The Dumbest Timeline: The Supreme Court Rules on TikTok

Audio of this conversation is available via your favorite podcast service.

Today- Friday, January 17, 2025 - the US Supreme Court delivered an order upholding the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act, a law passed by Congress and signed by President Joe Biden in April 2024. The ruling affirmed the decision of the United States Circuit Court of Appeals for the District of Columbia. The Court found that the Act, which effectively bans TikTok in the US unless its Chinese parent company, ByteDance, sells it, does not violate the First Amendment rights of TikTok, its users, or creators.

The decision clears the way for a ban to go into effect on January 19, 2025. Late this evening, TikTok issued a statement saying that “Unless the Biden Administration immediately provides a definitive statement to satisfy the most critical service providers assuring non-enforcement, unfortunately TikTok will be forced to go dark on January 19.” The White House had previously announced it would not enforce the ban before President Biden leaves office on Monday. Unless Biden takes action, this may set President-elect Donald Trump up to somehow come to TikTok’s rescue.

To learn more about the ruling and what may happen next, Justin Hendrix spoke to Kate Klonick, an associate professor of law at St. John's University and a fellow at Brookings, Harvard's Berkman Klein Center, and the Yale Information Society Project. The conversation also touches on recent moves by Meta’s founder and CEO, Mark Zuckerberg, to ingratiate himself with the incoming Trump administration.

What follows is a lightly edited transcript of the discussion.

Justin Hendrix:

Kate, you 'skeeted' this afternoon that we are in the dumbest timeline. I noted also another skeet from our friend, Jameel Jaffer at the Knight First Amendment Institute, "Millions of angry American TikTok users, a 9-0 SCOTUS ruling giving Trump new sensorial power, Trump positioned as deal maker, TikTok leadership kissing Trump's ring, and the possibility that TikTok's new owner will be Musk, spectacular." It seems like you might be feeling somewhat similar to Jameel at the moment. What makes this the dumbest timeline?

Kate Klonick:

It's exactly as Jameel says. It's like this crazy political gamesmanship. No one has any political principles or spine. Both of these parties have said that they're pro-TikTok ban at various points. For the love of God, I covered and you covered, we all covered the EO that Trump tried to ban TikTok while he was in office and now he gets to save TikTok because of a turn in the fates. I don't know, the fact that Congress could get its act together to come up with this particular act of Congress and law to get rid of this social media application with a country that we're not in any type of, maybe you could argue that there is some type of cold digital war going on or whatever with China, but we're not in actual war with them in any type of way that we've drummed up these national security concerns that no one can access or know what they're about or see the record around, and that we're just going to allow this to happen when everything else that is happening in this country is... I guess I'm just like, well, of course this is...

And now, you see Chuck Schumer rushing to the floor of Congress trying to extend the deadline of it going to affect and Tom Cotton, who's like Trump's yes man, being like, "No, we must keep this blocked or else China will have our data," like they don't have all of our data already. It is the most performative and dumb of all of the performative dumb things. And then, on top of that, it is just evil and it empowers the bad people because of how it is falling in the world's timeline and it's just depressing us out. But that was an addendum on a tweet that did some actual legal analysis. Yeah, I'm happy to talk about that too.

Justin Hendrix:

Well, I have to say I had similar feelings this morning back and forth looking at various lawmakers getting cold feet or reversing or whatever you might call it, the Biden administration suddenly deciding this isn't such a big deal after all and maybe we'll just hand it over to this chap Trump to deal with. It makes it all seem so unserious, so ridiculous, and especially for I suppose folks like yourself who have spent so much time, I guess looking at words, placing commas, wondering about the specifics of all of this just to realize that all this is is like TV.

Kate Klonick:

Yeah. It's not just TV, someone like Jameel or, and I give a lot of credit to people who fought this in the courts and tried to do this the right way and steelman the First Amendment arguments, which I incredibly agreed with and was shocked how quickly both the DC circuit and the Supreme Court had no time of day for them. The one thing I do struggle to do lately is to look at the letter of these opinions and to look at what the Supreme Court says or to parse the doctrine or to get into a lot of the nitty-gritty of what makes the First Amendment lawyer a good First Amendment lawyer. And I can't because I just don't see it mattering. I don't see that at the end of the day, it does not matter how strong your cases are, it just doesn't matter with this court and it doesn't matter with this Congress, and I'm not sure it matters in general with the money at play in the US right now.

And so, I don't know, it is just a little bit fatalistic of me, but I don't bother with that anymore. I try to look constantly at far outside the narrow bounds of what a court ruling is going to be and look at actually the power that is at play and the geopolitics of all of this. The geopolitics of this are fascinating and dark as Jameel hints in the tweet that you read. But I think that those are much more interesting to me and much more determinative of what our world is going to look like than a Friday morning per curiam from a captured Supreme Court.

Justin Hendrix:

It's all a bit gonzo. I do want to turn to the order though and just ask you a little bit about it on some of, I think a lot of folks, this is what they anticipated. You've got this situation where Congress and the executive branch of hair on fire said, "Our adversary, our great strategic adversaries, hoovering up our data and using its social media platform to do covert manipulation and everyone's going to suddenly be a card-carrying member of the CCP or variously support the Chinese or maybe just be so polarized that we can't get on or whatever." It seemed unlikely that the court could just ignore that type of concern from both the other branches and say, "Well, you got yourself together to pass a law. You don't do that very often around tech. And no, we're not going to let that stand."

Kate Klonick:

I think it was Adam Conner, the vice president for technology policy at CAP, the Center for American Progress, who said, actually, folks, this is exactly how laws are supposed to be written, which is to be tailored in the specific way with real reasons for implementation. And unfortunately for us, they did an okay job writing this and making the case for it on the floor of Congress and the Senate. I mean, it's true. This is not a terribly written law. It was never a terribly written law. It was just a terrible idea of a law at its core and the effects were going to be terrible for Americans and the freedom of expression, and that's still what I believe. And that was under litigated in all of the cases. They focused instead very much on the data protection and this national security threat that had really been the flames had been fanned by the legislative sessions around this law.

And fascinatingly, you brought this up, but it does not appear to be a convincing factor in much of this, was not the manipulation and the propaganda threat of the CCP, not this kind of phantom threat that they're controlling your news feeds and you're going to be running over to your local bodega and getting a copy of the Little Red Book, although you will be joining RedNote, which is exactly the same, literally translated as the Little Red Book, not as RedNote, that's their whitewashed version for Americans. But the idea is that the court didn't even look at the propaganda stuff. It's not clear that they even looked at the classified information that they were given access to. They don't reference it. It's just this threat of sensitive data and the specter of national security concerns by a foreign adversary that we're again not actively at war with.

It's a quite remarkable question as to what they decided to pay attention to and to not pay attention to. And I've watched a lot of people try to read the tea leaves of what the future of this decision will be, and I hope it's not much. They do preface this entire decision saying, "Please don't. This is a very narrow and rushed opinion and so do not use it for much, but that hasn't ever stopped lawyers." So we'll see what it does. It's not a great day for the First Amendment and freedom of expression versus plausible claims of national security threats. That's not a great day for that. So it's pretty depressing.

Justin Hendrix:

They seem to want this to be a narrow ruling. You take this a little further and again, back to Bluesky, that's where we're all hanging out these days. You say this makes it all Trump and the GOP's ballgame, you point to five likely possible outcomes. First, no one does anything. Ban stands, TikTok is banned in the US. That could happen as soon as Sunday. Second, Congress asked to pass a new law, repealing the law. That seems very, very unlikely to happen. Third, Trump issues an EO stating he's against the ban. You say that would be meaningless. Why?

Kate Klonick:

Well, because an executive order can't just overturn a law or stop the non-enforcement of a law. An executive order is advisory and has to be implemented by agencies and other types of things. So it would be a signal that Trump could put out, and as I say later in the post, but this is a pretty important part of how the ban actually goes into effect is that it actually doesn't require TikTok itself to see services inside the United States. What it requires is that the hosting and delivery of the distribution of TikTok cease. And so, that means that Oracle, Apple, and Google, which Oracle does most of the cloud services for content delivery systems. Apple obviously owns the App Store, and then Google owns Android app store Play. And then, essentially those are the three things that shut off TikTok and they will take them out of their app store and they'll stop them from distribution or face $5,000 per user. When you have 170 million users using TikTok, that is for Oracle $850 billion in fines. For Apple, it is $510, and for Google it's $350 billion in fines.

And so, if you run these numbers, I mean, you want that act to be dead as a doornail before, if you were a lawyer for any of these companies, before you risk putting TikTok back up on your platforms. And so, that gets to the fourth point, which is that there is the idea, the fourth point that I say is like, well, Trump could always tell his DOJ not to enforce these fines and not to enforce the act. But again, Trump is not exactly well-known for being a measured person who never goes back on his word. If you are a lawyer for these companies, do you decide that you're going to put $850 billion of your company's money at stake because maybe you want to serve TikTok in questionable circumstances for a mercurial president? No, probably not.

And so, I think he'll do that to have a goodwill gesture. I think he'll say that the AG is not going to pursue enforcement, and I think that he'll issue an executive order, but neither of these will put TikTok back up because the risk is still way too high. Just in the same way that there's not some massive federal cannabis distribution system just because the DOJ has an informal guideline not to enforce cannabis dealing and trade, it's the same type of thing. This is still pretty chilling.

Justin Hendrix:

You'd say also that TikTok may put together some type of restructuring that looks like a meaningful divestment. Maybe that's possible, maybe both these things could be true at once. You could have Trump trying to make the deal and maybe making promises on the side and TikTok moving ahead with some kind of restructuring or some kind of deal. I know there's some folks out there have been floating that idea that somehow Elon Musk gets involved. That seems unlikely to me in the real world, but we're in again, the dumbest timeline.

Kate Klonick:

So the fifth option is pretty much the only option that this comes back, barring the politically unviable option of Congress repealing this law with another act, and that is that essentially they meet the terms of the act, which is that they divest, they meaningfully divest. Now, the word meaningful is a big question mark. No one knows what that means and the people in charge of determining when meaningful divestment has occurred, and TikTok can therefore operate in the US, you should say, just for those TikTok, US has meaningfully divested from ByteDance, its parent corporation in China, which is owned operated by the CCP or heavily influenced by the CCP. And so, the idea is that TikTok US is not owned and operated by our foreign adversary. And so, when that has happened, it's okay that it operates in the US again and it can come back online.

Now, for that to happen, there have to be actual conversations and ByteDance has said, "We will never sell the algorithm and our users to anyone in the US. That is insane. We will just not operate here." And so, they went to the mat on this and this is a fabulous geopolitical game of chicken, and now you are literally, so now who is the main person who can make ByteDance go to the table to do a divestment, Chairman Zi, that's who is going to do it. And so, you literally had Trump saying today on truth social, "I just got off the phone with Xi Jinping and I'm going to, we talked a lot of stuff about trade and chips and TikTok and great things coming, great things for our future."

And so, yes, you are going to see this deal that is both good for domestic politics, good for geopolitics, and good for President Trump that basically creates, in my mind, this is the only way forward, that puts TikTok back up. Now, I will say that there are a few people in Trump's world that don't want TikTok back up and want it to stay down, and those are including his Secretary of State, Marco Rubio, who is a real China hawk and really thinks that the threats are real, but drinks the Kool-Aid that there's a national security threat from TikTok. So too, a lot of Trump's Palantir buddies and other national security people, but I don't think they're going to win out here. Trump likes people liking him too much and if he brings this back, he will be the hero of Gen Z, X, everything in between, people will want their TikTok back and that will be the end of the story.

Justin Hendrix:

I was just going back to look at some of the things that Marco Rubio had said in the run-up to the vote and absolutely, he was there with Mark Warner's joint statements, lots of concern, Chinese Communist Party. They were the lead cheerleaders for this. So it'll be interesting to see how those types of voices decide to moderate their point of view on it if in fact everybody and their brother, including from Chuck Schumer on down are back treading.

So dumbest timeline, not just TikTok. I want to ask you also about Meta. We're in week two of essentially a set of news items starting with Mark Zuckerberg's announcement on January 7th of various changes to Meta's content moderation operations and policies. Yesterday, this news in the New York Times that Mark Zuckerberg was apparently running past Stephen Miller, his thoughts on what he might do to change various employment policies at Meta around diversity, equity, inclusion. I think if you had told me five years ago, Mark Zuckerberg is going to confer with a white nationalist about how to make his policy on how to run Meta, I would've then thought, "Hey, I'm a critic of tech, but that's a bridge too far. That's a conspiracy theory," but here we are.

Kate Klonick:

Yeah, I have lots of thoughts about the Zuckerberg announcement and a lot of thoughts about what it means for Meta. I don't love and have never loved getting in tech CEO's heads, but I think this calls for it because it is a sea change from how Meta has structured or seem to structure or claim to structure its policies. Part of this honestly is I do think, and you've seen a few things about this, I think that, and you and I have maybe always in part disagreed a little bit about the approach to take with tech politically. I understand and have always understood the impulse to be very anti-tech, especially anti-big tech, to be really critical of these platforms for a very long time. They have done a lot of harm and they could and don't do a lot of things that they could do to make their platform safer and better for users.

But that said, actually weirdly of all of the platforms, Meta was one of the most engaged with stakeholders, the most committed to concepts of governance, both putting their dollar signs where their mouth was in terms of listening to people, and all it ever got them was more shit. They just got yelled at. The more they talked to people, the more people were upset with them. I feel like there is something to the fact that Apple has been the North Korea of tech companies and just does not open their press room to anyone. They don't ask anyone for their input on their privacy rules, and we are supposed to trust Apple with our privacy because they're good on privacy, but there's nothing that they do. They don't have stakeholder forums, they don't have open sessions on these things.

And I do think that there's a little bit of just a human story here, everything else aside and the millions and millions of dollars that it will save Zuckerberg to pivot to the GOP right now and to kissing Trump's ring. That aside, I do think that a person gets sick of everyone telling them what an awful person they are all the time and hating them even when you're a billionaire and when you're trying to do the right thing. And if you remember even in 2016, Zuckerberg tried for a long time to really do the right thing even though I think a lot of people didn't take it seriously. He did these listening tours, he went all over the place. Remember after he held all these dinners at his home where he invited speakers to experts to come and tell him about content moderation, other things. I'm not saying those just weren't just in some ways kind of fluff, but I didn't hear that happening with Tim Cook or anyone else.

And so, I don't know, I just think that there's a certain amount of, I'm not entirely surprised, maybe I'm not as surprised than you, but for different reasons. I'm like, I could see us ending up here. I could see this happening. I could see him pivoting in this way specifically because I think that maybe this is both good for his business and it feels good to be the hero of these people and to be welcomed with the open arms in a place after just being dragged everywhere.

Justin Hendrix:

We may disagree on whether this is Zuckerberg pivoting to something and changing from where he was or whether he is really, I think, what was the phrase, back to his roots or back to the roots as it were. I don't know, but I agree that there's something very personal about this. I think you're right on some level that Zuckerberg is very tired of being told that he had done the wrong thing. He's never accepted the idea that this thing that he created, this business, these platforms possibly did more harm than good in the world. He loves the idea that essentially he's the hero, the hero of the story, and that essentially he is helping to usher in the future. And it makes sense. If you think about what the Trump MAGA elixir is, can get away with anything, right? Nothing you do is wrong, particularly if you are a man, you can get on with your billions and deny any harm you might cause in the world and just move on, and that appears to be where he's at.

Kate Klonick:

Yeah, I think that that's unfortunately right, and so it's been a bizarre shift to watch in a bunch of different ways. The announcement was weird in a bunch of different ways, but we just finished talking about the TikTok stuff, but not to hit the geopolitical bell again, but very specifically, one of the things that I think was under-rotated on in the press in Zuckerberg's announcement was he had this line at the end that was like, "We're teaming with President Trump," as if Facebook teaming with the United States of America is like Pepsi and KFC doing a co-sponsorship of a Super Bowl halftime show. And it's beyond bizarre to fight back against global censorship and to bring free expression around the world. And then, he specifically cites Europe. I mean, he cites China and secret courts in Latin America too, but he then specifically cites Europe.

And that to me was also just this signaling that there is a quid pro quo happening in which him deciding to do what Brendan Carr asked for in his capacity as FCC chair and ending the fact-checking program and cutting down content moderation and allowing slurs on certain slurs of certain types of ideas back onto the platform, that he's going to do that domestically, and geopolitically Trump is going to go to bat for him when Europe comes with the DSA and DMA fines and compliance regimes that are really over the top.

And what does that mean that Trump pulls out of NATO or threatens to pull out of NATO or shuts down packages or starts terrorists? I'm not, I think that that's completely on the table. And because it's not just for Zuckerberg, it's also for Musk and it's also for Google and other major platforms that are trying to operate in Europe and that Europe is taxing the hell out of through fines. And so, I think that this is a huge, huge political maneuver. And that I think was maybe the thing that jarred me the most in Zuckerberg's announcement on the seventh.

Justin Hendrix:

One of the things I wanted to ask you about, I know you don't want to be pegged as an expert on the Oversight Board necessarily, but as someone who knows it very, very well and is one of the more respected commentators both on how it was formed and how it operates, what do you think this means for the Oversight Board? I mean, I understand that the two chairs of the board essentially made the announcement. I don't know quite how to characterize that announcement other than to say that it was cautiously welcoming the changes and committing to explore what they might mean. But this seems to me the fact that the Oversight Board wasn't in any way consulted. I don't know this to be the case, but I would imagine some of these changes could potentially complicate or fly in the face of recommendations the board has made in the past. I wonder about that.

Kate Klonick:

Yeah, so first of all, the first question is going to, does this mean that the Oversight Board's going away? But in December, they re-upped at least enough money for another four years of operating costs. So that's like the till has been topped up. So the Oversight Board is sticking around for the foreseeable future. Two, the other questions, not to lawyer them to death, but the idea of the Oversight Board is to enforce Meta's own policies and to ask for procedural consistency and to give them feedback on whether or not those are consistent with international humans rights laws and knowledgeable stakeholders and Meta's own ideas of the importance of voice and other types of things.

So to the extent that Meta decides that certain types of things are allowed on the platform, that is a little bit less the remit of the board to come back and say, "No, the world thinks that you shouldn't be able to say, call trans people that word. They don't think that that should be something that you're allowed to say." That's a harder sell always, was always going to be a harder sell, and that's not the posture that a lot of the cases come to the board for review.

But if you're curious, if you're like, oh, well, it doesn't seem like they asked the board, I mean I don't think most people in Menlo Park knew this announcement was coming, let alone the governance people within Meta, let alone the Oversight Board, which is not part of Meta. I think everyone was legitimately quite surprised and did not know. And I've heard, although I don't know if this is true, but I mean it's certainly not fact-checked, but I've heard that the red line of the content moderation came from either someone very high in the content policy world or from Mark himself and content policy world inside Facebook or from Mark himself, the red line that you saw around the hateful speech turning into hateful conduct policy category.

So all of that I think is the Oversight Board actually still remains surprisingly well respected in certain circles, especially among stakeholders, or at least it was, I don't know what this now does to it with Meta doesn't seem to respect these types of global inputs. I didn't know what it means for operation in places. I mean, the Oversight Board in some places was really created as an outlet for the United States where you couldn't bring a lot of these claims against certain types of speech because they were legal but not desirable and you couldn't have a court claim around them. Whereas Europe actually has courts for this, so it's not as if, and now they have the DSA. So the Oversight Board is a little bit redundant.

I don't know. I don't know what's going to happen to it in the long run, but I think that it has done some better work than we thought. Maybe less it than we'd like, but I think that we are going to rue the day a little bit when we thought that there was space and time for some type of new independent governance body to be created that might get global buy-in or someone would listen to.

Justin Hendrix:

I'm speaking to you on Friday, January 17th. This is the day that the order in the Supreme Court for TikTok was announced. We're two dates out from the inauguration. It feels like a great moment of change. It feels like everything is up in the air. It feels like a lot might happen. Are you reflecting at all on, you mentioned you've been working on these issues for a long time. It does feel like to some extent the game has changed, Zuckerberg's moves, Musk's moves, the change in government, the geopolitical context that you've mentioned. Feels like we're in for a different era when it comes to tech and tech policy conversations.

Kate Klonick:

It's interesting that you say that and you put it that way because I think that someone, I've done a few podcasts this week and someone asked if I thought that actually politicians have really figured out tech, and I'm like, "No, they still have no idea what the tech is, but they understand now the power of the companies that own the tech." They have no idea how the cloud works. They have no idea how content moderation works. They don't know what goes into chip manufacture. What they understand is if they threaten to tax or fine or curtail these types of policies, they will get the 10 companies to the table with them and that will give them power with their constituencies. And this is the great political game.

And if I may, that is the most depressing thing to me about all of this is that there was a period in time in which the nodes, I talked about Jack Balkin's free speech triangle, but the nodes of users and the state and private platforms and tech companies were three separate nodes of the triangle. And I have long warned and thought that the worst possible scenario would be the collapse of the state and the tech platforms into it's bad for surveillance of individuals, it's bad for speech for individuals, it's bad for costs for individuals, it's bad for everything like quality of products.

And one of the reasons that I was so anti-tech regulation was because I thought that that would create a coziness between these two things. And that is unfortunately is what's happened. Didn't have to come from the left, it didn't have to come from the right, it was going to come from both of them no matter what, because eventually everyone, like nature abhors a vacuum and there was a huge vacuum of people waiting to use the tech companies to the maximum political advantage that they could. And I think that yes, I think we are in a new era and we are here and this is what is happening now.

Justin Hendrix:

Yet it seems to me the fact that this confluence at the moment, it's billionaires and the MAGA right. That is the confluence that has occurred. And I do think if you'd asked me several years ago what might happen, I'm going to-

Kate Klonick:

But who claims the TikTok Bill, Justin? Who passed the TikTok bill? That was unfortunately under Biden.

Justin Hendrix:

Oh, absolutely. No, putting TikTok aside, TikTok, to me, is a bit of an outlier. Most of the time, we've seen nothing happen. And then the minute something happens, it turns out to be this bizarro TikTok ban.

Kate Klonick:

But this is the thing that most people with principles stand on, which is that it's not, if you enable the... You have to stand on principles of separation of private power from state power in this type of way. And whether that is antitrust or whether that is... The thing is that I think a lot of people thought that the power could come from the state and that would curtail like curtail tech, but that is a very unsophisticated concept of how law actually works and power and markets actually work. Because what happens is it draws the two seemingly adversaries closer together and puts them into conversation about how to make it work for both them in a very cozy-an fashion of transactions and negotiations. But it just is like, and then individual liberties are almost always the ones that get shortchanged. I sound like such a libertarian. This is what this moment has done to me. I'm so anti-government right now because of what the government has become in the last, well, not few days, but is about to become in a couple of days.

Justin Hendrix:

Where do we go from here?

Kate Klonick:

I don't know. I think we just keep talking about it. You support decentralized forms of platforms. I have huge qualms with decentralized forms of platforms. I think that they're not super user-friendly unfortunately, and that they're prone to abuse in a bunch of really terrible ways. I think that we also just like, it's okay to get offline, get offline, get off these platforms, go and talk to your neighbors and make sure people are warm enough and have food. And I know that sounds really dumb, but I am basic, but we all live in real communities still, most of us. And it is a time to maybe get back to those roots and understand and invest in local government measures.

And honestly, I think that maybe local government is the place for a lot of tech regulation. I think school bans on phones are a phenomenal place to enact school bans for kids and to protect children from the harms of social media and things like that. So I'm hoping that we can get off of this enabling and empowering these massive, corrupt federal systems of power politics and back to local governance and trying to take care of each other.

Justin Hendrix:

Kate, I appreciate you taking the time to talk to me on our Friday afternoon after you've, I'm sure, had so much to do following this big court ruling and share your thoughts. Thank you so much.

Kate Klonick:

This was really fun. Thanks, Justin.