[00:00:00] Speaker 00: case number 24-1113 et al. [00:00:02] Speaker 00: TikTok Inc and ByteDance Limited Petitioners versus Mary B. Garland in his official capacity as Attorney General of the United States. [00:00:12] Speaker 00: Mr. Pinkus for the TikTok Petitioners, Mr. Fisher for the Creator Petitioners, Mr. Tenney for the Respondent. [00:00:20] Speaker 01: Good morning, counsel. [00:00:21] Speaker 01: Mr. Pinkus, please proceed when you're ready. [00:00:26] Speaker 05: Good morning, Your Honor. [00:00:27] Speaker 05: Thank you and may it please the court. [00:00:28] Speaker 05: The law before this court is unprecedented and its effect would be staggering. [00:00:33] Speaker 05: For the first time in history, Congress has expressly targeted a specific U.S. [00:00:38] Speaker 05: speaker banning its speech and the speech of 170 million Americans. [00:00:42] Speaker 05: The law is subject to strict scrutiny and the government bears the burden of proving its constitutionality. [00:00:48] Speaker 05: Its arguments fail as a matter of law for two fundamental reasons. [00:00:52] Speaker 05: First, the government's asserted interest in addressing what it calls content manipulation is facially illegitimate [00:00:58] Speaker 05: Speech regulations cannot be justified on content or viewpoint grounds and the gross under inclusiveness of the data security interest fatally undermines it as a standalone justification. [00:01:11] Speaker 05: Second, this law is just like the one invalidated by this court in News America. [00:01:16] Speaker 05: No compelling reason justifies Congress acting like an enforcement agency and specifically targeting petitioners. [00:01:22] Speaker 05: Congress excluded petitioners and only petitioners from the more protective general standard that the executive branch must apply to every other speaker it seeks to classify as a national security risk. [00:01:35] Speaker 05: This law imposes extraordinary speech prohibition based on indeterminate future risks, notwithstanding the obvious less restrictive alternatives, the government has not come anywhere near satisfying strict scrutiny. [00:01:48] Speaker 01: So one, [00:01:51] Speaker 01: matter in the case that you didn't mention, as far as I could detect in that, is the fact that the initial operative incidence of the law is predicated on the idea that the curation is occurring abroad. [00:02:08] Speaker 01: So it's a foreign entity abroad who's engaging in the curation that's causing the content manipulation that you highlighted. [00:02:17] Speaker 01: How does that factor into the analysis from your perspective? [00:02:19] Speaker 01: Because I think that the government's point is, [00:02:21] Speaker 01: Sure, you've got your point about content moderation, content manipulation. [00:02:25] Speaker 01: And that comes up in a lot of cases, including in that choice in the Supreme Court. [00:02:29] Speaker 01: But this case is different because it involves something that's happening abroad. [00:02:34] Speaker 01: And what we're worried about is the effect of something that happens abroad. [00:02:37] Speaker 01: And when it's a foreign organization, they don't have a First Amendment right to object to a regulation of their curation. [00:02:45] Speaker 05: Well, a couple of answers to that, Your Honor, if I can walk through them. [00:02:48] Speaker 05: I think the first step is TikTok Inc. [00:02:51] Speaker 05: is a U.S. [00:02:51] Speaker 05: entity that engages in speech. [00:02:54] Speaker 05: It curates third-party content, just as the NetChoice, and it engages in its own speech. [00:03:02] Speaker 05: So the speech here that's being banned, we would say, or at the minimum burdened, is the speech of the U.S. [00:03:08] Speaker 05: speaker. [00:03:09] Speaker 05: I think the government tries to argue that because TikTok Inc ultimately has a foreign owner, that that somehow affects whether TikTok Inc, the U.S. [00:03:21] Speaker 01: entity has First Amendment rights that can possibly. [00:03:23] Speaker 01: I don't think they're arguing that. [00:03:24] Speaker 01: I think what they're saying is TikTok Inc may well have First Amendment rights and does, but TikTok and TikTok Inc can continue to curate to its heart's content. [00:03:34] Speaker 01: But what it can't do is do that while it's owned by [00:03:38] Speaker 01: China because we're worried about what China does vis-a-vis TikTok, Inc. [00:03:43] Speaker 01: Okay. [00:03:43] Speaker 05: Well, let me, I want to get to the bottom line of your honor's question, but I want to correct the premise. [00:03:48] Speaker 05: It's not owned by China. [00:03:49] Speaker 05: the owner of TikTok Inc. [00:03:51] Speaker 05: It's ByteDance limited. [00:03:53] Speaker 05: It's a Cayman Islands holding company that's owned by- Subject to Chinese control. [00:03:57] Speaker 01: They're subject to Chinese control. [00:03:58] Speaker 05: Well, they argue that, but I think the critical issue here is what they're saying is because there is the possibility of future Chinese control, right? [00:04:07] Speaker 05: They don't claim anything has happened yet. [00:04:10] Speaker 05: They claim there's future Chinese control and therefore we can burden [00:04:15] Speaker 05: in a very significant way, the speech of a US entity and its users, which by definition is fully protected speech. [00:04:22] Speaker 05: So in order to say that they can do that, essentially take away the speaker rights of a US entity, they surely have to meet strict scrutiny. [00:04:31] Speaker 05: So even if the court concludes that the foreign government [00:04:36] Speaker 05: manipulation is not subject to the First Amendment. [00:04:40] Speaker 05: I think there are questions about that. [00:04:41] Speaker 05: No court has held that. [00:04:43] Speaker 05: The most the courts that the United States has ever done before is to say that foreign speech has to be labeled. [00:04:50] Speaker 01: But I don't think the Supreme Court said in USAID. [00:04:55] Speaker 05: I don't think so, your honor. [00:04:57] Speaker 05: I think what USAID said is the speech outside the United States by non-US entities is not protected. [00:05:04] Speaker 05: So there were two elements there. [00:05:06] Speaker 05: They aren't here. [00:05:07] Speaker 05: We're talking about speech in the United States. [00:05:09] Speaker 01: But as I say, even if the- I'm just saying if the curation that's being worried about is the assertion of control by the Chinese government in China, then that fits within the USAID [00:05:26] Speaker 05: I don't think so, Your Honor, because it's still speech coming to the United States. [00:05:29] Speaker 05: I think it raises a complicated question that courts really haven't addressed. [00:05:33] Speaker 05: But as I say, I don't think the court has to go that far, although we advocate that. [00:05:37] Speaker 05: I think the court, what's clear here is the burden of the government saying because of this indeterminate future risks, we can impose burdens on speech that there's no dispute. [00:05:49] Speaker 05: It's 100% protected by the First Amendment. [00:05:52] Speaker 05: That requires strict scrutiny. [00:05:53] Speaker 02: Mr. Cronkis, what is the best evidence that TikTok US or TikTok Inc. [00:05:59] Speaker 02: is engaged in its own expressive activity, expressive activity that's not controlled by ByteDance? [00:06:06] Speaker 05: Well, A, it's a U.S. [00:06:08] Speaker 05: entity. [00:06:09] Speaker 05: B, we have... It is a U.S. [00:06:10] Speaker 02: entity. [00:06:11] Speaker 05: It is a U.S. [00:06:12] Speaker 05: entity. [00:06:12] Speaker 05: And open society essentially establishes a presumption that we respect the corporate form. [00:06:18] Speaker 05: The government is not arguing that there's a sham here. [00:06:21] Speaker 05: Um, so I think that's the starting point, but I think the record also makes clear that the curation occurs in the United States. [00:06:29] Speaker 05: Uh, if the record is clear, the press or declaration, sorry, the press or declaration, exactly. [00:06:36] Speaker 05: Your honor at the page of 7 99 to 800 and a 12, uh, makes clear that the content moderation occurs in the United States. [00:06:44] Speaker 05: And there's no dispute that the tick tock inks own posts are [00:06:48] Speaker 05: in the United States, its own speech. [00:06:50] Speaker 05: And of course, there's a lot of US users speech that is that is on the platform. [00:06:54] Speaker 05: So I think all of those things together. [00:06:57] Speaker 05: Combined to say there's no showing here and no argument here that there's some kind of a sham with respect to [00:07:05] Speaker 05: the content moderation that's occurring now. [00:07:08] Speaker 05: The government's argument is there might, something might happen in the future. [00:07:11] Speaker 02: Even if there's not a sham, I mean, what about our case from 1988 Palestine Information Office? [00:07:17] Speaker 02: Are you familiar with that case? [00:07:20] Speaker 05: I don't think I am, Your Honor. [00:07:21] Speaker 02: Unfortunately, I apologize. [00:07:22] Speaker 02: The government doesn't cite it, which I was a bit surprised about, but it's a case from 1988, Judge Mikva joined by Judge's star and Silberman. [00:07:31] Speaker 02: And there, I think this circuit, [00:07:35] Speaker 02: essentially said that the fact that the Palestinian Palestine information office, which was an entity in the United States could be shut down by the state department in part because of its affiliation as a foreign mission of the PLO, which is a designated terrorist organization. [00:07:50] Speaker 02: And our circuit seemed to suggest very strongly that the control or the relationship itself was part of the strong justification for what the government did. [00:08:02] Speaker 05: Well, you're not familiar with that case, your honor, happy to address it in a supplemental brief. [00:08:06] Speaker 05: But I think even from your honor's recitation of the facts, the government isn't arguing here that there's control now, either by China or by Dance Limited. [00:08:16] Speaker 05: I do think just stepping back from China and talking about your honor's question about whether foreign ownership by itself. [00:08:25] Speaker 02: Justice Barris suggests that this might make a difference in her separate [00:08:28] Speaker 02: opinion in that choice. [00:08:30] Speaker 05: She did, Your Honor, but it would really have quite far flowing ramifications as we talk about in our brief. [00:08:36] Speaker 05: There are lots of U.S. [00:08:37] Speaker 05: speakers, Politico, Business Insider, we talk about Reuters, we talk about a lot of them in our brief that are owned by foreign entities. [00:08:46] Speaker 05: But not foreign adversaries. [00:08:48] Speaker 05: Well, I think the question [00:08:51] Speaker 05: I don't think that affects the First Amendment question. [00:08:54] Speaker 05: That might affect scrutiny. [00:08:55] Speaker 05: So I think it's very important in this case to take things in stages. [00:09:00] Speaker 05: Are there protected rights that are burdened? [00:09:02] Speaker 05: Does that burden trigger strict scrutiny? [00:09:04] Speaker 05: And then we can look at the justifications and see if they hold up. [00:09:07] Speaker 05: But I think at the first stage, are there First Amendment rights that are being burdened? [00:09:11] Speaker 05: Even the government doesn't argue. [00:09:13] Speaker 05: that TikTok Inc has no First Amendment rights. [00:09:16] Speaker 05: They make this brief argument about foreign ownership making a difference. [00:09:21] Speaker 05: But as I say, mere foreign ownership can't possibly be a justification because it would turn the First Amendment on its head. [00:09:27] Speaker 05: We have lots of publications that are owned by foreign entities. [00:09:30] Speaker 05: And to say your foreign ownership casts your First Amendment rights into doubt or in a defamation case or a government regulation case, it's open to explore the interactions between the foreign owner [00:09:43] Speaker 05: and the US speaker to see precisely what speech is controlled and what's not would really fundamentally change First Amendment analysis and a lot of issues. [00:09:51] Speaker 05: And it's what open society rejected. [00:09:53] Speaker 05: Open society basically said, we're going to presume that there is corporate separateness. [00:10:01] Speaker 05: It may be that in that case, there was a showing of control that was satisfied. [00:10:05] Speaker 05: But here there's no showing certainly that the fight against limited is, which as I say, it's interesting. [00:10:11] Speaker 02: Cause in that case that the court defers to the fact that the government thought there was foreign control, but, but, but any of it. [00:10:17] Speaker 02: So even if we assume that Tik TOK U S has first amendment rights as a U S corporation, why wouldn't we apply intermediate scrutiny? [00:10:26] Speaker 02: Because the act itself, you know, arguably regulates both, you know, conduct, which is foreign ownership, but also [00:10:35] Speaker 02: you know, incidentally burdens the expressive activity. [00:10:38] Speaker 02: I know you won't, you know, accept that characterization, but why is that wrong? [00:10:42] Speaker 05: I really don't hear because a couple of reasons. [00:10:46] Speaker 05: I think what was clearly targeted here was the TikTok platform, a speaker. [00:10:50] Speaker 05: And I think when an individual speaker is targeted by a law, courts have said that that's enough to trigger strict scrutiny. [00:10:58] Speaker 05: I mean, News America stands for that proposition. [00:11:00] Speaker 05: Once the court concluded in News America, [00:11:03] Speaker 05: that the law targeted only News America and wasn't going to apply to anyone else. [00:11:07] Speaker 05: It went right to heightened scrutiny. [00:11:08] Speaker 05: Now, in that case, the heightened scrutiny was intermediate because it was the broadcast context. [00:11:12] Speaker 05: But I think the analogy fits here. [00:11:14] Speaker 05: And Citizens United gives the reason for that distinction. [00:11:19] Speaker 05: What it says is there's such a risk of content and viewpoint-based discrimination when you target a specific speaker that we have to apply strict scrutiny. [00:11:28] Speaker 05: The second reason, the justification here is viewpoint. [00:11:32] Speaker 05: And so that by itself, Reed says, triggers for scrutiny. [00:11:36] Speaker 05: But I wanna go back to just answer one more answer to your prior question, which is you said in the Palestinian case, there had been a determination. [00:11:44] Speaker 05: We don't really know what was determined here because this was Congress enacting a statute that has no findings. [00:11:50] Speaker 05: It doesn't say why Congress did what it did. [00:11:52] Speaker 05: It targeted TikTok. [00:11:53] Speaker 05: And the record here indicates that although the government says future covert manipulation by China, [00:12:01] Speaker 02: is the risk, is the justification, the record is certainly not that clear and- We've never held that Congress is required to enact findings in order, I mean, in some sense, the finding is the fact that they passed a law under article one, section seven, designating TikTok for this treatment. [00:12:19] Speaker 02: I mean, there's no requirement that Congress needs to put in a statute its findings. [00:12:25] Speaker 05: Totally agree, Your Honor, there's no general requirement, but I think- It's not the EPA. [00:12:28] Speaker 05: As the court, it is not the EPA. [00:12:30] Speaker 05: But that's part of the problem in the statute, just to, I guess two answers. [00:12:36] Speaker 05: The problem here is the statute doesn't say, and it's not a statute that sets up a general rule where you can sort of say from the general rule, usually what happens in this [00:12:47] Speaker 05: in the enforcement context is Congress sets up a general rule. [00:12:51] Speaker 05: Fatal challenges are hard because the general rule has some principles and the applications occur in enforcement actions by the executive branch where there are specific findings and specific basis to judge what happened. [00:13:03] Speaker 05: That didn't happen here. [00:13:05] Speaker 05: And the record, to the extent we wanna go beyond the words of the statute, which as you say, just say TikTok, it doesn't say why. [00:13:13] Speaker 05: Looking at the record, the record is suffused [00:13:16] Speaker 05: with much broader content justifications than when the government tries to supply. [00:13:20] Speaker 01: So on the content modification rationale, there's another rationale too. [00:13:28] Speaker 01: There's the data security one. [00:13:30] Speaker 01: And let's just assume for present purposes, I know you resist the assumption and I can understand why, but just for hypothetical purposes, let's just assume the law was only underverted by the data security rationale. [00:13:41] Speaker 01: So the content manipulation, the concerns about content manipulation just drop out [00:13:46] Speaker 01: if the law was only undergirded by the data security rationale, do you think strict scrutiny applies? [00:13:52] Speaker 05: I think it still does because it's targeted a specific speaker. [00:13:56] Speaker 05: If a law singled out the New York Times company and said, you're going to have to meet special workplace safety rules or special overtime rules, no one would say, oh, we're not going to apply strict scrutiny because there's a justification for workplace safety. [00:14:09] Speaker 05: There would be a significant argument about whether- And the specific speaker is TikTok US. [00:14:14] Speaker 01: Yes. [00:14:15] Speaker 01: So I think what the government would say about that, and we'll hear from the government, but I think what the government would say is we're not targeting TikTok US, quad TikTok US. [00:14:22] Speaker 01: We only care about TikTok US to the extent that it's subject to Chinese control. [00:14:27] Speaker 01: And so TikTok US can continue to be TikTok US full board as long as it's no longer subject to Chinese control. [00:14:33] Speaker 01: And the way that that happens is to have a divestiture. [00:14:36] Speaker 01: But apart from that, TikTok US is totally fine with us. [00:14:40] Speaker 05: But I think, Your Honor, the problem is, I mean, I guess we have two answers to that. [00:14:45] Speaker 05: One is divestiture is infeasible here for the reason that Professor Milch indicates. [00:14:51] Speaker 05: And so this isn't just about divestiture. [00:14:53] Speaker 05: It's really about a ban. [00:14:54] Speaker 05: But even if there in some theoretical world, divestiture would be possible. [00:15:00] Speaker 05: There's still a burden on TikTok U.S. [00:15:01] Speaker 05: It costs different speeches required. [00:15:04] Speaker 05: The statute says you can't bring in the foreign [00:15:08] Speaker 05: user content that is a critical part of tech talk. [00:15:11] Speaker 05: Your speech would have to be different. [00:15:13] Speaker 05: You can't use this recommendation engine that would make your content moderation different. [00:15:18] Speaker 05: So, uh, and the costs of divestiture by themselves are burden on tech talking, but just the kind of burden that Minneapolis star and other Supreme court cases have said trigger script scrutiny when you're single out of speaker. [00:15:30] Speaker 01: So can I ask this question then if under your rationale, suppose the, um, United States, the United States is at war with the country and then [00:15:38] Speaker 01: There's a question about whether that foreign country can own a major media source in the US while the war is going on. [00:15:47] Speaker 01: Is your submission that Congress can't bar the enemy's ownership of a major media source in the US? [00:15:56] Speaker 01: I think we would still be in the world of strict scrutiny. [00:15:58] Speaker 05: Maybe that would be a sufficient justification. [00:16:02] Speaker 05: But I think we would still have to look at those rationales and decide that they were sufficient. [00:16:07] Speaker 05: And, you know, when you're at war, probably they would. [00:16:09] Speaker 05: But that's a couple of things to say here. [00:16:13] Speaker 05: That's certainly not the rationale that they're giving. [00:16:15] Speaker 05: And just to sort of finish up my answer, I think in the [00:16:21] Speaker 05: divestiture context, we still have a burden on the U.S. [00:16:25] Speaker 05: speaker's rights. [00:16:26] Speaker 05: I just want to return to your data privacy question, because I also want to say it would be impermissible for the under inclusiveness reason that we cite in our brief. [00:16:34] Speaker 05: The statute, if you look at the broad statute, I mean, singling out TikTok is pretty under inclusive by itself. [00:16:41] Speaker 05: But even if you want to consider the broader statute, there's an exclusion. [00:16:45] Speaker 05: It only applies to sites that host user content. [00:16:48] Speaker 05: There's the business review exclusion that we claim [00:16:51] Speaker 05: We have a little dispute with the government about what that means. [00:16:53] Speaker 05: The plain language seems to say if you're a company that has a business review app, then you're entirely out of the statute. [00:17:00] Speaker 05: But even if you read it the way that that's certainly a shocking content-based distinction that undermines the data privacy interest. [00:17:06] Speaker 05: But even if you just read it as having a business review app by itself is excluded, those exclusions exclude e-commerce sites. [00:17:15] Speaker 05: And as we say in our brief, [00:17:17] Speaker 05: There are very significant e-commerce sites based in China and other places that collect much more data than TikTok does, very sensitive data. [00:17:27] Speaker 05: The record refers to one of them that was cited by a US commission as a possible danger and they are categorically excluded. [00:17:34] Speaker 01: So I just want to understand the implications of your positions and we're not at war. [00:17:38] Speaker 01: I'm not suggesting that we are, but just to understand how the way you view the case would play out. [00:17:43] Speaker 01: If we were at war, [00:17:45] Speaker 01: If the United States was at war with say China and the, what the law did was to bar Chinese ownership of say ABC because China wants to buy ABC and Congress and the national security establishment is worried about the repercussions of that. [00:18:07] Speaker 01: And so it says ABC can continue to be ABC to its heart's content. [00:18:11] Speaker 01: The one thing it can't do, [00:18:12] Speaker 01: is the subject of Chinese control when in a time when we're at war with China because we're worried because if China's in control of it, then it could engage in content manipulation of a type that's going to be problematic vis-a-vis U.S. [00:18:22] Speaker 01: interests. [00:18:23] Speaker 01: Your view is that strict scrutiny would apply to that. [00:18:25] Speaker 01: Yes. [00:18:26] Speaker 01: And the government would have to. [00:18:27] Speaker 05: Let me say your example is ABC. [00:18:29] Speaker 05: They have, if that's the television network and its licenses, that's a slightly different world. [00:18:34] Speaker 05: But, you know, let's just assume it's someone who's not being regulated because of their broadcast. [00:18:40] Speaker 01: Got it. [00:18:40] Speaker 01: Okay, right, right. [00:18:41] Speaker 01: Take the broadcast. [00:18:42] Speaker 01: Take the point, but a major media source. [00:18:44] Speaker 01: And then under strict scrutiny would be the question. [00:18:47] Speaker 01: Under strict scrutiny, one of the points that you've made repeatedly and understandably is that the concern here appears to be directed [00:18:55] Speaker 01: at something that could happen in the future, not something that's necessarily happening now. [00:18:59] Speaker 01: So let's just say that that's true in the war context too. [00:19:01] Speaker 01: There's no particular reason to know what's happening right now. [00:19:04] Speaker 01: It's a concern about the future. [00:19:06] Speaker 01: Would that necessarily mean that strict scrutiny is unsatisfied? [00:19:08] Speaker 05: And so therefore- I think it would depend on the facts. [00:19:11] Speaker 05: It might depend on the facts regarding the ownership. [00:19:13] Speaker 05: I think there are a couple of questions embodied in your question. [00:19:16] Speaker 05: One is whether this is a sufficient compelling interest. [00:19:19] Speaker 05: Even if it is, there's a less restrictive means question. [00:19:22] Speaker 05: And I think a critical point that we make [00:19:25] Speaker 05: and that's true throughout the law, is the government's solution to foreign propaganda in every other context has been disclosure. [00:19:33] Speaker 05: It has not been a ban. [00:19:34] Speaker 05: The Meese case talks about that. [00:19:36] Speaker 05: And in footnote 15 has a very sort of fulsome and explanation why that our view in America is if speech is made clear, then Americans can decide and the answer to speech is more speech. [00:19:49] Speaker 01: The disclosure idea might depend on the voluntary cooperation of the very [00:19:54] Speaker 01: the very control that you're worried about? [00:19:57] Speaker 05: Well, I don't think so, Your Honor, because I mean, I don't know what the disclosure would be. [00:20:01] Speaker 05: Obviously, the government would have to show the predicate of the risk of Chinese control. [00:20:05] Speaker 01: And you'd have to know that the manipulation is going on, right? [00:20:08] Speaker 05: Well, the government, in a hypothetical world, maybe, I guess this is how I think the process would proceed. [00:20:15] Speaker 05: The first question would be, [00:20:19] Speaker 05: is this a sufficiently compelling interest, then there really isn't a precedent for a court finding government regulation of protected speech, which is what's going on here, because we still have a lot of protected speech, in a general sense, is a compelling interest sort of ever. [00:20:33] Speaker 05: So that would be a pretty shocking and big step. [00:20:35] Speaker 05: But assuming you could get over that step, then I think the next question would be, is the risk of control, since we're talking about the future, imminent? [00:20:43] Speaker 05: And I don't think imminent here, that's the word that Holder and Pentagon papers use, [00:20:47] Speaker 05: And I don't think that's necessarily imminent in terms of happening tomorrow. [00:20:51] Speaker 05: I think it's imminent in the sense that the government is arguing here, which is the China guy could do this at will. [00:20:56] Speaker 05: That's our risk trying to do this at will. [00:20:57] Speaker 05: So we have to act now. [00:20:59] Speaker 05: And I think that has to be shown as a factual matter. [00:21:02] Speaker 05: And I think [00:21:03] Speaker 05: that would require just sort of working through this type of this case, the court to delve into the factual record and see if that's true, given the protections that are in place and the less restrictive means protections that we argue could be in place. [00:21:16] Speaker 05: I mean, we don't want our content. [00:21:19] Speaker 05: TikTok, Inc. [00:21:19] Speaker 05: does not, and ByteDance do not want the content to be controlled. [00:21:22] Speaker 05: That's why they've not only negotiated the national security agreement, it's why they've implemented it voluntarily, including a number of provisions that go to this issue. [00:21:30] Speaker 05: So the government have to show [00:21:32] Speaker 05: imminent in terms of China being able to do what it will, not withstanding the possibility of technological protection. [00:21:38] Speaker 05: And then the question would be disclosure. [00:21:41] Speaker 05: And I think the government, if it met those tests, would then have to come forward with a possible disclosure. [00:21:47] Speaker 05: You know, Zauderer sets the test, there's a compelled speech element, but that's what the government has done in other contexts where there's disclosure, movies, television, [00:21:59] Speaker 05: printed material. [00:22:00] Speaker 05: And I think net choice sort of points the way that for the government to say that disclosure won't work here requires some quite dramatic showing because the court's general approach has to say, we treat these media the same. [00:22:14] Speaker 05: Now, maybe in some hypothetical world, the government could show that, but they certainly, there's nothing in this record. [00:22:19] Speaker 05: And I think the critical thing, again, we're looking at a statute. [00:22:22] Speaker 02: Is your argument though then that if the government is concerned about covert [00:22:27] Speaker 02: influence by a foreign adversary. [00:22:31] Speaker 02: It has to disclosure is always the least restrictive means. [00:22:35] Speaker 02: I mean, that would seem to me quite a remarkable determination to certainly for this court underholder and and other precedents. [00:22:44] Speaker 05: Well, it certainly would have to show that [00:22:46] Speaker 05: reason why it isn't a least restrictive means and remember the actor here is Congress and Congress didn't even as far as we know consider disclosure and sable and playboy enterprises say Congress has to consider less restrictive means and so for that reason alone there's a problem that this this course is invalid whether the government could could in in a hypothetical case where there was actually a reason decision [00:23:09] Speaker 05: record say we've looked at disclosure here are the possibilities we've actually concluded it doesn't work. [00:23:14] Speaker 02: I mean if the concern is data protection and covert influence by foreign adversary how would disclosure be uh I mean disclosure if you know under your view that like the only reason for this law is propaganda maybe disclosure addresses that but but that you know I mean the the act is not even aimed at expressive activity directly it's aimed at foreign ownership [00:23:39] Speaker 02: of a U.S. [00:23:40] Speaker 02: corporation. [00:23:42] Speaker 05: Well, just to take your last point first, as I said, Your Honor, we think it is aimed at expressive activity. [00:23:48] Speaker 05: The entire just the justification relates to expressive activity. [00:23:53] Speaker 05: It tick tocks. [00:23:54] Speaker 05: It singles out a specific speaker and the whole debate. [00:23:57] Speaker 02: The Justice Department went up to Congress and said, though, this act regulates both [00:24:03] Speaker 02: Okay, say it regulates expressive activity because it directly targets TikTok US, but it is also regulating foreign ownership, which is a separate, non-expressive interest of the government. [00:24:19] Speaker 02: So with those combinations, why shouldn't we apply the O'Brien framework, for instance? [00:24:25] Speaker 05: Because this is not a statute that's generally regulating foreign ownership. [00:24:30] Speaker 05: It's regulating foreign ownership [00:24:32] Speaker 05: We're talking about foreign ownership only of a particular speaker. [00:24:35] Speaker 05: O'Brien was upheld because the law there regulated a whole range of activity, the court said, and incidentally it might fall on speech. [00:24:44] Speaker 05: Here, the regulation falls directly and the burden falls directly on a speaker. [00:24:48] Speaker 05: Whether you think of it as divestiture or as a ban, the burden falls on the single doubt speaker. [00:24:54] Speaker 05: And that distinguishes from O'Brien and O'Cara and all those other cases. [00:24:57] Speaker 01: Would you think you lose under O'Brien? [00:24:59] Speaker 01: Excuse me? [00:25:00] Speaker 01: I mean, you're resisting O'Brien for, of course you'd rather have strict scrutiny, but do you, would you have an argument under O'Brien that you, that- I think we'd still have arguments under O'Brien. [00:25:09] Speaker 05: I think the same arguments we're making, I think would be strong enough, but I don't think, I think the government mentions these- Because one of the criteria under O'Brien is whether the law is related to the suppression of free expression. [00:25:22] Speaker 05: That's why we get out of O'Brien, right? [00:25:24] Speaker 01: Because it's a law related to the suppression of expression. [00:25:27] Speaker 01: That's what Texas, [00:25:29] Speaker 01: That means that O'Brien's not satisfied. [00:25:30] Speaker 01: It doesn't mean you get out of O'Brien. [00:25:32] Speaker 01: That's what happens in that choice. [00:25:33] Speaker 01: I mean, that's one of the criteria under which a law survives O'Brien's scrutiny. [00:25:38] Speaker 01: And your argument would be, I would assume that the law can't survive O'Brien's scrutiny because if it's related to the suppression of free expression, then it's invalid. [00:25:47] Speaker 05: Yeah, I mean, maybe I think we're just talking about a doctrinal difference here. [00:25:50] Speaker 05: I think the law is out of O'Brien and subject to strict scrutiny because it's not incidental. [00:25:59] Speaker 05: It cannot, if I can just go back to Judge Rouse. [00:26:01] Speaker 06: Hey, before you do that, you started off, not started off earlier on said that curation would occur in the United States under TikTok's NSA proposal, correct? [00:26:16] Speaker 06: And the NSA proposal is more or less reflected in Project Texas, is it not? [00:26:20] Speaker 05: Project Texas has implemented some, but not all of the protections in the NSA. [00:26:27] Speaker 06: And the curation, [00:26:29] Speaker 06: Instrument of curation is the so-called recommendation engine. [00:26:33] Speaker 05: Well, there are multiple forms of curation, your honor. [00:26:35] Speaker 05: Some is our content. [00:26:37] Speaker 05: Is that one of them? [00:26:38] Speaker 05: That is one of them, but not the only one. [00:26:39] Speaker 06: So here's, here's a little later in the presser declaration. [00:26:43] Speaker 06: Project Texas contemplates the source code supporting the TikTok platform, including the recommendation engine will continue to be developed and maintained by ByteDance subsidiary employees, including in the United States and in China. [00:26:58] Speaker 06: So the curation is not entirely in the United States. [00:27:02] Speaker 06: Well, I guess a couple of answers to that. [00:27:05] Speaker 05: First of all, okay. [00:27:07] Speaker 05: Well, there's review of those, those changes to the recommendation engine in the United States, but, but that the recommendation engine is not the only form of curation in the United States. [00:27:21] Speaker 05: There are also changes. [00:27:22] Speaker 05: made to how the curation engine, the recommendation engine works that are US specific. [00:27:28] Speaker 05: Those relate to the content, the community guidelines. [00:27:31] Speaker 06: Insofar as the changes are originating in China, they would be subject to review before being implemented in the US. [00:27:42] Speaker 05: They are not reviewed before they are implemented, but they are reviewed and subject to recall. [00:27:50] Speaker 05: But I think the critical point is those changes to the code are not the sole [00:27:58] Speaker 05: content moderation activities. [00:28:00] Speaker 05: The U.S. [00:28:00] Speaker 05: recommendation engine also takes account of determinations about what is acceptable content in the U.S. [00:28:08] Speaker 05: How should that content be treated? [00:28:10] Speaker 05: Some content is out. [00:28:11] Speaker 06: But in order to apply what you just said, they have to look at what's coming down from Beijing and decide whether it comports with what's acceptable in the U.S. [00:28:20] Speaker 05: Well, some of what they do is just done in the U.S. [00:28:23] Speaker 05: It's true that the source code, but I think your honor's point, I guess I just have to say there are many, many US companies that use source code that's developed in China. [00:28:35] Speaker 05: The Weber declaration talks about that in detail. [00:28:39] Speaker 06: So the mere fact that- Do any of them involve apps that reach whatever it is to a million people a month? [00:28:45] Speaker 06: I'm sorry? [00:28:46] Speaker 06: Do any of them involve apps that reach 10 million people a month? [00:28:50] Speaker 06: Yes, many of them. [00:28:51] Speaker 06: Why is it I could not find any of the briefs, indeed in the declarations and so on, any reference to another company that would be subject to the second procedure provided in the statute, the alternative procedure that ends with a presidential determination. [00:29:12] Speaker 05: Well, Your Honor, we didn't try to identify one, but certainly one of the reasons. [00:29:17] Speaker 05: You did assert that there were several. [00:29:20] Speaker 06: But, well, at least implied that by saying every other company would be subject to the second type of procedure. [00:29:26] Speaker 06: Is there such a company? [00:29:28] Speaker 05: Well, I think we don't know what companies, your honor. [00:29:30] Speaker 05: I mean, I guess two answers. [00:29:32] Speaker 06: Surely, by chance, knows what they're, who they're. [00:29:34] Speaker 05: Well, we don't know what companies the US government is going to say are subject to foreign adversary control. [00:29:39] Speaker 05: I think that's one of the problems of this statute is that the US government could say, [00:29:44] Speaker 05: Here is platform X. We think that they are subject to control by Russia. [00:29:50] Speaker 05: We're looking at their content. [00:29:52] Speaker 05: We think they're too susceptible to infiltration by Russia, and therefore they have to be moved to a new owner, even if the parent is a US owner, because that risk is too great. [00:30:02] Speaker 05: So we don't know what [00:30:05] Speaker 05: websites the government might argue. [00:30:07] Speaker 05: But I think the other critical question is one of the reasons is the exemption of e-commerce sites. [00:30:13] Speaker 05: We do talk about two Chinese, two e-commerce sites that would certainly meet all of the other criteria in the law, but that are exempted because of the business review exception. [00:30:25] Speaker 05: Those sites, we don't know. [00:30:29] Speaker 05: but certainly those sites could well be susceptible to the government's action, but they've been excluded by Congress. [00:30:35] Speaker 06: And that with respect to your earlier colloquy, particularly with Judge Ronald, I'm not sure if you did, but if you wouldn't mind again, telling me why this is any different than the, from a constitutional point of view, than the statute precluding foreign ownership of a broadcasting license. [00:30:57] Speaker 05: Because the court has said that a lesser standard of scrutiny applies to broadcast licenses. [00:31:05] Speaker 05: That's been a justification of all of those decisions. [00:31:08] Speaker 05: Is the spectrum scarcity and lesser scrutiny permits a greater degree of government control. [00:31:17] Speaker 05: So those decisions, because we, scrutiny applies here. [00:31:21] Speaker 06: OK, what about the other dozen or 15 statutes that prohibit foreign control that don't have to do with spectrum? [00:31:26] Speaker 06: I'll tell you an idea of the spectrum. [00:31:28] Speaker 05: Well, nuclear waste sites, the government sites a few, those don't implicate First Amendment interests at all. [00:31:33] Speaker 05: So the fact that the government says no foreign ownership of a nuclear waste site, there's no First Amendment issue in saying requiring divestiture of it. [00:31:43] Speaker 06: So it all depends upon your accepting your view that there is a First Amendment issue here because notwithstanding the foreign control potential, [00:31:56] Speaker 06: we have a U.S. [00:31:58] Speaker 06: speaker. [00:31:59] Speaker 05: I think that's right, Your Honor, and I think that's a fundamentally important- Can I just ask about the broadcast idea? [00:32:05] Speaker 01: So if we're in the land of allocating broadcast veteran space, and the rationale for not allowing foreign ownership in that context is we're worried about foreign ownership begetting foreign propaganda, [00:32:22] Speaker 01: Would that in your view be something that needs to be justified by strict scrutiny? [00:32:27] Speaker 01: If that's the rationale, the rationale is we're not going to allocate this slice of spectrum to either foreign control or an entity that's subject to foreign control. [00:32:37] Speaker 01: That seems to be fine because that's what the law does and it's been sustained. [00:32:41] Speaker 01: But the rationale for that is [00:32:43] Speaker 01: it's because we're worried that if that happens, it'll be get foreign propaganda. [00:32:47] Speaker 05: I think if that's the justification strict scrutiny might well apply there might again, it might be satisfied because of the scarcity rationale that also applies. [00:32:56] Speaker 05: But, but I do think once you get into viewpoint basis, I mean, even in holder, the court said, you know, very targeted speech, a very targeted congressional restriction. [00:33:05] Speaker 05: The court said strict scrutiny applies. [00:33:08] Speaker 05: This is a restriction of speech. [00:33:09] Speaker 01: But the speech that was at issue and holder wasn't foreign speech. [00:33:12] Speaker 01: I mean, it had implications abroad to be sure, but what was going on was it was lessons that were being taught. [00:33:19] Speaker 01: There wasn't a question about the analysis being different because what was being targeted was foreign control or even foreign adversary control. [00:33:31] Speaker 05: Yeah, I just think, Your Honor, [00:33:35] Speaker 05: If the premise of a lesser standard is foreign control, then surely the foreign control has to be demonstrated by some strict scrutiny standard because you're then taking away the rights of the US speaker. [00:33:45] Speaker 05: So if the premise of applying a lesser standard is foreign control, I think you're still in strict scrutiny because the consequence of that is totally taking away the first amendment rights of the speaker and the government really doesn't argue that. [00:33:58] Speaker 05: And I really wanna draw a distinction between foreign ownership [00:34:01] Speaker 05: and foreign control. [00:34:02] Speaker 05: I think foreign ownership, for the reasons I said unalcoholically before, would be a pretty shocking change here. [00:34:08] Speaker 05: Just to go back to Judge Rao's question for a minute about disclosure. [00:34:14] Speaker 05: I think disclosure has been the historic answer for covert content manipulation. [00:34:19] Speaker 05: That's what the statute of issue in me speaking talked about. [00:34:23] Speaker 05: Just identify the source and then Americans can make the choice. [00:34:27] Speaker 05: That's exactly what happened. [00:34:28] Speaker 05: Again, I'm not saying there might in some hypothetical world be possible in some situation to say that that doesn't work, but that's certainly been what happens. [00:34:36] Speaker 05: And we're not saying that covert [00:34:37] Speaker 02: How do you identify covert influence in a code that they estimate, like the source code, they say it would take three years to just review the existing source code, much less any updates to the code. [00:34:52] Speaker 02: So how are you supposed to have disclosure or verified disclosure in that sort of circumstance? [00:34:59] Speaker 05: Your honor, it might be that the disclosure is just the risk of, that the government says there's a risk to control. [00:35:04] Speaker 05: Maybe the disclosure doesn't have to be targeted. [00:35:06] Speaker 05: I don't know exactly what it could be, but again, we haven't had any exploration here of even if there is control on a record that this court can review, let alone whether disclosure could work. [00:35:17] Speaker 05: Maybe the government would come up with some arguments they wouldn't work. [00:35:20] Speaker 05: I don't think they could, but let me turn for a minute to News America, because I think that really is a route and explains the problem here. [00:35:28] Speaker 05: News America was a case where the court said, this statute, even in the broadcast context targets a specific speaker, we therefore are going to apply heightened scrutiny, and we don't see any reason why Congress exempted this individual speaker [00:35:47] Speaker 05: from the general rule about when you can get discretionary waivers from the FCC. [00:35:51] Speaker 05: And therefore we're going to invalidate a prohibition on that. [00:35:54] Speaker 05: And this case seems to us to be on all fours with that. [00:35:57] Speaker 05: Here we have a specific US speaker targeted. [00:35:59] Speaker 05: It's been exempted from a general process that answers a lot of the conundrums that are before this court. [00:36:06] Speaker 05: What about less restrictive alternatives? [00:36:08] Speaker 05: What actually is the basis for finding, alleging government control? [00:36:12] Speaker 05: Here's a record. [00:36:13] Speaker 05: Here's a reason decision that can be reviewed. [00:36:15] Speaker 05: And then this court can review it we'd have a lot of the same legal arguments but part of the issue in this case and we think it's a constitutional floor not just a problem is that Congress didn't do any of the things that the First Amendment requires. [00:36:32] Speaker 02: I understand, of course, you think strict scrutiny applies, but assume for a moment that O'Brien is the framework and intermediate scrutiny applies. [00:36:39] Speaker 02: What is your best argument that ByteDance TikTok can win under that level of scrutiny? [00:36:46] Speaker 05: Well, we still think under intermediate scrutiny, there's a requirement to look at alternatives and there's no indication that Congress looked at the alternatives here. [00:36:53] Speaker 05: There's no indication. [00:36:55] Speaker 02: Well, there's alternatives, but it doesn't have to be the least restrictive means. [00:36:59] Speaker 02: but they have to be considered, that they weren't even considered. [00:37:02] Speaker 05: And I do think going back to sort of a broader problem in this case, we have a real threshold question about- So you're not challenging the government's interest as substantial under intermediate scrutiny, just the- No, I am challenging the government's interest in scrutiny. [00:37:17] Speaker 05: What I was about to say is that the government, as I said, has plucked out this very targeted interest. [00:37:23] Speaker 05: But I think if you look at what Congress talked about, the problem here is that there was a lot of discussion about content [00:37:30] Speaker 05: the imbalance of content on TikTok at times where the government concedes there's no foreign manipulation whatsoever. [00:37:37] Speaker 05: And I think [00:37:38] Speaker 05: Figuring out what Congress's actual purpose was here, that's the test that the Supreme Court has set up in First Amendment cases. [00:37:46] Speaker 05: It is very problematic because we really don't know. [00:37:49] Speaker 05: The government is defending this very, very narrow or arguing that it's this very, very narrow interest here, but the record is suffused with comments by legislators, both in the House and Senate, about the supposedly imbalance about [00:38:02] Speaker 05: Palestinians and Hamas, all kinds of current events. [00:38:06] Speaker 05: Now, we have Mr. Weber in his declaration explains why those allegations of imbalance are wrong, but they clearly motivated Congress in a significant way. [00:38:14] Speaker 05: It's another reason why [00:38:18] Speaker 05: availability of the general standard and the real tainted problems with the specific tick-tock provision sets up an alternative where if the government thinks that it can establish a record based on the argument that it's sort of culled together, let it put together that record. [00:38:35] Speaker 05: look at the less restrictive alternatives that have not been addressed, and also frankly consider the facts. [00:38:41] Speaker 05: Another sort of issue in this case is to rule for the government. [00:38:44] Speaker 02: I feel like you're arguing for us to remand without vacator to Congress for more findings. [00:38:49] Speaker 02: Well, I don't think so. [00:38:50] Speaker 02: It's a very, very strange framework. [00:38:53] Speaker 02: I mean, you know, I know Congress doesn't legislate all the time, but here they did. [00:38:56] Speaker 02: They actually passed a law and [00:38:58] Speaker 02: And many of your arguments want us to treat them like they're an agency. [00:39:04] Speaker 02: It's a very strange framework for thinking about our first branch of government. [00:39:08] Speaker 05: I think it's an unusual law, though, Your Honor. [00:39:10] Speaker 05: It's a pretty unusual law, an unprecedented law, as far as we know, that specifically targets one speaker. [00:39:16] Speaker 05: We can't find and bands, general, this isn't Kaspersky or one of these laws that talk about government procurement or the use of government funds. [00:39:25] Speaker 05: This is a law that broadly regulates and targets that regulation at one speaker. [00:39:29] Speaker 05: That's pretty unusual. [00:39:30] Speaker 05: And I do think News America supplies the paradigm now in News America, the court there what the court didn't say we're rebounding. [00:39:36] Speaker 05: to the FCC, but the functional effect of its decision was to say the FCC will apply the general standard and then if there's a problem, we'll figure it out. [00:39:45] Speaker 05: So I'm not saying remain to Congress, I'm saying exactly what the New America Court said. [00:39:49] Speaker 06: It's a rather blinkered view that the statute just singles out one company. [00:39:54] Speaker 06: It describes a category of companies, all of which are owned by or controlled by adversary powers, and subjects one company to an immediate [00:40:06] Speaker 06: necessity, because it's engaged in two years of negotiation with that company, held innumerable hearings, meeting after meeting after meeting, an attempt to reach an agreement on a national security arrangement, which failed. [00:40:24] Speaker 06: That's the only company that sits in that situation that is so advanced in its negotiations and its relationship to the government. [00:40:31] Speaker 06: that it's exhausted any further possibility of relief through the second procedure? [00:40:38] Speaker 05: Well, respectfully, Your Honor, I guess I'd have two answers to that. [00:40:41] Speaker 06: One is... As usual, Mr. Frankus. [00:40:44] Speaker 05: Sorry, I just want to give the court multiple reasons. [00:40:51] Speaker 05: The generally applicable standard is more protected for companies. [00:40:54] Speaker 05: It gives them a statement of reasons for this court to review. [00:40:58] Speaker 05: It has the... [00:41:00] Speaker 05: business review exclusion, we can debate about what it means. [00:41:04] Speaker 05: Maybe it's broad and it says- Maybe so, but you're not making the claim to have that exclusion. [00:41:09] Speaker 05: Well, it's not an option for us. [00:41:12] Speaker 05: If we were in that generally applicable standard, something that's certainly possible, there's a lot of review content on TikTok. [00:41:21] Speaker 05: business travel, product reviews. [00:41:24] Speaker 06: You can come back, I suppose. [00:41:26] Speaker 05: I don't think so, Your Honor. [00:41:27] Speaker 06: The statute is an absolute bar. [00:41:30] Speaker 06: Other companies could say- It's an absolute bar on the current arrangement of control. [00:41:34] Speaker 05: Yes, but under this generally applicable standard, that arrangement of control won't be disturbed if the exclusion applies. [00:41:44] Speaker 05: So that's something that's not available to us. [00:41:45] Speaker 06: That's essentially your equal protection argument, correct? [00:41:48] Speaker 06: No, I protection heightened with a sort of First Amendment flavor enhancer. [00:41:53] Speaker 05: Exactly the argument that was in News America, Your Honor. [00:41:56] Speaker 05: What the court said is we're looking at the First Amendment equal protection with a little flavor in the bill of attainder. [00:42:03] Speaker 06: You know, I'm talking about levels of scrutiny, which I'm not sure we should have wasted all this time on, frankly, or use all this time on. [00:42:12] Speaker 06: There's certainly the there's no precedent, no case going either way. [00:42:19] Speaker 06: involving a designated adversary nation. [00:42:23] Speaker 06: Surely that might have something to do with the level of scrutiny that a court should apply to a judgment by the Congress about a foreign power. [00:42:33] Speaker 05: I think that the issue, I think that might, I think that might apply at the, just at whether strict scrutiny is satisfied. [00:42:42] Speaker 05: But as I said before, the problem here is [00:42:44] Speaker 05: The predicate isn't, this is not claimed to be all the speech of the designated foreign adversary. [00:42:51] Speaker 05: Maybe that would be a different situation. [00:42:53] Speaker 05: Might not be, but we don't have to decide that. [00:42:55] Speaker 05: What's claimed here is there might be some influence on this fully protected US speaker in the future. [00:43:02] Speaker 05: And therefore we can burden the fully protected speech now. [00:43:05] Speaker 05: So the predicate control is what the government has to establish. [00:43:09] Speaker 05: And I think our argument is it has to meet a really high standard to do that. [00:43:13] Speaker 05: because what it's doing is taking away the rights of an American speaker. [00:43:18] Speaker 06: So you're quibbling with whether there's actual Chinese potential control that the company could not be directed to do something or refrain from doing something? [00:43:28] Speaker 05: I think that is one of our arguments, yes, whether it's possible. [00:43:31] Speaker 06: Under Chinese law. [00:43:32] Speaker 06: That's your interpretation of Chinese law? [00:43:36] Speaker 05: I don't think the government claims Chinese law can do that. [00:43:39] Speaker 05: I think their claim, I may be wrong, is mostly related to the data privacy part of the equation. [00:43:44] Speaker 06: But I think that our conclusion is- It's been argued flat out that being subject to Chinese control, the company, it's a misfortune perhaps for the company, would have to and would certainly comply with a requirement with respect either to content manipulation or to hoovering up information. [00:44:06] Speaker 05: I don't think the government has established that yet. [00:44:09] Speaker 05: We haven't seen what's in the confidential secret submissions, but I don't think they've established it even as a matter of Chinese law. [00:44:16] Speaker 05: But even if they do, I think then the question is, do these two justifications apply or is there some less restrictive means? [00:44:23] Speaker 05: And that hasn't been decided. [00:44:25] Speaker 05: It was a question even in Holder that was an issue. [00:44:29] Speaker 01: Let me make sure my colleagues don't have additional questions for you because we still have to hear from the users and we'll definitely give you some rebuttal time. [00:44:37] Speaker 01: Okay, we'll give you rebuttal time, Mr. Magus, thank you. [00:44:46] Speaker 01: Mr. Fisher. [00:44:53] Speaker 04: Morning, may I please the court. [00:44:56] Speaker 04: The creator's fundamental submission in this case is that wholly independent of TikTok and the company's interests that are at play here, [00:45:05] Speaker 04: The act here directly implicates the First Amendment rights of American speakers to speak, associate, and listen to free expression in this country. [00:45:15] Speaker 04: Any other holding would prevent American writers from publishing in Politico or Al Jazeera, would prohibit American musical artists from posting their music on Swedish-owned Spotify, or would prevent American filmmakers being able to allow Congress to prevent American filmmakers from creating documentaries to be edited and aired on the BBC. [00:45:35] Speaker 04: Our arguments on the compelling interest and narrow tailoring side of the case do parallel TikToks to a great extent, but I do want to emphasize that the government's content manipulation rationale is wholly illegitimate and invalid and anathema to the First Amendment, and it itself taints the entire act. [00:45:55] Speaker 04: If you could, as Chief Judge Shinra Boston hypothesized, isolate just the data privacy, that itself would also be not a compelling interest and not narrowly tailored. [00:46:06] Speaker 04: Taking a step back, it is truly striking. [00:46:08] Speaker 06: What is the creator's interest in that aspect of the case? [00:46:12] Speaker 04: In the data privacy aspect of the case? [00:46:14] Speaker 04: Well, the creator's interest here is the First Amendment right to publish and coordinate with their publisher of choice in the net choice sense of TikTok. [00:46:23] Speaker 04: And so if you work all the way down through strict scrutiny to the government's purported interests, we think the data security interest is invalid for a couple of reasons. [00:46:34] Speaker 06: We're talking about the [00:46:35] Speaker 06: concern of the government with hoovering up all the information about American users, including your speakers, right? [00:46:46] Speaker 04: Right, so we just think that is an insufficient justification to satisfy certainly strict scrutiny. [00:46:52] Speaker 04: And even if we were in a world of intermediate scrutiny, and for a couple of reasons, one is as the company has elaborated in its briefing, the government's arguments themselves are overblown. [00:47:02] Speaker 04: Geolocational information is not gathered to the extent the government asserts. [00:47:08] Speaker 04: Contact lists are not given to the company unless the users opt into that. [00:47:14] Speaker 04: And in general, there's a real problem with the government's data security argument, particularly from my client's standpoint, because those are voluntary acts. [00:47:20] Speaker 04: These are opt-in procedures to share your data if you wish. [00:47:24] Speaker 04: So that's the first problem. [00:47:25] Speaker 04: The more dramatic problem though if I could really emphasize this, that even if you could even if you could isolate data security under the Arkansas writers project and Minneapolis star cases that would have to be subjected to strict scrutiny, because you have a law that is singling out speakers that is singling [00:47:44] Speaker 04: media and the press in the way that triggers strict scrutiny in those cases. [00:47:47] Speaker 04: And there's no way, if I could just add one quick thing and I want to answer your question, there's no way that could satisfy strict scrutiny given all the exclusions Mr. Pinkus has tried with e-commerce and all the rest. [00:47:57] Speaker 06: So the opt-in for sharing your data, the users ask you want to share your data. [00:48:02] Speaker 06: That doesn't mean sharing it with ByteTance, right? [00:48:05] Speaker 06: The problem is ByteTance is going to have, or TikTok's going to have the information. [00:48:10] Speaker 06: The question is, [00:48:11] Speaker 06: Do you want us to be able to share it with others? [00:48:13] Speaker 06: Is that correct? [00:48:14] Speaker 04: Well, I think that, yes, you understand you're sharing your data with TikTok and public confirmation. [00:48:20] Speaker 04: TikTok is ultimately owned by a company called ByteDance. [00:48:24] Speaker 04: And so it's wholly voluntary on the user's part, but it's really the under inclusivity in a world of strict scrutiny, which has to be applied under Minneapolis Star and [00:48:33] Speaker 04: the Arkansas riders project that sinks the government ship on the data security side. [00:48:37] Speaker 04: It can't be. [00:48:39] Speaker 02: Does your does your argument depend on a conclusion that divestiture is impossible? [00:48:45] Speaker 04: No, it doesn't. [00:48:46] Speaker 04: So I think it is, you know, seems like the record shows that it's impossible. [00:48:49] Speaker 04: And I'm not sure how much the government pushes against this. [00:48:51] Speaker 02: But even if it were possible for two reasons, we would still creators interest in in TikTok US being owned by [00:49:01] Speaker 04: Well, our interest is in working with the publisher and editor of our choice, including the current ownership, which works very well for our creators. [00:49:10] Speaker 04: You couldn't tell an American writer they wouldn't have a First Amendment interest in working with Twitter owned by a particular individual or if Fox News was required to divest from Robert Modart. [00:49:20] Speaker 02: Do you have a First Amendment interest in who owns TikTok? [00:49:25] Speaker 04: Yes, that is who the publisher is, ultimately, you could say. [00:49:29] Speaker 02: And so the act directly singles- Does that argument bolster the government's argument though, that TikTok U.S. [00:49:35] Speaker 02: is controlled by a Chinese headquartered company? [00:49:38] Speaker 04: Well, I think that you have to walk through this step by step. [00:49:42] Speaker 04: So you've asked, do we still have a First Amendment interest in a particular owner or publisher? [00:49:47] Speaker 04: Absolutely yes. [00:49:49] Speaker 04: No case that I'm aware of has ever suggested that a single speaker or publisher does not implicate First Amendment. [00:49:54] Speaker 02: But a lot of your argument depends on TikTok U.S. [00:49:56] Speaker 02: being a separate corporate entity. [00:49:59] Speaker 04: I think a lot of the argument does depend on it, but it remains a separate entity it just no it's ownership changes no no but I want to emphasize, even if I would spot the government all of that and say, all the way down to control which we don't think is in the record in this case, we would still have a First Amendment interest of working with whatever foreign publisher [00:50:17] Speaker 04: foreign-owned publisher we want. [00:50:19] Speaker 04: And all the hypotheticals I've just given you, from Politico to Al Jazeera to Oxford University Press, all the way down. [00:50:25] Speaker 04: And I want to emphasize, Judge Brown, this goes to Judge Ginsburg, you asked about foreign adversaries and foreign governments. [00:50:31] Speaker 04: There are absolutely Supreme Court cases, Lamont and Whitney, first and foremost, that hold that even working [00:50:37] Speaker 04: even American speakers speaking in conjunction with foreign governments who are hostile to this country. [00:50:43] Speaker 04: That is the holding of Lamont. [00:50:45] Speaker 01: So in the broadcast context, then, would you say that there's a First Amendment interest in making sure that broadcast spectrum is subject to foreign control if there are users who would like to work with the foreign controlled license? [00:50:58] Speaker 04: I think the way you were describing in your back and forth with Mr. Pinkus got it right in the end, which is simply saying, [00:51:04] Speaker 04: Rules about foreign ownership, simpliciter, are okay as a matter of the First Amendment. [00:51:10] Speaker 04: But if the government were sorting between viewpoints, even as according to who is more hostile to this country or their views of communist nations, again, that brings us right back to Lamont. [00:51:20] Speaker 04: It brings us right into Whitney. [00:51:21] Speaker 04: Remember, the speaker in Whitney was a member of the American Communist Party working in conjunction to espouse the Moscow principles laid down in the manifesto that Justice Brandeis describes. [00:51:32] Speaker 01: So then if that's the relevant distinction, then it's not enough for the government to say, in the broadcast context, we're just going to exclude foreign ownership, period. [00:51:43] Speaker 01: You'd say, well, you have to explain why. [00:51:47] Speaker 01: Why do you want to exclude foreign ownership? [00:51:48] Speaker 01: It's not enough for you just to say you want to exclude foreign ownership and then win on that basis. [00:51:52] Speaker 01: Because if the reason you want to exclude foreign ownership relates to a concern about the content implications of the foreign ownership, then that might not be permissible. [00:52:02] Speaker 04: Let me just give a quick preface and then give your answer. [00:52:04] Speaker 04: I don't want to get too far into broadcast because you versus Reno makes very clear that the world of the internet and the unlimited marketplace of ideas on the internet is very different from broadcast. [00:52:15] Speaker 04: But so I think whatever you say here wouldn't bleed over on the broadcast side to answer your question. [00:52:21] Speaker 04: I think that [00:52:23] Speaker 04: If the government came in and said, we're worried about the viewpoint of the speaker, not just the foreign ownership, that would be a problem. [00:52:30] Speaker 04: It would be something that I don't think the US Supreme Court has ever said that is okay. [00:52:37] Speaker 01: And as I said, even though that was, as I understand it, that was the reason from the very beginning with the communications act, that was the reason that section 310 excludes foreign ownership is a concern about foreign propaganda. [00:52:51] Speaker 04: Well, I think that, again, you'd have to trace that back and ask whether that's still the justification today, if that were what happened in the past. [00:53:01] Speaker 04: You'd have to ask whether the government has other arguments in those sorts of cases. [00:53:05] Speaker 04: There'd be a lot to sort of work through in that case. [00:53:07] Speaker 04: But I think it's fair to stand here at the podium and say the US Supreme Court, nor this court, has never said that content-based restrictions, or I'm sorry, viewpoint-based restrictions among foreign speakers [00:53:19] Speaker 04: is a legitimate interest to pursue into the first amendment. [00:53:22] Speaker 04: Meese against Kane, the Supreme Court stressed, and actually Solicitor General Fried in that case stressed to the Supreme Court, that was exactly what saved that law in that case was that foreign propaganda was described by Congress in entirely content neutral terms. [00:53:39] Speaker 04: And so the government didn't even make the argument in Meese against Kane or in Lamont that the government is making here. [00:53:45] Speaker 04: that a foreign speaker or a foreign government can be suppressed from ownership or speaking or curation or any of these other first name activities based on their viewpoint. [00:53:56] Speaker 04: But remember, the reason I'm standing at the podium here is that this isn't just a case about a foreign speaker. [00:54:01] Speaker 04: If this were a case like Lamont just about foreign speakers and Americans wanting to hear that, I think you'd already have a victory for the American listeners under Lamont. [00:54:10] Speaker 04: And certainly no Supreme Court cases ever held to the contrary. [00:54:13] Speaker 04: And there's no history and tradition in our country [00:54:15] Speaker 04: of banning U.S. [00:54:17] Speaker 04: speakers from hearing from foreign governments, even if they're hostile to our country, simply to express their ideas. [00:54:23] Speaker 04: But that's not even this case. [00:54:25] Speaker 04: This case is American speakers like the creators and like base politics who want to speak to other Americans on an American platform. [00:54:34] Speaker 04: And at the very most can be alleged to say they want to coordinate with a foreign publisher when they do so. [00:54:39] Speaker 01: Can I ask about that Lamont? [00:54:40] Speaker 01: So if we look at Justice Barrett's concurrence in that choice, [00:54:46] Speaker 01: it clearly presumes, in her view, that foreign control changes the equation under the First Amendment. [00:54:52] Speaker 01: And if that's so, is Lamont always a trump card? [00:54:58] Speaker 01: Can Lamont just always kick in and say, even if there's an ability to deal with foreign control vis-a-vis the foreign speaker, because the foreign speaker doesn't have First Amendment rights, it turns out that that's going to be an illusory ability on the part of the government, because you can always bring into play the US recipients and their rights kick in. [00:55:14] Speaker 04: So let me start with Justice Barrett's concurrence and explain how this all sorts out. [00:55:19] Speaker 04: So really, all she said is foreign ownership might change things under the open society case, which is true as far as it goes. [00:55:27] Speaker 04: It's a question to ask, a fairly fair question. [00:55:29] Speaker 04: But I think the way I distinguish open society on the one hand and Lamont and all the things I'm describing on the other is open society is just about a foreign speaker speaking abroad. [00:55:40] Speaker 04: That's what that case is about, full stop. [00:55:43] Speaker 04: And there is no First Amendment interest in foreign speakers speaking abroad. [00:55:46] Speaker 04: But once that speech is directed into the United States, and certainly once that speech is in concert with other Americans and indeed propagated by other Americans, the speech on TikTok is not Chinese speech. [00:55:58] Speaker 04: It is American speech that at most is curated by a foreign company and the government says potentially by a foreign government as well. [00:56:06] Speaker 04: But it's American speech. [00:56:08] Speaker 04: You're way, way, way on the First Amendment protective side of the equation. [00:56:13] Speaker 04: even have a much stronger case than it belongs. [00:56:16] Speaker 04: So all Justice Barrett, I think, is saying in that choice is, oh, let's ask that question if and when it comes up. [00:56:21] Speaker 04: But when you have speech inside the United States, our history and tradition is we do not suppress that speech because we don't like the ideas. [00:56:30] Speaker 04: If I could just give one more example. [00:56:31] Speaker 01: We're not applying wartime, too, just to continue the hypothetical. [00:56:33] Speaker 01: I'm curious about your reaction to that. [00:56:35] Speaker 01: So if the rationale for barring foreign ownership of a media establishment is a concern about [00:56:43] Speaker 01: what that is going to produce vis-a-vis content. [00:56:46] Speaker 01: And we're in a time of conflict with a foreign adversary. [00:56:50] Speaker 01: Would you say that the US, there's definitely, I mean, protest here against the wars is completely protected under the first amendment. [00:56:58] Speaker 01: And so that viewpoint would be one that American listeners might well have an interest in hearing a lot about. [00:57:04] Speaker 01: Would you say then in that situation, because of clients like yours, the American recipients, that that [00:57:09] Speaker 01: a bar on foreign adversary ownership of a media establishment during war is invalid. [00:57:16] Speaker 04: Leaving the broadcast question aside, definitely strict scrutiny would apply. [00:57:21] Speaker 04: And I can imagine particularized facts where strict scrutiny might be satisfied in the heat of war, depending on what exactly the content of the speech is. [00:57:29] Speaker 04: But in a situation like this, where we're not at war, and all we're talking about is so-called foreign propaganda, really, again, arranging American speech. [00:57:37] Speaker 01: But the negative part of that is even in war, you wouldn't just accept that the government can prohibit foreign control, foreign adversary control, the foreign [00:57:48] Speaker 04: As I say, that might be the case, but I think you'd let me give you a couple of historical examples to show why this is even that is a very hard question. [00:57:56] Speaker 04: George Washington and his farewell address. [00:57:59] Speaker 04: One of the central themes of that farewell address was beware of foreign influence. [00:58:03] Speaker 04: Remember, France had supported Thomas Jefferson in the election and and George Washington told Americans beware of foreign influence and be careful about foreign [00:58:12] Speaker 04: influences and be careful about making your own associations with foreigners. [00:58:15] Speaker 04: Never did he suggest the answer was to suppress foreign speech. [00:58:19] Speaker 04: Look at Farah, the case that the statute passed in a run-up to World War II that was an issue in Mesa against Cain. [00:58:26] Speaker 04: Congress there dealt with foreign agents in the US spreading foreign propaganda in a run-up to war. [00:58:34] Speaker 04: And that law, all it does is require disclosure. [00:58:37] Speaker 04: It does not prevent Americans from, as the government [00:58:41] Speaker 04: in its most robust form of the argument would say, you know, creators like the ones on TikTok do. [00:58:46] Speaker 04: So, and then Lamont, again, in the height of the Cold War, again and again in our history, we have this. [00:58:52] Speaker 04: And Judge Rao, you also asked about the Palestinian, the PLO case. [00:58:55] Speaker 02: I'm interested in, I mean, that case seems very similar because there you had American citizens who associated with the Palestine Information Office. [00:59:04] Speaker 02: And our court said, you know, requiring that office to disband [00:59:09] Speaker 02: was only an incidental burden on their speech because they could continue speaking about Palestinian causes in other fora or even form other groups. [00:59:19] Speaker 02: They just couldn't be foreign mission of a terrorist organization. [00:59:25] Speaker 04: Right. [00:59:25] Speaker 04: So I think you stressed the important part about that case, which is distinguishable from here, which is my understanding is the court there stressed [00:59:32] Speaker 04: not suppressing any speech here at all. [00:59:35] Speaker 04: We're just preventing them from having this mission in this office, but they can still speak. [00:59:39] Speaker 02: Why is that not analogous to what's happening here, right? [00:59:41] Speaker 02: The Congress has decided that TikTok US cannot be owned by effectively a Chinese corporation. [00:59:48] Speaker 02: And so that leaves creators that you represent free to [00:59:52] Speaker 02: continue speaking on TikTok US if they divest or on other platforms or create a new platform or any number of other ways they could continue sharing their content. [01:00:03] Speaker 04: So remember, I think the facts would show that divestiture is impossible, but leaving that aside for the moment. [01:00:09] Speaker 02: But you said that your argument doesn't depend on it. [01:00:11] Speaker 04: It doesn't. [01:00:11] Speaker 04: So I just wanted to put a pin in that. [01:00:13] Speaker 04: So there's a couple of big differences between what you're describing in this case. [01:00:18] Speaker 04: The first is that there are not interchangeable mediums for our clients to speak on. [01:00:22] Speaker 04: I don't think the government seriously disputes the declarations that show that TikTok is unique in terms of how it looks and feels, the audience that people are allowed to reach. [01:00:34] Speaker 04: One of our clients reaches millions of people and has millions of followers on TikTok. [01:00:38] Speaker 04: has tried to work on other platforms, 10,000 or even fewer than 100 on YouTube are able to, so there's a whole different audience that you wouldn't have had in that case. [01:00:48] Speaker 04: You have whole different tools available, like CapCut and editing tools, so the nature of the speech is different. [01:00:55] Speaker 04: In the PLL case, I think you would have still been able to exercise all the same expression and reach the same audience. [01:01:02] Speaker 02: But you wouldn't, I mean, one of your arguments is that the creators want to work with their foreign [01:01:07] Speaker 02: owner publisher of TikTok US, arguably in the in the Palestinian information office case, they wanted to work with the PLO and to represent the PLO in America. [01:01:21] Speaker 02: That was the whole mission of that office. [01:01:23] Speaker 02: But I don't think the interest in the in the in the Palestinian case is actually stronger. [01:01:28] Speaker 04: So I don't take that case to say that speakers going forward there would not be able to speak in conjunction with the PLO in the United States. [01:01:35] Speaker 02: But they can't represent the PLO. [01:01:37] Speaker 04: Well, I think I'm maybe gonna get too far into the details, but in this case, our first and foremost argument is we're American speakers wanting to work with an American company, TikTok. [01:01:48] Speaker 04: If you cut through that and say, well, what about ByteDance? [01:01:51] Speaker 04: For all the reasons I've said, we have a fundamental interest in being able to work with the publisher and editor of our choice, even if it's a foreign editor or foreign publisher. [01:02:01] Speaker 04: I mean, the implications of writing an opinion that accepts that argument from the government [01:02:06] Speaker 04: truly are staggering. [01:02:08] Speaker 04: As we noted our brief, Democracy in America is written by a French author sent by the French government. [01:02:14] Speaker 04: And if an American bookseller wanted to sell that, it would be quite surprising to have the government be able to answer that and say, Congress can ban American bookstores from selling Democracy in America because it's written by a foreign author in conjunction with a foreign government. [01:02:28] Speaker 04: Blackstone's commentaries could be banned. [01:02:30] Speaker 02: I mean, these examples don't really get to, I mean, we're not talking about banning Tocqueville in the United States. [01:02:36] Speaker 02: I mean, we're talking about a determination by the political branches that there's a foreign adversary that is potentially exercising covert influence in the United States. [01:02:46] Speaker 02: It's very different from selling a book. [01:02:49] Speaker 04: I don't want to be histrionic, so let me walk through that. [01:02:52] Speaker 04: As I take the government's opening argument and even the suggestion maybe that some members of the panel [01:02:58] Speaker 04: voiced about about Justice Farrow's concurrence. [01:03:00] Speaker 04: The first argument is simply because there is foreign ownership in the TikTok chain. [01:03:06] Speaker 04: That itself makes this not a First Amendment case or prevents First Amendment claims from being raised. [01:03:11] Speaker 04: So that's my answer that I'm just giving. [01:03:13] Speaker 04: That can't possibly. [01:03:14] Speaker 02: OK, so there's the First Amendment maybe, you know, covers this, right? [01:03:20] Speaker 04: And then the question is, is that is the [01:03:24] Speaker 04: argument that the Supreme Court squarely represented net choice, that it is an impermissible government motive to regulate, to change the curation of speech on an internet platform, any different because you have a foreign owner. [01:03:39] Speaker 04: And I think the answer has got to be no. [01:03:41] Speaker 04: Certainly when you have American speakers, for all the reasons I've said, American speakers who are entitled to see that information under Lamont. [01:03:47] Speaker 01: Justice Barrett at least thought the answer to that question was yes, because you said, is the analysis any different because you have foreign ownership? [01:03:52] Speaker 01: the entire premise of concurrence is that the analysis is different. [01:03:57] Speaker 04: Well, I can't remember the exact words to use, but I think it's a question that you would ask. [01:04:01] Speaker 04: So I think at the end of the day, let's just say the conclusion is no different because under Lamont, under Whitney, under just basic history and tradition of this country, there's no example in law or [01:04:16] Speaker 04: judicial decisions of an American speaker being treated any differently because they want to associate with a foreign publisher or a foreign co-author or sell a foreign book as compared to an American one. [01:04:27] Speaker 06: And then I think the last point- The statute doesn't apply to all foreign editors or publishers or what have you. [01:04:37] Speaker 06: It applies to foreign publishers or editors from four specific adversaries. [01:04:43] Speaker 06: So instead of saying foreign control, let's say adversary control. [01:04:47] Speaker 06: At every point in your argument, just think of it as adversary control and then go on. [01:04:52] Speaker 04: So I think we're in strict scrutiny. [01:04:55] Speaker 04: We're asking now whether foreign adversary relationships or control make any difference. [01:05:00] Speaker 04: And again, look at Lamont. [01:05:02] Speaker 04: Lamont is about the Communist Party. [01:05:04] Speaker 04: This case is allegedly about the Communist Party of China. [01:05:07] Speaker 04: You know, look at Whitney, the speaker there was for the Communist Party. [01:05:11] Speaker 04: Look at the Congress. [01:05:12] Speaker 06: The board has never suggested that. [01:05:13] Speaker 06: Look at the Congress making a decision that perhaps unlike the Soviet Union at the time that the case arose, or Russia, that that country and three others are now adversaries. [01:05:28] Speaker 06: Perhaps they were not then. [01:05:30] Speaker 06: Now that we don't know, the Congress didn't speak to it until just now. [01:05:34] Speaker 04: Well, I think I think just as a simple matter of history, the court can take judicial notice that the that the governmental actors in those cases were every bit as adverse to this country in those moments. [01:05:44] Speaker 06: Well, they want us to say that the Congress is the provision on the Congress of the statute designating the four countries is irrelevant to this case. [01:05:52] Speaker 06: Say so. [01:05:53] Speaker 04: No, no, no, I'm not saying it's irrelevant. [01:05:55] Speaker 04: And I totally take the court's question as being a very serious and important one. [01:06:00] Speaker 04: And different countries in the world's history have resolved this question very differently. [01:06:04] Speaker 04: But our history and tradition in this country is that, yes, you might grant Congress more leeway in a time of war, particularly, or maybe even with adversaries. [01:06:16] Speaker 04: But as a matter of strict scrutiny, the notion that a foreign adversary is going to spread its ideas about political issues and social issues, which is exactly what the government says in its brief, [01:06:25] Speaker 04: has never in our history been a basis for suppressing speech in this country, even of the foreign governments, let alone of American speakers speaking on their own terms to other Americans. [01:06:37] Speaker 04: And I think the last thing, Judge Rao, you mentioned is covert. [01:06:40] Speaker 02: I mean, does this act suppress the speech of a foreign corporation? [01:06:44] Speaker 02: I mean, ByteDance would remain free to post or to speak or to do anything else in the United States. [01:06:51] Speaker 02: It doesn't prevent ByteDance from doing that. [01:06:54] Speaker 02: It doesn't suppress their speech. [01:06:56] Speaker 04: No, it does. [01:06:57] Speaker 04: The act, by its terms, forbids ByteDance. [01:07:00] Speaker 04: Any app, ByteDance would own. [01:07:02] Speaker 04: So certainly any application covered. [01:07:04] Speaker 04: And I think, Judge Rao, you also asked about [01:07:06] Speaker 04: you know, O'Brien and a level of scrutiny. [01:07:08] Speaker 04: And I think that's part of my answer is that let's just look at the text of the statute to ask whether or not strict scrutiny applies because it's content-based. [01:07:16] Speaker 04: And thrice over the statute is content-based. [01:07:19] Speaker 04: Once is it singles out tic-tac and bite dance for differential treatment from other owners or other publishers. [01:07:28] Speaker 04: So that's one reason. [01:07:29] Speaker 04: The next reason is because it singles out social media interaction [01:07:33] Speaker 04: generating, sharing, viewing text, images, videos, real-time communications, and similar content. [01:07:39] Speaker 04: Content is in the statute. [01:07:41] Speaker 04: And thirdly, because it targets the content recommendation engine that TikTok uses and says that even a successor in interest cannot use that content recommendation engine. [01:07:52] Speaker 04: Again, going right in the teeth of net choice when it comes to curating. [01:07:55] Speaker 01: So net choice, I mean, there's [01:07:58] Speaker 01: in the suggestion that delving into doctrine is too much logictum, but let me just do it for a second, because I think it actually affects things in terms of the analysis. [01:08:06] Speaker 01: So if we're not in strict scrutiny land, and we're in intermediate scrutiny land, which is a lesser level of review, and let's just say we're doing that because this case involves anomalous circumstances, because it's congressional determination of foreign adversary status, and that tilts the equation. [01:08:22] Speaker 01: And balancing of considerations suggests that you get in a lower tier of scrutiny, but not [01:08:28] Speaker 01: abandoning the first amendment altogether. [01:08:30] Speaker 01: What's your answer there? [01:08:31] Speaker 01: Because part of that analysis is that the justification for the law is unrelated to the suppression of expression. [01:08:41] Speaker 01: And so would your analysis be that, well, for the same reasons that we think the law is content-based and so strict scrutiny would apply, even if you foist intermediate scrutiny upon us, we would still say it fails intermediate scrutiny because the law's motivation is related to the suppression of expression. [01:08:57] Speaker 04: So that's exactly my answer, yes. [01:08:59] Speaker 04: And I think that under Mount Whitney or Arlington Heights, that would be where actually you would stop because once you have an impermissible motive behind the law, you don't even look at the data security. [01:09:10] Speaker 01: So that's what the net choice majority indicated was going on, what would go on there when they went on and talked about how you would analyze it. [01:09:16] Speaker 01: And here's my question about that. [01:09:18] Speaker 01: So it speaks in terms of related to the suppression of free expression. [01:09:23] Speaker 01: And one way to potentially understand that is [01:09:26] Speaker 01: related to the suppression of protected free expression. [01:09:29] Speaker 01: And if you're talking about the foreign organizations interests, you represent the users, I get that, the recipients, but from the perspective of the foreign speaker, if those are unprotected by the first amendment, because under agency for international development, they don't have a first amendment claim to make, then could an argument be made that the law actually is not related to the suppression of free expression, [01:09:55] Speaker 01: because what it's really trying to suppress is foreign ownership. [01:09:58] Speaker 01: And there's no First Amendment stake on that side. [01:10:01] Speaker 04: I think I'd have two answers there on that particular one. [01:10:03] Speaker 04: And then I want to do the rest of intermediate scrutiny as well. [01:10:06] Speaker 04: But on that answer, I would say there's still two problems. [01:10:09] Speaker 04: One is you still have, under the Sorrell concept, in practical operation, American speakers are silenced by, or their speech is certainly affected by this law. [01:10:19] Speaker 04: So you can't get out of [01:10:23] Speaker 04: Out of the first amendment problem with that formalistic move, even if you wanted to isolate judgment of Austin, the foreign speaker and make the argument you just made. [01:10:31] Speaker 04: I actually think then you'd still have an RAP type problem when it comes to the government discriminating among foreign speakers based on viewpoint. [01:10:39] Speaker 04: So remember the RAP principle is even in a world where you're dealing with totally unprotected speech. [01:10:44] Speaker 04: If the government is choosing and selecting and suppressing some based on viewpoint, but not others, Justice Scalia's opinion in that case says even then strict scrutiny. [01:10:53] Speaker 01: But you can do that if the reason that you're choosing a subcategory is related to the reason that the category has a lesser status. [01:11:00] Speaker 01: And here the argument would be, well, the category is foreign speech. [01:11:05] Speaker 01: The subcategory is foreign adversary control over a really important medium. [01:11:09] Speaker 01: That's a related subcategory because what we're really concerned about is [01:11:14] Speaker 04: I think the way I would define the subcategory or the interest is the way the government puts it in his brief is the concern that the Chinese government is going to influence political discourse and ideas in this country, which I think is an impermissible motive, at least if you're outside the broadcast media world and sort of regular First Amendment world. [01:11:34] Speaker 04: And so if you want me to walk the rest of the way through intermediate scrutiny, I think that the content manipulation justification [01:11:41] Speaker 04: fails under intermediate scrutiny, and then you should be done. [01:11:44] Speaker 04: Arlington Heights says that if you have an impermissible motive behind a law, and just imagine TikTok was banned, or imagine this divestiture provision was motivated, Congress said, by the fact that one particular religion over another is being favored on the platform, or too many people of one race or another are using the platform, but also data security. [01:12:04] Speaker 04: I don't think we'd also, once you were done with that impermissible motive, the case would be over, but let me, even on, [01:12:11] Speaker 04: the data security side, even under immediate scrutiny, you need to have some reasonable means and fit between the government's rationale. [01:12:19] Speaker 04: And you just don't have that here because of the e-commerce sites that are left out, the other American technology companies that have Chinese subsidiaries that are left out, there's just woefully under inclusive, which I think tells us. [01:12:33] Speaker 01: As to that, under Holder, I mean, I think we extend a substantial degree of deference to the government's [01:12:39] Speaker 01: to Congress's and the government's assessment of how the alternatives would work out and whether they're sufficient. [01:12:46] Speaker 01: It may still not be enough in your view, but it's at least overlaid with a substantial degree of deference because of what the Supreme Court said in Holder. [01:12:54] Speaker 04: Yes, you can give the government some deference. [01:12:57] Speaker 04: And yes, the government doesn't have to do everything, especially in an intermediate scrutiny world, but the government still has to come in [01:13:05] Speaker 04: and explain in reasonable terms why it has singled out one particular collector of data and excluded everybody else. [01:13:13] Speaker 04: And I just don't think these e-commerce sites that millions of Americans visit as well and these many other platforms that would be susceptible to Chinese hackers or influence or whatever the facts may be are meaningfully different [01:13:29] Speaker 04: from TikTok. [01:13:30] Speaker 04: And I think what the government tells, I'm sorry, what the Supreme Court tells us when it comes to under inclusive arguments is, what that often is, is a signal that something else is at play. [01:13:39] Speaker 04: And that's what we think is going on here. [01:13:40] Speaker 04: And again, the government admits that it's the content manipulation rationale that also justifies, they say justifies, motivates, we say, this law. [01:13:50] Speaker 04: And that's where the problem is. [01:13:52] Speaker 04: And then finally, in terms of intermediate scrutiny, again, we think [01:13:56] Speaker 04: There's just no way to get there under Minnesota Star and Arkansas Riders Project on the data security side. [01:14:03] Speaker 04: But if you could, there's still not alternative means available to my clients for the reasons I've been describing that are laid out in the affidavits. [01:14:13] Speaker 04: The audience is completely different in other platforms. [01:14:16] Speaker 04: The tools and the feel of the medium of speech is completely different. [01:14:22] Speaker 04: And just the identity of the editor and publisher can't be singled out and taken away from us. [01:14:26] Speaker 01: sure my colleagues don't have additional questions for you now. [01:14:28] Speaker 01: We'll give you a little bit of time for rebuttal as well. [01:14:30] Speaker 01: Thank you, Mr. Fisher. [01:14:33] Speaker 01: We're from the government now. [01:14:35] Speaker 01: Mr. Tenney. [01:14:36] Speaker 03: Thank you, Your Honor. [01:14:36] Speaker 03: May I please record Daniel Tenney for the United States. [01:14:40] Speaker 03: There's been a lot of discussion of what the government's motivations for this statute were and what its justifications are. [01:14:46] Speaker 03: So I'd just like to start upfront by making this clear. [01:14:49] Speaker 03: And there are two primary ones. [01:14:51] Speaker 03: First, TikTok is an [01:14:53] Speaker 03: application and what it does is it gathers a lot of information from users of the application, both consumers of content and creators of content. [01:15:04] Speaker 03: And it uses that information to try to assess what sorts of videos and other content is going to be of interest to consumers and what will keep them looking at the app. [01:15:16] Speaker 03: They want to keep people's eyeballs on those screens so that they're continuing to consume the app. [01:15:21] Speaker 03: And that requires [01:15:23] Speaker 03: the collection of data and that data is commercially useful to them. [01:15:27] Speaker 03: And, you know, in our today's society, the collection of data is an important part of commercial and advertising, figuring out how to tailor to users needs, how to, you know, how to target advertisements or other things to particular users. [01:15:45] Speaker 03: The problem is that that same data is extremely valuable to a foreign adversary [01:15:51] Speaker 03: trying to compromise the security of the United States, knowing what Americans patterns are, who their contacts are, where they go, who they interact with, what sorts of content interests them, what sort of content turns them off, would be quite valuable to a foreign adversary if we're trying to [01:16:11] Speaker 03: approach an American to try to have them be an intelligence asset, or if it was trying to figure out how to cater its messages to get messages supportive of Chinese national security rather than American. [01:16:26] Speaker 03: And so that data security rationale underlines the act. [01:16:32] Speaker 03: That has nothing to do with protected speech by American citizens. [01:16:37] Speaker 03: That's a separate concern. [01:16:39] Speaker 03: Now the second rationale for the act is covert content manipulation by ByteDance. [01:16:45] Speaker 03: And I say by ByteDance deliberately because the point is what is being targeted is a foreign company that controls this recommendation engine and many aspects of the algorithm that's used to determine what content is shown to Americans on the app. [01:17:09] Speaker 03: I think there was a quotation read from the declarations, from petitioners declarations before about how that continues to happen in China rather than in the United States. [01:17:22] Speaker 03: If you just read those declarations through, you'll find lots of them. [01:17:27] Speaker 03: There's really no dispute here that the recommendation engine is maintained, developed, written by bite dance rather than by [01:17:40] Speaker 03: TikTok US. [01:17:41] Speaker 03: And that is what's being targeted. [01:17:43] Speaker 03: So when the petitioners say, as they repeatedly did this morning, that, you know, this is targeting expression to the extent that it's targeting expression, which isn't the exclusive thing. [01:17:56] Speaker 03: But if you call the manipulation of the covert manipulation of content expression, which may be under net choice, if an American company was doing it, you would. [01:18:06] Speaker 03: But if you're gonna call that expression, it is not expression by Americans in America. [01:18:11] Speaker 03: It is expression by Chinese engineers in China. [01:18:15] Speaker 01: Maybe we're going to the same place, but you've helpfully isolated what seems to me to be doing all the work from the government's perspective, because under net choice, if we were talking about a US company, that's Heartland First Amendment, protected curation. [01:18:33] Speaker 01: That's just what net choice says. [01:18:36] Speaker 01: So if everything under the government's perspective turns on the fact that by dance is subject to Chinese control, right, because if it was us. [01:18:45] Speaker 01: control, that's net choice, that raises a serious First Amendment question. [01:18:50] Speaker 01: And then when the way Net Choice did it, the rationale would be related to the suppression of free expression. [01:18:55] Speaker 01: And let me just add one thing, take out the data security. [01:18:57] Speaker 01: I know that that's in the case, but just for purposes of this part of the analysis, just take that out and let's just focus on the content. [01:19:03] Speaker 01: What the government itself rightly characterizes as content manipulation. [01:19:07] Speaker 01: Once you put an interest in play that's called content manipulation, [01:19:10] Speaker 01: that sets off First Amendment alarm bells in the normal situation when you don't have foreign control in play. [01:19:19] Speaker 03: I think I mostly agree with that statement, but I do have some caveats. [01:19:23] Speaker 03: I mean, it's not just a question of control or ownership. [01:19:27] Speaker 03: I mean, this is being done by ByteDance. [01:19:32] Speaker 03: I mean, I think we would have arguments and we might well win, and I don't mean to suggest otherwise. [01:19:40] Speaker 03: if the covert content manipulation that we were concerned about were done by TikTok US subjects to the oversight of ByteDance, I think we would have strong arguments there. [01:19:52] Speaker 03: And again, I'm not trying to give away that case, but I'm just telling you that's not the case that you've got. [01:19:56] Speaker 03: Because what we're talking about- I'm giving you this. [01:19:59] Speaker 03: Is that this is what's done by ByteDance outside the United States. [01:20:06] Speaker 03: And, you know, [01:20:08] Speaker 03: You know, the other side makes a big deal about the fact that the code is sort of deployed in the United States in the sense that the source code is written in China and that it's, you know, posted or, I mean, it's a little metaphysical to describe what it means for it to be quote unquote in the United States if it's in the cloud. [01:20:25] Speaker 03: But, but I mean, the core point that we're making is the one that they've conceded, which is that this code is written in China and [01:20:35] Speaker 03: the determinations about how it should be changed, how it should be altered, which they say they do a thousand times a day, they push up a new update, all of that is done in China. [01:20:46] Speaker 03: And I understood them to be weakly suggesting that- I'm sorry, I'm giving you all that. [01:20:53] Speaker 01: I'm just assuming for these purposes that you're right on all that, that all the relevant stuff is going on in China. [01:20:59] Speaker 01: My only point is that if that relevant stuff was going on in the US, [01:21:03] Speaker 01: That's a big problem for the government under NetChoice. [01:21:06] Speaker 03: If the government were targeting the curation of content in the United States by U.S. [01:21:13] Speaker 03: actors, that would be NetChoice. [01:21:15] Speaker 01: Right, so because what you're doing is you're targeting curation. [01:21:19] Speaker 01: You're targeting curation in the same way. [01:21:21] Speaker 01: It's just that the curation that's being targeted is happening abroad, at the behest of a foreign adversary. [01:21:25] Speaker 03: Right, with the caveat that there's other rationales that you discussed. [01:21:30] Speaker 03: Yes, that's absolutely right. [01:21:31] Speaker 01: Right, so if we do that, [01:21:33] Speaker 01: then what's your answer to the proposition that even if we credit you in every respect on that score, and we assume that the foreign curator doesn't have a First Amendment claim because they're a foreign curator engaging in curation abroad and under agency for international development and other sources, that's not subject to First Amendment protection. [01:21:55] Speaker 01: What's the answer to the proposition that, well, you still got US recipients. [01:21:59] Speaker 01: And the U.S. [01:22:00] Speaker 01: recipients definitely have First Amendment interests in place, see cases like Lamont. [01:22:05] Speaker 01: And for those U.S. [01:22:06] Speaker 01: recipients, the exercise of foreign curation affects the mix of things that they're getting. [01:22:13] Speaker 01: And they want to have access to, by hypothesis, the curation that's occurring abroad. [01:22:20] Speaker 01: And the fact that that's being denied subjects this to serious First Amendment scrutiny. [01:22:25] Speaker 01: What's the answer to that? [01:22:26] Speaker 03: I think when you're talking about recipients rather than speakers, the first case I would turn to is Murphy from, you know, the Supreme Court just this term, or this past term, where [01:22:37] Speaker 03: I mean, that was the claim that was made there. [01:22:40] Speaker 01: It's the entire complex of people who are in the second set of petitioners before us, because it includes not just recipients who take in TikTok content, but also creators of content that's then disseminated on TikTok, who are speakers in a way. [01:22:56] Speaker 01: But it's just that they like doing it through a medium that's subject to the very control that you want to deny with the editorial control that's going on abroad. [01:23:08] Speaker 03: moved away from arguing that the government's justification is related to First Amendment activity. [01:23:13] Speaker 03: And we're already on incidental effects on other people's First Amendment rights, because the government isn't targeting those people, isn't saying, we don't want you to be able to post on this medium. [01:23:24] Speaker 03: We don't want you to be able to associate. [01:23:26] Speaker 03: That's just something that happened to them. [01:23:28] Speaker 03: And there, I think cases like Arcara and other cases, I mean, there are all sorts of circumstances. [01:23:33] Speaker 01: If you're, if you're inviting Arcara, then, then that means that the First Amendment just doesn't apply at all. [01:23:38] Speaker 01: So it's not subject to First Amendment scrutiny at all, because you're focusing on foreign control. [01:23:44] Speaker 01: And that means that the US users of TikTok, both US users who disseminate contact via TikTok and who take in content, that their First Amendment interests [01:23:53] Speaker 01: which are the kind of interests that were in play in Vermont just don't matter because it's the first amendment just doesn't apply at all. [01:23:58] Speaker 01: That may well be the government's position. [01:24:01] Speaker 01: I've detected a little bit of equivocation on that in the briefing. [01:24:04] Speaker 01: Is your position that under our card that the first amendment just doesn't apply at all? [01:24:07] Speaker 03: We don't think you have to go nearly that far to resolve this case. [01:24:11] Speaker 03: But would you take that position? [01:24:12] Speaker 01: I get that you think you'd win anyway, but I'm curious to know, would you take the position that actually the best answer is that the first amendment just doesn't apply at all? [01:24:21] Speaker 03: I guess it's helpful in thinking about these First Amendment questions to separate the various petitioners. [01:24:27] Speaker 03: And I think the First Amendment, I mean, obviously, if you have a case like this where the effects on expression are significant and we acknowledge that, it might sound like a striking proposition, but I'd like to just walk through the various petitioners. [01:24:42] Speaker 03: So the first petitioner is ByteDance and TikTok themselves. [01:24:46] Speaker 03: And we sort of discussed that. [01:24:48] Speaker 03: That's as far in, okay. [01:24:50] Speaker 03: And so then you have the content creator petitioners and their speech is maybe affected. [01:24:58] Speaker 03: And we don't know yet what will happen if this law is upheld, whether ByteDance and TikTok in China will have a change of heart and come up with a way to sell the platform and continue to operate or whether they wanna forfeit whatever rights they would have to their extremely successful business. [01:25:17] Speaker 03: But no matter which of those things happen. [01:25:20] Speaker 03: I mean, that really is an indirect effect of what's going on there and going on here. [01:25:25] Speaker 03: And you could say, well, it's a sufficiently significant incidental effect that will apply something akin to the O'Brien standard. [01:25:33] Speaker 03: But there's a pretty good argument that you would say, I mean, in the same way, if ByteDance got shut down because they engaged in tax fraud or because they violated the import laws and the result was that a very popular internet platform was shut down entirely, [01:25:48] Speaker 01: You know, I don't think a content creator could come in and bring a First Amendment challenge and say, so as to that it just seems there's the argument I take it the other side would make is that's markedly different because if they violate the tax laws, it has nothing to do the rationale [01:26:04] Speaker 01: for striking against that has nothing to do with content or expression. [01:26:09] Speaker 01: But here, at least with the content manipulation rationale, put data security to the side, but the content manipulation rationale, by its very terms, it has everything to do with content. [01:26:20] Speaker 01: The concern is that the curation is gonna result in content that the government fears the consequences of because they think that there's gonna be curation that's gonna affect American consumers in a way that's gonna be problematic. [01:26:33] Speaker 01: for the US interest which may well be right, and we may well need to defer to that and the question is, does the Norman for normal First Amendment calculus kicks in where in that situation what we really what the system relies on is counter speech or different ideas. [01:26:49] Speaker 03: Right, I guess I would. [01:26:53] Speaker 03: I do think that the best way to think about it is to think about whether it's protected expression rather than just expression. [01:26:58] Speaker 03: The fact that it happens to be expression, but it's expression that's not protected by the First Amendment seems like a pretty big distinction. [01:27:06] Speaker 03: And I think that [01:27:09] Speaker 03: for the same reason, the idea that sort of counters in addition to some of the practical problems with counter speech in this area, the idea that, you know, the reflexive reaction that counter speech is the right answer tends to be relies on cases in which you're talking about protected expression rather than unprotected expression. [01:27:26] Speaker 03: And I understand that the, the fact that this is unprotected expression that is justifying this in part again, um, [01:27:34] Speaker 03: is something that complicates the analysis from these other cases. [01:27:38] Speaker 03: And that's part of why we think we so readily prevail under really any First Amendment standard, but certainly under O'Brien. [01:27:47] Speaker 03: That's why I led my answer by saying we're not asking the court necessarily to go that far. [01:27:53] Speaker 03: But it is the case that if [01:27:58] Speaker 03: if there is a concern, a range of national security of concerns, some of which have to do with unprotected expression, there's certainly a good argument that the First Amendment implications of that are materially lower. [01:28:11] Speaker 03: And maybe even if all you're targeting is unprotected expression, it'll go all the way down. [01:28:16] Speaker 01: So when you say unprotected expression, so you mean that it's expression that because it's occurring abroad, [01:28:24] Speaker 01: cannot give rise to a successful First Amendment claim on the part of the person whose expression abroad is being restricted. [01:28:31] Speaker 01: And if that's true, if that's the government's understanding of the natural fallout of that, then I take it that it could be the case that Congress could just pass a statute that says no foreign entity abroad can send speech into the United States. [01:28:46] Speaker 03: I don't think so for various reasons. [01:28:52] Speaker 03: I mean, the other side talks about the Lamont case a lot and what the Supreme Court said in Murthy about, you know, first amendment standing of recipients of speech is that it requires this sort of close connection. [01:29:04] Speaker 03: And Lamont was, you know, people were getting mail addressed to them and then the government was asking them to raise their hand and say, I want to receive the communist propaganda. [01:29:15] Speaker 03: And the Supreme Court said that wasn't okay. [01:29:17] Speaker 03: And so if, you know, obviously if somebody, we don't, [01:29:21] Speaker 03: Obviously we're not here to quibble with Lamont, which is Supreme Court precedent, but it doesn't hurt our case here because what the Supreme Court said at Murthy itself was, if your interest is just this sort of broader, oh, there's a lot of things that I wanna read and I'm sort of a general consumer, they didn't even think they had standing in that case, much less sort of a strong First Amendment claim. [01:29:45] Speaker 03: And so the point here is just, if the speaker itself doesn't have a claim, [01:29:51] Speaker 03: It's strange to say, well, the listener does. [01:29:55] Speaker 02: So, I mean, maybe moving away from the creator petitioners to, to tick tock us. [01:30:01] Speaker 02: I mean, so tick tock us is a us corporation. [01:30:04] Speaker 02: I mean, it's a wholly owned subsidiary of, of bite dance, but, but it is a us corporation. [01:30:09] Speaker 02: I mean, what about the first amendment interest there? [01:30:12] Speaker 02: I mean, does the government recognize that tick tock us as a separate corporate entity has first amendment rights? [01:30:20] Speaker 02: of content moderation and all the other things that, for instance, the press or declaration says occur by TikTok US. [01:30:31] Speaker 03: Yes, but those are incidental. [01:30:34] Speaker 03: TikTok US posts things on TikTok, they say, and they engage in some content moderation that occurs after the recommendation engine. [01:30:47] Speaker 03: The problem there is none of that is what's being targeted here. [01:30:50] Speaker 03: They're saying that this is singling out a speaker, but that's not what we're going after. [01:30:54] Speaker 02: And one way we know that is that- But if TikTok US is engaged in expressive activity, which I think you just said they are, at least of some sort, then the act does single them out, right? [01:31:07] Speaker 02: It requires TikTok US to be, you know, divested of its foreign ownership. [01:31:13] Speaker 03: I mean, it doesn't single them out because of their own First Amendment activity. [01:31:18] Speaker 03: It singles them out. [01:31:20] Speaker 03: Because I mean, there's no indication in this record that Congress said, we don't like the things TikTok U.S. [01:31:25] Speaker 03: is posting. [01:31:26] Speaker 03: We don't like the way that TikTok U.S. [01:31:28] Speaker 03: makes decisions about. [01:31:29] Speaker 02: But TikTok U.S. [01:31:30] Speaker 02: is an entity engaged in expressive activity. [01:31:35] Speaker 02: So why is this case then not like Minneapolis Star? [01:31:40] Speaker 03: I mean, it's a lot more like Arcara in that regard. [01:31:42] Speaker 03: It was a bookseller and they weren't going to be able to sell their books. [01:31:46] Speaker 03: And the Supreme Court said, [01:31:49] Speaker 03: Well, I understand that the consequence of this is that you won't be able to sell your books, but the reasons that the government is going after you has nothing to do with your books. [01:31:56] Speaker 02: But in Cara Books, the statute was a generally applicable statute against prostitution or places hosting unsavory activities. [01:32:05] Speaker 02: But here, the act itself singles out TikTok. [01:32:12] Speaker 02: And TikTok is, as you've said, an entity engaged in expressive activity. [01:32:18] Speaker 03: I guess, I mean, obviously the, you know, who's, whether it's the Congress that's doing the selecting or the executive branch, I'm not sure would affect the first amendment analysis, but just to answer your question as directly as I can. [01:32:31] Speaker 03: I mean, the relevant first amendment question in these, in terms of talking about who's targeted is whether there is a, you know, motivation for the, [01:32:47] Speaker 03: statute or the act, whether that depends on the expressive activity of the regulated entity. [01:32:54] Speaker 03: And so here, the expressive activity in which TikTok US engages is not creating the recommendation engine because that's done by ByteDance, not by TikTok US. [01:33:07] Speaker 03: And the data stream is not expressive activity either. [01:33:13] Speaker 03: And [01:33:14] Speaker 03: And so we don't have a circumstance in which a US company has been targeted because of its expressive activity. [01:33:20] Speaker 03: That's just not this case. [01:33:21] Speaker 02: Not because of its expressive activity, but it is an entity that engages in expressive activity, like a newspaper choosing editorials to run. [01:33:31] Speaker 03: Right, or like a bookstore, which is what we had in our car. [01:33:35] Speaker 03: And the point is that there are, I guess I'll make two points. [01:33:41] Speaker 03: is, you know, at most we would get to O'Brien and that's what our car was a debate about O'Brien versus. [01:33:47] Speaker 03: So we're not getting all the way to sticks, fruit, no matter what. [01:33:50] Speaker 03: But even just to take the point a step further, you know, there are, as our car pointed out, and I don't think it could be seriously disputed, there are government actions all the time that target entities that engage in first amendment activity. [01:34:06] Speaker 03: And if they are, [01:34:08] Speaker 03: if the government actions are justified and motivated by things that do not target that expressive activity. [01:34:16] Speaker 02: So you might satisfy intermediate scrutiny, but there's still a question about the fact that the first amendment applies. [01:34:22] Speaker 02: Cause one of your arguments is that really doesn't apply at all. [01:34:26] Speaker 02: I mean, when you talk about the bite dance and TikTok petitioners, your comment to the chief judge was, well, these are foreign companies. [01:34:34] Speaker 02: And my point is, [01:34:35] Speaker 02: there's also an entity, TikTok US, which is an American corporation, which has its own first amendment rights. [01:34:43] Speaker 02: As an American corporation under AIT and other cases that, I mean, I guess another question is, is the government making an argument that the separation between TikTok US and bite dances is a sham or that they're fully controlled by bite dance in a way that makes [01:34:59] Speaker 02: the corporate form, not something we should pay attention to? [01:35:02] Speaker 03: Well, we're not making that argument. [01:35:04] Speaker 03: I do think the First Amendment, the application of the First Amendment is determined not by entities, but by activities. [01:35:12] Speaker 03: So I think it's, you know, because all sorts of people could engage in First Amendment activity. [01:35:17] Speaker 03: And, you know, if you put someone in prison because he robbed a bank and he happens to be a prominent speaker, nobody thinks that's a First Amendment claim. [01:35:24] Speaker 03: So I think it's useful to talk about the activities here rather than the entities. [01:35:29] Speaker 03: And the activity, the arguably expressive activity or the expressive activity that we're talking about in this case that the United States government is targeting is the creation and maintenance of the recommendation engine and the content moderation that precedes that. [01:35:50] Speaker 03: that is done by Mike Pence. [01:35:51] Speaker 03: That's what the United States is concerned about. [01:35:53] Speaker 03: That's expressive activity, but it takes place outside the United States. [01:35:57] Speaker 01: It seems like what gives arguable force to the other side's First Amendment argument is that it's not just that the government is targeting curation that occurs abroad. [01:36:11] Speaker 01: It's the reason the curation occurring abroad is being targeted. [01:36:15] Speaker 01: And the reason is a concern [01:36:17] Speaker 01: about the content consequences of that curation in the US. [01:36:22] Speaker 01: And when the reason itself, you call it content manipulation, when the reason itself is content manipulation, unlike you brought up our car a number of times for totally understandable reasons, the reason there had nothing to do with the content. [01:36:35] Speaker 01: It was about prostitution. [01:36:37] Speaker 01: It didn't have to do with what the bookstore selling of books. [01:36:40] Speaker 01: It just happened to be that the prostitution was taking place at a bookstore. [01:36:45] Speaker 01: Here, it's not a happen to be situation. [01:36:47] Speaker 01: The whole reason for targeting the editorial curation that's occurring abroad is because of a concern about the speech consequences of that on US consumers. [01:37:00] Speaker 03: I'd just like to be clear about this factually. [01:37:02] Speaker 03: The other side. [01:37:05] Speaker 03: cites what I assume they think are their best examples of members of Congress talking about this and I pulled these and I would encourage the court to do the same, but I'll just read an example. [01:37:16] Speaker 03: Senator Warner, this is at page 566 of the appendix cited at page 20 of the TikTok brief. [01:37:23] Speaker 03: I think they quoted the portion that said, [01:37:27] Speaker 03: You know, all the TikTok videos will be promoting that Taiwan ought to be part of China. [01:37:32] Speaker 01: I take that point. [01:37:33] Speaker 01: Just to be clear, I'm not talking about statements of individual legislators. [01:37:37] Speaker 01: I'm talking about the government's own rationale as articulated by the government. [01:37:39] Speaker 01: I'm just looking at your brief on page 36. [01:37:41] Speaker 01: Congress reasonably acted to prevent this sort of content manipulation by a hostile foreign power, a foreign power secret manipulation of the content on social media platforms to influence the views of Americans for its own purposes. [01:37:54] Speaker 01: And I'm just saying, [01:37:55] Speaker 01: when the rationale is one that's bound up in a concern about influencing the views of Americans, that's different from a concern about prostitution at a bookstore because the concern here is about curation decisions abroad influencing the views of Americans, which is typically when you see that kind of language, you'd say that's a First Amendment concern because we're trying to stamp out something because it's influencing the views of Americans [01:38:22] Speaker 01: in a way that the government doesn't want the American's views to be influenced. [01:38:25] Speaker 01: And usually that's the type of thing that generates a first amendment concern. [01:38:29] Speaker 03: I guess to be, and I apologize for going back to the quote I was doing, but I hope you'll understand why. [01:38:38] Speaker 03: There's a difference between saying we don't like the way the content turns out on this platform when China does it this way. [01:38:50] Speaker 03: That would be saying, here's content that we like and don't like. [01:38:55] Speaker 03: That's different from saying, we don't want China to be in charge of what this platform turns out. [01:39:02] Speaker 03: And so what Senator Warner, the full quote of what he actually said, again, at 566 of the appendix is, they could switch the algorithm a little bit, and suddenly all the TikTok videos will be promoting that Taiwan ought to be part of China. [01:39:14] Speaker 03: And the problem here, it's the covert content manipulation. [01:39:20] Speaker 01: But suppose it was potentially two US owners. [01:39:24] Speaker 01: Just take foreign ownership out of play. [01:39:27] Speaker 01: And suppose that what happened is the government has a social media platform that's owned by a company in the US. [01:39:34] Speaker 01: And that company in the US, the government has concerns because that company in the US is potentially manipulating the information in a way that the government doesn't like. [01:39:43] Speaker 01: And so what the government says is, I just want to stop that company from doing it. [01:39:46] Speaker 01: All I'm talking about is ownership of control. [01:39:48] Speaker 01: not talking about anything else. [01:39:50] Speaker 01: I just want to switch that ownership from company A to company B. There's no doubt that that would be a huge First Amendment concern, right? [01:39:57] Speaker 03: Right. [01:39:57] Speaker 03: But that will be because the U.S. [01:40:00] Speaker 03: company has First Amendment rights. [01:40:03] Speaker 03: I mean, that is net choice, right? [01:40:04] Speaker 03: In some sense, the U.S. [01:40:06] Speaker 03: company has First Amendment rights, and it can have its algorithm at once. [01:40:10] Speaker 03: And there, maybe you could do disclosure. [01:40:12] Speaker 03: because maybe you could get, you know, as a, as a U S company regulated in the United States, you know, maybe there are less restrictive means, but to say, we want this Chinese company to tell us, you know, the whole point is that it's covert and we don't have a way to stop it from being covert because it's being done on it through incredibly complex computer code that no one, including Oracle, who they want to hire would understand. [01:40:36] Speaker 03: And because it's being done in a foreign nation where we don't have [01:40:39] Speaker 03: You know, we can't pass a law saying bite dance, make this or that disclosure about what your internal operations, because they're off in China. [01:40:47] Speaker 03: And those are the fundamental points. [01:40:49] Speaker 03: I do want to, in a related vein, circle back to the point about, you know, they talk a lot about how like all the source code is reviewed. [01:40:58] Speaker 03: I just want to say something about what that review entails. [01:41:01] Speaker 03: And this is, again, from their own declarations. [01:41:04] Speaker 03: If you look at, [01:41:06] Speaker 03: The Simkins Declaration, it's at 741 of the appendix, paragraph 61. [01:41:10] Speaker 03: It describes the purposes of the source code review. [01:41:14] Speaker 03: And it's basically finding viruses or malware. [01:41:16] Speaker 03: That's what they're doing. [01:41:17] Speaker 03: They're saying, you know, we want to make sure this source code doesn't have a problem with it of a sort of computer programming sort. [01:41:24] Speaker 03: I can read you the quote if you want, but it really does say that. [01:41:29] Speaker 03: In the reply brief, it's more explicit. [01:41:32] Speaker 03: and the reply in the supplemental appendix at 842 paragraph 10. [01:41:38] Speaker 03: The purpose of this source code review with respect to the recommendation engine is not necessarily to inspect how the recommendation algorithm makes decisions, which I understand is largely driven by content and user behavior, but rather to prevent a third party, including petitioners, from covertly manipulating the recommendation engine once it is deployed by TikTok, QS, DS, and Oracle in the secure Oracle cloud. [01:42:01] Speaker 03: They're going at sort of, is there a hacker? [01:42:04] Speaker 03: Are they getting at it afterwards? [01:42:05] Speaker 03: That's not what we're talking about. [01:42:07] Speaker 03: What we're talking about is when they build it, when they create it, when they decide how it's gonna work in China, and nobody's looking at that, and nobody can. [01:42:16] Speaker 03: It's farcical to suggest that with this two billion lines of code, 40 times as big as the entire Windows operating system, changed a thousand times every day, that somehow we're gonna detect that they've changed it so that [01:42:31] Speaker 03: favors a Chinese narrative as opposed to being a neutral expression of American ideas. [01:42:38] Speaker 03: And, you know, they say one of the things they like about it, you know, the content creator petitioners say, you know, well, we think this is a sort of organic source, you know, diverse and organic source of news. [01:42:48] Speaker 03: The problem is, you know, China could decide one day, it doesn't want it to be that anymore. [01:42:53] Speaker 03: And they wouldn't be, we would have no way of knowing that, you know, users wouldn't be able to tell. [01:42:58] Speaker 03: And, [01:43:00] Speaker 03: And that's fundamentally the problem. [01:43:01] Speaker 03: And that is not solved. [01:43:03] Speaker 03: It doesn't even purport to be solved by the proposed national security agreement, Project Texas, or anything else. [01:43:10] Speaker 03: And the same on the data security side. [01:43:12] Speaker 03: There are just reams of information that are going back to China. [01:43:16] Speaker 03: If you look, and this is under CO because of business information, so I won't tell you the particulars. [01:43:23] Speaker 03: But if you look at the supplemental appendix, I think I've got the page number here, but maybe I don't. [01:43:30] Speaker 03: Oh yeah, supplemental appendix pages 249 to 52. [01:43:34] Speaker 03: This is the sealed appendix that was filed with their opening brief. [01:43:38] Speaker 03: It's four pages in minuscule font of all the ways they're going to slice and dice the data that they're going to send back to China ostensibly for business purposes rather than anything nefarious. [01:43:52] Speaker 03: But I mean, this is not, they're not sealing off the US application in any meaningful sense. [01:43:58] Speaker 03: And so we really return to, I mean, that's why the sort of claims that this is all sort of regulating US content. [01:44:06] Speaker 03: No, this is about that there is so much happening in China outside the control of the United States that it poses a great national security risk. [01:44:15] Speaker 01: Can I just get back on content manipulation? [01:44:18] Speaker 01: I think it's an adjunct to what you were just talking about. [01:44:21] Speaker 01: If there's a law before us that says we're worried about foreign content manipulation, [01:44:28] Speaker 01: which is what we're worried about here. [01:44:30] Speaker 01: We're worried about something more precise here too, but let's just say it's a law that's worried about foreign content manipulation. [01:44:37] Speaker 01: And in order to address foreign content manipulation, because of a concern that the manipulation is going to quote, influence the views of Americans for their own purposes, meaning the purposes of the foreign country, we're gonna require the divestiture of any [01:44:56] Speaker 01: company, any social media company that's subject to foreign control? [01:45:03] Speaker 01: How would we analyze that as a First Amendment matter? [01:45:07] Speaker 03: I mean, I think the I mean, it's so tricky to talk about what that's regulating because of its breadth. [01:45:20] Speaker 01: And [01:45:22] Speaker 01: I don't know if it's that tricky to understand what's regulating. [01:45:25] Speaker 01: It's just saying that any company that's subject to 20% or more foreign control, anyone, not just China, but foreign control at all has to divest because we're worried about foreign content manipulation. [01:45:42] Speaker 01: How would we analyze that under the First Amendment? [01:45:45] Speaker 01: Or would it just not even be a First Amendment question? [01:45:49] Speaker 03: the description of foreign content manipulation, I'm not sure where that would have come from for something that broad. [01:45:55] Speaker 03: And obviously the idea, to the extent that you could read such a statute as suggesting that some company operating in America, which is making all sorts of decisions for itself, we're labeling all of that foreign content manipulation, I'm not sure is something you could do. [01:46:15] Speaker 03: So that seems like a very different situation. [01:46:18] Speaker 03: I mean, here, [01:46:19] Speaker 03: there was a record both before Congress and there's a record before this court about precisely the covert content manipulation that's being targeted and evidence that it in fact occurs abroad and that divestiture would solve it. [01:46:36] Speaker 03: And that to the extent that their activity is occurring in the United States, Congress was careful to provide a mechanism. [01:46:41] Speaker 03: They say China won't let them. [01:46:43] Speaker 03: I'm not sure why that's supposed to make us feel better, [01:46:46] Speaker 03: there's a mechanism to preserve what's going on in the United States to the extent consistent with that rationale. [01:46:52] Speaker 03: That seems quite different. [01:46:54] Speaker 03: I don't know that you could, even if you said it was foreign content manipulation, I don't know that you could. [01:46:59] Speaker 01: So the difference, the reason why that law might be potentially problematic, whereas this one isn't in your view, is because of the record of the capacity of foreign content manipulation, in fact, to occur in these circumstances. [01:47:14] Speaker 03: I think there are sort of, [01:47:16] Speaker 03: broadly speaking, you could distinguish that both in terms of the application of any form of First Amendment scrutiny that might apply and in terms of what sort of scrutiny would apply. [01:47:27] Speaker 03: So taking those one at a time, in terms of the application of any First Amendment scrutiny, they wouldn't have anything remotely resembling the national security record that we have here in terms of a compelling interest or in terms of the tailoring. [01:47:40] Speaker 03: So obviously, if you were applying any form of First Amendment scrutiny, that would be [01:47:46] Speaker 03: markedly different. [01:47:47] Speaker 03: In terms of what level of First Amendment scrutiny to apply here, we have a very robust record demonstrating that what is being targeted is not protected expression. [01:47:58] Speaker 03: And it doesn't sound like from your hypothetical, you would have any anything of that sort. [01:48:04] Speaker 03: In that case, it would seem like what's being targeted is something much more general that would sweep in lots of conduct, you know, expressive conduct by Americans, essentially, because it's influenced in some, you know, [01:48:16] Speaker 03: in some way not articulated by foreign companies. [01:48:20] Speaker 03: That's just seen, it obviously is a lot broader, but it seems constitutionally significant that it's that much broader. [01:48:25] Speaker 03: So you could distinguish it on both grounds. [01:48:28] Speaker 03: And here, as I said, we have very strong arguments about the level of scrutiny that applies and also very strong arguments that any type of scrutiny, including strict scrutiny, given the national security concerns would be satisfied. [01:48:43] Speaker 06: It would be a very peculiar [01:48:45] Speaker 06: to have a statute that applied to all foreign ownership in this sort without that kind of a record that would be including the four other countries that make up the five eyes with which we have the most intimate security arrangements that would include Canada, United Kingdom, New Zealand and Australia, but also countries as to which we have other kinds of partnership for defense relationships, NATO and so on. [01:49:12] Speaker 06: I mean, this is so, [01:49:14] Speaker 06: clearly targeted, not just at TikTok and ByteDance, but at China. [01:49:19] Speaker 06: And the records that you've compiled is all about China, not even the other three adversary nations. [01:49:24] Speaker 06: They're not relevant here. [01:49:26] Speaker 03: Right, exactly. [01:49:27] Speaker 03: And that is an important point that this is a very specific record about a very specific concern. [01:49:36] Speaker 01: And that's the result under applying First Amendment scrutiny, as opposed to whether the First Amendment kicks in and in what way in the first place. [01:49:43] Speaker 01: It may be that the record and all the particular concerns affect the result. [01:49:47] Speaker 01: But I was trying to understand the implications of the government's approach for the analytical method that we would use. [01:49:54] Speaker 01: And can I ask one last question just about Lamont? [01:49:56] Speaker 01: And so under Lamont, you have a situation in which the [01:50:00] Speaker 01: government was unable to do what it wanted to do there because of the First Amendment interests of the US listeners and the communist, as we call it, propaganda. [01:50:13] Speaker 01: Could the response to that have been to adopt a law that just barred the propaganda from coming into the US in the first place? [01:50:25] Speaker 03: I'm not sure how you would accomplish that. [01:50:30] Speaker 03: I mean, the line that was discussed in Murthy and that was tied into the listener standing cases that the Supreme Court has had over the years was more tethered to sort of whether there's a particularized relationship and whether they have some First Amendment interest. [01:50:44] Speaker 03: I mean, you might be able to justify it, but in terms of someone having standing or a First Amendment claim, yeah, I mean, [01:50:54] Speaker 03: This case is just, you know, this case is so similar to Murthy that I would just sort of urge the court to lean there. [01:51:01] Speaker 03: I mean, Murthy, people were saying the content curation decisions that are made by the platforms affect the content that I read on the internet on some particular topics. [01:51:11] Speaker 03: And therefore I have standing to challenge what I regard as impermissible government influence on those content manipulation decisions. [01:51:18] Speaker 03: And the Supreme court said, no. [01:51:19] Speaker 03: And I mean, I think that's what they're saying in this case. [01:51:22] Speaker 03: in Lamont, it was something different. [01:51:23] Speaker 03: It was saying, you know, either I sent away and said, can you please send me this information or somebody sent me information and I want to receive it. [01:51:32] Speaker 03: And I have to, you know, go to the postal service and tell them that I want to receive it. [01:51:36] Speaker 03: That's just a totally different kind of a claim. [01:51:40] Speaker 01: The relevant difference there is that the affirmative act of saying that you want the information is what gave rise to the first amendment injury there. [01:51:49] Speaker 03: That's part of it. [01:51:50] Speaker 03: Another part which the Supreme Court has emphasized in a number of cases is the connection between the foreign entity and the US entity. [01:52:01] Speaker 03: They've required something pretty specific. [01:52:02] Speaker 03: I mean, in Murthy, they described the prospect that any listener would have standing to challenge the inability of someone else to speak as startlingly broad. [01:52:10] Speaker 03: And that was all US. [01:52:12] Speaker 03: The entire case was in the United States. [01:52:14] Speaker 03: And I think that combined with the idea from Agency for International Development about sort of exporting your First Amendment rights, it just would be startlingly broad if you could say, well, I understand that the speaker has no First Amendment rights. [01:52:29] Speaker 03: I understand I have no particularized connection to the speaker. [01:52:31] Speaker 03: I'm just someone who wants to read what they say on the Internet. [01:52:34] Speaker 03: But now, suddenly, even though they have no first in my claim, I do. [01:52:37] Speaker 03: And that's what this Supreme Court rejected in Murphy in, frankly, what should be a harder context because it was all in America. [01:52:43] Speaker 03: And that's what the court should do here. [01:52:46] Speaker 03: Unless there are further questions. [01:52:48] Speaker 01: Thank you, Mr. Tenney. [01:52:49] Speaker 03: Thank you, Your Honor. [01:52:51] Speaker 01: Mr. Pinkus will give you three minutes for your rebuttal. [01:52:53] Speaker 05: Thanks very much, Your Honor. [01:52:55] Speaker 05: I just want to start about the question about what happens in the U.S. [01:52:58] Speaker 05: because the government is just flat wrong. [01:53:00] Speaker 05: The court looks at the oppressor declaration pages 812, 815, 817, 829, and the Feral Declaration 901. [01:53:10] Speaker 05: I'll say that again, 812, 816, 817, 815, 829. [01:53:16] Speaker 05: They talk about how the recommendation engine itself is influenced in the U.S. [01:53:20] Speaker 05: It's trained in the U.S. [01:53:22] Speaker 05: on U.S. [01:53:22] Speaker 05: data. [01:53:23] Speaker 05: It's modified in the U.S. [01:53:24] Speaker 05: based on U.S. [01:53:25] Speaker 05: content moderation decisions. [01:53:27] Speaker 05: It is clearly embodies not just Chinese speech, that's an issue, but U.S. [01:53:33] Speaker 05: speech by TikTok Inc. [01:53:34] Speaker 05: So the idea that there somehow is the ability to say, oh, this is just foreign, is just plain wrong. [01:53:43] Speaker 05: Even if it were, [01:53:44] Speaker 05: I think that raises some questions. [01:53:46] Speaker 05: Could a U.S. [01:53:46] Speaker 05: speaker who wanted to show a foreign movie be told, no, that's unconstitutional and there's no strict scrutiny? [01:53:51] Speaker 05: That seems wrong as well. [01:53:54] Speaker 05: So then turning to your question, Your Honor, Judge Shornavast, Chief Judge Shornavast was asking about, you know, what is this target? [01:54:03] Speaker 05: The government talks about targeting foreign government manipulation. [01:54:07] Speaker 05: But the question here, the first of many questions, what's burdened? [01:54:10] Speaker 05: And what's being burdened, the government admits there is no foreign content manipulation now. [01:54:16] Speaker 05: There may never be. [01:54:17] Speaker 05: What's being burdened is US speech by US users and also as a result of the US decisions with respect to the content moderation engine. [01:54:29] Speaker 05: I wanna talk about the alleged hoovering up of information because it's just wrong. [01:54:37] Speaker 05: The government talks about precise location data. [01:54:40] Speaker 05: That's GPS data, that's what that means. [01:54:43] Speaker 05: And the reason GPS data is important, as the Supreme Court said in Jones, is because it lets you create a dossier about people. [01:54:50] Speaker 05: GPS data is not collected. [01:54:53] Speaker 05: User content data, the user contact list data, as Mr. Fisher says, it's voluntary, but more than that, it's anonymized. [01:55:01] Speaker 05: The record makes clear it's anonymized. [01:55:04] Speaker 05: The record 847 to 848, the government says that anonymization doesn't work. [01:55:10] Speaker 05: That's talked about there too. [01:55:12] Speaker 05: It's a standard technique that the US government uses all the time. [01:55:16] Speaker 05: The government tries to make something about the fact that some provisions in the NSA prevent some parts of data, some data to be sent to China. [01:55:24] Speaker 05: Some of that is data that is the result of e-commerce data. [01:55:29] Speaker 05: There's an e-commerce site. [01:55:31] Speaker 05: The law requires the collection of that kind of data. [01:55:33] Speaker 05: The government didn't want in the negotiations, didn't raise that. [01:55:36] Speaker 05: If that's an issue, we'd certainly be prepared to talk about it. [01:55:41] Speaker 05: The other thing is I think the government's argument here is premised on the idea that Congress somehow made the determinations that the government relies on. [01:55:48] Speaker 05: There's zero evidence of that. [01:55:50] Speaker 05: That's the problem here. [01:55:52] Speaker 05: Congress had a lot of reasons. [01:55:53] Speaker 05: The government read one quote about the record. [01:55:56] Speaker 05: There are numerous quotes about content currently on TikTok, non-manipulated content that were the concerns of Congress. [01:56:03] Speaker 05: We just don't know what Congress did. [01:56:05] Speaker 05: And in the First Amendment context, we've got to be pretty careful about what those rationales are. [01:56:10] Speaker 05: It seems to me, to invalidate the law here, the court can rely on existing precedent, News America, [01:56:17] Speaker 05: strict scrutiny, the failure to consider disclosure and other options. [01:56:21] Speaker 05: Disclosure is an option here. [01:56:23] Speaker 05: If the disclosure doesn't necessarily, if the government could make the required showing of the target only the manipulated content, there could be a general disclosure that the government fears there's manipulated content on this platform. [01:56:34] Speaker 05: I'm not saying that would be right, but there certainly has been no [01:56:38] Speaker 05: attempt to figure out whether disclosure can solve the problem here. [01:56:42] Speaker 05: And the problem is, if you go the other way and rule for the government, you have to do some pretty unprecedented things. [01:56:48] Speaker 05: You have to hold a content-based justification for general speech is a sufficient justification. [01:56:56] Speaker 05: That's something that Holder does not support. [01:56:58] Speaker 05: That was a very, very, very targeted [01:57:01] Speaker 05: And then the court has to say, it doesn't matter that Congress didn't consider less restrictive means and the court has to resolve numerous factual disputes in a record that has no entity for the court to resolve them. [01:57:13] Speaker 05: And we think that's a very, very significant barrier. [01:57:17] Speaker 01: Thank you, Mr. Pinkus. [01:57:20] Speaker 01: Fisher will give you two minutes for your rebuttal. [01:57:23] Speaker 04: Thank you. [01:57:24] Speaker 04: I'd like to make four points about the First Amendment claim. [01:57:27] Speaker 04: First, the government cites Murphy as suggesting that by clients and based politics as users, TikTok might not even have standing, let alone a First Amendment claim. [01:57:38] Speaker 04: To use the government's own words, we have raised our hand and said, please give us information. [01:57:42] Speaker 04: We follow other users. [01:57:44] Speaker 04: We've joined various groups on the platform. [01:57:46] Speaker 04: So we're doing exactly what the [01:57:48] Speaker 04: male recipients did in Lamont. [01:57:50] Speaker 04: And remember, that's not even the heart of our claim. [01:57:52] Speaker 04: The heart of our claim is as our own speakers working with our editor and publisher of choice. [01:57:58] Speaker 04: And there's no suggestion we wouldn't have standing or anything less than a most severe First Amendment injury there. [01:58:05] Speaker 04: Secondly, there was some conversation about, you know, can we think about this law as having only an indirect effect on the creators? [01:58:11] Speaker 04: And the answer is absolutely not. [01:58:12] Speaker 04: The law, by its terms, prohibits a certain publisher from publishing under its own content recommendation system online. [01:58:21] Speaker 04: And that is our publisher. [01:58:22] Speaker 04: The very speech that the Act singles out, the social media type speech that uses the quote that I read earlier, is our speech. [01:58:30] Speaker 04: And so the Act targets us directly. [01:58:33] Speaker 06: Even if it didn't sorrel... [01:58:36] Speaker 06: Take the example of the case in which a bookstore was closed. [01:58:41] Speaker 06: It couldn't meet code requirements and ended up having to be closed. [01:58:44] Speaker 06: And of course, the readers were the collateral victims of that. [01:58:50] Speaker 06: So if, however, the bookstore is validly closed for that reason or about to be, if the law says that's fine, bookstore has to meet code and it's not meeting it. [01:59:05] Speaker 06: You say that the readers would have the opportunity to enter well to be considered in that final decision and sort of want an exception to the code because it would impinge upon the readers. [01:59:17] Speaker 04: I think there'd be standing there for the for the injury but I think that would be a losing claim under our car for the reasons to Boston. [01:59:26] Speaker 04: But also just remember, even if it were not direct, as I've described, Sorrell says you look at in practical operation, how the burden exists under the act and our speech is being silenced. [01:59:37] Speaker 04: So we satisfy that. [01:59:39] Speaker 04: Judge Rao, you asked about sort of the covert nature of the alleged manipulation and how a disclaimer might work. [01:59:45] Speaker 04: Let me say a couple of things about that. [01:59:47] Speaker 04: One is it just strikes us as an odd argument to say that an editor and publisher can be [01:59:53] Speaker 04: You know, suppressed or people can be banned from working with editor and publisher simply because they might consult or be even controlled by other third parties, you know publishers in this country every day speak to us government officials and any number of other third parties to make the publication decisions, and that's never disclosed to the public and let alone even the author sometimes so it just takes us a very odd argument to begin with. [02:00:13] Speaker 04: But even if it were an argument, you asked what a disclosure might look like the government could issue its own warning, or maybe even as a company suggestion is pretty something like a surgeon general warning on the platform itself from the creator standpoint, and the user standpoint that would be a whole lot better than shutting down the platform. [02:00:29] Speaker 04: If the government thought it was factually accurate and could justify a warning that says this might be influenced by Chinese government officials, that would be a lot different than shutting down the platform and that would fully meet the government's covert interests, covert manipulation interests. [02:00:46] Speaker 04: And then finally, Judge Gutenberg, I want to return to your question. [02:00:49] Speaker 04: isn't this unprecedented in a sense, foreign adversary, content manipulation, and the like? [02:00:56] Speaker 04: And the answer is no. [02:00:58] Speaker 04: Our country throughout history has come up against this problem. [02:01:01] Speaker 04: Let me just isolate one example, which is the Whitney case. [02:01:05] Speaker 04: In that case, the Supreme Court actually accepted [02:01:09] Speaker 04: The government's argument, the state of California's argument that it could suppress speech of an American because it was spreading communist propaganda in conjunction with the Soviet Union and Russian officials. [02:01:21] Speaker 04: And the court said it was allowed to do that because it was tending to incite crime, disturb the public peace, or endanger the foundations of organized government. [02:01:32] Speaker 04: Majority opinion drew a separate opinion from Justice Brandeis that has carried the day of history. [02:01:37] Speaker 04: And that majority opinion has been inferred by the Supreme Court itself. [02:01:42] Speaker 04: We urge the court not to go back down that road. [02:01:45] Speaker 04: And for two reasons. [02:01:46] Speaker 04: One is even the level of lawlessness and eminence described in that opinion is nowhere present in this case. [02:01:54] Speaker 04: The most the government is here today to say is that China might someday, [02:02:00] Speaker 04: influence the content on this platform that 106, 107 million Americans use. [02:02:05] Speaker 04: We are miles away from even the assertion of the majority in Whitney, let alone just as Brandeis extent of it carried the day and said anything short of incitement to violence is protected speech in this country, even if done in conjunction with foreign actors. [02:02:20] Speaker 04: And so that's the principle I leave the court with, whether it's foreign actors, whether it's US citizens or any combination of the two. [02:02:27] Speaker 04: What we're talking about in this case are ideas and ideas about politics and social governance and baking and sports and agriculture. [02:02:37] Speaker 04: And it is the tradition in our country to protect those ideas. [02:02:40] Speaker 04: And that's what this act unfortunately does not do. [02:02:44] Speaker 01: Thank you, counsel. [02:02:45] Speaker 01: Thank you to all counsel. [02:02:46] Speaker 01: We'll take this case under submission.