Legal Docket: TikTok ban and online age restrictions

NICK EICHER, HOST: It’s The World and Everything in It for this 20th day of January, 2025. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

MONTAGE: We have breaking news now the Supreme Court has upheld the law that could ban TikTok. / Good Friday morning to you we're coming on the air with some breaking news from the Supreme Court: The High Court has just declined to stop a / ban against TikTok can go into / effect on Sunday yet / unless its Chinese parent company ByteDance sells to a US based company in the next two days / So it's not a surprising ruling / and of course, now it's going to be a question of what goes on once the president-elect takes office. / Yeah, well, it literally just dropped. / TikTok's lawyers had really tried to argue this was a First Amendment case.

But no sooner had TikTok gone dark than it flickered back to life.

MONTAGE: Breaking news from TikTok, it is in the process of restoring service after going dark for more than 170 million American users late last night. / I've been in shock for the last 48 hours. / This has been such a roller coaster ride for content creators and users. / This comes after President-elect Trump said he planned to give TikTok a 90-day extension to continue operating. / Speaking of the president-elect, we also have a statement here from him via Truth Social. I'm asking companies not to let TikTok stay dark. I will issue an executive order on Monday to extend the period of time before the law's prohibitions take effect. / Megan, we just learned about this news a few seconds ago / During the commercial break / During the commercial break. / It's getting banned. Wait, no, it's gonna get saved. No, no, no, it's actually going dark on the 19th. Wait, no, but it might come back the next day.

It’s time now for Legal Docket.

We’ll talk about three decisions of the Supreme Court … and oral argument in a case that may be as important as the TikTok case. But we will begin there.

It was just 10 days ago that the high court took up TikTok’s appeal on an expedited schedule.

By Friday came an unsigned opinion that we can safely assume was unanimous. It holds that the ban does not violate TikTok’s First Amendment Rights—despite the argument of the China-owned company that it did.

EICHER: But the court found the government’s argument most compelling: that the app is a Trojan Horse threatening national security. It collects Americans’ data and twists public opinion.

Listen to this comment from Chief Justice John Roberts to the lawyer for TikTok what he says here gives a hint as to where the court was leaning.

ROBERTS: You began by saying this is a U.S. company operating in the United States. But the ultimate company that controls it, ByteDance, was found by Congress… “to be subject to Chinese laws that require it to assist or cooperate with the Chinese government’s intelligence work,” and to ensure that the Chinese government has the power to access and control private data that the company holds. So are we supposed to ignore the fact that the ultimate parent is in fact subject to doing intelligence work for the Chinese government?

This is going to have to factor into incoming President Trump’s ultimate resolution. His hope is to save the app by way of a deal with ByteDance, the Chinese owner of TikTok. Or perhaps finding an American buyer would solve the problem.

REICHARD: Alright, from TikTok to woof-woof—prescription pet food and allegations of deceptive marketing. A decision in the case of Royal Canin USA v. Wullschleger.

This one was a narrow legal issue over jurisdiction—meaning, where a lawsuit can be heard.

Lead plaintiff Anastasia Wullschleger sued in state court, but included both federal and state law claims in her complaint.

EICHER: Because of the federal claims, the pet-food maker moved the case into federal court.

Wullschleger felt she had a better shot in state court, so she amended her complaint. She removed those federal claims, to get the case out of federal court.

But that was the exact controversy: The pet food company argued no take-backs. What gets to federal court, stays in federal court, she can’t just go back to state court.

But the Supreme Court said oh yes she can , and it was unanimous.

You can hear the eventual ruling in this comment from Chief Justice Roberts to the pet food maker’s lawyer during oral argument in October:

ROBERTS: You complain about the forum manipulation problems this would create. I don't see how that's a problem here. They wanted --they start in state court; they want to go back to state court. They're not trying to manipulate anything.

REICHARD: So Wullschleger and her dog Clinton return to state court in Missouri.

EICHER: The next decision deals with overtime pay … a big win for employers in EMD Sales, Inc. v. Carrera.

The law at issue is the Fair Labor Standards Act, the FLSA.

Here, sales reps sued for overtime pay. Outside sales jobs are considered exempt from overtime, but these employees said their actual job duties were mostly not in sales.

FLSA puts the burden on the employer to prove these workers truly are exempt from overtime rules.

REICHARD: So the narrow legal question was how they prove it.

What do bosses have to show to prove that an employee is or isn’t exempt from overtime pay?

There are two possibilities: Option A is showing merely that workers “probably” don’t qualify for overtime pay. (Meaning a “preponderance” of the evidence.) Or just more than 50% likely.

Option B is showing “clear and convincing” evidence that the workers don’t qualify. It’s not quite “beyond a reasonable doubt” level of proof, but something around 75% likely to be true.

EICHER: Justice Clarence Thomas voiced the eventual rationale for a unanimous decision for the employer interpretation of the FLSA.

THOMAS: Why should the FLSA be treated differently from discrimination laws? Title VII only requires a preponderance.

Disappointing for employees hoping for bigger paychecks, but at least there’s more clarity on the matter.

REICHARD: Those are the decisions. Now, a landmark case we probably won’t know the outcome of until closer to the end of the term.

This one grabbed headlines: Free Speech Coalition, Inc v Ken Paxton.

About that name, “Free Speech Coalition?” What this coalition means by speech is pornographic content. What it means by free is free of regulation. What’s behind this trade group is a pornography industry that by some estimates rakes in more than $100 billion per year.

That includes the operator of Pornhub, one of the most-visited websites in the world, number 12.

EICHER: The porn producers object to a law Texas approved in 2023 with only a single no vote. It requires age verification before allowing access to explicit material online.

The porn purveyors argue such an obstacle violates the rights of adults who want to look at pornography without anyone looking at them. They don’t want to reveal their identities. The Free Speech Coalition says age verification erodes anonymity and deters lawful access to content.

REICHARD: Justice Amy Coney Barrett is the mother of seven children. Here’s what she said to Derek Shaffer, he’s the lawyer who represents the pornographers:

BARRETT: Kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with. I think that the explosion of addiction to online porn has shown that content filtering isn’t working.

Shaffer argued that it’s still parents who have the responsibility to filter that stuff out on their own devices.

Justice Samuel Alito:

ALITO: Do you know a lot of parents who are more tech-savvy than their 15-year-old children? (Laughter)

SHAFFER: Justice Alito, it’s a fair question and I…(fade out)

NICK EICHER, HOST: Shaffer going on to say there’s content-filtering software out there. Besides, Texas should think about educating parents more.

Justice Alito scoffed.

ALITO: I mean, Mr. Shaffer, come on. Be real. There’s a huge volume of evidence that filtering doesn’t work. We’ve had many years of experience with it. We now have many many states who have adopted age verification requirements. Why are they doing that if the filtering is so good?

Here’s a shocking statistic we learned from this case: the average age of first exposure to internet porn in this country is 12 years old.

So that’s one thing.

But here’s another:

Pornography is considered "speech" under the First Amendment because it is a form of expression. It’s not an unlimited protection, though. Obscenity is not protected. But that’s another can of worms, trying to define obscenity, it’s why one justice famously said, it’s hard to define but I know it when I see it.

REICHARD: Regardless, lawyer Shaffer for the porn producers argues this case comes down to one key question: what is the standard of legal review? The standard the appellate court used is a much more lenient standard giving the state a freer hand to regulate his client’s products.

SHAFFER: In this case, a Fifth Circuit majority held that mere rational basis review, the most lax form of judicial scrutiny, applies to a Texas law that burdens constitutionally protected speech based on its content, specifically, by imposing an age verification barrier before anyone can access a sexually themed website. That aberrant holding defies this Court's consistent precedent…

He wants the court to apply strict scrutiny—that’s the most difficult standard—and he’d almost certainly win under that standard.

Shaffer leaned on a 20-year old ruling that a federal law called the Child Online Protection Act was probably unconstitutional under strict scrutiny.

The Texas law is similar to that one.

EICHER: Let’s take a moment here and talk about legal standards for review:

Strict scrutiny requires the state to prove, first, a compelling government interest to restrict a constitutional right. Second, it requires that even compelling government interests be pursued using the least restrictive way possible. That’s what the porn producers want.

The rational basis standard is probably the only way Texas wins. Rational basis requires only some legitimate government reason to restrict a right.

Texas Solicitor General Aaron Nielsen:

NIELSEN: Petitioners don't dispute that their websites are not meant for children, that they harm children, and that children are watching. The Court faced the same situation with brick-and-mortar stores and applied rational basis to a law limiting adult content to adults…Age verification today, however, is simple, safe, and common, including non-identifying means. …Regardless, if strict scrutiny applies here, Texas would have to satisfy strict scrutiny to keep kids out of strip clubs. This Court's cases do not require that. Neither do history, tradition, or common sense. In all events, even if heightened scrutiny applies, Texas easily satisfies it, especially facially. We've tried content filtering for decades, and the problem has only gotten worse.

REICHARD: The Biden Administration submitted a friend of the court brief, urging that the case be sent down to the lower courts, and there weigh the issues using strict scrutiny.

Principal Deputy Solicitor General Brian Fletcher argued that First Amendment protections must be robust. If strict scrutiny does apply, the Texas law fails the test.

But:

FLETCHER: …that should not prevent Congress or the states from restricting the distribution of pornography to children online, just as states have traditionally done it in brick-and-mortar stores and theaters.

All sides agree the government has a compelling interest to protect kids from harmful material.

The bugaboo is how to allow adults access while protecting kids.

Justice Elena Kagan worried about that:

KAGAN: Seems to me that there are possible spill-over dangers either way. One is the spill-over danger of you relax strict scrutiny in one place and all of a sudden strict scrutiny gets relaxed in other places. The other is the spill-over danger of you treat a clearly content-based law as not requiring strict scrutiny, and all of a sudden you start seeing more content-based restrictions that don't have to satisfy strict scrutiny.

EICHER: In other words, if the Texas law only affected the rights of children, then rational basis would be enough. Easy.

But this one’s not easy—because the rights of adults are involved.

REICHARD: Reading the briefs, one in particular caught my eye: from an organization called Exodus Cry that works to end sex trafficking.

It told the story of a sexual assault nurse examiner in Kansas City who noticed a horrifying trend among her young victims. They were increasingly being assaulted by other children! This woman, Heidi Olson, reviewed data from hundreds of child sexual assault cases.

The only common risk factor she found was their exposure to pornography. Children were learning how to abuse others by watching it.

And that’s this week’s Legal Docket!

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