From Daphne Keller (Stanford) on the Tiktok Case

I’ve long much appreciated Keller’s analyses, so I thought I’d pass along this one about today’s TikTok decision; I disagree with parts of it, but I think it’s quite interesting and insightful:

Given that I considered TikTok’s loss a foregone conclusion, this feels like maybe the best possible outcome.

To be clear, I would have liked the TikTok law to be struck down. That’s because, assuming (against much evidence) that the goal was to prevent Chinese data collection that threatens national security, Congress chose a *really stupid* way to do that. It could have done so many more effective things. But I didn’t expect that logic to prevail. As copyright lawyers learned years ago with Eldred and Golan, the Supreme Court will ignore illogical, captured, biased, or pretextual Congressional reasoning when it feels like it.

The Court rules solely based on the national security threat posed by Chinese data collection (not the algorithmic control issue). Plaintiffs conceded the government’s interest in preventing that data collection. That leaves the much more 1st-Amendment-fraught questions about algorithm design unaddressed.

Gorsuch’s concurrence addresses a key lurking issue about the government’s interest in preventing Chinese manipulation of the algorithm. Can US speakers or companies (like TikTok) choose, as a 1st Am matter, to espouse China’s message? Gorsuch says yes. (Screenshots of key passages for this and some other points below are in the Bluesky version of this thread, https://lnkd.in/gq3f2xJE)

That’s the same thing the district court said in Zhang v. Baidu, a must-carry case from long before Moody. It said the China-based search engine could exercise its 1st Am rights to exclude the speech of US-based dissidents at the behest of the Chinese government.

What’s remarkable is that just last summer Gorsuch seemed to think that algorithmic ranking of user content wasn’t speech. Contrast his lines today about TikTok’s “editorial discretion” with this, from [Justice Alito's dissent in Moody v. Netchoice, which Gorsuch joined -EV]: “[The majority] unreflectively assumes… that social-media platforms —which use secret algorithms to review and moderate an almost unimaginable quantity of data today—are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago.”

Gorsuch goes on to say a remarkable number of things that I agree with. I’ll add those in the comments.

Overall, the per curiam opinion and concurrences barely mention user rights at all. Which is exactly how I want it. I was afraid they would say something that really messes up future user rights cases.

This could have been so very much worse.

OK, here is what my main man Neil had to say! (Neil Gorsuch, who reportedly scanned the Dobbs opinion overturning Roe for 10 mins and then signed. I’m actually not that into him.)

(1) “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion’” and Americans can choose to “make decisions about what they say in concert with a foreign adversary” if they want. This came up in oral arguments re American Communists and the USSR.

(2) He lauds the Ct’s declining to rely on classified evidence, noting that “Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns” and urging Congressional or Rules Committee action to affirm this.

(3) He has real concerns about whether these rules are truly content-neutral (OK, should he concur then though?). And then, in the part I like, he notes that tiers of scrutiny are kind of bullshit anyway. They “do more to obscure than to clarify the ultimate constitutional questions.”

(4) He says preventing foreign adversary data collection is a compelling interest. That seems fine to me, even if I think this law is a stupid, political, badly tailored way of serving that interest.

So I disagree with (5) where he says the tailoring is fine here.

A couple more things about the per curiam (i.e. unsigned, whole Court) ruling.

The Ct thankfully declines to rule on the topic they got so distracted by in oral arguments: Whether there is even a cognizable burden on speech when Congress regulates upstream preconditions that make speech possible (in the form of corporate platform ownership). There

is some sleight of hand on page 19 about whether the data security justification can support the parts of the law that affect TikTok’s ability to use the ranking algorithm. I’m not sure how severable that would have been anyway.

Sotomayor weighs in separately to say “You guys, we literally *just said* in Moody that platforms’ algorithmic ranking is speech, so there is definitely a speech interest here.” (That’s not a real quote.) Also she says there is an association right.

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