework to a congressional enactment do do you do you recognize or do you do you acknowledge that that would be very difficult because when an act of Congress is passed there could be uh more than 250 different motivations for the votes that were cast by the members yeah I totally understand that and in Hunter the court actually engaged with that problem to some degree and what Hunter said is to avoid that problem we're going to look just to

two things one is the state's brief which I'd say is the cicor General's brief by comparison here and the text of the law and here that's the only thing I need to rely on to get you to the place that they wouldn't it gets you to the it gets you to the place that this was part of what motivated Congress but why does it get you home particularly when there's a severability clause in this act it can't be only part of it it has to be enough to sustain the entire act or at least the

parts that you wouldn't sever from the ACT uh and so I think the reason why is because it's not just the content recommendation algorithm part that can be theoretically I guess severed out it's also the covered company provisions and it's just the whole approach of the statute that is based on content not on data security thank so okay J Sodor save it for the issues J K Justice Gorsuch Justice C Justice Jackson one quick question you you repeatedly say that the from your perspective the government's motivation is that the content might be too anti-American or

too pro-china Etc so that's why you think this is a content-based restriction but I guess I'm curious if you would say the same thing if the government had articulated its rationale as saying you know our motivation is to limit foreign foreign interference in American uh social media platforms or discourse isn't that a different motivation from the standpoint of how we characterize this I agree but then the question I would ask if the government said that which I think kind of in the reply brief maybe the government does say that is that how on Earth are

you then serving a national security interest you know if all you're doing is just saying we don't like a foreign uh country uh rearranging cat and dance videos like it's hard to come in and make a national security argument so the only way you get to National Security which is the government's own argument is to look at the substance that's being rearranged and say we don't like the way the substance is going to be rearranged and in curated differently thank you thank you Council General pre- logger Mr chief justice and may it please the court

the Chinese government's control of Tik Tok poses a grave threat to National Security no one disputes that the PRC seeks to undermine us interests by amassing vast quantities of sensitive data about Americans and by engaging in covert influence operations and no one disputes that the PRC pursues those goals by compelling companies like Bank Dan to secretly turnover data and Carry Out PRC directives those realities mean that the Chinese government could weaponize Tik Tok at any time to harm the United States Tik Tok collects unprecedented amounts of personal data and as Jus as sotoor noted it's

not just about the 170 million American users but also about their non-user contacts who might not even be engaging with the platform that data would be incredibly valuable to the PRC for years the Chinese government has sought to build detailed profiles about Americans where we live and work who who our friends and co-workers are what our interests are and what our vices are Tik tok's immense data set would give the PRC a powerful tool for harassment Recruitment and Espionage on top of that the Chinese government's control over Tik Tok gives it a potent weapon for

covert influence operations and my friends are wrong to suggest that Congress was seeking to suppress specific types of content or specific types of viewpoints instead the National Security harm arises from the very fact of a foreign adversary's capacity to secretly manipulate the platform to advance its geopolitical goals in whatever form that kind of cobt operation might take the ACT addresses the threat of foreign adversary control with laser-like focus it requires only divesture of Tik Tok to prevent Chinese government control and that divesture remedy follows a long tradition of barring foreign control of us Communications channels

and other critical infrastructure so no matter what LEL of First Amendment scrutiny applies this act is valid because it's narrowly tailored to address compelling National Security threats now my friend Mr fiser just emphasized and I acknowledge that millions of Americans enjoy expressing themselves on this platform but the important thing to recognize is that the ACT leaves all of that speech unrestricted once Tik Tok is freed from foreign adversary control the First Amendment does not bar Congress from taking that critical and targeted step to protect our nation's security I welcome the Court's questions is there any

difference between uh content manipulation by a non-us company as opposed to a US company uh I didn't uh hear Mr Fischer make a distinction between the two yes and I think the important thing to recognize is that the ACT here is targeting covert content manipulation by a foreign adversary Nation now I understand my friends to say what difference does that make the difference is that there is no protected First Amendment right for a foreign adversary to exploit its control spe platform the difference between covert and non-overt so I think that that congress's concern with a

covert operation was that a foreign adversary could effectively weaponize this platform behind the scenes in order to achieve any number of geopolitical goals here here are some of the examples that come to mind one of the pages out of the Playbook here is for a foreign adversary to simply try to get Americans arguing with one another to create chaos and distraction in order to weaken the United States as a general matter and distract from any activities that the foreign adversary might want to conduct on the world do you mean by covert though I mean is

covert just mean it's hard to figure out how the algorithm works because we could say that about every Al algorithm no the covert n nature of it comes from the fact that it's not apparent that the PRC is the one behind the scenes pulling the strings here and deciding exactly what content is going to be made to appear on the site and another way that the it's just because we don't know that China's behind it that's what covert means well I think it doesn't have anything to do with the difficulty of figuring out what the

algorithm is doing it's just because people don't know that China is pulling the strings that's what covert means what it means is that Americans are on this platform thinking that they are speaking to one another and this recommendation engine that is apparently so valuable is organically directing their speech to each other and what is covert is that the PRC a foreign adversary nation is instead exploiting a vulnerability in the system like people don't know that China's behind it like everybody now knows that China is behind it no but but it's the specific the specific content

that's being manipulated would be unapparent and so that's true of every search engine I mean you can you can take any of these algorithms uh whether it's X or whether it's uh you know you name it what are the new ones Blue Sky I mean none of these none of these are apparent right you you get what you get and you think that's puzzling and and it's all a little bit of a black box so you can't just mean it's a black box it's covert they're all black boxes and if you just mean what's covert

is the fact that there's China behind it I mean honestly really like everybody does know now that there's China behind it so I just don't get what this covert word does for you I think the problem with just saying as a general matter China has this capability and might at some point be able to exercise it and manipulate the platform is it doesn't put anyone on notice of when that influence operation is actually happening and therefore it doesn't guard against the National Security harm from the operation itself isn't that a pretty paternalistic point of view

I mean don't we normally assume that the the best remedy for problematic speech is counter speech and you Tik Tok says it could even live with a a disclaimer on its website saying this can be covertly manipulated by China um it in case anybody were left in doubt after today about that possibility so you're saying that won't work because that won't work because it is such a generic generalized disclosure that it wouldn't put anyone reasonably onnos about when it's actually happening and the example I've been thinking about best argument is that the average American won't

be able to figure out that the cat feed feed he's getting on Tik Tock could be manipulated even though there's disclosure saying it could be manipulated but imagine if you walked into a store and it had a sign that said one of 1 million products in this store causes cancer that is not going to put you on notice about what product is actually jeopardizing your health and I think that's roughly equivalent to the type of disclosure they're contemplating here they brought up the example of the foreign agents registration act Farah there you have to disclose

the actual content if that's true then that wouldn't that be true for all social media companies for all content I mean every editor every newspaper in its editorial room makes decisions about what it's going to run and how it's going to say it and every algorithm has preferences whether it's domestic or foreign and nobody really knows exactly when those editorial decisions are being made or how but they're generally aware and we think that's enough I think though that there is a real risk that when a foreign adversary has control of that kind of mechanism and

a speech platform in the United States it could weaponize weaponize that platform to harm United States interests and one of the key ways that the PRC flexes this muscle is to suppress General I'm sorry to interrupt you but I'm I'm again I'm not not not we're not arguing about the compelling interest we're arguing about the tailoring right and so I guess what I would say you began by saying the the cure for concerning speech is counter speech here I dispute the premise that Congress was specifically concerned about any particular subject or any particular Viewpoint it

wanted to close off a capability of a foreign government but in any event it's very hard to engage in counter speech when you don't know because someone is secretly manipulating the platform behind the scenes and in particular what the PRC has the capability to do is simply silence newspaper owned by a foreign company in a foreign government um you wouldn't know when it's exercising editorial discretion about this article or that article or how it's doing it so maybe we just need to shut down uh the Oxford University press in America uh or you pick it

any other foreign owned Politico I was told today is owned by Germany um that would all be okay on your theory so long as Congress designates that country a foreign adversary we are not asking the court to articulate bright line rules to govern all kinds of type ofal sitting I am testing your argument yes and and what I want to acknowledge is that sometimes the court has recognized that a speaker-based preference might reflect a Content based preference and in the context of ownership of a newspaper for example in part because a newspaper is a one-way

channel of communication and is generally understood to represent to some extent its Publishers views maybe the court would more readily infer that a regulation targeting that is actually aiming to Target conduct uh content but I don't think I'm not talking about the compelling interest or any of I'm talking about the tailoring and and you're saying we have no alternative but to stop this speech altogether we can't we can't r on disclosure but you say that wouldn't apply to Politico or to um the Oxford University press because in the circumstance where you have a newspaper that

is understood to reflect its Publishers views then you might think that disclosure would be a more adequate remedy there because it's not just holding itself out as a forum for speech between other people I think social media platforms do raise distinct interests in this regard because what people think when they're engaging with Tik Tok is that it's organically feeding them videos based based on the recommendation engine and if actually China is behind the scenes engaging in this kind of covert operation it does prevent a distinct National Security risk of course the other big difference with

a newspaper is it's not likely to be collecting sensitive personal information about 170 million plus people and then having the capacity to send that back to a foreign adversary General pre can I oh go ahead I was just going to say did I understand you to say a few minutes ago that one problem that bite is that bite dance might be through Tik Tok trying to get Americans to argue with each other that it might be just trying to F they do I say they're winning that might very well be true Mr chief justice and

I think the point I'm trying to make is that China is a foreign adversary nation that looks for every opportunity it has to weaken the United States and to try to threaten our national security and if it has control over this key Communications channel it's hard to predict exanti exactly how it's going to use that as a tool to harm our interests but we know it's going to try first and foremost by seeking to get the data of these American users which would be of a piece of all of the activity the PRC has already

undertaken to breach our laws hack OPM for example and exfiltrate the background files and security clearances of 20 million government employees the breach of Equifax to get sensitive financial data Anthem to get sensitive Healthcare data we know that the PRC has a voracious appetite to get its hands on as much information about Americans as possible and that creates a potent weapon here because the PRC could command the bite dance comply with any request it gives to obtain that data that's in the hands of the US subsidiary thank you uh suppose that uh Tik Tock had

no connection whatsoever with any foreign government it was owned instead by an immensely immensely Rich multinational corporation and Congress concluded that this multinational corporation really has it in for the United States and is going to use this extremely popular platform to do everything it can to undermine the United States and all the ways in which you think that Tick Tock uh May uh May pursue uh at the direction of the PRC would this would that be the same case I think there would be a first order question of whether the multinational corporation itself has First

Amendment rights all right it's a it's an American corporation so if it were an American corporation I think that and Congress disagreed with the viewpoints or content the corporation would display obviously that's a direct regulation of protected speech and it would trigger strict scrutiny I think that's different in kind from what Congress was worried about here which was not regulating speech as such but instead regulating foreign adversary control so your whole your argument depends on the fact that what is at bottom here is the the People's Republic of China using Tik Tok that's what your

argument depends on if this were an American corporation be an entirely different thing exactly and the reason we know the statute is different is because all of the same speech that's happening on Tik Tok Could Happen post divesture the ACT doesn't regulate that at all so it's not saying you can't have pro-china speech you can't have anti-American speech it's not regulating the algorithm uh Tik Tok if it were able to do so could use precisely the same algorithm to display the same content by the same users all the ACT is doing is trying to surgically

remove the ability of a foreign adversary Nation to get our data and to be able to exercise control over the platform sorry I'm sorry I just wanted do to respond to Mr Fischer's argument about the rights of Americans to receive information say from the PRC or anyone else and that even if bite dance did not itself have First Amendment rights that Americans would have a First Amendment right to to receive that information in the Lamont sense yes so I I think that Lamont reflected a principle that there can be a right of American listeners to

receive information and if Congress is directly regulating that based on disagreement with the speech that's being sent into this country that's obviously going to trigger hide and scrutiny under the First Amendment but here I think the users have to be asserting a different type of interest because what Congress was safeguarding against was not the ability of Tik Tok to continue to operate or the users to post content it was focused only on foreign adversary control and so the users would have to demonstrate that they have some unqualified First Amendment right to post on a platform

that's controlled by a foreign adversary which could use that access to then threaten our nation's security by gathering data on tens or hundreds of millions of Americans and also use it for covert influence operations of whatever form and I don't think there's a First Amendment right to do that I was trying to think of whether there's a historical analog here and this is what I came up with and you can tell me whether it's vicious um you know in the mid 20th century we were very concerned about the Soviet Union and the what the Soviet

Union was doing in this country and um the Communist Party of the United States at that time was integrally attached to the Communist International which was essentially a Soviet operation right so if Congress had said oh it's very nice we can have the Communist Party USA but it has to divest it has to completely divorce itself from the common Turin and from any International ties that it has do you think that that would have been absolutely fine and uh so if the answer is yes yes it would have been fine it's just like this case

or if the answer is no um why is it not like this case so I guess I think I would need to know in more information about how the international organization is able to exercise control over the American affiliate and if it had the capacity for example to in an unqualified fashion gather data from that affiliate in a way that was going to jeopardize our nation security I'm talking more about sort of the content let's put the data collection piece of this aside um which is seems not very uh pertinent to my 1950s analog um

but you know it uh you know very concerned about the kind of speech that the Communist party was making in the United States and it turns out that that content was pretty well scripted someplace else I think if it was specifically a concern about the content then that would trigger hide and scrutiny under the First Amendment we're not trying to run away from that principle here instead we're making I think a narrower argument well then I think that that you're a little bit I think you've just given your thing away because you content manipulation is

a content-based rationale we think that this foreign government is going to manipulate content in a way that will um that concerns us and may very well affect our national security interests well that's exactly what they thought about Communist Party speech in the 1950s which was being scripted in large part by International organizations or directly by the Soviet Union I disagree that the concern with covert content manipulation is itself content based or that it looks anything like the kinds of laws this court has previously said are content-based the court most recently in City of Austin said

you only have a content-based law when Congress is setting out to discriminate against particular subject matters or particular viewpoints so so it's not enough that the law is is regulating in the space that involves content in some way you have to have this motive by congre Congress to actually want to suppress speech on certain topics or certain viewpoints here Congress just wants to cut the PRC out of the equation altogether and all of the same speech could continue to happen on the platform it's like patching up a backdoor vulnerability that the PRC has that we

can't totally uh see around all the corners to imagine how it could use it against our interests but we know the PRC will do whatever it can to try and I think that is different in kind from imputing to Congress some motive to specifically get more speech on certain topics or with certain viewpoints you know this law was passed by broad bipartisan majorities in both houses of Congress and our legislator and our legislators don't always agree on everything I think it's unlikely that all of them had exactly the same views about what's good content on

Tik Tok or what are good viewpoints they weren't United on that what they were United around was the idea that it is a grave threat to our nation if the PRC can itself behind the scenes be controlling how this platform operates why uh doesn't this act classify on the basis of speaker I do think that when it comes to the PRC and bite dance you could treat this as a speaker based restriction and aren't speaker speaker based restrictions almost always uh Viewpoint based restrictions content based restrictions the court has said it depend tense it hasn't

applied an inflexible rule that anytime you are regulating certain speakers you are invariably regulating based on content instead the court has said it warrants closer consideration and here if you look at the US speakers Tik Tok us and the users none of them are being regulated in a way that suggests its disagreement with their content it's all about what our foreign adversary is doing it's hard for me it's hard for me to think of situations maybe they exist where classification based on speaker is not Viewpoint or content based restrictions mean that somebody says Joe can't

talk anymore we're going to shut Joe up and we don't know what he's going to say tomorrow or two weeks from now we don't know what he's going to discuss but whatever he says is bad because Joe is a bad person I mean that's that's Viewpoint and content based isn't it I think when it comes to a foreign adversary it's not right to view it that way and the reason for that again is this is a sophisticated adversary nation and we can't just simp simplistically say oh what the PRC is going to want is to

see more pro-china content on this app as chief judge sha boson observed there are various ways that the PRC could try to create some kind of false flag operation and actually promote anti-china content not to dictate how Americans should think about things but simply to create some trumped up justification for a military or economic action that the foreign adversary wants to take against us and I don't think a concern with trying to ward off that capability that Viewpoint or content still we don't know what the content's going to be but we know it Joe is

bad because I think the better classification is to recognize that what we're trying to prevent is not the specific subject matter the specific viewpoints but the technical capability of a foreign adversary Nation to use a Communications Channel against this I guess I'm just struggling how covert content manipulation isn't content-based restriction so again it's kind of hard to avoid the word content and it's kind of hard to avoid the word viewpoint here isn't it I don't dispute that it's related to content but I don't think it reflects Congress seeking to set out in advance what kind

of speech we should have reflecting certain views on certain topics instead it's about trying to close off a vulnerability that our foreign adversary Nation could exploit and I would be remiss if I didn't point out that even if you thought this was content-based all that means is that we're in strict scrutiny and as the DC circuit recognized here we think that this law serves compelling National Security concerns that sound in some of the same arguments I'm making here and that have a long-standing correspondence to history and tradition of trying to prevent foreign control and then

we get to the question whether there's a Le less restrictive means I get that and whether disclosure might suffice on on on on the data security Point um your friends on the other side make the argument that if that were the concern uh Congress could ban Tick Tock us from sharing data with anyone and on on Pains of penalties it would put people in prison and shut the company down in the future as the government did for example with Arthur Anderson um why why isn't that a less restrictive means available so I was surprised to

hear petitioner offer that up today because there was a long course of discussion between the executive branch and bite dance and Tick Tock leading up to congress's enactment of this act that spanned over four years an extensive conversation about what limitations could be placed to protect Americans data and it was never a suggestion that there would be any way to create a true firewall that would prevent the US subsidiary from sharing data with the corporate parent the reason for that sounds in the technological features of this application I think there can be no reasonable dispute

that the source code development and the maintenance of this algorithm rests in China which is why China has sought to try to control export restrictions with respect to the algorithm and what that means is you need substantial data flows between the companies in order to continue to modify algorithm refine it and so forth so I don't think that that was an option ever on the table including with respect to the proposed National Security agreement that was insufficient in protecting our data privacy and security concerns that didn't come across enough in the briefs um if we

are in the world of data protection as opposed to content um content control I think the it's hard to get around the post virt divest resure provision that says you can't uh do business with them on the algorithm because that very much is content based it's a Content based restriction but what you're saying is you can't do it for a data control reason meaning that you can't really run their algorithm without sharing the very data that we are concerned about as a threat correct that's right Justice a myor and you don't have to take my

word for it you can look at the specific terms of the National Security agreement that b Dan itself proposed the relevant definition of the accepted data is at ja 239 to 240 and it references categories of information that would of necessity technological necessity and business necessity have to flow back to China and the relevant categories are in the sealed appendix but I would really encourage the court to look this up because it's eye opening it is at the court of appeal sealed appendix 249 to 252 and 2 4 if you look at that information it

was a wealth of data about Americans that was going to have to go back to China in order for the platform to just continue its basic operations and there's a legitimate commercial justification for that but it creates this gaping vulnerability in the system because once that data is in China the PRC can demand the bite dance turn it over and keep that assistant secret and the one final point on this is that b Dan was not a trusted partner here it wasn't a company that the United States could simply expect to comply with any requirements

in good faith and there was actual factual evidence to show that even during a period of time when the company was representing that it had walled off the US data and it was protected there was a wellp publicized incident where bite dance in China surveilled us journalists using their location data this is the protected us data in order to try to figure out who was leaking information from the company to those journalists General you want us to look at that and you get to look at it but your friends on the other side don't get

to look at it that doesn't seem fair that's the sealed appendix Mr chief justice so it's their information they can look at it it's just under sealed to protect their proprietary business information General so I want to go back to the discussion about content discrimination and we're going to shut Joe up um here it seems to me like we are saying to bite dance we want to shut you up and so let's say that I think that that is content discrimination based on speaker tell me if if I think that tell me if I have

to conclude that it is also speaker based discrimination and content-based discrimination for Tik Tok no it is not and the reason for that is because it would be an anomalous principle to say that an entity outside the United States that can't assert its own First Amendment rights can somehow manufacture that right through the expediency of forming a US subsidiary especially one that it wholly controls so you don't have to stand on that argument that you were having with Justice Leo and Justice Gorsuch to still have your point about content discrimination that's right and I think

if you're focusing in on the relevant us entities here Tik Tok us and the users themselves this act isn't regulating them in any way it's not trying to dictate the algorithm that Tik Tok us can use and in fact Congress I think was doing everything it could to preserve access to Tik Tok in the United States and recognition that Americans enjoy expressing themselves and building community on the site one last quick question sorry just one last quick question um Justice guch had asked your friends on the other side whether the new Administration on January could

extend the deadline what's the your position on that so I think it tees up a statutory interpretation question of whether there can be an extension after the time period for divesture has lapsed I would think the court might start with its decision in the Holly Frontier case which did recognize the ability to get an extension after a lapse like that so it's your position that they could we have not run it to ground in part because it's simply not presented here and I'm not prepared to take a position on that statutory interpretation question I do

want to emphasize though that my friends have pointed to January 19th or nine days from now as a moment when Tik Tok might go dark at the outset of course Congress was hoping to prompt a divestiture but I think the more important thing to to focus on now is that even if that were to happen Congress specifically anticipated it and provided authority to lift these restrictions as soon as there's a qualified divesture and the reason for that is because foreign adversaries do not willingly give up their control over this mass communications channel in the United

States and I think Congress expected we might see something like a game of chicken B Dan saying we can't do it China will never let us do it but when push comes to shove and these restrictions take effect I think it will fundamentally change the landscape with respect to what bite dance is willing to consider and it might be just the jolt that Congress expected the company would need to actually move forward with the divesture process so it's not irrevocable that that's an interesting point and I hope Mr Francisco uh or Mr Fisher whoever is

delivering the rebuttal will address it so uh if we were to firm and uh Tick Tock were forced to cease operations uh on January 19th you say that there could be divestiture after that point and Tik Tock could Again Begin to operate the way continue to operate that's exactly right there's nothing permanent or irrevocable that happens on January 19th and I think that Congress might have thought that we'd get in a situation here where a foreign adversary is doing whatever it can to just not comply it's hoping the United States is going to Blink first

through our court system or through the executive branch getting cold feet about enforcing the law but Congress set a deadline and I think it thought that deadline would have a forcing function well let me ask you a question about your your effort to draw a distinction between bite dances speech and Tick Tock speech so suppose that the the People's Republic of China funds a movie and and there is a an entity in the United States a US corporation that thinks wow this is a great moving and while the PRC would not have a First Amendment

right to show it in the United States would you say that the American company would not have the First Amendment right to do that because whatever expression there is in that movie it's the prc's expression it's not their expression no no I wouldn't make that argument and I want to be really care I thought that was the argument that was being made no no so our argument is that this is not a direct regulation of protected speech in the first place or at most it would warrant intermediate scrutiny because of the indirect effects that it

might have on the American users or on the US subsidiary we're not suggesting that if Congress sought to directly regulate and prohibit speech in the United States based on concerns about its content or Viewpoint that's somehow immune from First Amendment scrutiny just because it comes from a foreign Source obviously that kind of law is going to trigger strict scrutiny and I imagine it would be a different constitutional analysis because it's hard to imagine the same profound National Security harms that would exist in that scenario as compared to what we here thank you General isn't the

whole point of the divesture requirement that the content on Tik Tok would be different if it was owned by a different company I'm still struggling with your insistence that this is content neutral versus content based when we have that kind of circumstance the reason that I am continuing to try to hold the line on that is because there is nothing in the act that would directly dictate any different mix of content on Tik Tok the US subsidiary could use the same algorithm show the same content by the same users and exactly the same order it's

not about trying to interfere with the US subsidiaries exercise of editorial judgment in any relevant sense instead all Congress was doing was homing in on the problems of having a foreign adversary be able to interject itself and be able to harvest your friends on the other side say it that the motivation for doing that is because the foreign adversary might influence or change the content so content is I mean content matters doesn't it I certainly I think that content was relevant to congress's concern about an adversary having control over the communications Channel I think not

again because of any particular concern about viewpoints or subjects but just is that relevance isn't that relevance enough to trigger at least some scrutiny with a heightened scrutiny from the standpoint of our legal tests I certainly understand that intuition and if the court thought that it were prudent to simply try to rule narrowly here and not dictate broader First Amendment principles we have no problem with the court assuming that hide and scrutiny applies we think the law easily satisfies it we do think that intermediate scrutiny is a more appropriate framework for this kind of law

that's not directly targeting protected speech but in any event there's a compell compelling National Security interest here and the law isn't just narrowly tailored it's precisely tailored it's trying to fix the thing that's creating the problem which is the prc's involvement and the Chinese government's ability to exercise this control over the corporate entities how are we supposed to think about the two different rationals here and how they interact the data collection rationale which seems to me at least very strong the covert um content manipulation rationale as the hypotheticals have Illustrated rais much more challenging questions

for you about how far that goes uh and if that alone if you didn't have the data collection piece you only had the covert content manipulation piece and then Mr Fischer's Point Mr Francisco that Congress would not have enacted this um just based on the data collection rationale alone just your understanding of how the two arguments fit together sure and let me walk through our defense of the data protection rationale and why we think it's a full justification for this law and the court could stop there and then be responsive to their arguments that somehow

the interest in preventing covert manipulation somehow taints it so just on data protection I think that it should be Beyond dispute that of course our nation has an enormous interest in keeping the sensitive data out of the hands of our foreign adversary and it should also be Beyond dispute that our foreign adversary has an existing capability through its laws and through the way that these companies are integrated to get its hands on that data there is no question that Congress was sincerely motivated by that concern there's a whole leadup to the statute here where the

executive branch across two different presidential Administrations was expressing concerns about the data problems Congress was extensively briefed on those problems it passed a companion data protection statute at the same time that was intended to prevent selling data to foreign adversary Nations the statute is shot through with protections that I think are key to this concern about closing off the vulnerability of access to the data so that's a sincere justification for congress's desire here to act we think it's a compelling interest and it's narrowly tailored then you get to the question of what to do about

the fact there's also this interest in covert content manipulation and in the First Amendment context this court in cases like hefen has made clear that once you have a justification that satisfies the First Amendment you don't need to go further and look at other justifications to decide whether they would independently satisfy First Amendment scrutiny so I think it's not necessary for the court to go on and probe whether it thinks that covert content manipulation itself independently justifies the law now my friends say that's all fine and good but they think over content manipulation is just

per se illegitimate and I honestly don't understand how that argument could carry the day because just imagine if Congress passed a law that said the PRC can't covertly manipulate Tik Tock obviously that law is not going to violate any constitutional principle it's a lot a goal I think for our legislature to protect us from foreign adversary interference like that and so there's nothing something there's nothing that's in inherently impermissible about wanting to guard against that risk maybe you could say that it sweeps in too much protected speech in the way it's operationalized in the ACT

here but there's certainly no fundamental Tate taint or anything akin to racial discrimination to call into question whether Congress could seek to vindicate that as one of many interests so I guess to just kind of bring it all together what I would say to the court is they have basically acknowledged that data protection is a compelling interest that was congress's real interest it provides a sufficient basis on its own to uphold this law the court could say just that and a and affirm I don't know how we do that unless we accept your argument that

the post devestator provision that stops them from conferring on the algorithm is not a speech impediment meaning it it very hard for me to say that it's not motivate to decide that question that it is a speech impediment and one that on its face itself has to be analyzed separately from the data so Justice Sor let me Begin by saying again that we do think that an interest in preventing any operational agreement between the US subsidiary and bite dance which is the relevant provision you're talking about is justified by data protection alone and that includes

with respect to cooperation on a Content recommendation algorithm specifically because of the concern that it necessitates data flows between the companies so I think that as a faction justify Congress enacting but but to the extent that you think that actually the prohibition on coordinating with respect to an algorithm reflects some kind of impermissible content-based problem with the statute the statute has a severability clause and I certainly don't think that it would give the court a basis to invalidate this law or to or to stop it from operating with respect to all of the provisions that

operate to protect data security at most it would suggest that that little piece of the law has to be on its own severed from the rest of how the statute operates how does that affect whether we would apply U because assuming it's data protection then I would think that strict scrutiny wouldn't necessarily apply I could understand applying intermediate scrutiny um but how do we do that with respect to this part the algorithm issue how do we get to intermediate scrutiny with respect to that the way you get to intermediate scrutiny there is to recognize that

prohibiting foreign adversary control over the operations of the platform including with respect to the fundamental backbone of the system is not based on any protected speech or or content based in the relevant sense I've been thinking of it as a kin to something like a piece of software you might have on your phone that would allow the Chinese government to listen in on every American conversation if Congress wanted to enact a law that patched up that vulnerability and said you can't use that piece of software or you can't coordinate with Chinese companies with respect to

it clearly we would recognize that closing off that capability of China is a laudable and in fact compelling government interest and I think when it comes to the risks that foreign adversary control pose here it's similar and kind it's simply trying to prevent access by the Chinese government to the Tik Tok system r large and that includes through the use of the algorithm thank you could the president uh say that um we're not going to enforce this law I think as a general matter of course the president has enforcement discretion would that then adequately protect

would that be binding in other words protect the regulated community so they could rely on that under due process principles uh going forward that raises a tricky question so I think there would be adequate right well I think I think there is a strong due process argument that the third party service providers could invoke if there were enforcement action based on a period of time when the president said the law wouldn't be enforced the kind of they going take that risk unless they have the assurance that a presidential statement of non- enforcement is in fact

uh something that can be fully relied on because the risk is too severe otherwise right I think that they might judge that based on this Court's precedent in the due process space and principles of entrapment by a stopple maybe they have a sufficient Safeguard here to allow them to continue to operate I would think even before a non- enforcement policy were announced of course the president-elect would want to review all of the updated National Security information that has come in over the last four years that underg congress's judgment here but the final thing I would

say is that even if you think the third party providers are simply going to choose not to continue to provide these Services because it's too much of a risk to take on again that's not anything permanent or irrevocable and that might be just what the PRC and bite Dan need to start taking seriously some of the the public reporting about interest in acquiring the company at one point Mr Francisco suggested that what we might want to do and what he would regard as certainly preferable to a decision affirming on the merits was is to issue

an injunction pending I guess consideration of what we now regard as the p as the C petition that was filed here what do you think of that suggestion so I think this court doesn't have any basis to enter a temporary injunction unless it thinks petitioners are likely to succeed on the merits of the First Amendment claim and to be honest you know I would I think that there is no argument to be made that you should find that lightly success this is an act of Congress this isn't some unilateral action by the executive branch but

it actually was action in parallel between the executive and Congress where Congress took action to close up a loophole in some of our laws the executive had tried to force divesture of Tik Tok under the Trump Administration but that had gotten tied up in litigation about those authorities so Congress came in and provided additional Authority based on a substantial record including with respect to the data harm and I don't see any basis for this court to displace the deadline that Congress set without finding that actually there is a potential First Amendment problem here do you

think we have the authority to issue an administrative stay as we have done in in other cases or do you think that the January 20 deadline prohibits us from doing that I don't think this court has a formal basis to not issue an administrative stay if it believed that that was necessary to assist in the Court's own consideration of the case and I would obviously defer to the court and whether it has a sufficient time to resolve the case but we are here ready to submit the case today and I think it is in the

interest of congress's work and our national security to resolve the case and allow the statute to take effect can I just test your whe to see whether your recollection of what Mr Francisco said about a warning is uh consistent with mine I did not hear him say he can address this in in rebuttal that it would be acceptable to his client if uh Congress had said there has to be a stark warning on every Tik Tock such as warning the Communist CH communist China is using Tik Tok to manipulate your thinking and to gather potential

blackmail material did you hear him say that that would be okay I don't think he's made that concession but even if he had I don't think that would address the government's National Security concerns and one of the the points here is that it's not just data privacy so even if you could somehow put users on notice that the PRC could obtain their data and they choose to disregard that it's not a data privacy interest it's a national security interest there's a distinct Sovereign harm to the United States if our foreign adversary can collect this massive

data set about 170 million Americans and as justce Kavanagh touched on you know there are a lot of teenagers using Tik Tok today who might ignore a warning like that and not really care but they're going to grow up and they might become members of our military they might become senior government officials and for the the Chinese government to have this vast Trove of incredibly sensitive data about them I think obviously exposes our as a whole to a a risk of Espionage and blackmail thank you I did want to touch briefly on the questions about

history and tradition here because my friends have said several times that the communications Act of 1934 which we think is roughly analogous to the type of restriction that Congress was seeking to enact here is Justified entirely by concerns about scarcity how you can't have sufficient bandwidth and I of course recognize that scarcity is what created the need for a licensing regime in the first place but I think it's important to clarify the historical record here that in choosing to limit foreign control of radio stations of broadcast stations Congress specifically cited a concern about National Security

that is written into the statute National Defense was one of the listed purposes of having that kind of restriction and so I don't think my friends can succeed in being dismissive of that concern about history and tradition and what it shows about the National Security judgments that underg this law the one other factual point I wanted to make to be responsive to a few points that my friends have touched on relates to whether Tik Tok us has the ability to alter this algorithm whether divesture is feasible how bite dance has manipulated the platform in the

past with respect to the algorithm I think we're simply talking past each other we don't dispute that Tik Tok us might engage in some functions in the United States to customize the algorithm for a US audience the thing we're worried about is happening long before that over in China where bite dance is developing the source code creating the basic backbone and functioning of the system and is then blasting out the algorithm for use by the various subsidiaries in their home country so we're not seeking to regulate any activity that Tik Tok us is engaged in

here instead what Congress is doing is trying to close off the vulnerability of PRC access abroad with respect to the feasibility of divesture my friends have said it would have been impossible to do this within 270 days you know at the outset obviously there's no inherent impediment to divesting a social media company we just saw Elon Musk buy X or Twitter in about six months from offer to completion and even with respect to this particular company I think my friends are not well positioned to complain about the timeline because they've been on notice since 2020

that unless they could satisfy the federal government's National Security concerns divesture might be required but in any event I don't think that the court should fault Congress for trying to balance competing interests here in making sure that there was a period for compliance and trying to preserve access to the platform for Americans while taking steps to safeguard against the risk to National Security finally with respect to the question of whether bite dance has taken action on the prc's demands um there is evidence in the record that Congress consulted to demonstrate that outside of China bite

dance has taken action to misappropriate data at the prc's request that included efforts to track residents in Hong Kong protesters there to track Wagers in China itself we know that b Dan has misappropriated us data with respect to surveiling of us journalists and there was evidence in the record reinforcing the conclusion that bite dance has been asked by the PRC to undertake efforts to censor content and manipulate the platform at the behest of the Chinese government so I don't think there is a factual basis to dispute the record that Congress had before it if the

court has no further questions I have General um if I understood correctly under President Al's first term he uh passed an executive order requiring divesture correct that's right and this um that was challenged in court and state as a result um of him exceeding his executive power to do that um but this bill followed a bipartisan uh investigation correct yes that's right I am a little concerned that a suggestion that a president elect or anyone else should not enforce the law when a law is in effect and has prohibited a certain action that a company

would uh choose to ignore enforcement on any Assurance other than the change in that law but putting that aside um on the 19th if it doesn't shut down there is a violation of law correct yes and whatever the new president does doesn't change that reality for these companies that's right how long is the statute of limitations in effect assuming that they violated it that day and later um continue to violate it but how long does the statute of limitations exist for a civil violation of this sort it would be a 5e statute of limitations thank

you thank you Council a rebuttal thank you Mr chief justice for uh points all of which go to why we think this would law law would fail whether you applied intermediate scrutiny or strict scrutiny I'd like to begin with uh the least restrictive alternative of Simply prohibiting Tick Tock Incorporated from disseminating any of the sensitive user data to anyone including bite dance under the threat of massive penalties that is definitely a less restrictive alternative now my friend pointed to the NSA negotiations well the sensitive user data that we're talking about and that were of concern

in the NSA negotiations were not the type of technical data that she's talking about the NSA did allow certain types of non-sensitive technical data to go back and forth but that wasn't anybody's concern and as we say in 20 page 23 of our briefs they simply off the negotiations without ever raising those concerns but to be clear if that's a concern sweep that into the ban too put in that nonsensitive technical data into the ban too we'll deal with that it's a lot better than simply being forced to shut down so that is most definitely

a less restrictive alternative that would address data security uh we talked about the underinclusiveness and teu and Shen the two large e-commerce sites Justice Kagan might have seen teu during the Super Bowl it was heavily advertised it's got It's one of the most popular e-commerce applications in the United States it's got 70 million users justice so to myor you were asking what they collect this is from joint appendix 339 to 343 the US China economic and Security Commission review report uh shien relies on tracking and analyzing user data draws on customer data and search history

with the assistance of artificial intelligence algorithms it requests users share their data and activity from other apps including social media so they apparently go into your social media apps and suck up all of the information uh because they're e-commerce apps they take names addresses and credit card information if you look at the Privacy policies on their website they were they collect location data it C it looks like they might even collect at some level GPS location data so they collect massive amounts of data uh point three their mere covertness argument makes no sense for the

reasons that the Court explored if mere covertness were the issue a disclosure would make perfect sense yet they're not concerned about mere covertness they're concerned as my friend suggested with getting Americans to argue with each other well you know as far as I can tell that's what news organizations do in this country every single day that's what we call editorial content that's what we call content itself and so it's trained directly on the content but even if you thought somehow that the mere covertness were the issue that definitely could be a addressed through a risk

disclosure so the uh data sharing ban the risk disclosure those are obvious less restrictive Alternatives and had the government considered them and rejected them we would be in a different position but if you look at this record those are two less restrictive Alternatives that the government did not address at all whether you apply strict scrutiny or intermediate scrutiny that is fatal because under both standards restricting speech has to be the last resort not the first one and when you fail to consider less restrictive Alternatives you fail under either standard uh my final substantive point is

uh we absolutely think this court has the authority to enter an administrative stay I didn't understand my friend to disagree with that we think that given the enormity of this decision given the complexity of this case it would make perfect sense for this court to enter an administrative stay I also think you could enter a preliminary injunction yes likelihood of success is one standard but you don't have to determine ultimate success and as you do in other related contexts like with respect to stays you often make clear that you are not addressing the merits of

the case I think you could do that here the bottom line your honor is this case ultimately boils down to speech what we're talking about is ideas and my friends on the other side when you cut through everything else are ultimately worried that the ideas that appear on the Tik Tock platform could in the future somehow manipulate Americans could somehow persuade them could somehow get them to think something that they ought not be thinking well that whole notion is at war with the First Amendment if the First Amendment means anything it means that the government

cannot restrict speech in order to protect us from speech that's precisely what this law does from beginning to end whether you look at its text whether you look at the government's justifications in its brief where they talk about being worried about speech criticizing our leaders or undermining democracy it's what you see in the house report which drains specifically on the dangers of misinformation disinformation and propaganda and it's what you see in this legislative record writ large which is saturated with objections to to Tik tok's existing content we ask that you reverse the court below thank

you thank you Council the case is submitted the honorable court is now adjourned until Monday next at 10:00 president-elect Donald Trump has been sentenced to unconditional discharge in the hush money case involving payments made to adult film star Stormy Daniels ahead of the 2016 election the sentence was handed down by New York judge Juan Mara and comes less than two weeks before the president-elect is set to take the oath of office as the 47th president of the United States St