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Justice Ketanji Brown Jackson asked her first questions of Francisco after nearly an hour of arguments, questioning whether the issue is really about TikTok’s association with ByteDance.”If TiKTok were to, post-divestiture or pre-divestiture, come up with its own algorithm, then when the divestiture happens, it could still operate,” she told Francisco of the law. “It doesn’t say, ‘TikTok, you can’t speak.'”Jackson, the newest member of the court, said TikTok’s lawyer was “wrong about the statute being read as saying TikTok, you have to go mute, because TikTok can continue to operate on its own algorithm, on its own terms, as long as it’s not associated with ByteDance. So isn’t this really about association?”Jackson then questioned Francisco about the standard of review the justices should apply. Two of the judges on the D.C. Circuit applied strict scrutiny, the highest and most demanding form of judicial review, and said the government satisfied that standard. The third judge said intermediate scrutiny, the middle level, applied. The three-judge panel unanimously agreed in upholding the divest-or-ban law.She asked whether the government’s concerns about data collection and content manipulation are not compelling interests.Content manipulation, Francisco said, is an “impermissible” interest. He said the government could not approach CNN or Fox and tell the networks they are manipulating content in a way the government disfavors.
