“GO DARK”
Kagan noted that TikTok does have First Amendment rights.
“I guess my question is: how are those First Amendment rights really begin implicated here?” Kagan asked Francisco. “This statute says the foreign company has to divest. Whether or not that’s feasible, however long it takes, TikTok still has the ability to use whatever algorithm it wants, doesn’t it?”
“No, your honor,” Francisco responded, noting the looming deadline.
“In 10 days, TikTok wants to speak. In 10 days, because this law was passed, TikTok cannot speak unless ByteDance executes a qualified divestiture,” Francisco said.
On Jan 19, Francisco told conservative Justice Brett Kavanaugh that “at least as I understand it we (TikTok) go dark. Essentially, platform shuts down unless there’s a divestiture, unless President Trump exercises his authority to extend it.” But Trump could not do that on Jan 19 because he does not take office until the following day, Francisco said.
“It is possible that come Jan. 20th, 21st or 22nd, we might be in a different world,” Francisco added, which he called one of the reasons why the justices should issue a temporary pause on the law to “buy everybody a little bit of breathing space.”
Responding to Barrett, Francisco said it could take “many years” for ByteDance to divest TikTok.
