This is the Cato Daily podcast for Thursday, January 16th, 2025.

I'm Caleb Brown.

At the oral argument over whether the federal government's divest or ban order to tick-tock is constitutional,

the court spent a good deal of time talking about whether the First Amendment was implicated at all.

A ruling from the Supreme Court could come any day, and it's up against a January 19th deadline before the order goes into effect.

Cato's Tommy Barry and Jennifer Huddleston comment.

Tommy, if you don't mind laying it out for us, what are the constitutional issues in the TikTok divest or ban case?

There are many constitutional issues. The most fundamental one is, does this law inflict a First Amendment injury, either on TikTok,

the company, or on the many Americans who use TikTok to communicate with other Americans?

There's never really been a law like this that placed a burden on a company in the form of a

requirement to divest from a collaborator based outside the United States. So the Supreme Court has somewhat grappled and grasped for analogies. But essentially, TikTok collaborates with ByteDance, its parent company, and uses an algorithm that's owned by ByteDance to provide the speech platform that it wants to provide. And the Supreme Court did hold last

year that an algorithmic speech platform is protected by the First Amendment. This law gives

TikTok two choices, either divest from bite dance and stop using the algorithm it wants to or cease

operating within the U.S. entirely. The legal issues are first, does that inflict a

First Amendment harm? What level of harm does it inflict? How strict should the scrutinizing of

this law be by the courts? And then second, does the government have a good enough reason to justify

it? Either by the two that the government has proposed is covert content manipulation by the Chinese government to affect what's on TikTok without us knowing it's being affected, or data privacy issues.

Do concerns that our data could fall into the hands of China justify this law?

On point related to people's ability to receive information. When you talk about

TikTok users, you're not obviously just talking about creators. You're talking about people receiving

information. On point, I heard some discussion about a case going back many years of someone who just wanted to receive a

communist publication in the mail on a regular basis.

...