The Highwire with Del Bigtree - AARON SIRI ON TIKTOK BAN AND MURTHY V. MISSOURI

Episode Date: March 27, 2024

ICAN Lead Counsel, Aaron Siri, Esq., covers the good and bad of the TikTok Ban bill and it’s future as well as ICAN’s contribution to the free speech case Murthy v. Missouri, which recently had a hearing in the Supreme Court.Become a supporter of this podcast: https://www.spreaker.com/podcast/the-highwire-with-del-bigtree--3620606/support.

I want to get into some of the nitty gritty of these cases that are going to decide our future. Some of it involves our children who are hanging in the balance. You know, we've all got one now. We got the kid that's just sitting there like this all the time, or it's the cell phone, and you can't peel them away. You're like, what are they looking at? Well, as it turns out, they may be staring at something, a tool designed by China, to study their every move.

And now the government of the United States of America wants to outlaw that. Bad idea? Good idea? It looks like this in the news. Breaking news on Capitol Hill, the House just voted on the future of TikTok in the U.S. TikTok's future is hanging in the balance in America. The House of Representatives passed H.R. 7521. The bill needed two-thirds of the House to pass, and it got that easily. The yeas are 35. The nays are 65. Democrats and Republicans passing a measure to ban the Chinese-owned.

app here in the U.S. unless TikTok is sold to an American company within six months. The legislation prompted by national security concerns, including fears the Chinese government could access Americans' personal data and feed them content that would influence their views. Our intention is for TikTok to continue to operate, but not under the control of the Chinese Communist Party. This is not an attempt to ban TikTok. It's an attempt to make TikTok better. Tick-Tac-Tac-toe, a winner. a winner. Republican Georgia Congressman Earl Buddy Carter, who was one of the bill's sponsors, said in a statement, hostile foreign nations should not have control over any application that mines and stores American users' data. It's path in the Senate. It's unclear right now.

Majority leader Chuck Schumer has not decided whether the bill will go to a vote. The leaders of the Senate Intelligence Committee released a statement praising the bill and calling for Senate action. President Biden has said that if it passes, he will sign it. I mean, at the heart of this way, look at today's show, it's okay for China to own all of our farmland. It'll be okay for them to just hire, you know, illegal migrants and fire American citizens. That's not a problem. I think recently we've been talking about how it's their microchips, Chinese microchips, like all of our defense mechanisms and weapons. That's not a problem.

But what is the problem is this social media platform they have? Now, I'm on the fence about it. But I haven't, you know, I'm not sure I fully understand this. And for that reason, I've gone and called our own Aaron Siriot and he joins me now. Aaron, this is one of those that really kind of bowls down the middle for me. I'm very conflicted about it. But part of that, I think, is based on my lack of knowledge of what this case actually is. So can you sort of lay out to me what is this legislation?

What would it do? What is it aimed at achieving? Hey, Del. So this bill, and that's all it is, it's just a bill that has passed the House. There's a version that passed the House. And right now it's in the Senate. And the Senate has its own version of the bill. So what the Senate will do and what that will end up looking like, it's quite different in my view at this point in the Senate than it is in the House. What that will end up looking like, we don't know yet. What the then, of the amalgamated version that the House and the Senate agree upon, if they ever agree, looks like, we don't know. And then, of course, the president will have a chance to sign it. He says he'll sign it, but he hasn't actually seen it. Nobody's seen what would actually end up in the president's desk. Well, my experience is it doesn't seem to matter to Joe Biden, if he's seen it or not, if he says he's going to sign it. I think being able to write out his signature is a feat, you know,

unto itself, and that's what he's focused on. So let's not wait for him to be the decider in chief what is it we're discussing? So just talking about the house version, because that was passed by the house. So we do know what that says. Okay. When you look at that version, here is in a nutshell what it does, if that became the law of the land. It prohibits U.S. companies from distributing, maintaining, or updating any content that is distributed by what the the bill calls a foreign adversary controlled app.

Okay. So it has to be an application, a website that is controlled by a foreign adversary. Now is that one, does it determine like 100% control or is it just, it's a majority owner? Is any of that a part of the conversation? There is a threshold and there's a number of criteria. So here they are. And before I lay them out for you, just to be clear, it only prohibits companies from engaging with those apps.

It doesn't prohibit any individuals. It doesn't allow the AG to go after any individual in America who uses that app. So if you use TikTok after it was banned somehow, the government couldn't come after you. It only come after the hosting providers and the companies that facilitate. So would it be like, for instance, like my iPhone. Will it go after iPhone or Samsung or those that use this, have app stores where I can buy it, where it has to be upgraded, things like that. That's what it's focused on.

We're going after you for carrying this foreign. Okay, understood. All right. Yes, and it levies a pretty significant monetary penalty. So for TikTok, it would be about $5,000 per users that are impacted, $500 per users for non-tick-tacent entities, TikTok entities that are found to be considered foreign adversarial controlled apps. Now, here are the criteria, though, for a company to fall into this category. Okay.

Okay. And so they have to meet a number of criteria. And I've seen different reporting about what those are. I can lay out for you what it actually, what it says is now bill. Great. One, it has to have at least a million users per month. And the app has to be able to allow users to create profiles, to share content, and then for others to view the content. Okay.

So you could see how that already would slice, that would slice out a lot of different websites. You know, for all everybody out there who's got a website sharing information that's less than a million users, this could never apply to those companies. If they have a website with millions of users, but the users themselves can't create profiles and share content and view content wouldn't apply to those companies. So it's got to first meet that threshold. If it meets that threshold, then the test then because, is at least 20% of the company directly or indirectly controlled or owned by currently only one of four countries. China, Russia, North Korea, and Iran. Okay.

So that's it. It doesn't, the president can't, based on the current state of the law passed by Congress, say, well, I consider some other country to be foreign adversary and it owns 20%. No, the way the bill is currently written only those four countries. And it's got to be 20, direct, or indirect. And after it meets that second threshold, there's still a third threshold. Okay. And that is the president still has to then find that it poses a threat to national security, other than TikTok, by the way, because the bill makes that determination for the president effectively already.

But for any other website, other than TikTok, the president would have to find that, it violates that somehow it's a threat to national security and it has to give public notice and a report to Congress that the website actually is a threat to national security. Even then, so let's say a company meets all those criteria, the president goes, oh, yep, million users can do all these things, yep, 20% at least controlled or owned by at least one of those four countries, and I find it's a threat to national security. then the company is then given an opportunity, a period of time, by which to divest that foreign improper ownership from one of those four countries.

Or, meaning sell it, sell it over to an American company. Like divest, meaning like sell that over to a different owner, like put the majority in a country not listed on this list, China, Iran, North Korea. Right. Okay. So that it's. So let's say 30% is owned by China. Well, then they could get the threshold down to 19% and then that's it. Okay. So China, the Chinese would have to sell that, you know, a portion of their ownership to get below the 20% threshold. Right.

And once they've done that, then the law wouldn't apply as an example of a way to cure. So there's a cure period. There is also recourse in the following way. If the company disputes the finding, if they say, no, no, no, no, we don't have more than a million users. Oh, wait a second. We have a million more than million users, but you can't create profiles and share and create information or any of the other findings. Or no, no, it's not really directly or indirectly owned by any of these countries. There is recourse to the federal courts.

You can bring a claim and ask another branch of government, right, the judiciary to decide whether or not, in fact, that companies in violation of the statute. So, you know, I think it's a, I'll say this much. It is definitely far more limited than I've seen reported in some places. In terms of based on the House version, again, the House version of this bill, it's more limited in terms of the companies it can apply to beyond TikTok. And beyond that, what those companies, which, you know, how broad, and how much discretion the president has to declare a company to violate this law.

It's limited, far more limited than I've seen, and there is judicial recourse, and there's ability to divest. That all said, I want to be clear that, you know, we've seen in the past where seeming, you know, the government starts out wanting to do good. Certain agencies are created with good intent. Certain initiatives of the government are created with good intent. And even the initial iteration of those agencies and laws might even be, have the support of a majority of Americans because you're like, yeah, that's a problem. We don't want the foreign adversaries controlling the content of what our, you know,

our children in this country. Exactly. I mean, look, that's where, yeah, that's where I'm at right now. It could be a slippery slope. Right. I mean, that's the point is I hate the idea that there's a generation of children that are playing with, you know, really a foreign adversary. I'm comfortable saying that. I don't think China has America's best interest in mind.

And while they're playing with it, this thing is taking all of their data. It's studying everything they're doing on their phone, who their friends are, who they're talking to, what they're talking about. This is a generation that is not going to have any, any. at least not in China. China knows who they are, what they are, what drives them, what moves them. This is that they're already not going to be free because of this app like that freaks me out. And this is a very popular app. The kids are all over it. It's giving them. Then you see stories that the TikTok in China doesn't even allow for the type of interaction that it does in America, that it's even more addictive here. It's designed to be that way. All of those things are very,

very alarming to me. But as you've pointed out, and as I've learned working with you on the work that we're doing, you know, government is not a scalpel. It doesn't go in and do a nice little surgery, sell you up and move you on. It pulls out a chainsaw and starts, you know, cutting away, you know, vital organs while it's trying to get rid of the cancer. And so that's where this is, you know, it doesn't look that bad on its surface right now. And I'm running it through the filter. high wire filter. You know, we're well over a million users every single month. We have a social media function in which people can, you know, sign up, have profiles, they're interacting as we speak. In fact, I wish I could see what our viewers are commenting right now. Do you want this

bill? Do you think it's too slippery a slope? I mean, it's really a big question. And I think the one thing that protects us right now is that we don't have China, Iran, or, you know, North Korea owning some part of this nonprofit. But, you know, do we have donors from China? Probably. Do we have donors from, you know, North Korea? I don't know. I'll have to check, you know, with our staff on that. But the problem is you and I both know that once a bill goes through as citizens, we lose our attention on it. And then it starts getting thrown in some pork bill to just, oh, While we're on this other bill about a bridge somewhere, we want to make a little adjustment really quickly in a decision today of voting with this many pages to just make a few little

alterations to that TikTok bill. We're going to add a bunch more countries. We're going to lower the amount of people. And frankly, if you're just taking donations from people in another country, and we were all asleep at the wheel. And next thing, we're getting a knock on our door. And the authoritarian government of the future of America is saying, oh, yeah, well, you're breaking the law, you're under arrest, or, you know, you're going to, maybe you're not an arrest,

you just owe $5,000, you know, for about seven million people. And then we're in trouble, right? Yes, I agree in, in both of those concerns, meaning you're showing the reason for the bill and the reason against the bill. And I agree with those. To put another gloss on it, in terms of the danger that is currently presented by TikTok or by any app that's controlled by a foreign adversary, as it were. Think about it. There's an opportunity to influence the minds, thoughts, beliefs that millions of American children have.

And they will carry those into adulthood, carry those into, and those are the future leaders of this country and many other countries around the world. And, you know, some other countries have shown that they're very smart at playing the long game, as it were. And, you know, there is a long game here. You know, imagine the American government had an opportunity to have a company that wrote the textbooks that were used in schools and social studies in every school in China. I think the Chinese government might have an issue with.

that in some ways this is more, this is even more influential in that children will spend hours a day on their devices just scrolling from video to video without any filter, without any standardization. You don't even really know what they're seeing. So, you know, even I think, frankly, even worse, even more dangerous than having the information about the average American citizen. It is the ability to influence what they think, what they believe now and going to the future. On the other hand, the question is, what's the solution for that? Is it the solution for that

more heavy-handed government that comes in to basically to censor? That's what it's doing. It is mass censorship or is it more speech? Is traditionally the way the government should deal with these issues is they take the bully pulpit. Well, let me jump in here, Aaron, because I think this is such a perfect segue into an issue we think we're right on. I mean, really what you just said is really actually it's terrifying. You're right. We all saw the interview with the KGB agent that was done by Edward Griffin. I've discussed that in this show.

Super fascinating. He's saying we're going to infiltrate your universities. We're going to take over, you know, your schools of thought. We're going to get you through your media. You won't see it coming. We're playing the long game. Communism will win. You just don't see it.

Americans are too distracted. And what you're talking about is a fantastic tool for communism in the hand of every single child in America that is being brainwashed. While we're saying, here, honey, I can't afford a babysitter today. So just get on your TikTok and I'm going to go, well, what could go wrong? What could possibly go wrong? I don't know the future of America. But here's what's fascinating.

didn't even think about this segue, wait till this moment. It's exactly the argument we heard was being made by some of these justices in the Supreme Court in the Murthy v. Missouri case. They're saying if our children are being told to jump out a window, you know, and by an app, are you saying the U.S. government can't step in and say stop this immediately, stop this as a social media company? because that's what we're saying. Right now the government is saying, we have an app in America that is being allowed to potentially

manipulate the minds of our children and as a government, we have no right to do something about that. I didn't even realize that there would be any part of this, you know, Biden case that I might agree with. But now I at least see some of that argument, see how they're making it.

So let's jump into that a little bit. Murphy versus Missouri. First of all, why is it Murphy versus Missouri when I've been calling it Missouri versus Biden up until this moment? What happened? Why is that the case? Well, that's because it was the Murphy, which is the Surgeon General of the United States

who was sued in the case. So he was the defendant below, appealed it. to the US Supreme Court SCOTUS. And so they, so in, so he was the petitioner, right? He was the appellant. So he, the, it got inverted. So it became Murphy versus. Since he's appealing, he's now bringing the case with flip-lops the other way.

I'm coming back at you. Yeah, just flip-flop the names. Interesting. Okay. I'm glad we got to go to square away. They love to make things confusing. It's, it's wonderful. Okay.

So to my point, one of the judges, I believe, that made that argument about, children jumping out of windows. Let's just take a look at this video that's getting a lot of attention from this case. Justice Jackson? So my biggest concern is that your view has the first amendment hamstringing the government in significant ways in the most important time periods.

I mean, what would you have the government do? I've heard you say a couple times that the government can post its own speech, but in my hypothetical, you know, kids, this is not safe, don't do it, is not going to get it done. And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country. And you seem to be suggesting that that duty cannot manifest itself in the government

encouraging or even pressuring platforms to take down harmful information. So can you help me? Because I'm really worried about that. because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying that the government can't interact with the source of those problems. All right, I'm going to let you jump on that. What do you think of those statements? That's a Supreme Court Justice now. Yeah. And with all due respect to Justice Jackson,

And the purpose of the First Amendment is to hamstring the government. Right. That's why it's there. Yeah. That is the entire purpose of the Bill of Rights, is to limit the government's ability to infringe uncertain domains of life in America. Paramount among those are those laid out in the First Amendment, including the freedom of speech, the founders of this country,

hard learned that the greatest threat is when you let government censorship. That to be sure, to be sure, letting people have free speech poses dangers. It does. I'm sure. But the greater threat is letting the government censor speech. That throughout the arc of history has always resulted, always resulted. and some of the worst travesties we have seen. It is when the government believes that it cannot persuade you with reason.

It always resorts to bullying to censorship. That is the first step in any form of government that ends up harming the people. Listen, it has been the same retort throughout history of every government that we have to censor you. We have to limit you in order to protect you. this is nothing new. And it was very, very sad to see this oral argument, for me,

to watch and listen to this oral argument where that historical context is just lost. And, you know, with all due respect, too, to the Attorney General's of Missouri and Louisiana who should be commended for bringing this case, absolutely. But I want, just remember this, in that courtroom

was all government, all government. The judges are part of government. The U.S. Solicitor General is representing the federal government. And who's representing, quote, unquote, the other side. It's the Solicitor General of Louisiana also a member of government, state government, none of less, but government. It was all three of those, everybody in that courtroom arguing was government folks who,

you know, and look, the Solicitor General of Louisiana, You know, again, I commend them for bringing this case, but obviously, you know, his job in Louisiana is to defend the state of Louisiana, including, by the way, when people bring claims against Louisiana for violating their speech under Louisiana, probably, constitution and so forth. So, you know, there was a particular, you know, and you could see the bias in that courtroom, I thought, in stark degree. where for just as one example, the judges were talking about more than one how, well, they have to interact with the press sometime, they have to tell the press they're wrong sometimes without realizing how in the world is that comparable to the scenario before then?

It's not. It's not comparable at all. The judges aren't calling up New York Times and saying, hey, New York Times, we want you to not, we want you to censor some third party out there because we don't agree with their views, they're not doing that. Right.

They're saying, we think you got something wrong. They're not trying to put their hand on an entire policy area. They're not comparable. And it was, you know, you got to really see the conversation should have started and ended with. First Amendment says you can't censor speech and that there are other less restrictive ways to address the problems that the government saw with speech and it should have used those like get on TV and say we think that

stuff's wrong but not censor and certainly not do it behind closed door private emails and meetings right i mean they they did that for they did it that way for a reason you know i think that and in you know as i listen to you and we think about it again you know right so you look at tick You look at this case. These are very, you know, important moments. And we do have to ask ourselves, what is the greater evil? There's a greater evil to lose the primary function that our founding fathers believed that existed in your speech. Without speech, the First Amendment.

Without speech, what freedom do you have? Without the ability to call out the government and say, you're lying or you're wrong or your science is wrong. And frankly, you know, when I asked Jill, who was inside the courtroom, did the, you know, did your attorneys, did the Louisiana representatives, did they make the argument that what we saw was the incorrect statement? You weren't stopping kids from jumping out of a window. The government was destroying kids' education, was lying to them about social distance. which had no basis in science, was making them wear masks, which Tony Fauci couldn't point to in the hearings,

a single double-blind study that said they worked and forget about are they causing illness and making kids breathe their own CO2 and what's happening in their mental health? I mean, all of these things. We were told the vaccine would stop transmission, and it didn't. So in the end, the very point is that if the government

is in control of the narrative, what happens when? it's wrong if citizens are not allowed to call them out. And that argument is apparently not even made in the Supreme Court. Would you have made that argument, Aaron? That's my question. Would we, or is there a reason you just don't go? That's the third rail, Dell.

You just don't understand what the environment inside the Supreme Court is. Oh, I mean, if I was getting to make the arguments there, you know, you know what I would argue because, as you know, we wrote an amicus brief in this case on behalf of ICANN, the Informance and Action Network. in which we laid out, which I don't think you'll find. For people that don't know, let's get into that. What is an amicus brief for people that don't know what that is? So it's Latin for like friend of the court.

And so, you know, in this case, the U.S. Supreme Court will accept briefs from, you know, non-parties that they believe might help them inform them in terms of how they make a decision in the case. So on behalf of the Informicent Action Network, we find. an amicus brief. So that's a legal brief. I just saw it on the screen with the U.S. Supreme Court in which we supported the position taken by Missouri and Louisiana in the case, that in fact this was a violation of the First Amendment, what the federal government did vis-a-vis censoring people during the last

number of years. So the arguments I would make are clearly laid out. And among those is indeed that this. the history of the First Amendment and how important it is. It really, you didn't hear any of that in the courtroom the other day. In fact, I was, you didn't hear, I didn't hear even a, any oath to it whatsoever. And I think you just hit on an extremely important point, which is that if you let the government censor, if you let the government do what these judges keep saying, you know, a number of

these judges were arguing, well, you know, we have to, we have to, almost, protect the government from the First Amendment so that we can let the government save people, protect people. They've got it. They've got it exactly backwards. What that really does in this context is let the government be the arbiter of truth, which is one of the most destructive, destructive things that we can allow the government to do vis-a-v-v-R democracy, which is the government gets to bully and let's just stop a bullying because that's enough

because nobody can argue they didn't bully. And let's not forget that it's every I mean the way our system works is partisan. You could have a Republican or a Democrat leading. And so if the narrative, if the government has the correct narrative and the Supreme Court decides that they're the ones that know what's right,

but that right at the moment is in the hands of a government. Democrat. You know, in a couple of years, it could be in the hands of an independent or a Republican. But that is, it's a bias. The government by nature has a bias. And if it gets to decide what truth is and what can be shared, it's absolutely the end of the system as we know. And frankly, could be the last time you have any separation between parties. And at the point at which the ruling party gets to decide all speech that is. allowed, especially in social media platforms, which is now the number one way we all communicate,

then we just, the bubble has been sealed. It's over. You are now stuck in the thought bubble that your government's going to allow, has got you imprisoned it. And, yeah, and, and the specifics of what we're censored was not really discussed either. And when you look at that, to your point, what were we talking about? What were they censoring? They were censoring a scientific discussion effectively with people with varying degrees of knowledge about the quote unquote underlying science

with regards to the safety of the vaccine, the COVID vaccine with regards to the safety of masks, the efficacy of the mask, efficacy of the vaccine. These are not things that should ever be censored by the government, certainly not coercion and bullying. the moment that this U.S. Supreme Court tells the government that their backroom smoke-filled dealings with these social media companies happening behind closed doors, and most of which we would have never have found or known without discovery in that case,

is okay. They will then use that bullying to then censor to get to what they think is whenever they think they're right. because basically here, when you think about it, they believe they were going to save everybody by censoring this information. But that's what the government always believes. That's why I just said 10 minutes ago. They always think they've got to do this or everyone dies.

They can make an argument for anything that if you don't do this, a lot of people are going to die. But again, the greater harm is to let them censor. That example that was given of, you know, well, there's a TikTok video that has children jumping out of wind Well, why don't you put out a parental advisory? How many parents, if they see that advisory and know about it, I'm not going to act? Why don't we trust the American population people to be adults?

Amen. It's time to trust the American people again. You know, I think about this all the time. And we've reflected on this, you and I when we've talked. You know, we act like our founding fathers somehow lived in a more intelligent time because they're very eloquent, very poetic in the way they're right. Their cursive is impeccable, you know. But the truth is they were surrounded by probably the most uneducated population you can imagine.

Many just farmers and people that got here were just trying to survive, didn't have time to go to school, we're working on the family farm. When you think of the debates they had, should every one of them be allowed to vote? Should it only be the landowners, which ultimately would probably be the educated among us? And that debate was a close call, it was a close call those votes that happened. But what they decided is freedom is the most important thing, that the rest of it falls apart, that nothing we are dreaming about will ever work if we only decide freedom for the few or freedom for the educated or freedom for those that are in government or the government is the one that has the freedom. That's what we ran from. That's what England was practicing. What our government said, we're going to try and experiment. And frankly, we haven't killed ourselves yet.

We're here right now. and we are being tasked, sure, the world is modernizing. Sure, it's getting to, you know, we're dealing with new issues here, but it's still the same. Do we trust the people, you know, or not? And if you don't trust the people, then you don't trust the vote, that you don't trust the system, and you don't trust freedom. What's at stake? Government works for us, not the other way around. Amen.

Nobody in that courtroom the other day, in my opinion, really brought that to the four. That's unfortunate. And I don't think our founding fathers ever envisioned this. Because when you look at the First Amendment, it says Congress shall make no law bridging the freedom of speech. It doesn't even talk about the executive. I don't think our founding fathers could ever even have imagined an administrative state as we have today in an executive branch that would act in the manner that it is doing. Aaron, thank you for all the incredible work you are doing for us. You understand the Constitution, your ability to break this down for us is really valuable.

These are some of the most important moments in the history of this nation. And as we attempt to be beacons of light and hope and liberty for the world to view, the world is watching. I hope we act appropriately. Thank you so much for breaking down for us today. Thank you, Dow. All right. Take care.