Advisory Opinions - TikTok Decision Emergency Pod

Episode Date: January 17, 2025

David French and Sarah Isgur come at you on this Friday evening to enumerate the absurdities of the TikTok ban-or-sale discourse following the Supreme Court’s decision to uphold the law, a plangent (and perhaps futile) homage to Congress actually doing its job. Plus: Biden “ratifies” the Equal Rights Amendment and Sarah loses it. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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With flexible coverage options from TV Insurance, you only pay for what you need. TD, ready for you. Ready? I was born ready. Welcome to an emergency episode of Advisory Opinions. I'm Sarah Isgur. That's David French. And we have the TikTok case and it's unanimous. And we'll break all of that down for you. And just to let you know, then there will be a rant on the equal rights amendment at the end of this podcast, the rarely reserved emergency podcast

with two emergencies to discuss. But first, David, TikTok. It's what we've all been waiting for. All right, the TikTok decision has been issued by the Supreme Court, and I will read my truncated version to you, David. As applied to the petitioners, the challenged provisions are facially content neutral and are justified by a content neutral rationale. As applied to the petitioners, the challenged provisions are facially content neutral and are

justified by a content neutral rationale. As applied to the petitioners, the act satisfies intermediate scrutiny. The challenged provisions further an important government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest. There is no doubt that for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community. But Congress has determined that divestiture is necessary

to address its well-supported national security concerns regarding TikTok's data collection practices and relationship with a foreign adversary. For the foregoing reasons, we conclude that the challenge provisions do not violate petitioners first amendment rights. Boom. Thus endeth the tick tock litigation. Now we'll walk through exactly what they were deciding, what they decided, and two concurrences, one by Justice Sotomayor and one by Justice Gorsuch. But David, right off the bat, this was a per curiam opinion.

I'll tell you, like, we don't know who writes per curiam opinions, but this one was written by the Chief Justice. That was my sense as well. Yeah, absolutely my sense as well. Yeah, absolutely my sense as well. There's two pieces which make sure you know it was written by the Chief Justice. The one that was most delighting to me was this little piece. He says, in deciding this,

"'We are conscious that the cases before us "'involve new technologies "'with transformative capabilities. "'This challenging new context "'councils caution on our part. As Justice Frankfurter advised 80 years ago in considering the application of established legal rules to the totally new problems raised by the airplane

and radio, we should take care not to quote, embarrass the future. That is the most Chief Justice Roberts line in several ways. One, citing Justice Frankfurter, the sort of first of the judicial minimalists, and also just him making almost like a dad joke about embarrassing the future. I was like, oh, this was definitely written by the chief. But the real clue perhaps comes later in the opinion as he cites his own question from the oral argument,

which we'll get to in a bit. David, reactions. Yeah, you know, I thought it had the hallmarks of the chief. I thought it was a very clean and straightforward opinion. I feel like it really, it was written in a way that highlighted how much of an uphill battle TikTok had from the beginning here. Because whenever you have an opinion that goes something like this, we're not even sure

that the right you're asserting exists for you. But we're going to assume it does and tell you you lose. Like you were in a bad spot, man. You were in a bad spot to begin with when that's the situation. And that's exactly how this case went. It said it began with this exactly what you said Sarah that first bucket we talked about where is is this even a First Amendment issue they were not gonna leave that alone and the clear feeling I got from reading that

introductory element was they don't think it's a First Amendment issue. They really don't but to avoid having a- Which is why you're gonna have that concurrence from Sotomayor. She wants to be clear. She does believe it's a First Amendment issue. It's a very, very short concurrence, just a couple sentences, but like,

oh, you guys aren't sure I am? And nobody joined her. So potentially seven, eight members of the court were happy to leave it at like, maybe it is, maybe it isn't, probably isn't. Yeah, I think it might be the exact reverse of what I thought. So what I thought was you would have a majority

who would think is a free speech issue and you might have a concurrent saying, it's really not. But I think what you had here was actually majority saying, it's not really a free speech issue, but we're gonna do the most generous thing to TikTok imaginable and evaluate as a free speech issue. And also that keeps this unanimous because if you had ruled on it as not a free speech issue,

you would, I mean, you might've had a dissent or you might've had a different kind of concurrence. I think that's right. So they assume without deciding that it's a First Amendment issue of some kind, then they say, fine, that gets heightened scrutiny instead of rational basis review if it implicates the First Amendment. So now they're going to decide whether it gets strict scrutiny or intermediate scrutiny. And they are again, because they didn't even decide it was a First Amendment issue, they're

not actually deciding that intermediate scrutiny applies. But if it's a First Amendment issue, then intermediate scrutiny would apply because they say this is a content neutral law. If it's content based, it would go into heightened scrutiny, content neutral, intermediate scrutiny. And that's really gonna only apply to the data collection side of this. In fact, the whole opinion is really on data collection. There's about three paragraphs towards the end,

which deals with the, hey, the algorithm is like effing with our body politic. And they basically say, yeah, maybe that's not content neutral. Maybe that would trigger heightened scrutiny. We don't know what to do with a mixed law that would trigger both, but because we believe it would have been passed

with the data collection reason only, it doesn't matter if there was another reason. Then there's plenty of evidence in the record that all those members of Congress would have voted for it with only the data collection rationale. So intermediate scrutiny, and then it passes. And that's sort of the ball game of the opinion in a lot of ways.

Yeah, it really is. Like I said, I mean, this is, we're having an emergency pod because this is a really important outcome. It is a very conventional and straightforward opinion. And I feel like you would have had a much more interesting podcast had it come out the other way interesting podcast had it come out the other way.

Because had it come out the other way, you would have been breaking some real, in my view, you would have been breaking some new ground here. And that would have been, I think, a mistake. But from podcasting standpoint, far more fascinating than, yep, content neutral regulation, intermediate scrutiny, national security, justification boom, done over. And by the way, you're welcome for that analysis. You didn't even deserve that. Okay. Let's break down some other little side jaunts from the opinion. So the way the per

curiam opinion even describes the relationship between bite dance and the Chinese government, David, I thought like, as you're reading this, they did sort of bury the lead at the end. You're not quite sure where this is all going to come out. But this very early description might have given us some indication as one is scanning it. ByteDance is subject to Chinese laws that require it to assist or cooperate with the Chinese government's intelligence work and to ensure that the Chinese government has the power to access and control private data the company holds. So a few times throughout the opinion, you're going to see this deference to congressional findings about whether that is a national security risk.

And all nine justices are going to agree that that is a compelling interest because of that Chinese law. So no matter what by dance agrees to, they're still subject to Chinese law. So no matter what by dance agrees to, they're still subject to Chinese law and no water, no matter what tick tock says, for instance, that they're not turning over any data to bite dance. Well, there's back doors. There's things that bite dance could put into the source code for tick tock that tick tock wouldn't even know about potentially you see a lot of hesitant hesitance about them predicting the future. Like, well, this hasn't happened yet. We don't know whether it will happen.

We don't know whether the Chinese government would actually use this to blackmail Americans. But Congress is in charge of that. And Congress says that is a real concern of theirs. They get to predict the future. So it doesn't really matter whether we think that is likely. What matters is that we think it's rational. Right, and you know, in their discussion of the,

I thought it was very interesting, Sarah, because I was very interested going in there. A couple of things I was looking at, I felt pretty confident that TikTok was gonna lose the case, but I was very interested, would there be dissents? Who would be the dissenters? No dissenters, just concurrences. Also, I was gonna be very interested as to how they describe the relationship because an early

indicator that they might be more favorable to TikTok would be that they would play up doubts about Chinese control and that they would raise questions about Chinese control. No, no, no, no, no. They just sort of blew through all of that like with an are you kidding me? Are you really kidding me? We know the Chinese Communist Party and the Chinese government control their corporations. Don't don't try to blow smoke at me. I know what's going on here. And that was that just came through loud and clear here that they all of those defenses like, no, it's not really. They just blew through that. There was also, you know, they walked through the history about Trump's

initial executive order that is enjoined and then Trump working on an EO. Then Biden comes in. Biden takes over that work on that EO, says throughout 2021 and 2022, ByteDance negotiated with executive branch officials to develop a national security agreement that would resolve these concerns. Executive branch officials ultimately determined however, that ByteDance Limited's proposed agreement

did not adequately mitigate the risk posed to US national security interests. Negotiation stalled and the parties never finalized an agreement. Against this backdrop, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act. So David, you know I just love that part because it's the reverse of what we see in every other context.

Like, it's the very reverse of the bump stocks ban, right? In that situation, Congress is negotiating between the two parties and stalls. So the president steps in and changes the criminal laws to criminalize bump stocks. Here you have the executive branch stalling and Congress acting because the executive branch cannot come up with a way to protect national security. Right. From bite dance. It's like, oh, my gosh, this is how it's supposed to work. Exactly. I think one of the most persuasive things you said going into this It's like, oh my gosh, this is how it's supposed to work. Ah.

Exactly. I think one of the most persuasive things you said going into this about how the court would come out was when you said, if the court has been saying Congress do your job for like several years and then Congress says, oh, here's an actual problem that we see in discern, that in the absence of a very clear constitutional violation, the court was going to be defaulting towards deferring to Congress because after all, could you imagine

if it had reversed this on a very novel first amendment theory and Congress is like, what do you want from us, man? You told us to do it and then we did it and then you like concoct new con law doctrine to strike it down, which is, you know, I think what they would have had to do. You put this in the larger moment of this Supreme Court, the Roberts Court. This is a very congressionally deferential court in the way that you could go back to the immediate post FDR era, sort of that Frankfurter time period even.

And it was a very executive branch deferential court. So it's just it's an interesting note in these huge, like, you know, tectonic plate type trends in the court. All right. Next up, I wanted to read you this sentence. Now, this is what I was talking about, how you know that the chief justice wrote the per curiam. And for those listening, like, could he have just added this sentence in? Sure. But come on,

if you know the Chief Justice is writing this whole thing, reeks of Chief Justice-ness, chiefiness, if you will. And this sentence in particular, petitioners for their part have not identified any case in which this court has treated a regulation of corporate control as a direct regulation of expressive activity or semi expressive conduct. So David, this comes up at oral argument. The chief is talking to no Francisco representing Tik TOK and ask that as a question. Say, can you tell me a case? No answers. I don't have one at my fingertips. And the chief justice says,

I don't have one at any part of my body. Yeah. The chief has this very biting sense of humor that doesn't always come out. I think he tries to hide it as chief justice, but that was a nice little chief justice moment there. But David, I got to tell you, we're two pretty free speech absolutist people. Although my goodness,

between TikTok and the porn case, you would think we're not. It's like they found all these cases for us not to be free speech absolutist about, but that sentence is a little bit concerning because I know what he means. He's like, look, some antitrust case happens to be against, let's say the New York Times. We don't then like insert the first amendment into that to prevent or, you know, force any, you know, thing because all of a sudden it's a first amendment case when it's really an antitrust case. That's his point. But the way he wrote that is a little bit odd. He said, where this court has treated a regulation of corporate control as a direct regulation of expressive activity

or semi-expressive conduct. What about Citizens United? The whole thing there was if you're an individual, you can do the political speech. But if you are in a corporate form, if you have incorporated yourself, whether as an individual or presumably with someone else, then you can't do that speech.

And what the court said was like, absolutely, that implicates the First Amendment. And in fact, we find that it violates the First Amendment. Isn't that kind of the same thing? Yeah, I was intrigued by that. I didn't feel like it was the most precisely worded sentence, to be honest. And it was only written in a week. So I kind of get it. But yeah, yeah, exactly.

Like, I feel like that was that was a sentence he might want to do over on if he thinks about it for a week or two. But at the same time, I'm very interested in what you just said about like we're free speech absolutists, but Texas and I think we I think it's accurate to say that we have been we are in agreement with the free speech doctrines that have developed the modern free speech doctrine, which is different from free speech absolutist in the sense that modern free speech doctrine has never said, for example, that kids have a right to access porn,

or that has never said that foreign hostile foreign entities have ability to have rights to engage in the American marketplace of ideas. So when I think free speech absolutist, and when I say that, I sort of think I'm standing by our free speech jurisprudence. What I don't mean is anything goes. Okay. But don't you feel that that sentence from the Chief Joe from the per curiam opinion

reads out of its context a little bit like a Smith neutrality principle, if you will. It does. Now remember for listeners, this was a case about a law that criminalized smoking peyote and then this postal worker I believe loses his job even though he was smoking it for a religious reason and he sues saying this violates the First Amendment

and his free exercise of religion. And in the Smith decision, what they say is, a facially neutral law generally applied will not implicate free exercise concerns. That sentence to me concerns me, David, because it reads a lot like a facially neutral corporate structure law, you know, neutrally applied,

won't implicate the first amendment. And I just don't think that I will like where that goes. And again, I don't think it's what the Chief Justice necessarily meant. I will though say, when you talk to clerks and say like, hey, do you guys go line by line and kind of take them out of context to see how someone could like use this line in some other contexts?

They're like, absolutely not. The justices don't think that way at all. They're sort of in the flow, they're writing. They don't think of how individual lines will be used down the road very often. And I would, I actually really understood what the chief was trying to get at in the oral argument. But I kind of wish it hadn't made the opinion. With you, I read that literally, I think I read that sentence three times. And then I

moved on with this conclusion, Sarah. I don't think that means what he thinks it means. Or I don't think you said exactly what he means. You know, one of those two, that this has a meaning in his mind that the words do not communicate is kind of the way I thought about it. Because as you were saying, yeah, this opinion did not justify

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They've earned 4.8 out of five stars on TrustPilot with over 2100 reviews. Give your family peace of mind today for whatever the new year may bring. Get your free quote at ethos.com slash a O that's E-T-H-O-S dot com slash ao. All right. Next up was right when we talked about them not deciding. So let me read this portion. The court has not articulated a clear framework for determining whether a regulation of non-expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review.

We need not do so here. We assume without deciding that the challenge provisions fall within this category and are subject to First Amendment scrutiny. So David, this is absolutely your point about, they're going to assume it implicates the First Amendment without deciding what in fact it seems like many of them would have said it just doesn't implicate the first amendment at all. Now, let me break down, because that was a little legally here,

a regulation of a non-expressive activity. So right, that like TikTok must divest from bite dance and can't use their algorithm disproportionately burdens those engaged in expressive activity, namely TikTok and the users of TikTok, right? Because as it came up over and over again in the oral argument, nothing about this law actually does anything to TikTok or its users.

It's actually only at ByteDance. And so the question is like, okay, this only actually implicates ByteDance at all, but it obviously affects, it burdens TikTok and it burdens TikTok's users. So what are we supposed to do about that? Does that implicate the first amendment? Even though by dance doesn't have first amendment rights. And this goes back to that case that I am still very the I'm going to forget the name of it, of course, but the one with the foreign

professor who's invited to speak gets his visa denied. and the people here are the United States, Sue, saying they have a right to hear what the professor says. That case has always struck me as bizarre. And that sentence that I just read is like, yeah, we're really not going to extend that anywhere. Like, just we're going to assume it. We're not going to overturn anything. But like, ByteDance doesn't have a First Amendment right. It does burden TikTok and the users.

We'll just, we'll give you the analysis that you need, but we're not going to make new media here. Yeah. This is, this is exactly, that's why I keep saying straightforward. Straight forward. No new law. Application of established principles. If we all knew what those established principles were,

you could just have been that short, but they repeated the established principles. If we all knew what those established principles were, you could just have been that short, but they repeated the established principles. And here we are. Well, and again and again, you're gonna feel like, oh, they only had a week to do this. They wanna make this as narrow as possible to prevent, like what if they didn't think through something, et cetera. And that takes us to the data collection side,

reading again. While we find the differential treatment was justified here based on who the speaker is, whereas normally who the speaker is definitely implicates content or is assumed to implicate content. Here, however, we emphasize the inherent narrowness of our holding. Data collection and analysis is a common practice in this digital age, but TikTok's scale and susceptibility to foreign adversary control,

together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the government's national security concerns. A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations. Where is my Jackson tattoo when I need it?

Different facts and allegations. Where is my Jackson tattoo when I need it? Different facts and allegations. And also, I mean, I think Sarah, AO listeners know, they listened to our emergency podcast. They heard your hypo about BBC and they said, right, we're going to answer Sarah's hypo about BBC. Different nations with different media outlets have different analyses. Then about the algorithm, even assuming that the rationale of the divestment requirement turns on content because of this like, well, on the one hand, it was data collection and

it was also this idea that they were secretly manipulating what Americans would see for the purpose of sowing chaos or undermining American democracy. Petitioners argument fails under the counterfactual analysis they propose. The record before us adequately supports the conclusion that Congress would have passed the challenge provisions based on the data collection justification alone. Just another weird moment to flag here, because generally conservatives hate looking at legislative purpose, like what different legislators thought,

get into their heads, what would they have done if, and this is absolutely doing that, right? If you took out the algorithm part of this and the manipulation about what happens when you look up Uyghurs or Tiananmen Square. Would Congress have passed this? And my analysis is in the sense that like they would have passed a law that only talked about data collection. But I got to say, I absolutely think that the algorithmic manipulation was the reason that TikTok got the attention in the first place.

And I don't know that the data collection alone would have been enough for Congress to actually act minus the algorithmic manipulation, which I think made it more relevant and front of mind for a lot of these members. Yeah, I'm, I'm with you. I feel like, look, the thing that we're going to have to whisper right now is that a lot of these members. Yeah, I'm with you. I feel like, look, the thing that we're going to have to whisper right now is that a lot of members of Congress actually voted because they think TikTok is trash. And then they had also concerns with content manipulation and also concerns with data collection. But I think one of the reasons why some First Amendment folks, including our friends and

allies were really exercised about this was they could see the reality that some of these members of Congress actually were also motivated by, they just hate TikTok, like, you kids get off my lawn kind of motivation. So I think it's just wrong to deny that that was part of the motivation here. It absolutely was. It's just that the actual state interests underlying this were strong enough

and the actual regulation was tied so tightly to ByteDance and not to the creators, the American content creators. This was actually a pretty well drafted law, Sarah. Gotta give the drafters credit. They did a pretty good job here. That's a good point. And we don't say that enough because we're very quick to point out when a law was not well drafted and then we never point out when they are well drafted because by definition, if they're well drafted, you don't end up talking about their drafting problems. So I'm glad that you pointed that out. This law was well drafted. You could

easily imagine a law with the same kind of content neutral interest behind it drafted in such a way that it implicates content clearly enough to even though it had a content neutral motivation, it ultimately ended up being content discriminatory. And no, that yes, again, well drafted. Well done, whoever did it. All right, let's move to the concurrences. First up, we have Justice Sotomayor. She really is just there.

I'll read this piece. I see no reason to assume without deciding that the act implicates the First Amendment because our president leaves no doubt that it does. Now, so she's gonna say clearly this implicates the First Amendment, but she does not say whether she thinks it would be intermediate scrutiny or strict scrutiny, i.e. she doesn't disagree with

the intermediate scrutiny part at all. In fact, she joins that part. So she just wishes they had not done the we review without deciding it and assume. And it just said like, no, no, no, it implicates the First Amendment and it gets intermediate scrutiny and therefore it passes. She says, no, it does implicate the First Amendment. And then presumably she agrees it gets intermediate scrutiny. And she says, as to the remainder of the per curum opinion, I agree that the act survives petitioners First Amendment challenge. So it's a very, very small difference of opinion.

Just she would say, I decide rather than I assume without deciding. I thought that was very, very interesting as well. I wanted to plant the flag, maybe for future cases, maybe one involving red note. Even more Chinese. All right, David, last up, we have the great concurrer himself. Justice Gorsuch has the most number of concurrences of any current Supreme Court justice. And here he is with a concurrence. I'm just gonna walk through his points because he basically says,

I didn't have time to write a full Gorsuch concurrence. So here are my thoughts. First, the court rightly refrains from endorsing the government's asserted interest in preventing the covert manipulation of content as a justification for the law before us. One man's covert content manipulation is another's editorial discretion. Second, I am pleased that the court declines to consider the classified evidence the government

has submitted to us, but shielded from petitioners and their counsel, something that came up quite a bit at oral argument. Third, I harbor serious reservations about whether the law before us is content neutral and thus escapes strict scrutiny. More than that, while I do not doubt that the various tiers of scrutiny discussed in our case law, rational basis, strict scrutiny, something in between, can help focus our analysis, I worry that litigation over them can sometimes take on a life of its own and do more to obscure than to clarify the ultimate constitutional questions.

Fourth, whatever the appropriate tier of scrutiny, I am persuaded that the law before us seeks to serve a compelling interest, preventing a foreign country designated by Congress and the president as an adversary of our nation from harvesting vast troves of personal information about tens of millions of Americans. Finally, the law before us also appears appropriately tailored to the problem it seeks to address.

But the question we face today is not the law's wisdom, only its constitutionality. Given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments and record before us. All I can say is that at this time and under these constraints, the problem appears real

and the response to it not unconstitutional. As persuaded as I am of the wisdom of Justice Brandeis and Whitney and Justice Holmes and Abrams, their cases are not ours. Speaking with and in favor of a foreign adversary is one thing, allowing a foreign adversary to spy on Americans is another. David, we've talked about which justice we are

at any given moment and in any given opinion. Let me tell you, the part that really just like you could shoot straight into my veins, is that I think sometimes in the First Amendment context, the judges and justices get so focused on what tier of scrutiny it is. We spend so much time on fighting over whether it's intermediate scrutiny or strict scrutiny.

You lose the actual conversation of whether this should be lawful or unlawful, whether it is constitutional or unconstitutional. And I know you've said like, text history and tradition isn't very helpful because you just end up in a sort of quasi back to tears of scrutiny land anyway. I take your point, but man, I'm getting really sick of the tears of scrutiny in First Amendment land. Well, yeah, I mean, especially when you're talking about the last couple of cases between

these these last couple of cases really have put the tears of scrutiny argument front and center. I hear you. I hear you. It's just I don't see a way out of it. Really. I I as a practical matter that tears of scrutiny analysis analysis for some cases is gonna be the ballgame. And so therefore, it creates an enormous amount of focus.

But I do hope out of the Texas case that we get, let me put it this way, I'm not opposed to upholding an irrational basis standards, Because as you said, doesn't an alternative ruling in some way overrule prior cases holding that there is no right of minors to porn? Would that have some implication there? So I don't object to upholding the Fifth Circuit straight out. But I would like to see a case where you have strict scrutiny and it passes. It passes because that will help us understand, is this a test or a bar?

Because if it's a bar, then say so. Like, why are we doing this test stuff? But if it's a test, it's gotta actually be passable, right? Isn't it in theory, if it's gonna be a real test, it doesn't have to be passable? Strict in theory, if it's going to be a real test, it doesn't have to be passable? Strict in theory, fatal in fact. Look, if there is a shocking part of this opinion, it is that after the oral argument, it seemed very clear that Justice Gorsuch was not going along with this.

And Justice Gorsuch is not a go along to get along justice. I call him the YOLO justice for a reason. And yet here he is in a concurrence of very justice corsage. He hasn't been kidnapped by aliens or body snatched or anything. And yet he's literally saying basically I'm going along to get along in this one time

with limited time because I think it should be strict scrutiny. There's all these other problems I see with this but he does say I think it should be strict scrutiny. There's all these other problems I see with this, but he does say, I think it would overcome strict scrutiny to your point, David. So I'm just gonna join this thing because it's not worth having the fight over it. Whoa, that is a shocking statement coming from Justice Gorsuch.

Yeah, that is fascinating. I will give you that. Not worth having the fight over. What is Justice Gorsuch doing here if not to have the fight? This is who he is as a justice. Look, we're all human, Sarah. Everybody has to rest. Like every, you know, even the greatest champions turn down some title defenses just because they need the space and time. So yeah, he had a rest. Okay, let's move to the next part. What happens now? So over

in Congress, you have Senators Markey, Booker, Van Hollen writing a letter to President Biden asking him to grant an extension. Here's a quote from their letter. Over the past few days, it has become clear that without action from you, TikTok will likely go dark on Sunday with serious consequences for the 170 million Americans and 7 million businesses that they rely on, that rely on TikTok. Your administration represents the last chance

to avoid a TikTok shutdown on Sunday. President Biden then came out and said that he would not enforce the law that goes into effect on Sunday. Because it's a Sunday and then Monday's a national holiday, he'll just leave it to the next administration to enforce it. We then have this truth social from President-elect Trump. I just spoke to Chairman Xi Jinping of China. The call was a very good one for both China and the USA. It is my expectation that we will solve many problems together and starting immediately.

We discussed balancing trade, fentanyl, TikTok, and many other subjects. President Xi and I will do everything possible to make the world more peaceful and safe. Then following the Supreme Court's decision, President-elect Trump had this to say, it ultimately goes up to me. So you're going to see what I'm going to do. Congress has given me the decision. So I'll be making the decision with no further details on what that decision will be. Okay.

So David, there's a lot that's really weird about this. President Biden signed this law into law. He signed it. And now he's saying he won't enforce it? What? And then President-elect Trump saying that Congress left the decision up to me? No, what? No, that's not, that's not what the law says at all. Yeah, it doesn't say that at all. And, and by the way, so here's the interesting thing. So here's the court's description of the law, because it's worth talking about what's actually happening here. So it says, as of January 19th, Biden's non-enforcement is a one-day promise.

What enforcement was he going to do in one day? But as of January 19th, the Protecting Americans from Foreign Adversaries Controlled Applications Act will make it unlawful for companies in the United States to provide services to distribute, maintain, or update the social media platform TikTok. So it imposes obligations, for example, say on Apple or on Google to not have the TikTok application in the Apple Store, to not have it in Google Play. So if I am, what does this all mean with all Biden posturing and Trump posturing? If I'm the general counsel of Apple, am I walking into Tim Cook's office and I'm saying

the Supreme Court just upheld nine zero, a law that prohibits us from having this in the app store. But Trump said he wasn't going to enforce it right away. So you're good. You're good. Just leave it up. I mean, I guess they could try that they could try that. But what are we even doing here? No general counsel in his right mind

is going to suggest that for his company. No way. No way. And a non-enforcement agreement will be meaningless. And remember under the law, Congress said that if the president is willing to make certain certifications to Congress, namely proof that a sale is underway,

that then the president can have a one-time extension, I believe, is it 180 days, David? I can't remember the exact time, but that sounds right, six months. Yeah, 180 day extension on the divestment or stop facilitating it law going into effect. But there's clearly no sale. Bydance has said they won't sell it. And David, I just have to say, there's this whole like weird game of chicken going on. So ByteDance saying they're never going to sell TikTok is meaningless because if they

were going to sell TikTok, they would still say they were never going to sell TikTok in the hopes of having some sort of change go into effect where they don't have to sell TikTok. Okay. So one, ByteDance saying that, totally meaningless, gives you no additional information. Two, Congress either doesn't understand that, these Democratic members of Congress, or they're gonna lose the game of chicken

because now they wanted this law and now we're like, oh no, but this means that we won't have TikTok anymore? What did you think you were doing? And if you thought you were playing chicken and now realize you've lost the game of chicken, which again, you maybe have, maybe haven't lost. Did you not believe that there were real national security concerns here?

Why did you vote for this? Because if the national security concerns are what you said they were, who cares whether you lose the game of chicken? Right. Like who cares if for a brief period of the news cycle, you piss off a bunch of 16 year olds. Like, I mean, this is what, what are we doing here?

But I'm with you, Sarah. It's almost as if there was like this collective gulp. We did what? Wait, the Supreme Court actually put our, is allowing our law to go into effect? Really? Oh my gosh. What on earth is happening here? And that's just nuts to

me. Like it is nuts to me. I almost kind of prefer like the naked flip flop of Trump of like, hey, my content does great on tik tok. Like, I almost prefer that to Oh, crap. We ban tik tok. I mean, this is so absurd. It's so pitiful. And it's just, you know, we have a widespread problem with just people who are not serious people in public office.

And also we have a widespread problem with people who are just not serious people who are participating in the political process as citizens. And, you know, like this defiant, oh, you don't want me to use TikTok, watch this super Chinese app that I'm going to download and go to now. Well, what do you think about that? I mean, what are you doing here?

Like, what are you doing here? This app, by the way, it's hilarious. China's actually alarmed that Americans are getting on this app and they're making sure that in China, nobody can see what Americans are saying on their own app. Yeah, I mean, I heard the app has been translated as Red Note, but can also be translated as Little Red Book,

like pretty obvious, and that you can't post any LGBTQ content or comments whatsoever. And certainly not about the Chinese government. So I understand why they're all downloading it to like, you know, give a middle finger to their parents in this case, the, you know, United States government. But like, then they're going to go do it and be like, oh, this is actually not helpful at all. And they're not going to use it. So like, don't freak out that they're all downloading some worse app.

Let's see if they actually use it or if China just does exactly what it did with TikTok, create a bite dance-esque holding company and then just have an American version. We do this all over again with little red book. But that's all to say David, bottom line, what happens on Sunday? What's your prediction?

Man, that's a good question, Sarah. My prediction is a brief outage of TikTok when it will not necessarily an outage of TikTok, because remember, the law is prohibiting American companies sort of providing the technology using their systems and means to facilitate so I don't know if that means like TikTok goes dark. I don't know if that means like TikTok goes dark. I don't know what happens specifically, but I think TikTok's out of the Apple store. It's out of the Google store.

It's at the very least sort of in a terminal phase. But I also think that there will be a push very quickly, a bipartisan push to grant them extra time. And I don't know with a very strong assist from Trump, and there's going to be pressure in the house and the Senate to give Trump a deal win early. So I think it's a 50-50 whether TikTok is salvaged ultimately by the many of the same members of Congress

who tried to kill it. That makes me so, so very angry. I'm with you. Let me just repeat this part of the opinion. Byte dance is subject to Chinese laws that require it to assist or cooperate with the Chinese government's intelligence work and to ensure that the Chinese government has the power to access and control private data the company holds, including third party. So like you have a friend who has TikTok on their phone. China

has access to your job title, your phone number, your text to your friend, even though you didn't ever download TikTok. And you never consented to any of this because that's the level of control that TikTok has through the app and what China then is able to get from that access. If our Congress backs down on this, God help us. But David, speaking of God help us type moments, it's time for my rant at the end of this emergency podcast. Our emergency podcasts are always about one subject only, but I, not today, David, not today, because. Rant away, Sarah, rant away. On the same day that President Biden said

he would not enforce the law that he himself signed into law, he also said this. It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified. The 28th Amendment is the law of the land guaranteeing all Americans equal rights and protections under the law regardless of their sex. So President Biden just announced

that as far as the executive branch of the United States is concerned, the Equal Rights Amendment is part of the Constitution. Let me read you what Ezra Klein said about this, by the way. Because if you have lost Ezra Klein, you know what I mean? We are not enforcing the TikTok ban that we signed into law, but we are unilaterally declaring the Equal Rights Amendment ratified as an odd final play for the Biden administration.

Just as a reminder on the history of the ERA, David, Congress sent out the ERA with a preamble that gave a set amount of time for 38 states to ratify it. It is not in the text of the amendment itself, that deadline, however. Then in the time allotted, only 35 states ratified it. Then Congress through a joint resolution extended the amount of time. No additional states ratified it. This went up to the Supreme Court. They found it moot, blah blah blah.

That's where things ended. And then about ten years ago, someone was like, hey, we're only three states away. Let's like push three states to do this. And they got three states to do it. Nevada, Illinois, and Virginia. So now 38 states have at one point or another ratified it, but also five states voted to unratify it during the initial time period allotted by Congress if that's relevant to you. So in order for the ERA to be a part of the constitution, one, you have to believe either

that you can never have a time limit as part of an amendment to be ratified Or that the time limit has to be in the text of the amendment itself. So putting it in a preamble somehow isn't Effective though. It's worth noting the vast majority of states that did ratify the ERA cited the time limit So they believed that it was in fact Effective. Okay. So one you have to believe that the time limit, it's unconstitutional to have a time limit for a constitutional amendment,

or at least that Congress didn't do it correctly because it's not in the text of the amendment. So then that would only be effective, by the way, if it's in the text of the amendment, after it was ratified. So it's a real chicken and egg problem if you believe it has to be in the text of the amendment. Okay, number two, so that's how you get to 38 states is if you believe that you can never

have a time limit in the amendment or that has to be in the text, but then you have to ratify it to get to anyway. Okay. And then the second problem is those five states that un ratified it. And you have to believe that a state can ever take back its ratification before an amendment has reached the 38 states necessary for ratification. You've got two big problems here, David. Many courts have looked at this, the Supreme Court back in the 80s about whether Congress could extend time, lots of district courts, appellate courts.

None of them have said that this passes any sort of muster whatsoever. And then here comes Leroy Jenkins, Joe Biden coming in and saying like, no, it's an amendment now. I mean, we talked about sort of Andrew Jackson and to some extent, potentially Donald Trump or a future president Trump or a future president so and so having a sort of separatist belief on the constitutional duties to say what's required, right? And the concerns that would exist and the interesting sort of theoretical nature of a president saying,

well, I need to decide for myself what's constitutional. But you certainly don't get to amend the constitution. And all these people who are like, yeah, but I love the ERA. Does my process point mean nothing to you people? If Joe Biden can do it for a thing you like, can amend the constitution by himself, why can't Donald Trump amend the constitution in a way maybe you don't like? Or just amend the constitution to get rid of the ERA? Like what are people even talking

about here? Oh, Sarah, I mean, what on earth is going on? You know, I feel like we've reached the point where it's like Biden is sitting in his office. He's got a two thirds empty bottle of Jack Daniels. And he's just like, what? What else can I do? I've pardoned my son. I'm running around giving like, you know, I'm running around sort of allowing the message to spread that I thought I could have beaten Donald Trump.

You know, I'm not enforcing a bill that I signed. And by the way, I'm by executive fiat. His Royal Highness President Biden is implementing the Equal Rights Amendment for two days. What is happening? What is happening? What is happening? And by the way, for Democrats listening to this podcast, some of all of this stuff, and you're sort of seeing some of the reasons why

a lot of people on the right did not see the huge character gap that many other Americans saw. And now some of that is because a lot of people on the right aren't fully up to speed on all of Trump's scandals. They're just not. But part of it is because Biden didn't exactly cover himself in glory, guys,

and it wasn't just the deceptions around age. It wasn't just that, and that was bad enough. It's, you know, you're beginning to see some of the reasons why a lot of Republicans have not, they've been down on this guy for a long time. — Trump did things that were loudly lawless. Biden has done more things, I would argue, that are quietly lawless. Trying to ignore the Supreme Court's decision on the student loan debt forgiveness program and saying that's what he was doing,

pardoning his son while saying that the court system can't be trusted with his son, with everyone else though, including his political rival, it can be trusted, pardoning all the people on federal death row except three who were politically sensitive, but pardoning all of the others, not based on their individual redemption stories, or that they're sorry in any way,

but just because it seemed like a good thing to do for the political left, not enforcing a law that he signed because it was a danger to America's national security, and now he's not gonna enforce it. So is it actually about national? I'm so confused. Is this a threat to America's national security. And now he's not going to enforce it. So is it actually about national? I'm so confused. Is this a threat to national security to you?

Cause you signed it cause it was, but now you're not going to enforce it. Okay. And then amending the constitution by yourself after every court has said that you can't. And with no explanation for why the timeline is not effective or why the five states that unratified it couldn't do that. Just no explanation, just,

I feel like this should be part of the constitution. So I'm gonna say it is. Ruth Bader Ginsburg said it wasn't part of the constitution, that you would have to start over with the ERA. She was willing to tell the left hard truths about something that she cared so deeply about. Ruth Bader Ginsburg loved the Equal Rights Amendment. So how dare you do this to her memory and her legacy also? I am apoplectic, David.

I'm with you. Can I offer one last explanation? Yes. What if this is like mad 82-year-old stuff? Mad crazy or mad angry. Mad, mad angry. I feel like what we're dealing with as a president who's really still furious that he was kind of pushed to the side, that he still has not come to grips with reality. And now he, what we're seeing is a more and and what incentive to the Biden does the Biden team have now to throw

their bodies in front of his, you know, his deficiencies. And Sarah, I'm really looking forward to the day may it come may it come when we do not have presidents where advisors feel like they have to throw their bodies in front of the person to stop some public catastrophe. I mean, just that, just that will be an upgrade. It's not an upgrade that we're going to experience over the next four years, but at some point this could be an upgrade. You know, the American people I now believe were just entirely justified

when in those polling questions, we would say, who's the greater threat to democracy, Donald Trump or Joe Biden, Just as many or more Americans saw Joe Biden as a threat to democracy as Donald Trump. And they were clearly seeing this lawlessness in Joe Biden, this very like selfish, monarchical streak that he alone gets to decide. And again, Donald Trump may do it loudly. I will grant you that. But look at Joe Biden doing it with a smile on his face as Grant and Joe, and I think doing far more violence to the rule of law in this country in his last three months in office than I could have ever imagined possible from an American president. Totally stunned, David.

The only thing I'm going to disagree with you on is totally stunned. At this point, it's hard to stun me. It's hard to stun me, but I'm with you. It's an absolute mess. Okay, so for those asking what happens to the Equal Rights Amendment, in short, absolutely nothing.

This is not a thing. He could, for instance, order that it be recognized and implemented throughout his White House. Someone would sue about that. It would go to court. That would get struck down. It's not going to get that far. I think this is literally it's like a statement from the president. It's not even an order of any kind. It's a press release, literally. So it has no effect of law whatsoever. And he obviously won't be the president at 1201 on Monday, January 20th, per our constitution. So it makes the lawlessness both ineffectual and meaningless. And somehow that makes me more rageful about it. Actually, David, it does. It's ridiculous.

If he had done this at the beginning of his presidency and tried to do the thing, that at least would have had some honor in it. This is honorless. Yeah, it's a mess. It's ridiculous. And yeah, as you're saying, it is like it is a more polite version of like Trump changing policy via tweet

where people are saying, what does this tweet mean? Can I use this tweet to like file litigation if somebody doesn't comply with the tweet? And so the thought was, no, no, no, no, you might tweet an intention, but you have to do an action within the systems and mechanisms of government. And a press release is like tweeting an intention.

It is just not, it is not a policy change, come on. All right, well, with that, we will end our emergency pod and our next, sorry, in next week's podcast, we will have our conversation about the state of legal academia with Professor Joelle Alessia from Catholic University and Judge Trevor McFadden from the DC District Court. And for our episode after that, David, I would like to talk about what exactly the American dream is,

legally speaking, how to get your name on a SCOTUS case. And we of course have the indictment of Tom Goldstein to discuss as well. We'll see what else pops up between now and then. I have a feeling with Trump's inauguration, we might have some more legal issues to discuss. We'll see. I heard none of that, because you froze. Yeah!