TikTok's big bet to fight the ban bill

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Neil I. Patel

Today we're talking about TikTok, specifically the bill that would ban TikTok, United States, unless chinese parent company ByteDance sells it within a year. Obviously, that bill is a big deal, and it was clear from the start that TikTok will be fighting back. Last week, the company began the process of fighting back. It filed a lawsuit against the United States government claiming that the bill is unconstitutional, a case the company has to win in order to keep operating in the United States under ByteDance's ownership. And just a few days ago, a group of TikTok creators funded by TikTok sued the US government.

With variations on the same basic First Amendment arguments. These lawsuits are the entire ballgame at this point. Even if Donald Trump were to win the presidential election, he cant just undo a bill that has passed both houses of Congress and been signed into law. So if ByteDance wants to retain ownership of a TikTok that remains operating in the United States, these lawsuits are really the way to do it. Given the stakes, I wanted to take some time to really think through the arguments in TikToks complaints specifically, and I asked Verge editor Sarah Zhang and Alex Heath to come on the show and help me pull it apart.

We say this a lot on decoder, but you really have to resist the temptation to think of the legal system like a computer. It's just not deterministic in that way. You really can't predict the outcome of a case from the inputs. The lawyering matters, the politics matter, and the actual human beings with all their emotions and weird ideas who decide the cases, they really matter. So even if you think the TikTok bill is obviously unconstitutional, or that TikTok is obviously a propaganda weapon aimed at our nation's teens, the specific arguments that are being made and how theyre being made really matter, if you want to understand the case.

One reason I wanted to have both Alex and Sarah on the show is theres a lot of back and forth between the facts and the law here. Some of TikToks arguments are contradicted by the simple facts of what TikTok has already promised to do around the world. And some of the legal claims are complex, in tension with a long history of attempts to regulate speech and the Internet in this country. Alex has covered TikTok closely for years, so I wanted his perspective on the facts. And Sarah is a former lawyer like me, so I wanted to talk through the legal issues in detail with her.

A couple things to note before we start. First, the most important argument TikTok makes in its complaint is that this law will straight up ban the company from operating in the United States. The rest of the arguments in the complaint really require you to buy that idea, which is pretty bold, because what the law actually says is that TikTok has up to a year to sell its us operations to a non chinese owner. And if it fails to do so, smartphone App Stores won't be allowed to distribute it. I'm emphasizing this, and I'm saying it's an especially bold claim because President Trump also tried to ban TikTok during his administration.

And TikTok worked out a fairly elaborate plan for selling itself. It involved a truly bizarre group of players, including Microsoft, Walmart, and Oracle. TikTok averted that, attempted a ban, mostly because the legal authority Trump was using for it was so shaky. But this time around, the bill is on far more solid legal footing, and TikTok has changed its argument. Its saying that divesting its us business is not at all possible, commercially, technologically or legally.

This history and that shift are going to come up a lot in this conversation. So just take a second and recall how weird that period of time was. You in the right headspace? Okay, the TikTok lawsuit. Here we go.

Alex. Sarah, welcome to decoder. Thanks for having us. Hi. There is a lot going on in this complaint that TikTok filed against the government about this bill that would theoretically ban the company.

It feels like the best way to go through it is to start with the facts. But before we do even that, I just want to get into basic dumb questions about this lawsuit. Sarah, this case is captioned tick tock and Bytedance versus Merrick Garland, who is the attorney general of the United States. As far as I can tell, Merrick Garland has no opinions on TikTok whatsoever. Why are they suing him?

Sarah Zhang

They're suing him in his capacity as the attorney general of the United States. So because they're suing over this law on first Amendment grounds, they're suing the government. And in this case, the correct person to sue is the head of the DOJ, Merrick Garland. Is that just a formality? Is that like a weird, esoteric thing about lawsuits?

It's just a weird little thing. If they were suing DHS, they'd be suing the secretary of DHS. And then if that suit rolled over into the next administration, this case caption would change and it would be a different attorney general that's on the case. Caption and then it's already in the court of appeals for the District of Columbia. That's the DC circuit court.

Neil I. Patel

That's just because the bill basically put them there, right? Yeah, it's just written into the law. That's where they got to sue. That's where it starts. Is there going to be a trial?

Are we going to see TikTok executives on the stand talking about whether or not trying to controls them? I don't think so. I think we're just going to have a hearing. It's flexible enough that possibly they trot people out or whatever, but there's not going to be a jury, there's not going to be a trial. We're going straight into the appellate section, essentially.

Sarah Zhang

So we're going to have lawyers arguing in front of judges, and then the judges make a decision, and then it's definitely going to go up to the Supreme Court. I want to talk about that move to the Supreme Court later because it feels like the fact that it's an ultra conservative 6th court plays a big role in this. That's just what you might call the procedural posture if you're a law student or a lawyer. Here's how the case is situated. Here's who they are suing.

Neil I. Patel

Here's the court it's in. Let's talk about the complaint itself, which rests upon one huge assumption, like a big hand wave, that this bill is straightforwardly a ban. Even though the bill is written to say, byteance either has to sell TikTok us or leave. Those are its choices. But the first sentence of the complaint is, Congress has taken the unprecedented step of singling out and banning TikTok.

The argument fundamentally, is that it is impossible for ByteDance to sell TikTok us, and therefore it's a ban, even though the bill itself presents this as a choice. Alex, you have been covering TikTok for a long time. There's been a lot of weirdness about TikTok's ownership and its operations. Does that argument hold up to you? No.

Alex Heath

I feel like we've entered some kind of warped time hole, and we are forgetting what happened the last time the government tried to ban TikTok. No, it doesn't make sense at all. The last time was much weirder. Trump was on a plane and he got mad and just tweeted, I'm banning TikTok. And then the government tried to retcon that into law, and there was this furious scramble.

Neil I. Patel

What happened there? Just refresh people's memory. There was this plan called TikTok Global, where, because ByteDance, the parent company of TikTok, is actually majority owned by american venture capitalists and investors, they were going to essentially do a joint venture and spin off TikTok from ByteDance with a new cap table, a new board of Americans, and the TikTok app globally would be its own company. So it would be detached from ByteDance and would eventually IPo. Then the investors who have plowed billions of dollars into ByteDance, some of them incredibly influential donors and lobbyists in DC, like Jeff Yas, could have liquidity, and TikTok could continue to exist while satisfying the government's request that China divest majority ownership.

Alex Heath

This was going to be the path that they took with Walmart and Oracle. If the last ban attempt under the Trump administration successfully went through, they ended up not having to do that because they successfully challenged the executive order on First Amendment grounds. Obviously, the details are very much different this time, but there's a lot of either or false arguments happening in TikTok's complaints. I think because they're acting like all they can do is spin TikTok, the US app, off and cut it off. They call it an island.

That would not work because you wouldn't be able to see or interact with people on TikTok from other countries. And that's not at all what they were proposing to do just a few years ago. This is the foundation of the complaints argument. You have to accept that this bill is a ban and then everything else follows from there. And TikTok gives three reasons in the complaint that it's a ban.

Neil I. Patel

They say divestiture is not possible commercially, technologically or legally, which seems like we should just take those in turn commercially, is what you are saying. Here's the quote from the complaint. Spinning TikTok us off. That would turn US TikTok platform into an island where Americans would have an experience detached from the rest of the global platform, and it's over 1 billion users. Such a limited pool of content, in turn, would dramatically undermine the value and viability of the US TikTok business.

Does that hold up like, a, there's no way to do this without completely detaching it from everything else, and B, if it became this island, it would fail because Americans desperately want to watch international content. No. And the government's not asking them to do this. They have to say, this is what will happen. Because if they come out in this complaint and they say, if we don't do this, we'll have to do the incredibly intricate JV plan that we publicly proposed just a few years ago to fully spin ourselves out.

Alex Heath

It's like, why are you doing the complaint in the first place? Like, you just have already shown there's plenty of evidence that you are very much prepared to spin this thing out in a way that would keep tick tock functional globally and would detach it from being majority owned by Bytedance. So they're presenting this new third option that no one asked for. The government is not mandating. All this bill does is say that you can't be majority owned by China.

And they are doing that because they, I think, have to. They're backed into a corner if they come out, like I said, and say, you know, if we don't, we'll have to do this tick tock global plan again. It's like, yeah, that's the point, Sarah. This is what I meant about a trial, right? These are facts.

Neil I. Patel

Like, this is something you have to establish. Here's some evidence that you had this other plan. Here's your claim that this is impossible at some point. That is straightforwardly a finding of fact. Someone has to decide what's true and what's not true, and then appellate courts tend to apply those facts to the law.

Where does that happen here? If there's not a trial or a jury. Does the judge just say, I don't believe you? I think it might be similar to what happened in Reno v. Siliu.

Sarah Zhang

It was a first amendment case. It had to do with a law passed by Congress that would have imposed significant restrictions on the Internet because it was very fact heavy. They had a special master's trial where it wasn't a real trial, but they were essentially bringing in witnesses and having hearings. And you had a special master who found findings of fact, and those got submitted up to a higher court. Amazing.

Neil I. Patel

So that's commercially. Is it viable to split off TikTok? Us? TikTok is saying no, there's some history that they were already prepared to do it, that history might show up in a trial or a special masters hearing. The second argument they're making is technologically impossible to split off TikTok.

The argument in the complaint is, look, ByteDance wrote all this code. It is a huge base of technology that runs TikTok. And if you spin off into some other company, you have to hire some people and they won't even know what they're doing yet. Here's the quote. To comply with the law's divestiture requirement, the codebase would have to be moved to a large alternative team of engineers, a team that does not exist and would have no understanding of the complex code necessary to run the platform.

It would take years for an entirely new set of engineers to gain sufficient familiarity with the source code to perform the ongoing necessary maintenance and development activities for the platform. That's the argument. You have to spin up a new team of engineers. They have no familiarity with this code. It's going to take forever, and it's just going to fail.

At a technological level, does that seem like it's reasonable, Alex? It's even less reasonable than the first one. That one's the most logical. To me, it's like, who's going to run this thing? Who are the people?

Alex Heath

In February of 2023, I wrote about this in the verge. We have a big photo spread, this thing that TikTok called its transparency center in Los Angeles. This was when they were proposing the TikTok Global Oracle spinoff, and they were sequestering all of the US data on Oracle servers, or beginning to. And I remember literally walking in and it was like the wizard of Oz in the back. There was like this room that they wouldn't let us go in.

And they were like, that's where the source code is. And we put it there so that we can have auditors that the government approves come in and look at the source code, and we've been pulling out everything and siloing it with Oracle so that we are totally above board. There's absolutely no data leakage. Unfortunately, here with the second argument, TikTok has reams of public comments over the last couple of years talking about how they have in fact worked very hard to separate the code of TikTok from Bytedance, to the point where they literally brought journalists like me and pointed again, like, to the back room of wizard of Oz or something, and said, there's where the code is. So I don't buy this at all.

They have to say this as well, right? You have to pretend that this is some kind of undue burden on them to do. But it's like you said you were already gonna do it, so why is it now an issue? There's a lengthy section of the complaint, and it comes up throughout the complaint, actually, that TikTok was already in the middle of a deal with CFIUS, the Committee on foreign investment in the United States, to have all this auditing. There's Project Texas, which is what you're describing, where Oracle was actually going to run TikTok.

Neil I. Patel

I guess my opinion of Project Texas was it was always a head fake. Like it was never actually real. The facility you went to, I always thought was all for show, and none of it ever made any sense. And there's been some reporting that it was all for show, that China still was very much in control of byteance, which was still in control of TikTok. Am I to read this as, hey, this is actually real, and it turns out like you're just ignoring it now?

Or is this more like it was actually pretty much for show, and we don't actually have the capability to split this technology out. What's real is that TikTok has paid Oracle hundreds of millions of dollars in the last couple of years. What they were paying for, not really sure, because it hasn't gotten them out of a ban. This was supposed to be the thing that CFIUS would accept to keep them from having to divest originally. I have heard a lot of things about project Texas.

Alex Heath

There's been a lot of other reporting about how kind of a smokescreen it is. It's kind of like if you're a student and you're paying your teacher to grade your homework, should anyone really trust that the grade you're being given is the accurate one? There's an inherent tension there, which is that TikTok is paying this entity to validate its existence. And the whole point of that was that if Oracle were to see something like some kind of backdoor, it was going to be where Oracle was literally approving the app updates in the App Store. So like if you went to TikTok in the App Store, it would be buy Oracle.

So it's going to be on Oracle to report if something happened. Do you really want to do that when this is like a massive contract that you're making hundreds of millions of dollars from? And are the incentives aligned there? So it was always a pretty tenuous setup beyond the technicalities of it, just the incentives of it alone. We have to pause for a quick break.

Neil I. Patel

We'll be right back. To get into the third reason TikTok says it can't divest, and argues that this bill is effectively a ban. After all.

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Neil I. Patel

Were back with Verge editors Sarah Zhang and Alex Heath digging into what the TikTok ban really means and what TikTok suit against the government really says. We just talked about TikToks first two arguments for why it cant spin out its us business. First, because it wouldnt be commercially viable to isolate the US market and second, that it would be technologically impossible, even though TikTok developed a robust plan during the Trump administration for how that might work. The third argument in the complaint about why this is a ban and why divestiture is impossible is legal. The argument is China will not let them sell the recommendation algorithm.

And the recommendation algorithm is the heart of the TikTok experience. The quote is straightforward. The chinese government has made clear it would not permit a divestment of the recommendation algorithm that is key to the success of TikTok in the United States. This is at least a little funny, right? You've got this huge lawsuit against the United States government saying you are stepping all over our rights, and one of the reasons you're stepping all over our rights is the chinese government has already stepped all over our rights.

Sarah Zhang

Everything about this is hysterical. The tightened export controls that will likely prevent China from letting bytedance let go. It was a direct response to Trump. One thing after another, we tetrised our way into this impasse where Bytedance shows up in court and has to contort themselves to say that you can't do this to us because this other government is already doing this to us. It's incredible.

It is very funny. When you were thinking about the six three ultra conservative Supreme Court, I just can't imagine Neil Gorsuch being like, you know, you're right, China has restricted the sale of the algorithm that is impossible. It just doesn't seem likely to me. I mean, it's very, like, damned if you do, damned if you don't. And that's very much the case with the technological argument as well, where if they did succeed with Project Texas, then what's the big deal?

If Project Texas was just for show? TikTok, like, they have to admit that their whole thing was just for show. Right? And it's the same thing here. Okay, so you are effectively controlled by the chinese government.

Is that what you're saying? Courts love to concede things to the government when there is a national security interest. And bringing the fact that China is going to effectively ban them from selling software is. Yeah, that's a hysterical thing to put into this case. China has a deep interest in this recommendation algorithm that you are worried is a propaganda tool of the chinese government is a circle that you don't want to close.

Neil I. Patel

Right. You don't want any judge to make that connection. And they have put it right in the complaint. That said, TikTok works without its algorithm elsewhere. Right.

Alex, there is already a TikTok without this algorithm out in the world serving millions of people. Yeah. Unclear how many have opted into it. I wrote about this in command line recently. TikTok has a technical out here, thanks to the Europeans.

Alex Heath

So because of regulation, the DSA Digital Services act in Europe, it requires companies meeting a certain threshold of users to enable their users to turn off personalization, to turn off the algorithm in the app. This has actually been, according to my sources, a pretty substantial technical lift inside Bytedance that has been going on for the last year or so. They recently rolled it out, they made a public post about it, and what happens is you turn it on, and TikTok basically becomes a glorified cable channel. It's a basic have or have not weighted thing with stuff that's going viral around you. There's no personalization.

And I think if we were having this conversation four years ago, I think it'd be a little more valid to say, look, is it really feasible to sell TikTok without the algorithm? These days, these kinds of personalization algorithms that Bytedance pioneered for TikTok have become increasingly common. And there would be a lot of american companies, I think, and my sources think, that could come in and slap a new algorithm behind this thing. You've even had people, I don't want to give validity to this, but people like Steve Mnuchin coming out and saying they would buy it without the algorithm, which the Steve Mnuchin angle is hilarious on multiple fronts, considering he was in charge of CFIUs during the Trump administration. But yeah, it's not that big of a deal to separate it from the algorithm.

And China will do whatever it wants. And they may say, look, we don't want you to sell it at all. It's a national pride thing. We don't want to get in this tit for tat. We don't want the US telling us what to do.

But really, all they've said publicly is that they would block the algorithm. And I actually think that'd be okay. My question is whether this version in Europe, you can't have content without content sorting, whether it's naive or not, if it's not a personalized recommendation engine, but it's a recommendation engine, who owns that IP, a byte dance joint? Is that also subject to chinese export restrictions? I think that the export controls are going to span a lot of software and that a lot of that software is going to be hard to extricate from itself.

Sarah Zhang

And I think that there's going to be big parts of this company as assets that they will actively block from export. Yeah, I mean, my understanding is that it's the algorithm, and so there is no algorithm. When you turn this off in the EU, it's a rules based system, so it is still machine learning, but it's not personalized. So that's what the algorithm does. The people who build it are tasked with building the most personalized recommendation system ever for each person.

Alex Heath

That's the key thing that led TikTok to be as big as it is, and it's what China is trying to block. And what you would buy here in the United States is a huge user base, which is very, very hard to get. Right? Yeah, you'd buy a front end app with a big user base, and thanks to what they've already done in Europe, again, it's almost like reverting to cable tv. What's funny about all this is that a lot of the influence stuff that we talk about with, like how could China come in and heat certain things in the feed, which is what they call it, TikTok, when they boost certain videos or types of content?

That actually doesn't happen at the algorithm layer, because the algorithm is purely math about making personalized recommendations. That happens at the content moderation layer. That's totally separate from the algorithm. So blocking the algorithm doesn't actually do anything about the CCP telling a certain team to heat certain videos. There's just not a lot of evidence for that either.

Way. There's a lot of people who believe it might be happening. There's a lot of people who deeply ideologically want to believe that this algorithm is totally neutral. We'll come to that because it is important in how the rest of this complaint is formatted. But I just want to stay here for 1 second.

Neil I. Patel

The whole complaint rests on the idea that this bill is a ban and its arguments. These are the three arguments, right? Commercial, technological, legal. We've gone through them. You add them up.

Is this definitely a ban? Is it definitely impossible to sell tick tock? Because if. If it's possible to sell tick tock and operate, then I feel like the rest of the complaint almost falls apart because there's no consideration of what happens if you make us sell it. There's a lot of talk about what happens if you ban it.

In fact, it explicitly says, this act bans TikTok several times throughout the complaint. Sarah, what do you think? Is it definitely a ban? Does that argument seem like it can withstand the scrutiny or not? I'm not sure.

Sarah Zhang

The law weirdly names TikTok, right? Like, that is one of the weirdest things I've seen in a law. It's not just saying wink, wink, nod, nod apps of this many users that are also majority owned by a company that is owned by a foreign adversary as approved by the president. Right. Just literally says TikTok in the bill.

It does feel really targeted at restricting TikTok and restricting speech on TikTok. I'm not sure that all of this hinges on whether or not it's a sale or a ban. There is quite a lot around this case that strongly suggests this is a law that is about speech. But, yeah, a judge could also just interpret it as, like, what are you talking about? This is a forced sale.

This has nothing to do with a ban. And in fact, strict scrutiny isn't even applicable here. That first part do we have to get to, this is definitely a ban, you're saying? Maybe not. And I think that's important to establish.

Neil I. Patel

Alex, what do you think? I just am confused. Why is this complaint not fully focused on the first Amendment issues and on pretty substantial public statements that members of Congress made? Being clear that though this bill has a veneer of not being focused on TikTok, it absolutely is. And it absolutely, as Neil, I was saying, is about speech issues.

Alex Heath

I mean, you have members of Congress saying, we hate the amount of, like, pro gaza content on TikTok. Right. So why does the complaint not lead with that? Why are they doing all these, like, it's in there. It is.

But these either ors that we've been going through of the, it's not commercially possible. It's not legally possible. It's like, no, you actually already contradicted yourself on all of these points because you almost did this a couple of years ago. So why are they contorting themselves over that instead of focusing on what seems like the heart of the case they have, which is that they're being unduly targeted over speech issues? That seems like more of a win for them.

Sarah Zhang

I think actually just an adequate number of pages has been allotted to each little branch of their argument. The speech thing, it's there, but it doesn't take very long for them to unpack the speech thing, whereas it takes quite a long time for them to unpack why they're saying it's a ban and not a sale. I think that they've trimmed it down to as few words as possible, but in the end, it's just a much more complicated idea. This is a great entry point into the actual legal arguments of the complaint. There are four of them.

Neil I. Patel

Violation of the First Amendment bill of attainder, which means you have actually targeted us with the law, which the government's not allowed to do. Violation of equal protection and unconstitutional taking. Those are all constitutional law arguments. But to me, just broadly, the heart of the case is, as you're saying, Alex, the First Amendment claim. The others are kind of along for the ride, right?

If the courts don't find the big First Amendment violation, it seems to me at least very unlikely, likely that they're going to find some technical, unconstitutional taking argument and give TikTok a win on the rest. Sarah, does that read is out of bounds to you? Because I read this and I was like, yeah, you need a bunch of stuff. You need a big constitutional argument. But the heart of this is the First Amendment claim.

Sarah Zhang

Yeah, I don't think there are other claims matter. There are different standards that courts use to evaluate First Amendment claims. There's intermediate scrutiny, there's strict scrutiny. They all have different ways of thinking about government speech regulations. TikTok says this should fall under what's called strict scrutiny.

Neil I. Patel

I tend to agree with that. Sarah, it sounds like you tend to agree with that. Really quickly. Explain to people what strict scrutiny is. So strict scrutiny is the highest level of scrutiny that you apply to a law when you're judging whether or not it's constitutional.

Sarah Zhang

And it is that the government must have a compelling interest in creating this law, and the law must be narrowly tailored to address that compelling interest. So a quick list of compelling government interests, like preventing sex discrimination, national security, it has to be kind of a big deal. The law can't be too broad. If it's too broad, then it's no longer a compelling state interest because you're just covering way too much stuff. It's also not narrowly tailored, so you're just failing strict scrutiny overall.

The idea is that when something hits a right that's as important as the First Amendment. The law had better be very good at what it does. So there have been attempts to regulate speech in the telecom context at different points in history. You mentioned Reno v. ACLU, which was the communications decency act in the nineties, which was basically, don't have porn on the Internet.

Neil I. Patel

That got struck down under strict scrutiny. Very quickly explain that one, because I think the idea that we don't just regulate speech on the Internet is, I think people take it for granted. But we actually went through a Supreme Court case in the nineties that made that true under strict scrutiny. Renovate ACLU comes out of a nineties Internet porn panic. And Congress passed the Communications Decency act, which included a bunch of restrictions on what we would call platforms.

Sarah Zhang

These days, the Internet was much more decentralized. That created age restrictions. Certain affirmative obligations was considered just to be a law that was a little too much. There was a compelling government interest in protecting minors, but it was not narrowly tailored enough, and it was just a little too broad. Alex, I want to come back to something else you mentioned, which is all of the stuff members of Congress have said about this bill, right?

Neil I. Patel

They have said, boy, there's a lot of pro palestinian content on this app. Now that there's a war in Gaza that young people are furiously opposed to, that's bad. We should shut down TikTok. And they're just out there saying that our own reporters have heard that. We've dug it up.

There's more reporting out there. I don't love that. But then there's the fact that TikTok has to go in front of a six three, ultra conservative court that prides itself on textualism. And, Sarah, it feels like the jump from, hey, here's the text of the bill, which you should evaluate on its face as evidence of what Congress wanted. And now you have to leave the text of the bill to talk about what Congress said outside of the bill itself.

That's a hard road with a court like ours, isn't it? In First Amendment cases, I think that you don't really 100% stick to the text of the bill, you've got to establish compelling state interest. And that means that you've got to sometimes go outside the bill and really hash out that compelling state interest. We are looking, though, out of conservative court. And as strong as the First Amendment is, courts love national security, and conservative justices really love national security.

So briefly explain to people what textualism is in this context. So textualism is a fetishism of the dictionary. It is a judicial doctrine where the way in which you interpret a law is to not look at the congressional record. You don't look at news reports around it, you don't look at context, essentially, and you look at the text of the law itself. And to find the meaning of specific words, you go to dictionaries, essentially, and you go to dictionaries that are dated to when the bill was written.

Sarah Zhang

So when you see sort of textualists, like Scalia, for instance, really go to town on wording in a law, they will go, Merriam Webster in this year said, and it's the most annoying thing humanly possible. Prior to the rise of textualism, judges would look at the congressional record a lot. And one of the things that this resulted in, actually, was this gamesmanship, where legislators would drop things into the congressional record, knowing that it might come up in court later, which was not great because they couldn't get into the bill, but they could definitely get into the congressional record. So in a way, like, I see the textualist point, but I also hate them. We have to take another quick break.

Neil I. Patel

When we're back, Alex Serra and I get into why the current makeup of the Supreme Court is so important to the future of this case.

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Neil I. Patel

We're back with Verge editors Alex Heath and Sarah Zhang. We've been walking through TikTok's suit against the United States, and now it's gotten to a complicated place, the Supreme Court. Sarah just explained textualism, which the late Justice Antonin Scalia was pretty famous for. Many of the six conservative justices who make up the court take textualism even farther. We have the children of Scalia at the Supreme Court now.

They're like four steps beyond Scalia in terms of their commitment to textualism. And the argument here is you have to go to the congressional record, like, look at all this stuff they were saying outside of the bill. Look at all the stuff they were saying outside the halls of Congress. Even the complaint says the act lacks any legislative findings or statement of purpose. So petitioners and more than 170 million american monthly users of TikTok are left to scrutinize statements from individual members of Congress and other sources to try and discern any purported justification for this extraordinary intrusion onto free speech rights.

Yeah, I believe them. That's true. That's what we have had to do. It feels like our supreme Court, there's a real chance the children of Scalia are going to say, yeah, but we have a bill. The bill says what it says, and that's fine.

Is that tension going to get resolved here? Do you think they'll convince the sort of textualists to go into the government record? Yeah, I think that they're going to show compelling government interest in making this law, and I think that the thing that they're going to lean on is national security. And in order to lean on national security, they're going to have to introduce stuff from outside of the bill. There are no findings in there that establish that there is a national security interest in this bill.

Sarah Zhang

So I think they're going to have to go outside the bill and you're outside the text. To me, this is going to be one of the weirdest parts of this entire lawsuit is that tension, because that Supreme Court does not want to do this, and I think they're going to have to. So that's the first argument, right? You targeted us specifically. That's weird.

Neil I. Patel

You've barely even explained your compelling government interest, which strict scrutiny requires. Then there's this sort of core First Amendment claim that I think most people would intuit. Hey, you were stepping on a bunch of people's first amendment rights here. They were speaking on this platform. And if this is a ban, as we believe, you're going to shut them all down.

Does that make sense here, Sarah? That tick tock can step in for the rights of its 170 million users because you have to accept that I. Don'T have a good answer for you on that one. First amendment cases are weird withstanding, and so I just don't know the answer to that off the top of my head. The other argument here for just like, the core first amendment argument to me makes more sense, it's that the government is restricting TikTok's own speech.

The complaint tries to do a little apple pie move. It's like TikTok loves to support small businesses. That's our own speech. We love motherhood. We, like, do mother's day on TikTok.

That's our own speech. You're restricting our own speech. That makes sense to me. Right. Congress is shutting down a platform on which TikTok itself speaks.

But it's a little circular. Right? It's not a legal restriction on speech. It's a restriction on a speaker. But we are the speaker that owns the platform.

Is that powerful enough? It feels like a judge is going to be like, yeah, the government is restricting your speech because you are a foreign adversary power. And that's fine. Again, it's so hard to tell which direction the court is going to go here because you're talking about two extremely powerful interests. Like, we've got free speech and we've got national security, and they're just going to duke it out.

Sarah Zhang

And I don't think we've ever seen a case that where it's like quite like this. The last one I want to talk about, and then I want to actually spend some time on what happens next. TikTok points out that there's no evidence of bad things. Right. That you can't have a compelling government interest in restricting bad things without evidence.

Neil I. Patel

Of bad things. The quote from the complaint is, Congress itself has offered nothing to suggest that the TikTok platform poses the types of risks to data security or the spread of foreign propaganda that can conceivably justify the actual. And then it goes on to say, speculative risk of harm is simply not enough when First Amendment values are at stake. These risks are even more speculative given the other ways the chinese government could advance those asserted interests using a variety of intelligence tools and commercial methods. I don't know why they put that sentence in there.

To be like, the chinese government could disrupt this next election already using their existing espionage tools and their existing ability to buy Facebook ads or like, whatever you're going to do to do for election interference. You haven't even shown they're doing it on TikTok. You can't pass this bill. Again, I would not have put the part about the chinese government being able to do it anyway in there. But the argument is you can't regulate us in this way when you haven't proven that we're doing the bad thing.

I see both sides of this argument, right? One is, yeah, the government should have definitely laid out its evidence, which it did not do. And on the other hand, it's, well, it's national security. They probably don't want to say a bunch of stuff. Also, if you believe the bad thing could happen, should you not take steps to avoid it, should you allow the bad thing to happen first so you can say, look at the bad thing, and then you'll have the political capital to stop it?

How does this one work, Sarah? Do you have to have the bad thing happen before you can regulate it? You don't have to have the bad thing happen before you can regulate it. But I think that TikTok suspects, and certainly reporters suspect, that the government doesn't have very good evidence of the bad thing. We've got those closed hearings, and I think that if those closed hearings were published, I'm not sure they would be all that persuasive.

Sarah Zhang

And they don't have to make that part public. Like a court can look at that evidence without having to air it out to the entire world. Right. It is just true. And I think it is a mistake on the part of our legislators to have never laid out this evidence.

Neil I. Patel

Like, we just don't know. I don't think there is any. I really don't. I mean, if there was evidence, why would they not lay it out? It's because they don't have it.

Fundamentally, if we can get to the actual issues before we litigate a bunch of procedural things and technical foundations of standing. Like, we can get up past that. We can get to the actual substantive issue, which is, can you demonstrate the compelling national security interest and that this bill is narrowly tailored to stop it by saying, you have to sell this company or go away? That will be the heart of it. And I think, Sarah, what you're saying is the court might take all of that in secret.

It might look at that, all that privately and say, here's our decision. It's under seal because of national security, and we might never actually know the answer. Yeah, that is entirely possible. We might also just get a blurb. And then there's like, by the way, there's all this other stuff that we've submitted to the court that's going to be under seal, and then we just get a real broad overview.

Sarah Zhang

I think that eventually we will find out what was in those close hearings, and I think it's going to be underwhelming. We're all going to be like, really? That's it? TikTok is bringing this stuff up because they have a strong suspicion or they even know that those closed hearings weigh in their favor. Really?

Neil I. Patel

All right, let's talk about what happens next. So I think all of us agree this is tick tock's only shop. They either win this lawsuit or they got to do something. And it sounds from all the noises they're making now, like, they will actually walk away. They will shut down TikTok and leave the United States.

Alex, do you think that's a bluff? Do you think that they are working on a last minute deal? They're at least investigating a possibility of this stuff. There's just too much money at stake here for this to be the outcome that they just leave. I think they would probably like to do that.

Alex Heath

But something I've heard about the US specifically for TikTok. They did this in India, right? They left India, and TikTok was fine. The US is most of their inventory, so most of the content that gets made for the service. So they're really cutting the product off, like, at the root.

If they fully leave the US. And beyond the cultural, geopolitical implications, I think what will most likely happen is some version of what almost happened during the Trump administration, which is some kind of tick tock global spinoff, IPO, new cap table. And if they can still let ByteDance have some involvements that should not fully appease everyone, but appease the key players enough, the very, very wealthy american investors in Bytedance who have a lot of political capital in DC, are not going to let their billions of dollars just go up in flames. So the money always talks. Geopolitical posturing aside, there's a lot of money here.

Neil I. Patel

Sarah, what's the timeline here? A year? Five years? What kind of timeline are we looking at for a resolution? For resolution, it's going to be after the election.

Sarah Zhang

So once Biden signs, the clock started ticking, I imagine at some point a court might be like, we're going to freeze the clock. Either way is like nine months, plus an additional three months if a sale is satisfactorily underway. Stuff might happen after the election, question mark. Although I don't know why that would be the case, given that the alternate presidential candidate is the one who started all of this. Speaker one.

Neil I. Patel

Well, Trump is notably flip flop. Right? Which is really interesting. Yeah, whatever. But he's notably flip flopped.

You have to imagine byteances staring at this election right now and being like, we hope the guy who flip flopped and wants us to stay is gonna. Win, but what's he gonna do? It's a congressional bill, gets passed both chambers, and it's signed into law. It's a law now. You're gonna really rush another bill through both chambers and then sign it to repeal the previous bill?

Sarah Zhang

I think that they're hoping that something changes in the interim, but it does seem very much a long shot. There's basically nothing happens with the outcome of this case in the legal system. Nothing happens on the sale timeline. We're into next year before there's any movement with TikTok United States. I think that's probably the case, yeah.

Neil I. Patel

Alex, do you think that they will make any moves towards a TikTok global kind of plan in that timeline, or you think they're just going to do it in the background while they wait to see what happens with the election? You have to have a parallel track. I mean, I know that Chochu, the TikTok CEO, has been privately saying in the last couple of weeks, we are absolutely not going to sell. But you have to say that this is like leverage 101. You never want to be the one that's making it clear that you have no options.

Alex Heath

So they will feign indifference, ambivalence, until they can't. And if this deadline is quickly approaching, they're not making any headway on the legal case. They will have to do something. So this, to me, is the only other option. Betting it all in a case that is constructed this way feels risky to me, and I really think like, the new electric g wagon is out.

Neil I. Patel

You know, it costs a lot of money. You can't light all that capital on fire if you're trying to get a g wagon. That's literally how I think the money talks in this case is. Like, all of these people would rather have the cash than an idealistic victory over the chinese or the american governments about who can buy and sell what. But we'll see.

Sarah Zhang

Yeah, but it's China going to let them sell. That, to me, is really what it boils down to. China would literally light their cash on fire rather than, like, let the United States get one up on them. Bytedance, of course, doesn't want to light its cash on fire, but I think the chinese government is totally okay with lighting other people's cash on fire.

Neil I. Patel

Thanks again to Alex and Sarah for joining me on the show. These TikTok cases are going to be quite the saga, and like I said, we're going to spend quite a bit of time over the next year tracking the developments in these cases. If you have thoughts about these episodes or what you'd like to hear more of, you can email us@decoderge.com. Dot. We really do read all the emails.

You can also hit me up directly on threads. I'm 1280 and we have a TikTok for as long as there's a TikTok. Check it out. It's ecoderpod. It's a lot of fun.

If you like Decoder, please share it with your friends. Subscribe wherever you get your podcasts. And if you really love the show, hit us with that five star review a bunch of you just did, and we absolutely appreciate them. Decoder is a production of the Verge and part of the box from the podcast network. Today's episode was produced by Kate Cox and Nick Statt.

It was edited by Cali Wright. Our supervising producer is Liam James, and the decoder music is for breakmaster Sony. We'll see you next time.

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TikTok's big bet to fight the ban bill

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1. Introduction: The TikTok Ban Bill

2. Legal and Commercial Implications

3. Technological Challenges

4. Historical Context and Precedents

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