An interesting analysis by Prof. David Cole (Georgetown), the former National Legal Director of the ACLU, at Just Security; an excerpt:
After more than two hours of argument Friday morning in TikTok v. Garland, the Supreme Court appears likely to allow the U.S. government to force divestiture or shuttering of the platform on January 19…. In my view, that's the wrong result…. [But] how the Court reaches its result may now be more important than the bottom line.
In particular, the Court should reject the government's principal argument, namely, that the TikTok law is "content-neutral" because it is concerned only with who controls the platform, not the content the platform features. Accepting that rationale would not only harm TikTok, but would weaken First Amendment law across the board….
The Protecting Americans from Foreign Adversary Controlled Applications Act singles out a particular communication platform out of concern about its content, and exempts other platforms based on their e-commerce content, even though they pose similar data security concerns. The government justifies the law as a response to the risk of "covert content manipulation" by China…. That justification is inescapably related to the content on the platform, and under longstanding First Amendment law, should trigger strict scrutiny….
