Will Bode

Or what level of scrutiny applies. That's potentially very important. And then, as some justices in the lower court said, like, does the law pass strict scrutiny?

Or what level of scrutiny applies. That's potentially very important. And then, as some justices in the lower court said, like, does the law pass strict scrutiny?

Which is also a big deal because so few laws pass strict scrutiny, especially in the First Amendment context, that any precedent saying this law passes strict scrutiny sort of establishes an important precedent that could be used in other strict scrutiny cases.

Which is also a big deal because so few laws pass strict scrutiny, especially in the First Amendment context, that any precedent saying this law passes strict scrutiny sort of establishes an important precedent that could be used in other strict scrutiny cases.

And so one challenge for the court was how to decide this in a quick way that they could all agree with without saying anything about any of those questions. Yeah.

And so one challenge for the court was how to decide this in a quick way that they could all agree with without saying anything about any of those questions. Yeah.

And there was this discussion and argument about sort of, is this just a law regulating corporate structure? And the chief asked Noel Francisco, a representative of TikTok, can you think of any precedent where we've treated a law about corporate structure as violating the First Amendment? Noel Francisco said, I couldn't really think of one. Which I thought was odd.

And there was this discussion and argument about sort of, is this just a law regulating corporate structure? And the chief asked Noel Francisco, a representative of TikTok, can you think of any precedent where we've treated a law about corporate structure as violating the First Amendment? Noel Francisco said, I couldn't really think of one. Which I thought was odd.

That he didn't have one at his fingertips. Yeah, I thought it was odd. Shouldn't he have said Citizens United? Like, isn't that a case where the court says, look, you want to fund this movie, if you do it with a PAC, it's fine. If you do it with a for-profit corporation, it's not fine. It's the law.

That he didn't have one at his fingertips. Yeah, I thought it was odd. Shouldn't he have said Citizens United? Like, isn't that a case where the court says, look, you want to fund this movie, if you do it with a PAC, it's fine. If you do it with a for-profit corporation, it's not fine. It's the law.

Like, this law required a certain level of separation between the PAC and the underlying bad guy, the corporation. Yeah. Yeah, I was wondering that myself.

Like, this law required a certain level of separation between the PAC and the underlying bad guy, the corporation. Yeah. Yeah, I was wondering that myself.

Maybe it's the same. Well, Malcolm Stewart at least kept saying in the first argument was, it's fine to do this as long as you structure it in a certain way. You've got to structure it by doing it in a pack that raised the money for that purpose.

Maybe it's the same. Well, Malcolm Stewart at least kept saying in the first argument was, it's fine to do this as long as you structure it in a certain way. You've got to structure it by doing it in a pack that raised the money for that purpose.

I was going to say, it's not a great answer because foreign campaign contributions are usually thought to be unprotected. So if Congress had a Citizens United-style law that said, well, corporations that are worried are funneling foreign money in have to divest or something, I assume that would be upheld. Anyway, I thought it was weird not to see campaign finance laws talked about.

I was going to say, it's not a great answer because foreign campaign contributions are usually thought to be unprotected. So if Congress had a Citizens United-style law that said, well, corporations that are worried are funneling foreign money in have to divest or something, I assume that would be upheld. Anyway, I thought it was weird not to see campaign finance laws talked about.

Okay. So go ahead. Then the next question is, well, okay, if the first one was implicated, how do we say it's okay? And I think some people, some of my colleagues assumed what the court would do is say strict scrutiny applies, but the law satisfies strict scrutiny. Or maybe we assume strict scrutiny applies and the law satisfies strict scrutiny, but the court did not do that.

Okay. So go ahead. Then the next question is, well, okay, if the first one was implicated, how do we say it's okay? And I think some people, some of my colleagues assumed what the court would do is say strict scrutiny applies, but the law satisfies strict scrutiny. Or maybe we assume strict scrutiny applies and the law satisfies strict scrutiny, but the court did not do that.

It instead decided that at most intermediate scrutiny applies because the law does not regulate the content overview point of TikTok's speech. That I thought was surprising. Why? Why do you think that was surprising?

It instead decided that at most intermediate scrutiny applies because the law does not regulate the content overview point of TikTok's speech. That I thought was surprising. Why? Why do you think that was surprising?