SUPREME COURT

OF THE UNITED STATES

IN THE SUPREME COURT OF THE UNITED STATES

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TIKTOK, INC., ET AL., )
Petitioners, )
v. ) No. 24-656
MERRICK B. GARLAND, )
ATTORNEY GENERAL, )
Respondent. )
- - - - - - - - - - - - - - - - - -
BRIAN FIREBAUGH, ET AL., )
Petitioners, )
v. ) No. 24-657
MERRICK B. GARLAND, )
ATTORNEY GENERAL, )
Respondent. )
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Pages: 1 through 175

Place: Washington, D.C.

Date: January 10, 2025

HERITAGE REPORTING CORPORATION

Official Reporters
1220 L Street, N.W., Suite 206
Washington, D.C. 20005
(202) 628-4888
www.hrccourtreporters.com
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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - - - -

3 TIKTOK, INC., ET AL., )

4 Petitioners, )

5 v. ) No. 24-656

6 MERRICK B. GARLAND, )

7 ATTORNEY GENERAL, )

8 Respondent. )

9 - - - - - - - - - - - - - - - - - -

10 BRIAN FIREBAUGH, ET AL., )

11 Petitioners, )

12 v. ) No. 24-657

13 MERRICK B. GARLAND, )

14 ATTORNEY GENERAL, )

15 Respondent. )

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17 Washington, D.C.

18 Friday, January 10, 2025

19

20 The above-entitled matter came on for

21 oral argument before the Supreme Court of the

22 United States at 10:08 a.m.

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1 APPEARANCES:

2 NOEL J. FRANCISCO, ESQUIRE, Washington, D.C.; on

3 behalf of Petitioners TikTok, Inc., et al.

4 JEFFREY L. FISHER, ESQUIRE, Menlo Park, California; on

5 behalf of Petitioners Brian Firebaugh, et al.

6 GEN. ELIZABETH B. PRELOGAR, Solicitor General,

7 Department of Justice, Washington, D.C.; on behalf

8 of the Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF: PAGE:

3 NOEL J. FRANCISCO, ESQ.

4 On behalf of Petitioners TikTok, Inc.,

5 et al. 4

6 ORAL ARGUMENT OF:

7 JEFFREY L. FISHER, ESQ.

8 On behalf of Petitioners Brian Firebaugh,

9 et al. 72

10 ORAL ARGUMENT OF:

11 GEN. ELIZABETH B. PRELOGAR, ESQ.

12 On behalf of the Respondent 115

13 REBUTTAL ARGUMENT OF:

14 NOEL J. FRANCISCO, ESQ.

15 On behalf of Petitioners TikTok, Inc.,

16 et al. 170

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1 P R O C E E D I N G S

2 (10:08 a.m.)

3 CHIEF JUSTICE ROBERTS: We will hear

4 argument this morning in Case 24-656, TikTok

5 versus Garland, and the consolidated case.

6 Mr. Francisco.

7 ORAL ARGUMENT OF NOEL J. FRANCISCO

8 ON BEHALF OF PETITIONERS TIKTOK, INC., ET AL.

9 MR. FRANCISCO: Mr. Chief Justice, and

10 may it please the Court:

11 Under the Act, one of America's most

12 popular speech platforms will shut down in nine

13 days. That shouldn't happen for three reasons.

14 First, TikTok incorporated as a U.S.

15 company speaking in the United States. The Act

16 requires it to go dark unless ByteDance executes

17 a qualified divestiture. Whether you call that

18 a ban or a divestiture, one thing is clear:

19 It's a burden on TikTok's speech, so the First

20 Amendment applies.

21 Second, the Act is content-based from

22 beginning to end. It applies only to social

23 media platforms that have user-generated

24 content, except for business, product, and

25 travel reviews. Within that content-based

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1 universe, it singles out a single speaker for

2 uniquely harsh treatment, and it does so because

3 the government fears that China could, in the

4 future, indirectly pressure TikTok to

5 disseminate foreign misinformation and

6 propaganda.

7 Finally, the Act can't satisfy any

8 standard of scrutiny. The government has no

9 valid interest in preventing foreign propaganda.

10 And its fall-back that it seeks merely to

11 prevent covertness makes no sense since that

12 could be addressed with a risk disclosure.

13 The government's real target, rather,

14 is the speech itself, its fear that Americans,

15 even if fully informed, could be persuaded by

16 Chinese misinformation. That, however, is a

17 decision that the First Amendment leaves to the

18 people.

19 Given that, the government's data

20 security rationale cannot independently sustain

21 the Act. It is also grossly under-inclusive and

22 ignores the most obvious less restrictive

23 alternative: simply banning TikTok,

24 Incorporated, from sharing any sensitive user

25 data with anyone.

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1 In short, this Act should not stand.

2 At a minimum, you should preliminarily enjoin

3 it, which will allow you to carefully consider

4 this momentous issue and, for the reasons

5 explained by the President-Elect, potentially

6 moot the case.

7 I welcome your questions.

8 JUSTICE THOMAS: Exactly what is

9 TikTok's speech here?

10 MR. FRANCISCO: TikTok, Your Honor,

11 uses an algorithm that, in its view, reflects

12 the best mix of content. What the Act does is

13 it says TikTok cannot do that unless ByteDance

14 executes a qualified divestiture. That's a

15 direct burden on TikTok's speech, much less of a

16 burden than the one that this Court struck down

17 in the Simon & Schuster case, where all the

18 author had to do was take a certain amount of

19 proceeds and put it into an escrow account for a

20 short period of time to satisfy a civil

21 judgment.

22 JUSTICE THOMAS: So why does a

23 restriction on ByteDance, which is not a

24 citizen, is not located in the U.S., a

25 restriction on TikTok?

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1 MR. FRANCISCO: Because what the law

2 says to TikTok is that, TikTok, you cannot use

3 the algorithm that you prefer to use unless

4 ByteDance executes a qualified divestiture.

5 So the law, therefore, falls directly

6 on TikTok itself. It imposes a burden on

7 TikTok's speech, again, a much less -- a much

8 more significant burden than the one that was

9 struck down in Simon & Schuster. There --

10 JUSTICE THOMAS: So you're converting

11 the restriction on ByteDance's ownership of the

12 algorithm and the company into a restriction on

13 TikTok's speech. So why can't we simply look at

14 it as a restriction on ByteDance?

15 MR. FRANCISCO: Because -- because I

16 think the burden falls directly on TikTok. And

17 I can use a hypothetical that helps illustrate

18 the point. Suppose that China used its leverage

19 over Jeff Bezos's international empire,

20 including his Chinese businesses, to force

21 Wash -- the Washington Post to write whatever

22 China wanted on the front page of the Post.

23 Surely, the government couldn't come

24 in and say, Jeff Bezos, you need to either sell

25 the Washington Post or shut it down. That

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1 wouldn't just violate Mr. Bezos's First

2 Amendment rights. That would also violate the

3 Washington Post's First Amendment rights because

4 they are ultimately the one that's suffering the

5 burden under that law because they have to go

6 dark and close up their books.

7 CHIEF JUSTICE ROBERTS: Counsel, you

8 began by saying this is a U.S. company operating

9 in the United States.

10 MR. FRANCISCO: Yes, Your Honor.

11 CHIEF JUSTICE ROBERTS: But the

12 ultimate company that controls it, ByteDance,

13 was found by Congress -- and I'll quote this --

14 "to be subject to Chinese laws that require it

15 to assist or" -- "or cooperate with the Chinese

16 government's intelligence work" and to ensure

17 that the Chinese government has the power to

18 access and control private data that the company

19 holds.

20 So are we supposed to ignore the fact

21 that the ultimate parent is, in fact, subject to

22 doing intelligence work for the Chinese

23 government?

24 MR. FRANCISCO: Well, Your Honor, I

25 don't think you are supposed to ignore that at

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1 all, but I also don't think that it changes the

2 analysis for a couple of reasons.

3 Look, TikTok --

4 CHIEF JUSTICE ROBERTS: Well, just --

5 hold on a second. Well, as I said, you began by

6 saying this is a U.S. company operating in the

7 United States. And it seems to me that you're

8 ignoring the major concern here of Congress,

9 which was Chinese manipulation of the content

10 and acquisition and harvesting of -- of the

11 content.

12 MR. FRANCISCO: Sure. And I'll start

13 by saying that TikTok, Incorporated, is a United

14 States subsidiary operating in the United States

15 with its own set of free speech rights. I --

16 CHIEF JUSTICE ROBERTS: Do you dispute

17 the fact that ByteDance is a -- has ultimate

18 control of TikTok in its corporate organization?

19 MR. FRANCISCO: Yes, Your Honor, I do

20 dispute that, but I also don't think that it

21 matters because, even if China could exercise

22 overwhelming power against TikTok versus

23 ByteDance, I don't think it would change the

24 analysis. And I can take that Washington Post

25 hypothetical and ratchet it up a little bit to

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1 help illustrate the point.

2 Let's suppose that the Chinese

3 government had actually taken the Bezos children

4 hostage and it was using that leverage in order

5 to force Bezos and the Washington Post to

6 publish whatever they wanted on the front page

7 of the Post. So China effectively has total

8 control.

9 I still don't think that Congress

10 could come in and tell Bezos either sell the

11 Post or shut it down because that would violate

12 Bezos's rights and the Washington Post's rights.

13 Maybe what they could do is come in

14 and say you need to disclose the fact that

15 you're under this amount of coercion so that the

16 people who are looking at the paper understand

17 it and can make their own assessment.

18 But I think the First Amendment rights

19 of both Bezos and the Post would be directly

20 implicated, notwithstanding that China, in that

21 scenario, has effectively total control over

22 what -- what -- what gets printed in the

23 Washington Post.

24 JUSTICE SOTOMAYOR: Counsel, let me

25 break this down. I understand your argument

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1 that there is a First Amendment right that the

2 U.S. company has. I'll go that far with you,

3 okay --

4 MR. FRANCISCO: I'll take it.

5 (Laughter.)

6 JUSTICE SOTOMAYOR: -- because we're

7 affecting their ability to talk in some -- in

8 whatever way they choose. The Washington Post

9 could choose, without any influence or threat

10 against the children of Mr. Bezos, to promote

11 Chinese policy, and our First Amendment would

12 permit them to do that if they chose it

13 independently, correct?

14 MR. FRANCISCO: Yes.

15 JUSTICE SOTOMAYOR: Now the question

16 becomes -- so it's not -- that's just a given,

17 that they have a First Amendment right. The

18 next question is, assuming they do, what's the

19 level of scrutiny --

20 MR. FRANCISCO: Mm-hmm.

21 JUSTICE SOTOMAYOR: -- we apply?

22 Isn't that what the issue here is?

23 MR. FRANCISCO: That is certainly one

24 of the issues, Your Honor.

25 JUSTICE SOTOMAYOR: All right. So, if

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1 we get to that side of the issue, that TikTok

2 U.S.A. has some sort of First Amendment right,

3 taking your example, if the government said no

4 speaker is free to speak under -- under a

5 criminal compulsion by someone else, because of

6 extortion, because of kidnapping, we are doing

7 this because it is the only way to ensure the

8 safety of people, that they are not going to be

9 kidnapped or threatened, their lives threatened.

10 You don't think that the government

11 has a compelling state interest in saying, if

12 there is a threat, a -- a physical criminal

13 threat against someone to do some activity, that

14 the government couldn't say: I'm not

15 questioning whatever the content is --

16 MR. FRANCISCO: Mm-hmm.

17 JUSTICE SOTOMAYOR: -- of that

18 activity. I'm simply saying we, in our

19 governmental powers, have a right to say: You

20 can't do that. You can't speak.

21 MR. FRANCISCO: Sure, Your Honor. So,

22 to take your question in pieces, I do think that

23 they would have a compelling interest in that

24 scenario to do something. But what I don't

25 think is that they could simply target speakers

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1 and speech.

2 Take, for example, generally

3 applicable laws like the Trading --

4 JUSTICE SOTOMAYOR: So you think in

5 that situation that it -- that the only thing

6 the government could do is tell the Washington

7 Post: Disclose to the public that you are

8 saying this because you are being forced to?

9 MR. FRANCISCO: So, sure --

10 JUSTICE SOTOMAYOR: That that --

11 that's the only remedy the government could

12 undertake?

13 MR. FRANCISCO: No -- no, Your Honor,

14 but I want to make sure I understand the

15 hypothetical. The compelling interest is in

16 preventing this kind of compulsion, coercion,

17 and, ultimately, harm to children.

18 And I think that the government has a

19 lot of different ways they can address that

20 through speech-neutral laws. And I was going to

21 point to things like the Trading with the Enemy

22 Act or Russia sanctions. You can broadly say

23 and attack problems --

24 JUSTICE SOTOMAYOR: They haven't been

25 very effective.

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1 MR. FRANCISCO: Well, be that as it --

2 JUSTICE SOTOMAYOR: We -- we're still

3 having people kidnapped. We're still having

4 coercion.

5 MR. FRANCISCO: And be that as it may,

6 you can say to Americans: You cannot

7 collaborate with our enemies at all, and if you

8 do that, you're going to be severely punished

9 for doing that. But what I don't --

10 JUSTICE SOTOMAYOR: All right. We can

11 go on to the effectiveness of the remedy.

12 MR. FRANCISCO: Mm-hmm.

13 JUSTICE SOTOMAYOR: But the point is,

14 I believe, that even if your First Amendment

15 rights are impinged and there is some

16 protection, the question is, is what -- at what

17 level of scrutiny --

18 MR. FRANCISCO: Yes, Your Honor.

19 JUSTICE SOTOMAYOR: -- and whether

20 that -- the action is content-neutral or not.

21 MR. FRANCISCO: I -- I -- I agree that

22 that is the way that the analysis proceeds.

23 Here, we believe that the level of scrutiny

24 should be strict scrutiny, but --

25 JUSTICE KAVANAUGH: What -- what is

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1 the relevance of the history? Chief Judge

2 Srinivasan, in his opinion in the D.C. Circuit,

3 emphasized that there is a long tradition of

4 preventing foreign ownership or control of media

5 in the United States --

6 MR. FRANCISCO: Sure.

7 JUSTICE KAVANAUGH: -- going back:

8 radio, television --

9 MR. FRANCISCO: Right.

10 JUSTICE KAVANAUGH: -- and what have

11 you. I would think, no matter the level of

12 scrutiny, that history has to be important, and

13 I want to get your response to it.

14 MR. FRANCISCO: Mm-hmm. I don't

15 actually think it's important in this context

16 because that history all arises in the context

17 of bandwidth scarcity. And, in that context,

18 you have the government that's in -- in the

19 position of doling out a limited number of

20 licenses.

21 And when you have to dole out a

22 limited number of licenses, you, by definition,

23 have to pick winners and losers, and when you

24 have to do that, you get a certain amount of

25 discretion. I think that's the whole basis of

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1 those cases.

2 You can't really take those cases

3 and --

4 JUSTICE KAVANAUGH: Well -- keep

5 going.

6 MR. FRANCISCO: You can't really take

7 those cases and extend them to an area where

8 there is no scarcity, like the World Wide Web,

9 because, once you do that, there's really no

10 limiting principle. There's no reason why it

11 wouldn't also apply to really popular books or

12 magazines or newspapers or chains of newspapers.

13 The bandwidth scarcity, I think, is

14 really what justifies the greater discretion

15 that the government gets in that area.

16 JUSTICE ALITO: Mr. Francisco, let me

17 see if I can break this down.

18 Suppose that TikTok were outright

19 owned by the People's Republic of China. Would

20 you make the same argument?

21 MR. FRANCISCO: I wouldn't be making

22 the same argument, Your Honor. There, you

23 would --

24 JUSTICE ALITO: Why -- why not?

25 MR. FRANCISCO: Because, there, you

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1 would have to confront a very different

2 question, whether a foreign government that was

3 speaking in the United States has First

4 Amendment rights. And I don't know that the

5 Court has ever addressed that.

6 But, here, we've got a U.S. company --

7 JUSTICE ALITO: No, I understand that.

8 I just want to see where you draw the line.

9 So it's true, the Court has never held

10 that a foreign government has free speech

11 rights. And if we were to hold that, I would

12 think it's because -- it would be because speech

13 by a foreign government, particularly one with

14 enormous resources, is not protected -- allowing

15 that is -- does not serve the underlying

16 interests of the First Amendment, which are,

17 among other things, fostering democratic

18 self-government and furthering the -- the

19 truth -- the search for truth.

20 So let's assume that that's -- we

21 start with that, all right? What if TikTok were

22 then not owned by the foreign government, but it

23 was undisputed that TikTok was totally

24 controlled by the foreign government, could not

25 do one thing without the approval of the foreign

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1 government? That's different?

2 MR. FRANCISCO: I do think that it is

3 different, Your Honor. For example, you know,

4 I -- I've given the hypothetical that I've

5 given, but there are a lot of companies in this

6 country that have foreign owners, not just

7 companies like Politico, with -- which is German

8 owned, or Al Jazeera, which is partly owned by

9 the government of Qatar.

10 JUSTICE ALITO: Well, I -- I

11 understand that, but what would be the reason

12 for drawing that line?

13 MR. FRANCISCO: Sure. Because --

14 JUSTICE ALITO: If -- if there's a

15 good reason for saying that a foreign

16 government, particularly an adversary, does not

17 have free speech rights in the United States,

18 why would it all change if it was simply hidden

19 under some kind of contrived core -- corporate

20 structure?

21 MR. FRANCISCO: Because it is a U.S.

22 speaker.

23 I'll give you another example. AMC

24 movie theaters used to be owned by a Chinese

25 company. Under this theory, Congress could

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1 order AMC movie theaters to censor any movies

2 that Congress doesn't like or promote any movies

3 that Congress wanted.

4 And I think the reason is that, here,

5 where it's conceded you actually have a bona

6 fide U.S. company, it is not simply a Chinese

7 cutout that is the Chinese government speaking

8 itself --

9 JUSTICE ALITO: All right. Let's say

10 that's not a complete --

11 MR. FRANCISCO: -- but an independent

12 United States company.

13 JUSTICE ALITO: Let's say this is not

14 a complete answer to -- to your First Amendment

15 argument, but would you be willing to concede

16 that this is a very important factor that should

17 be taken into account in deciding whether

18 there's a First Amendment violation?

19 MR. FRANCISCO: Well, Your Honor, I

20 think that it does help supply a compelling

21 governmental interest, but I still think you

22 have to march through the strict scrutiny

23 analysis and analyze their interests. I do not

24 think that they have a compelling governmental

25 interest in -- in -- in the manipulation of

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1 content.

2 I think that is in the teeth of the

3 First Amendment. And if you look at the

4 government's brief and the rest of the record in

5 this case, that's really what it's focused on.

6 Their complaint is the fear that the content

7 could be critical of the United States

8 Government or -- or could undermine our

9 democracy.

10 Yes, Your Honor.

11 JUSTICE GORSUCH: Mr. Francisco, I

12 just wanted to follow up on -- on that line of

13 questioning with just some fact questions --

14 MR. FRANCISCO: Mm-hmm.

15 JUSTICE GORSUCH: -- because it seems

16 to me there are a couple of things that the

17 parties still dispute about facts in this Court,

18 which is a little unusual.

19 The government says that TikTok U.S.

20 has no authority or ability to alter the

21 algorithm or recommendation engine but must

22 simply follow ByteDance's directives. You

23 disagree with that in your reply brief.

24 MR. FRANCISCO: Yes, we do.

25 JUSTICE GORSUCH: Somebody has to be

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1 right and somebody has to be wrong about that.

2 What's -- what's the fact -- what does the

3 record show on that?

4 MR. FRANCISCO: Well, Your Honor, we

5 are here on a record, and there is nothing in

6 the record that says that TikTok, like any other

7 subsidiary, doesn't have its own

8 independent-making authority. If you look at

9 their record cites, what they point to is the

10 ordinary types of control that a parent company

11 has over a subsidiary company. But it doesn't

12 change the fact that --

13 JUSTICE GORSUCH: All right. What is

14 the fact? Are you prepared to make a -- a

15 representation of the fact here?

16 MR. FRANCISCO: Yes, Your Honor. The

17 fact is that TikTok, Incorporated, as a U.S.

18 company, does have a choice over the algorithm.

19 Now it would be a incredibly bad business

20 decision for them to abandon this algorithm, and

21 they very doubtful would ever do it, but they

22 have that authority.

23 What they clearly have the authority

24 to do is shut down the platform in the face of

25 Chinese pressure. That's actually what they

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1 agreed to do in the national security agreement.

2 I think that underscores why TikTok,

3 Incorporated, as a U.S. company, does have its

4 own set of First Amendment rights.

5 JUSTICE GORSUCH: Okay. And then

6 another fact question.

7 Before the D.C. Circuit, you -- you

8 argued that the Chinese government has made

9 clear in public statements that it would not

10 permit a forced divest -- divestment of the

11 recommendation engine. Does that mean that some

12 key component of the recommendation engine is

13 under Chinese control?

14 MR. FRANCISCO: No, Your Honor. What

15 it means -- and this might warrant a little more

16 explanation. What it means is that there are

17 lots of parts of the source code that are

18 embodied in intellectual property that are owned

19 by the Chinese government, and they would

20 restrict, like the United States restricts, the

21 sale of those types of things to foreign

22 governments.

23 It doesn't alter the fact that this is

24 being operated in the United States by TikTok,

25 Incorporated. So --

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1 JUSTICE GORSUCH: Okay. I -- I got

2 it.

3 MR. FRANCISCO: Okay.

4 JUSTICE GORSUCH: I got it. And then

5 you represent that the divestiture is not

6 feasible within the Act's timeframe. I'm sorry

7 for these fact questions --

8 MR. FRANCISCO: Sure.

9 JUSTICE GORSUCH: -- but I just want

10 to understand what's before us.

11 MR. FRANCISCO: Yeah.

12 JUSTICE GORSUCH: Would it be feasible

13 in any timeframe? I -- I take the government

14 doesn't dispute that it's infeasible in the 270

15 days provided by law. But would it be feasible

16 at all?

17 MR. FRANCISCO: Your -- Your Honor, I

18 think, at least as we understand how they've

19 interpreted the qualified divestiture provision,

20 it would be exceedingly difficult under any

21 timeframe for two principal reasons.

22 The first is that there's a global

23 team of engineers that are some in China, some

24 in Europe, some in the United States, that

25 maintain and update the original source code.

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1 And, as we understand their interpretation, a

2 qualified divestiture would prohibit any kind of

3 coordination with that global team of engineers.

4 The other reason is because, as we

5 understand how they're interpreting it, a

6 qualified divestiture would divorce the U.S.

7 platform from the global content. So, for

8 example, there are videos created in the United

9 States. There are videos created in Ireland.

10 In order to get global content, we need access

11 to the Irish videos. They need access to the

12 U.S. videos.

13 JUSTICE GORSUCH: I got that.

14 MR. FRANCISCO: We understand that

15 couldn't happen.

16 JUSTICE GORSUCH: Okay. So you think

17 it's probably not feasible in any timeline?

18 MR. FRANCISCO: Well, Your Honor, I

19 think it would be extraordinarily difficult.

20 JUSTICE GORSUCH: Okay. Last -- last

21 fact question. Then I'll yield the floor here.

22 The government admits that it has no

23 evidence that TikTok has engaged in covert

24 content manipulation in this country but says

25 that ByteDance has responded to PRC demands to

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1 censor content outside of China in other

2 countries. Again, you deny that in your reply

3 brief. Somebody has to be right about that.

4 MR. FRANCISCO: Well -- well, Your

5 Honor, the problem there is everything that

6 follows what you just read is redacted, and so I

7 don't know what it says.

8 What the record shows is two things.

9 The record shows first what you just said: They

10 haven't done anything here in the United States

11 with respect to TikTok, Incorporated. And,

12 second, the record also shows through our

13 transparency reports that we haven't removed or

14 restricted content on the TikTok platform in

15 other parts of the world. And TikTok doesn't

16 operate in China. It operates in other parts of

17 the world. We haven't removed or restricted

18 content at the request of China. That's what we

19 put out in our regular transparency reports.

20 JUSTICE GORSUCH: Removed or

21 restricted, though, doesn't necessarily cover

22 covert content manipulation, though, right?

23 MR. FRANCISCO: Well, Your Honor, I'm

24 limiting my response to what's in the record.

25 JUSTICE GORSUCH: To what's in the

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1 record? Okay.

2 MR. FRANCISCO: It's very difficult

3 for me to respond to things that I -- where I

4 don't know what the accusation is.

5 JUSTICE GORSUCH: I have other

6 questions about the secret evidence in this

7 case, but we'll get to that later.

8 MR. FRANCISCO: Yes, Your Honor.

9 JUSTICE GORSUCH: Thank you.

10 JUSTICE BARRETT: Mr. Francisco, can I

11 ask you a question about the relevant speech

12 here? So it strikes me that this is a little

13 different than your Bezos example because,

14 there, it's clearly content discrimination

15 because we're talking about the ability to post

16 particular articles versus other articles. Am I

17 right that the algorithm is the speech here?

18 MR. FRANCISCO: Yes, Your Honor.

19 The -- well, I would say it's -- you know, the

20 algorithm is a lot of things. The algorithm has

21 built within it -- it's -- it's basically how we

22 predict what our customers want to see.

23 JUSTICE BARRETT: The editorial

24 discretion?

25 MR. FRANCISCO: Yeah --

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1 JUSTICE BARRETT: Yeah.

2 MR. FRANCISCO: -- the editorial

3 discretion. It also has built within it the

4 moderation elements. All of this kind of comes

5 together when the source code is translated into

6 executable code in the United States. In the

7 United States, that executable code is then

8 subject to vetting, review, moderation through

9 content moderation algorithms. And that -- so

10 it ultimately lands on the TikTok platform.

11 JUSTICE BARRETT: Got it. But what

12 we're -- what we're talking about as -- as in

13 NetChoice is the editorial discretion that

14 underlies the algorithm. And -- and I just want

15 to be clear. A lot of your examples talk about,

16 including the Bezos one --

17 MR. FRANCISCO: Mm-hmm.

18 JUSTICE BARRETT: -- the right of an

19 American citizen to repeat what a foreign entity

20 says or say, you know, I'm hitching my wagon to

21 China; I want to say everything China does.

22 Here, the concern is about the covert

23 content manipulation piece of the algorithm.

24 MR. FRANCISCO: Mm-hmm.

25 JUSTICE BARRETT: That is something

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1 that ByteDance wants to speak, right?

2 MR. FRANCISCO: Well, Your Honor, I

3 think that ultimately it's TikTok's choice

4 whether to put it on the platform. And --

5 JUSTICE BARRETT: And you don't want

6 that? Are you -- is your client disclaiming

7 any --

8 MR. FRANCISCO: We -- we -- we

9 absolutely resist any kind of content

10 manipulation by China at all, but what I do want

11 to focus in on is what -- their asserted

12 interests here. They do talk about covertness.

13 But it can't possibly be that all they're

14 concerned about is mere covertness.

15 If all you were concerned about was

16 the covertness untethered from the underlying

17 content, that's something that could be easily

18 addressed through a risk disclosure.

19 JUSTICE BARRETT: But that goes to

20 scrutiny, the level of --

21 MR. FRANCISCO: Yes, Your Honor.

22 JUSTICE BARRETT: -- the application.

23 I'm trying to -- I mean, let's say that I agree

24 with you the First Amendment is implicated, and

25 I'm trying to figure out what level of scrutiny

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1 applies.

2 MR. FRANCISCO: Sure.

3 JUSTICE BARRETT: And I'm trying to

4 figure out what content, if any, discrimination

5 is going on here. You know, there's a

6 disproportionate burden. I --

7 MR. FRANCISCO: Right.

8 JUSTICE BARRETT: Let's say that I

9 agree with you about that.

10 No one is preventing you -- I mean,

11 you're seeking access to a particular source

12 code engineering the recommendation feature.

13 It's -- it's the technology that you want.

14 You're not trying to repeat, as in the Bezos

15 example -- if we take the speech that the

16 government's concerned about to be the covert --

17 the covert content manipulation rationale,

18 you're not seeking to utter that speech.

19 MR. FRANCISCO: Well, what we're --

20 that's correct, Your Honor. What we are seeking

21 to do is use an algorithm that displays the

22 combination of content that we prefer our users

23 to see on the platform.

24 JUSTICE KAGAN: But is that --

25 JUSTICE BARRETT: And the government

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1 doesn't care about that. I mean, the

2 government -- the government is fine with you

3 doing that. You can invent it yourself. It

4 doesn't even care what content that displays,

5 cat videos or whatever.

6 MR. FRANCISCO: Yeah, but -- but I

7 think that the way that the analysis has to

8 unfold is first you ask, is this law burdening

9 our speech? I think we agree --

10 JUSTICE BARRETT: Yeah.

11 MR. FRANCISCO: -- that the law is

12 burdening our speech. Then you have to look at

13 whether the law itself is somehow content-based,

14 not just what their motivations are but whether

15 the law is content-based. And, here, the

16 trigger for this law, the one thing that gets it

17 going, is if you operate a social media platform

18 that has user-generated content, unless that

19 content takes the form of a product, travel, or

20 business review.

21 Then, within that universe of content,

22 it says there's one speaker we're particularly

23 concerned about, and we're going to hammer home

24 on that one speaker. And then, just to make the

25 rubble bounce, they come in and tell us that one

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1 of the reasons they're targeting that speaker is

2 because they're worried about the future content

3 on that platform, that it could in the future

4 somehow be critical of the United States or

5 undermine democracy, to pull examples from the

6 government's brief.

7 So I think there's no way to get

8 around the fact that this is a content-based

9 speech restriction and you do have to go

10 directly to what their interests are.

11 Now their principal interest is --

12 JUSTICE KAGAN: Could -- could I --

13 because I think I'm a little bit surprised by

14 one of the answers that you gave to Justice

15 Barrett. I had understood that TikTok's

16 essential complaint here is that they wouldn't

17 be able to use the algorithm that ByteDance has

18 invented and that they want to use the algorithm

19 that ByteDance has invented.

20 MR. FRANCISCO: One hundred percent.

21 And if I -- if I was unclear on that, Your

22 Honor, I apologize.

23 JUSTICE KAGAN: Okay. Because I

24 think --

25 MR. FRANCISCO: That is absolutely the

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1 core of the claim.

2 JUSTICE KAGAN: -- what Justice

3 Barrett was saying to you is, like, what's the

4 problem here because ByteDance is a foreign

5 company. Or maybe this isn't what Justice

6 Barrett says; it's just what I say.

7 (Laughter.)

8 JUSTICE KAGAN: ByteDance is a foreign

9 company. And you started off with Justice Alito

10 saying, you know, well, we would be making a

11 different argument. And, of course, that's

12 true. I mean, I would think that Alliance for

13 Open Society makes it pretty clear that you have

14 to be making a different argument with respect

15 to a foreign state or a foreign company.

16 So let's -- let's say that they don't

17 have First Amendment rights. The only First

18 Amendment rights lie in TikTok, which does have

19 First Amendment rights. And I -- I guess my

20 question is, how are those First Amendment

21 rights really being implicated here?

22 This -- this statute says the foreign

23 company has to divest. Whether or not that's

24 feasible, however long it takes, TikTok still

25 has the ability to use whatever algorithm it

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1 wants, doesn't it?

2 MR. FRANCISCO: No, Your Honor. And

3 their rights are implicated at a most basic

4 level. In 10 days, TikTok wants to speak. In

5 10 days, because this law was passed, TikTok

6 cannot speak unless ByteDance executes a

7 qualified divestiture.

8 That's not just ByteDance's choice.

9 That is a -- that is a condition --

10 JUSTICE KAGAN: Well, I realize --

11 MR. FRANCISCO: -- that's imposed by

12 law.

13 JUSTICE KAGAN: -- that it has -- it

14 definitely has effects on TikTok if ByteDance

15 acts in the way that you're assuming it will

16 act. So -- so this is not to say that the First

17 Amendment isn't involved because TikTok is going

18 to suffer some pretty severe incidental effects,

19 but they are incidental, aren't they?

20 Because the statute only says to this

21 foreign company divest or else and -- and leaves

22 TikTok with the ability --

23 MR. FRANCISCO: Right.

24 JUSTICE KAGAN: -- to do what every

25 other actor in the United States can do, which

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1 is go find the best available algorithm.

2 MR. FRANCISCO: Yeah. I very much

3 disagree that the effects are incidental because

4 the way that this law works is it is only

5 triggered if somebody is engaging in speech

6 based on their content, user-generated content,

7 except for business, product, and travel

8 reviews. It then singles out a single speaker.

9 And you have the concession for the government

10 that one of the reasons they've singled out that

11 speaker --

12 JUSTICE KAGAN: That puts a lot of

13 emphasis on the idea of just like -- you know, I

14 think what you're basically saying is that all

15 speaker-based restrictions generate strict

16 scrutiny. I'm not sure that we've ever said

17 anything like that.

18 You know, let's put aside the

19 facial -- your argument that this is facially

20 content-based. It seems to me that your

21 stronger argument or at least the one that most

22 interested me was this argument of, look, if the

23 government is doing something specifically for

24 the purpose of changing the content that people

25 see, that has to be subject to strict scrutiny.

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1 But I don't see that as -- as

2 affecting TikTok as opposed to as affecting

3 ByteDance, that --

4 MR. FRANCISCO: Well, no, no, I -- I

5 very much do see it as affecting TikTok because

6 they choose this algorithm because it reflects

7 the mix of content. The government's fear is

8 that China could come in and pressure TikTok,

9 TikTok, through ByteDance, to TikTok, to alter

10 that mix of content to make it too pro-Chinese

11 or too anti-American. That is very much

12 directly a content-based charge straight at

13 TikTok.

14 The other point I would like to --

15 JUSTICE KAGAN: I -- I hear you that

16 it might very well have that effect. I guess

17 what I'm suggesting is that the law is only

18 targeted at this foreign corporation, which

19 doesn't have First Amendment rights.

20 Whatever effect it has, it has. You

21 know, maybe ByteDance will figure out a way to,

22 like, put this on open source, and then TikTok

23 will be able to use the algorithm.

24 MR. FRANCISCO: So, Your Honor, if I

25 could take that on directly, because, to the --

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1 I think TikTok has First Amendment rights. To

2 the extent ByteDance is speaking in the United

3 States, it, I believe, has First Amendment

4 rights.

5 If you conclude that neither has First

6 Amendment rights, then, surely, the creators

7 have First Amendment rights. But, if you take a

8 step back, what their position is is that none

9 of these entities -- this is the universe of

10 entities affected by this law -- none of these

11 entities have the authority to assert First

12 Amendment rights, which means that the

13 government really could come in and say: I'm

14 going to shut down TikTok because it's too

15 pro-Republican or too pro-Democrat or won't

16 disseminate the speech I want, and that would

17 get no First Amendment scrutiny by anybody.

18 That cannot possibly be the case, yet that is

19 the effect of their position.

20 The last point I'd like to emphasize,

21 though, is this law, like the Playboy case, like

22 the Hobby Lobby case, has built within it a less

23 restrictive alternative, which is the general

24 provision by definition designed to protect

25 against the very harm the government is

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1 identifying.

2 Suppose New York State passes an

3 asbestos abatement law. They say: These types

4 of buildings have to abet -- abate asbestos. In

5 addition, New York Times, you have to abate

6 asbestos in your building. And they say: There

7 are two reasons for this. One, we want to abate

8 asbestos. Two, we hate the New York Times

9 editorial page.

10 Surely, at the very least, what you're

11 going to say is: You can't target The New York

12 Times directly. What you can do is throw them

13 into the general process.

14 CHIEF JUSTICE ROBERTS: Thank you,

15 counsel.

16 MR. FRANCISCO: We think that's the

17 minimum that should be done here.

18 CHIEF JUSTICE ROBERTS: Thank you,

19 counsel. We -- we've been talking about

20 connection between the regulation of -- of

21 TikTok and the burden on expressive conduct.

22 And your basic position is that interfering with

23 the ownership of TikTok constitutes a direct

24 regulation of the expressive conduct of other --

25 other people.

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1 What -- what is your best example in

2 our precedent of a situation where we've -- a

3 regulation of corporate structure or something

4 else has been treated as a direct regulation of

5 expressive conduct?

6 MR. FRANCISCO: The regulation of a

7 corporate structure as a --

8 CHIEF JUSTICE ROBERTS: Yeah.

9 MR. FRANCISCO: Your Honor, I -- I --

10 I don't have a case in my fingertips. I can

11 consider it when we come back on --

12 CHIEF JUSTICE ROBERTS: Well, I don't

13 have one at my fingertips or any other part of

14 my body.

15 MR. FRANCISCO: -- rebuttal. But I --

16 but I think it's quite clear, though, that if

17 you're saying to a company: You have to stop

18 talking unless somebody else does something, and

19 that's imposed by the force of law, it directly

20 affects that company's speech. That's --

21 CHIEF JUSTICE ROBERTS: Well, it's --

22 it's -- it's -- again, I don't -- I don't know

23 if it's directly affecting the company's speech

24 or the speech of third parties. And I'm not

25 sure what -- you know, where your -- your

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1 emphasis is.

2 But, again, I'm not sure there's

3 another case where we've said that regulating a

4 company has -- should be -- others' expression

5 should be treated as direct imposition on their

6 speech in terms of a standard of review, for

7 example, when it's based on derivative

8 regulation of corporate structure of somebody

9 else.

10 MR. FRANCISCO: Well, Your Honor, I

11 think that it's -- I -- I would concede that

12 this is a pretty unprecedented case. I'm not

13 aware of any time in American history where the

14 Congress has tried to shut down a major speech

15 platform.

16 But I -- I think that if a law imposes

17 a -- a direct regulation on a third party that,

18 in turn, results in shutting down somebody

19 else's speech, and they do it for content-based,

20 viewpoint-based reasons, and, in particular, on

21 this record, because the speaker that is

22 ultimately being shut down, they don't like the

23 speech of that particular platform, that's a

24 real problem. So --

25 CHIEF JUSTICE ROBERTS: Well, it may

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1 be a real problem or it may not. But I just am

2 wondering if there's any precedent where we have

3 that same connection and that it affects the

4 standard of review. For example, you would

5 treat it as a direct restriction on expression.

6 Even the only thing the law does is say, in this

7 case, somebody other than the Chinese government

8 has to own TikTok.

9 MR. FRANCISCO: So -- so -- so we

10 don't have any direct precedent along the lines

11 that you're citing, but we do have precedents.

12 We have cases like Arcara, and what Arcara says

13 is, if the law is totally speech-neutral, then

14 that's one thing. We have cases like O'Brien,

15 which say, if the law doesn't care about speech

16 but happens to draw in speech, that's another

17 thing.

18 Both of those cases make clear,

19 however, is that when the law is concerned with

20 the content of the speech, when the

21 justification is based on the content of the

22 speech -- that's cases like Reed too -- then you

23 do trigger strict scrutiny --

24 CHIEF JUSTICE ROBERTS: So then I

25 think your argument comes down to: Is this

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1 direct concern with speech, or is it concern

2 with the potential for Chinese interference with

3 the level of interference in -- indirectly?

4 In other words, they're not coming

5 back -- the Chinese government -- TikTok doesn't

6 care what the people are saying on TikTok.

7 That's not the -- the concern. The concern is

8 that they are regulating a particular channel of

9 communication. And I just wonder if there's any

10 precedent for that type of thing.

11 They're not saying: We're going to

12 restrict this content and that content but not

13 this. They're just saying: We're going to be

14 in a position where we can control what happens,

15 whether it's based on expression, whether it's

16 based on anything else.

17 MR. FRANCISCO: So, Your Honor, I

18 disagree. And I think, if you take a step back

19 and look at this record, I think it is quite

20 clear that it is focused on both current and

21 potential future content on TikTok, TikTok,

22 Incorporated.

23 Here, you don't have just an act that

24 is based on speakers and speech. It's triggered

25 by speech. It's focused on a single speech or

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1 TikTok -- speaker, TikTok, Incorporated.

2 CHIEF JUSTICE ROBERTS: Thank you.

3 Justice Thomas, anything further?

4 Justice Alito?

5 JUSTICE ALITO: What if Congress -- if

6 there were nothing in this Act about content

7 moderation or covert manipulation? What if it

8 was just about preventing what Congress viewed

9 as an enormously powerful, popular application

10 from gathering an arsenal of information about

11 American citizens, and they said: This is the

12 worst offender and we're going to require

13 divestiture by this offender?

14 Would there be a First Amendment

15 problem there? And if you think there would be,

16 what would the level of scrutiny be?

17 MR. FRANCISCO: Yes, there would be a

18 First Amendment problem if you had a law like

19 this that was only focused on speakers, those

20 who use user-generated content, other than

21 product, travel, or business reviews, and --

22 JUSTICE ALITO: Well, Congress --

23 Congress concludes that this particular entity

24 is the worst, this is the worst offender, and it

25 happens to be an entity that is involved with

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1 speech.

2 MR. FRANCISCO: If all you had -- so I

3 want to make sure I understand the hypothetical.

4 The only provision you have is one that says:

5 This company has to shut down --

6 JUSTICE ALITO: Right.

7 MR. FRANCISCO: -- because of data

8 security.

9 JUSTICE ALITO: Right.

10 MR. FRANCISCO: I would have a

11 different set of arguments.

12 I think it would still implicate the

13 First Amendment, particularly where you have

14 strong evidence that they were being targeted in

15 part at least because of their speakers and

16 speech. Suppose Congress passed the law that

17 you posited --

18 JUSTICE ALITO: Well, all right, but

19 you're changing the -- you're changing the

20 hypothetical by -- by injecting congressional

21 concern about the content of the speech.

22 MR. FRANCISCO: Okay. Well, I'll put

23 that to the side.

24 JUSTICE ALITO: So what would your

25 argument be? It would be an equal protection

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1 argument --

2 MR. FRANCISCO: No. No. I'd still be

3 saying --

4 JUSTICE ALITO: -- based on rational

5 basis? What --

6 MR. FRANCISCO: -- I'd still be saying

7 that Arcara itself makes clear that where a law

8 disproportionately burdens just a speaker, we

9 have to subject that to scrutiny to suss it out,

10 to suss out whether the asserted interest is the

11 actual interest.

12 There, the asserted interest is in

13 data security. I think I would have a couple of

14 arguments under whatever form of scrutiny you

15 wanted to apply, whether it is strict scrutiny

16 or intermediate scrutiny, in that context.

17 I would say first that that law is

18 dramatically under-inclusive because it

19 categorically exempts e-commerce apps that this

20 record shows have comparable ties to China --

21 JUSTICE ALITO: All right. You say --

22 you say -- I don't want to prolong this too

23 much. You -- you say this is not like Arcara, I

24 think primarily because you say that divestiture

25 requires the new company to cease using the

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1 algorithm, right?

2 MR. FRANCISCO: No. I think it's not

3 like Arcara for a much more fundamental sense.

4 Arcara involved a totally

5 speech-neutral law. It didn't go after speakers

6 at all. If you had a law in Arcara that said

7 we're going to prohibit prostitution in

8 bookstores only, then I think that Arcara would

9 have come out differently. There would have at

10 least been, you know, some kind of intermediate

11 scrutiny, potentially strict scrutiny.

12 JUSTICE ALITO: All right. Well,

13 you're -- you're continuing --

14 MR. FRANCISCO: That's the law that I

15 think is your hypothetical.

16 JUSTICE ALITO: -- you're continuing

17 to walk away from the hypothetical that --

18 MR. FRANCISCO: I don't think so, Your

19 Honor.

20 JUSTICE ALITO: -- I proposed for the

21 purpose of narrowing in on what your -- on what

22 your argument is.

23 My -- I understood you to say that

24 it -- this -- that would not be a -- a solution

25 to the problem because one of Congress's

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1 motivations was -- was the content -- was based

2 on the content of TikTok.

3 Am I wrong in that? Did I read your

4 argument incorrectly?

5 MR. FRANCISCO: Well, I think the -- I

6 want to make sure I understand what you're

7 saying. I certainly think that because one of

8 the motivations was content, that is an

9 enormously important fact.

10 I was trying to answer your

11 hypothetical where we were trying to take that

12 out of the mix.

13 And the reason why Arcara is different

14 is because Arcara didn't just simply say no

15 prostitution in bookstores. That's what your

16 hypothetical effectively says. It says no data

17 security problems in speakers or in this

18 particular speaker. And I think that that would

19 trigger at the very least intermediate scrutiny.

20 JUSTICE ALITO: All right.

21 MR. FRANCISCO: And then --

22 JUSTICE ALITO: Thank you. Thank you.

23 CHIEF JUSTICE ROBERTS: Justice

24 Sotomayor?

25 JUSTICE SOTOMAYOR: That gets to my

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1 question, which is Justice -- the Chief Justice

2 asked you whether or not we've ever had a case

3 where pure ownership was at issue and not

4 speech. And I don't think we've had one like

5 that, you're right, but I don't think that your

6 question -- that the question gets to the

7 essence of your argument, is it? The essence of

8 your argument is you're being asked to divest

9 because of speech, correct?

10 MR. FRANCISCO: Correct.

11 JUSTICE SOTOMAYOR: All right. So, if

12 I get past that, if I go to Justice Alito's

13 point, which is I don't think it's just about

14 speech, it's about data control --

15 MR. FRANCISCO: Mm-hmm.

16 JUSTICE SOTOMAYOR: -- if it's about

17 data control -- and assume for the sake of

18 argument that I believe intermediate scrutiny

19 applies --

20 MR. FRANCISCO: Mm-hmm.

21 JUSTICE SOTOMAYOR: -- to the data

22 control provision --

23 MR. FRANCISCO: Mm-hmm.

24 JUSTICE SOTOMAYOR: -- then your

25 arguments would be different, wouldn't they?

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1 They would be under-inclusiveness, they would be

2 other arguments, correct?

3 MR. FRANCISCO: Well, Your Honor, I

4 think they'd be very similar because I think the

5 nature of our arguments work just as well under

6 intermediate and strict scrutiny.

7 JUSTICE SOTOMAYOR: All right.

8 MR. FRANCISCO: If I could unpack that

9 a little?

10 JUSTICE SOTOMAYOR: No, I'm not going

11 to --

12 MR. FRANCISCO: Sure.

13 JUSTICE SOTOMAYOR: Because we're

14 going to run out of time, because we're going to

15 need to figure out what intermediate scrutiny

16 means. But I'm not sure it means what you do,

17 which is I don't think any of our cases have

18 ever suggested that we have to use the least

19 restricted means under intermediate scrutiny.

20 In fact, our cases have said --

21 MR. FRANCISCO: Mm-hmm.

22 JUSTICE SOTOMAYOR: -- we have to use

23 a reasonable means.

24 MR. FRANCISCO: And if I can respond

25 to that point specifically, I completely agree

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1 it's not a least restrictive means alternative,

2 Your Honor. But you do have to at least

3 consider alternatives.

4 Here, if the concern -- let's take the

5 data security concern, which you put your finger

6 on.

7 JUSTICE SOTOMAYOR: Well, I -- I know

8 you want to keep going on, but I can't let you

9 because I can't monopolize the argument, okay?

10 But let me just get to the bottom of that, all

11 right?

12 You seem to suggest that Congress has

13 to actually look at all of the alternatives and

14 say no. I don't think we have a case that says

15 that.

16 MR. FRANCISCO: I -- I am not

17 suggesting --

18 JUSTICE SOTOMAYOR: If from the record

19 it's clear that alternatives won't be adequate

20 for whatever set of reasons, isn't that enough?

21 MR. FRANCISCO: If the record were

22 clear on that, that might be enough.

23 JUSTICE SOTOMAYOR: Okay. Now -- I

24 take that.

25 MR. FRANCISCO: But, here, on the

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1 key --

2 JUSTICE SOTOMAYOR: Now let me go to

3 the next question and the last.

4 MR. FRANCISCO: If -- if I could, Your

5 Honor, just one sentence?

6 JUSTICE SOTOMAYOR: Mm-hmm.

7 MR. FRANCISCO: If, on the key less

8 restrictive alternatives, they had actually

9 considered them and said what you suggested,

10 this would be a different case. But our point

11 is that on the key most obvious less restrictive

12 alternatives, a law, for example, that simply

13 prohibits TikTok, Incorporated, from sharing any

14 sensitive user data with ByteDance or anyone

15 else, there's nothing in the record that

16 suggests they even considered it.

17 JUSTICE SOTOMAYOR: That's because

18 there --

19 MR. FRANCISCO: And that's why it

20 would fail under even intermediate scrutiny.

21 JUSTICE SOTOMAYOR: We have -- we have

22 a different problem, which is that the record

23 shows that there is no sharing that could happen

24 that wouldn't put the data at security.

25 MR. FRANCISCO: That's --

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1 JUSTICE SOTOMAYOR: But we can go past

2 that.

3 MR. FRANCISCO: -- that's incorrect

4 actually.

5 JUSTICE SOTOMAYOR: No, because the

6 NSA doesn't. What's very clear --

7 MR. FRANCISCO: I'm not talking about

8 the NSA.

9 JUSTICE SOTOMAYOR: Or even anything

10 else. But putting that aside, one last

11 question.

12 Assuming that the covert manipulation

13 issue is one, I think that what remains is, to

14 the Chief's question and Justice Alito's

15 questions, if the covert manipulation is a

16 concern, then the question becomes what kind of

17 burden does it put on TikTok U.S.A.

18 And I think your point is that that

19 requires strict scrutiny because it doesn't

20 permit them to speak to the Chinese government

21 through the algorithm and promote whatever

22 speech it wants to promote through the

23 algorithm, correct?

24 MR. FRANCISCO: It doesn't prohibit --

25 permit them to speak to the American public

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1 through the algorithm --

2 JUSTICE SOTOMAYOR: Right.

3 MR. FRANCISCO: -- and promote

4 whatever type of speech they want to promote on

5 the algorithm. And I also think that this

6 covert manipulation is a little bit odd.

7 They're not concerned just with covertness. If

8 all you were concerned with is secret --

9 JUSTICE SOTOMAYOR: I'm going to ask

10 the SG about that, how you disentangle the two

11 things.

12 MR. FRANCISCO: Thank you, Your Honor.

13 CHIEF JUSTICE ROBERTS: Justice Kagan?

14 Justice Gorsuch?

15 Justice Kavanaugh?

16 JUSTICE KAVANAUGH: Just on the data

17 collection interest, I think Congress and the

18 President were concerned that China was

19 accessing information about millions of

20 Americans, tens of millions of Americans,

21 including teenagers, people in their 20s, that

22 they would use that information over time to

23 develop spies, to turn people, to blackmail

24 people, people who, a generation from now, will

25 be working in the FBI or the CIA or in the State

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1 Department.

2 Is that not a realistic assessment by

3 Congress and the President of the risks here?

4 MR. FRANCISCO: Well, Your Honor, I'm

5 not disputing the risks. I'm disputing the

6 means that they've chosen. One way, the most

7 direct way to address that, all of this user

8 data sits on data servers in Virginia controlled

9 by Oracle.

10 I'm not talking about the national

11 security agreement. What I'm talking about is a

12 law that simply says to TikTok, Incorporated,

13 and its U.S. employees, you cannot share that

14 user data with anybody. You can't give it to

15 ByteDance. You can't give it to China. You

16 can't give it to Google. You can't give it to

17 Amazon. You cannot give it to anybody under

18 threat of massive penalties.

19 They never even considered that most

20 obvious alternative. And so, whether you apply

21 intermediate scrutiny or strict scrutiny, it's

22 not a least restrictive means test, but you've

23 got to at least consider the most obvious

24 alternative.

25 JUSTICE KAVANAUGH: So you acknowledge

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1 the risk that Congress and the President were

2 concerned about. You're just saying the means

3 they chose to address that risk were incorrect?

4 MR. FRANCISCO: So I -- I --

5 JUSTICE KAVANAUGH: Not permissible?

6 MR. FRANCISCO: -- I mean, I certainly

7 acknowledge the risk, but I think there are lots

8 of reasons, not just the one I just gave, but

9 there are lots of reasons why that risk still

10 can't justify the law. When it sits alongside

11 of the impermissible covert manipulation risk, I

12 think it falls under Mt. Healthy. It's no

13 different if they came in and said we passed

14 this law, one for data security --

15 JUSTICE KAVANAUGH: I -- I understand

16 that, but just on the -- on the data collection,

17 that seems like a huge concern for the future of

18 the country.

19 MR. FRANCISCO: And, Your Honor,

20 again, it is a concern -- two responses.

21 First, it is a concern that can be

22 addressed directly. The reason why there's no

23 evidence in this record about whether that kind

24 of direct prohibition on TikTok, Incorporated,

25 from sharing sensitive user data with anybody,

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1 including ByteDance, the reason why the record

2 is devoid of any evidence of that is because

3 Congress never considered the other side of the

4 balance.

5 And that's the minimum that Congress

6 has to do under the First Amendment. It's got

7 to at least consider the -- the consequences of

8 shutting down a speech platform used by 170

9 million Americans against the benefits of an

10 alternative like simply saying to TikTok's

11 employees, you're essentially going to get

12 massive fines, potentially jail sentences, if

13 you share any of that sensitive user data with

14 anybody, not TikTok, not ByteDance -- I'm sorry,

15 not ByteDance, not China, not anybody else in

16 the world. Yet there's nothing in this record

17 that suggests they even considered that

18 alternative.

19 JUSTICE KAVANAUGH: What happens after

20 January 19th if you lose this case? Can you

21 just spell that out?

22 MR. FRANCISCO: At least as I

23 understand it, we go dark. Essentially, the

24 platform shuts down.

25 JUSTICE KAVANAUGH: Unless there's a

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1 divestiture?

2 MR. FRANCISCO: Unless there's a

3 divestiture. Unless --

4 JUSTICE KAVANAUGH: A presidential

5 extension --

6 MR. FRANCISCO: -- President Trump

7 exercises his authority to extend it by not --

8 but he can't do that on January 19th. On

9 January 19th, we still have President Biden, and

10 on January 19th, as I understand it, we shut

11 down.

12 It is possible that come January 20th,

13 21st, 22nd, we might be in a different world.

14 Again, that's one of the reasons why I think it

15 makes perfect sense to issue a preliminary

16 injunction here and simply buy everybody a

17 little breathing space.

18 This is an enormously --

19 JUSTICE KAVANAUGH: What do you mean

20 by "shut down" too? Can you just spell that

21 out?

22 MR. FRANCISCO: So --

23 JUSTICE KAVANAUGH: If -- if you can.

24 MR. FRANCISCO: -- the app -- one, the

25 app is not available in the app stores. That's

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1 at a minimum. But, in addition, what the Act

2 says is that all of the other types of service

3 providers can't provide service either.

4 Now there's enormous consequences for

5 violating that for the service providers. So,

6 essentially, you know, what they're going to say

7 is that, you know, I think, we're not going to

8 be providing the services necessary to have you

9 see it. So it's essentially going to stop

10 operating.

11 I think -- I think that's the

12 consequence of this law, which, again, is why a

13 short reprieve here would make all the sense in

14 the world. It's an enormously consequential

15 decision, and it -- and -- and I think all would

16 benefit if it weren't necessary.

17 JUSTICE KAVANAUGH: Thank you.

18 CHIEF JUSTICE ROBERTS: Justice

19 Barrett?

20 JUSTICE BARRETT: So I just want to --

21 just kind of following up on Justice Kavanaugh's

22 questions. Let's say I agree with you that some

23 level of scrutiny applies and --

24 MR. FRANCISCO: Mm-hmm.

25 JUSTICE BARRETT: -- I'm trying to

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1 figure out which level of scrutiny applies, and

2 I'm trying to figure out if there's content

3 discrimination.

4 And let me ask you a different

5 question than I did before --

6 MR. FRANCISCO: Mm-hmm.

7 JUSTICE BARRETT: -- about the

8 algorithm. I mean, you keep saying "shut down."

9 The law doesn't say TikTok has to shut down. It

10 says ByteDance has to divest.

11 If ByteDance divested TikTok, we

12 wouldn't be here, right? If -- if -- if

13 ByteDance was willing to let you go and willing

14 to let you take the source code with you, that

15 would be fine, right? We would not be here?

16 MR. FRANCISCO: Well, Your Honor, if

17 ByteDance divested, then the law wouldn't fall

18 on TikTok. But the law will -- the law, not

19 ByteDance. The law requires TikTok to shut

20 down.

21 JUSTICE BARRETT: But that's because

22 of ByteDance's choice, right?

23 MR. FRANCISCO: Well, it --

24 JUSTICE BARRETT: I mean, this is like

25 Justice Kagan's point. I mean, I'm trying to

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1 figure out how we account for the reality of

2 third-party choices, and --

3 MR. FRANCISCO: Mm-hmm.

4 JUSTICE BARRETT: -- the choices of

5 third parties, that's the whole reason for the

6 law being passed in the first place.

7 MR. FRANCISCO: Yeah, Your -- Your

8 Honor, I -- I -- I still don't -- I -- I think

9 that the way the analysis works is: Step 1, is

10 there a First Amendment violation?

11 JUSTICE BARRETT: Right.

12 MR. FRANCISCO: Step 2, you get to the

13 question that we're grappling with: What

14 standard of scrutiny do you apply?

15 Typically, what you do is you ask: Is

16 this law content-based? Is it content-based on

17 its face? Is it content-based in its decision?

18 Here, we know it's content-based on

19 its face because it says what it says. We know

20 it's content-based in its motivation because the

21 government concedes it's content-based in its

22 motivation.

23 JUSTICE BARRETT: Well, that's not

24 quite what I'm asking. I mean, let's see.

25 MR. FRANCISCO: I think --

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1 JUSTICE BARRETT: That's the dispute

2 between you --

3 MR. FRANCISCO: Yeah.

4 JUSTICE BARRETT: -- and the

5 government, is, is it content-based if it's

6 about divestiture and not about telling TikTok

7 what content it can display on the platform.

8 MR. FRANCISCO: And I think it has to

9 be because that's -- I think that that really

10 goes to the first question: Does the burden

11 fall on the speaker? If the burden falls on the

12 speaker, that triggers the speaker's First

13 Amendment rights.

14 But the law is, in fact,

15 content-based, whether it comes in the form of a

16 divestiture or something else, when the law

17 specifically says it's content-based. We're

18 worried about the content on the platform and

19 when the government tells you that one of our

20 reasons -- one of the things that we're worried

21 about is TikTok, not ByteDance, but TikTok,

22 Incorporated, and TikTok in the United States

23 will, absent the divestiture, have a mix of

24 content that we find objectionable. They will

25 mix around their videos in a way that is too

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1 pro-Chinese or too anti-American.

2 JUSTICE BARRETT: Okay. Let me --

3 MR. FRANCISCO: And that is TikTok,

4 the platform.

5 JUSTICE BARRETT: -- let me just ask

6 you one last question. Why is it impossible to

7 divest in the 270 days, even assuming that the

8 Chinese government hadn't said you couldn't?

9 MR. FRANCISCO: Mm-hmm. Sure. And

10 this is the exchange I was having with Justice

11 Gorsuch. There are -- there are two basic

12 reasons.

13 The first is that the underlying

14 source code, that's the source code that comes

15 in here and then has to be converted and

16 executed and --

17 JUSTICE BARRETT: But -- but that's

18 what Justice Gorsuch said, just not ever.

19 So it's not really that you can't do

20 it within the timeframe. It's that you really

21 couldn't ever divest because you never are going

22 to get the source code.

23 MR. FRANCISCO: So -- well, let me

24 unpack that a little bit. No, it's that with

25 the underlying source code, it takes a team of

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1 engineers to update and maintain that. It would

2 take us many years to reconstruct a brand-new

3 team of engineers to do that with respect to the

4 source code.

5 With respect to the sharing of

6 content, that was the --

7 JUSTICE BARRETT: Yeah.

8 MR. FRANCISCO: -- different reason.

9 In theory, we could kind of send our salesmen

10 around the world, go to Ireland, go to Finland,

11 go to every country, and say: Look, you used to

12 automatically get our content, but now you've

13 got to separately sign up for our platform.

14 JUSTICE BARRETT: Okay. So last --

15 last point. Let me make sure I understand what

16 you're saying.

17 It's not that you couldn't execute the

18 disentanglement. You could say: We're

19 independent. You just can't re-create TikTok in

20 any kind of way --

21 MR. FRANCISCO: Well, I think that --

22 JUSTICE BARRETT: -- as I recall.

23 MR. FRANCISCO: -- any new TikTok

24 would be a fundamentally different platform with

25 different content, which is yet another reason

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1 why I think this is a content-based restriction

2 that falls directly on TikTok, Incorporated,

3 itself and our platform.

4 CHIEF JUSTICE ROBERTS: Justice

5 Jackson?

6 JUSTICE JACKSON: So I guess I'm back

7 to some of the questions that Justice Barrett

8 and Justice Kagan asked about the sort of

9 threshold issue that you point out, which is, is

10 there a burden on the speaker.

11 I'm trying to understand what the

12 burden is that you are articulating and whether

13 it really isn't about association and not

14 speech. You say -- you have in your brief some

15 cases that talk about American speakers being

16 free to choose whether to affiliate with foreign

17 organizations. And the colloquy you had with

18 Justice Kagan made me think that what you're

19 really complaining about is the inability to

20 associate with ByteDance and its algorithm, that

21 it's not really about, you know, TikTok came up

22 with its own algorithm or bought an algorithm

23 from some other company or devised it or

24 whatever. This law would have nothing to do

25 with them from your perspective.

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1 But the problem I think you're

2 articulating -- and this is -- I -- I'm seeking

3 your clarification.

4 MR. FRANCISCO: Mm-hmm. Sure.

5 JUSTICE JACKSON: The problem I think

6 you're articulating is that you want to use

7 ByteDance's algorithm and, therefore, associate

8 with ByteDance, and Congress has prohibited that

9 by requiring divestiture.

10 So isn't this really a right of

11 association case under the First Amendment?

12 MR. FRANCISCO: I -- I think it's -- I

13 think it's both, Your Honor. I do think that

14 that is a component of it. We want to use the

15 algorithm that we think reflects the best mix of

16 content. That's the algorithm that reflects the

17 best mix of content.

18 What this law says is we can't do that

19 unless ByteDance exercises a qualified

20 divestiture. But I also think more directly

21 what this law does is it says to TikTok,

22 Incorporated, if ByteDance doesn't exercise a

23 qualified divestiture, you have to go mute. You

24 cannot speak at all. Full stop, period.

25 JUSTICE JACKSON: No, I don't think it

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1 says that, though. I mean, if -- if -- if

2 TikTok were to, post-divestiture or whatever,

3 pre-divestiture, come up with its own algorithm,

4 right, then, when the divestiture happened, it

5 could still operate.

6 MR. FRANCISCO: I think --

7 JUSTICE JACKSON: It doesn't say,

8 TikTok, you can't speak.

9 MR. FRANCISCO: -- I -- I think that's

10 theoretically correct, Your Honor.

11 JUSTICE JACKSON: Right. But --

12 but --

13 MR. FRANCISCO: But I think that also

14 underscores the content-based nature of the

15 restriction. We have to change our speech.

16 JUSTICE JACKSON: No, but the fact --

17 excuse me. The fact that that's true suggests

18 that you're wrong about the statute being read

19 as saying, TikTok, you have to go mute, because

20 TikTok can continue to operate on its own

21 algorithm, on its own terms, as long as it's not

22 associated with ByteDance.

23 So isn't this really just all about

24 association?

25 MR. FRANCISCO: Your Honor, I think it

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1 is partly about association, but I'm going to

2 take another shot at explaining why it's not

3 just about association.

4 JUSTICE JACKSON: Okay. Well, let me

5 just take you down the association path for a

6 second because, if it is about the association

7 of TikTok with ByteDance, then don't we have

8 cases that seem to undermine your view that

9 Congress can't do this?

10 I mean, I thought we had cases about

11 Congress prohibiting association with terrorist

12 organizations, prohibiting association with

13 foreign adversaries. And so why doesn't this

14 fall into that kind of group of -- of our

15 jurisprudence?

16 MR. FRANCISCO: Well -- well, at least

17 as I understand all of those cases, they applied

18 strict scrutiny. The -- the -- the material

19 support statute most definitely applied strict

20 scrutiny.

21 JUSTICE JACKSON: And -- and

22 ultimately upheld the law, so fine.

23 MR. FRANCISCO: But -- but -- sure.

24 And if -- I think, if we go down the strict

25 scrutiny road here, I don't see that this law

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1 can possibly be satisfied under the interests

2 that they assert here.

3 But I do want to emphasize why this is

4 also about TikTok's speech. Even under your

5 hypothetical, where, theoretically, they can say

6 something differently than they are say --

7 saying today, that in and of itself is a direct

8 restriction on TikTok's speech.

9 They can't engage in the speech they

10 want to engage in. They have to engage in a

11 different kind of speech, the speech they don't

12 want to engage in. That is a direct burden on

13 TikTok, Incorporated's speech --

14 JUSTICE JACKSON: All right.

15 MR. FRANCISCO: -- wholly apart from

16 association.

17 JUSTICE JACKSON: I think I understand

18 that argument.

19 Let me ask you a question about your

20 colloquy with Justice Kavanaugh. Did I

21 understand you to concede that there is a

22 compelling interest and that the problem is

23 really tailoring?

24 I mean, you said: I understand the

25 risks. I don't hear you suggesting that the

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1 risks don't exist. So it sounds like we've

2 gotten past -- even if we're in strict scrutiny

3 world, we've gotten past the compelling interest

4 part of this.

5 MR. FRANCISCO: No, Your Honor. What

6 I was saying is that if all you had, standing

7 alone, were the data security, that would be a

8 different case.

9 Here, when you have the content

10 manipulation sitting right alongside of the data

11 security, that taints the data security

12 rationale. If Congress came in and said: We're

13 passing this law for two reasons -- one, we

14 really care about data security, and, two, we

15 hate the speech on TikTok -- the data security

16 wouldn't alone sustain that law.

17 Under cases like Mt. Pleasant, it

18 would speak in both --

19 JUSTICE JACKSON: I understand. But

20 why -- why -- you're equating we don't want

21 foreign adversaries to be able to manipulate the

22 content on this platform, you're equating that

23 with we hate the content, and I'm just trying to

24 understand why.

25 MR. FRANCISCO: Be -- be -- sure.

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1 Because content manipulation is, by definition,

2 a content-based distinction.

3 Look, everybody manipulates content.

4 There are lots of people who think CNN, Fox

5 News, The Wall Street Journal, The New York

6 Times, are manipulating their content. That is

7 core protected speech. That's why they put so

8 much weight on this mere covertness. But --

9 JUSTICE JACKSON: Right, but that's --

10 that -- but that analysis is just about

11 content-based versus content-neutral and,

12 therefore, whether you apply strict scrutiny.

13 I'm in the strict scrutiny world.

14 MR. FRANCISCO: Mm-hmm.

15 JUSTICE JACKSON: Okay? I'm assuming

16 that you're right that strict scrutiny applies,

17 and now prong number one in that world is do --

18 does the government have a compelling interest.

19 MR. FRANCISCO: And --

20 JUSTICE JACKSON: And so I'm trying to

21 understand why the government's argument that we

22 have data manipulation concerns, which I

23 understood you in colloquy with Justice

24 Kavanaugh to say is a risk, and we are

25 concerned, based on what Justice Gorsuch says

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1 when he's looking at the facts, you know, that

2 the government contends that there's this real

3 problem with this foreign adversary doing

4 manipulation in other places, are you saying

5 those are not compelling government interests?

6 MR. FRANCISCO: I am 100 percent

7 saying that content manipulation is not just not

8 a compelling governmental interest, it is an

9 impermissible governmental interest. You could

10 not go to CNN or Fox News and say we're going to

11 regulate you because you're manipulating the

12 content in the way that we don't like. That is

13 per se impermissible.

14 JUSTICE JACKSON: Okay.

15 MR. FRANCISCO: That is why --

16 JUSTICE JACKSON: Can I just ask you

17 one last thing? You -- you say with respect to

18 the tailoring issue that disclosure, you think,

19 is a possible more narrowly tailored way of

20 handling some of this.

21 And I guess I'm just wondering whether

22 disclosure under this Court's case law and the

23 law of other lower courts doesn't carry its own

24 First Amendment complications, that don't we

25 have -- wouldn't we have compelled speech

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1 problems if disclosure was required in this

2 situation?

3 MR. FRANCISCO: Sure, Your Honor.

4 Now, look, I might think so because I think that

5 the factual predicate is wrong, but they think

6 the factual predicate is right. And if the

7 factual predicate is right, then there are no

8 First Amendment problems at all under Zauderer

9 and the cases that you're suggesting.

10 And that underscores the larger

11 problem here. Not all disclosures are perfect.

12 I'm not here to argue that they are. But you've

13 always got to consider what the alternative is.

14 And, here, the alternative is shutting down one

15 of the largest speech platforms in America.

16 The reason there's no evidence in this

17 record as to disclosures is because Congress

18 never even undertook that balancing in the first

19 place --

20 JUSTICE JACKSON: Thank you.

21 MR. FRANCISCO: -- the bare minimum

22 that has to be done before we take an

23 unprecedented -- unprecedented step of shutting

24 down the voices of 170 million Americans.

25 JUSTICE JACKSON: Thank you.

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1 CHIEF JUSTICE ROBERTS: Thank you,

2 counsel.

3 Mr. Fisher.

4 ORAL ARGUMENT OF JEFFREY L. FISHER

5 ON BEHALF OF PETITIONERS BRIAN FIREBAUGH, ET AL.

6 MR. FISHER: Mr. Chief Justice, and

7 may it please the Court:

8 Wholly apart from the companies' legal

9 interests here, the Act directly restricts the

10 rights, the First Amendment rights, of American

11 creators to participate and speak in what the

12 Court a little less than a decade ago called the

13 modern public square and what you might say

14 today is the most vibrant speech forum in the

15 United States of America.

16 And the Act, therefore, is inescapably

17 subject to strict scrutiny because of the First

18 Amendment implications. And the Act fails that

19 test and, indeed, any level of scrutiny under

20 this Court's case law because the Act and the

21 reasons behind it defy our history and

22 tradition, as well as precedent.

23 American creators have long and always

24 enjoyed the right to speak in conjunction with

25 foreign speakers or work with foreign

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1 publishers. Americans even have the right under

2 the Lamont case to receive information from

3 foreign speakers, indeed, foreign governments.

4 The -- so that leaves the -- the government with

5 this implication in its -- in its use of the

6 phrase "national security" in this context. But

7 that just simply doesn't change the calculus.

8 Throughout our history, we have faced

9 ideological campaigns by foreign adversaries.

10 Yet, under the First Amendment, mere ideas do

11 not constitute a national security threat.

12 Restricting speech because it might sow doubt

13 about our leaders or undermine democracy are the

14 kind of things our enemies do. It is not what

15 we do in this country. And so we think the

16 Court should reverse.

17 And I would welcome the Court's

18 questions.

19 JUSTICE THOMAS: How exactly is -- are

20 the creators' speech being impeded?

21 MR. FISHER: So two ways, Justice

22 Thomas. First, I'd just point you to the text

23 of the statute, which directly regulates text,

24 images, communicate -- real-time communications,

25 videos. My clients, the creators, are the ones

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1 creating that speech and posting it to speak to

2 other Americans.

3 JUSTICE THOMAS: But it doesn't say

4 anything about creators or people who use the

5 site. It's only concerned about the ownership

6 and the concerns that data will be manipulated

7 or there will be other national security

8 problems with someone who's not a citizen of

9 this country or a company who's not here.

10 MR. FISHER: So there's two ways, and

11 I think the Sorrell case is where you look for

12 the analysis of the First Amendment burden here.

13 As I said, the text of the statute regulates our

14 speech. And then you point out ownership, and

15 this was talked about a lot in the first part of

16 the argument here, so let me be very clear.

17 American creators have a right to work

18 with the publisher of their choice. So imagine

19 somebody wanted to work on -- post speech on

20 Twitter, now known as X, and Congress passed a

21 law saying we don't like the current owner of X.

22 The current owner of X has to sell that platform

23 or else it has to shut down.

24 People who post on that platform and

25 who, indeed, some of them make a living

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1 commentating, engaging on current events, news,

2 politics, would have a First Amendment claim --

3 JUSTICE THOMAS: But --

4 MR. FISHER: -- to work with that

5 particular publisher.

6 JUSTICE THOMAS: -- using that

7 argument, you could have said that about the

8 breakup of AT&T. You could say that about the

9 foreign -- foreign -- limitations on foreign

10 ownership of broadcast companies.

11 MR. FISHER: Well, no -- I think that

12 you have to dig a little deeper than that,

13 Justice Thomas. It's not mere foreign ownership

14 and it's certainly -- the broadcast cases I'll

15 get to in a moment. But it's foreign ownership

16 because of a particular perspective.

17 If you boil it down to an essence, the

18 owner of a print media or online media

19 publication is -- is the essence of the

20 viewpoint of that publication. The current

21 owner of X or the current owner of Fox News or

22 the current owner of MSNBC has a particular

23 perspective. And working with that particular

24 platform is shot through with the ownership from

25 top to bottom.

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1 JUSTICE JACKSON: But why couldn't

2 Congress prohibit Americans from associating

3 with certain foreign organizations that have

4 interests that are hostile to the United States?

5 I mean, I thought that's what Holder versus

6 Humanitarian Law Project allowed, so I don't

7 really understand what you mean.

8 MR. FISHER: Right. So I'm glad

9 you're bringing that up.

10 JUSTICE JACKSON: Yes.

11 MR. FISHER: So, when it comes to

12 national security, you are right that Congress

13 can prohibit Americans, to use that case as an

14 example, from associating with terrorist

15 organizations or other organizations that pose a

16 clear and present danger to this country.

17 This case, Justice Jackson, is

18 fundamentally different. What the government

19 tells you in its own brief that it is worried

20 about here are the ideas that might be expressed

21 on TikTok. We might undermine U.S. leadership.

22 We might sow doubts about democracy. We might

23 have pro-China views.

24 And so, if you look to whether that is

25 a legitimate interest, my fundamental

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1 submission -- and this, I think, goes to the

2 last colloquy you were having with Mr.

3 Francisco -- is that is an impermissible

4 government interest. And you look throughout

5 our history and tradition, and I think the place

6 I would point you most directly would be the

7 opinions of Justice Brandeis in Whitney and

8 Justice Holmes in Abrams --

9 JUSTICE JACKSON: I guess I don't

10 understand how that's distinguishable from

11 what's happening in Holder, and -- and so can

12 you just say a little bit more?

13 MR. FISHER: It's -- it goes to the

14 nature of the national security threat. So my

15 position is the government just doesn't get to

16 come in and say national security and the case

17 is over or you don't get to associate. You have

18 to dig underneath what is the national security

19 claim. And what Justice Holmes said in his

20 Abrams dissent -- and I know that was a dissent,

21 these are hard issues, but that has been

22 vindicated over time -- is that it's not enough

23 to say national security. You have to say what

24 is the real harm. Is it -- you know, is it

25 terrorism? Is it where -- where our battleships

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1 are located?

2 JUSTICE JACKSON: But Justice

3 Kavanaugh --

4 MR. FISHER: Is it war?

5 JUSTICE JACKSON: -- Justice Kavanaugh

6 presented a number of potential risks, right,

7 with -- with foreign adversaries using covert

8 manipulation of the data platforms that are

9 being used by youths today that would then make

10 it more likely that people would turn into spies

11 and do terrible things to the United States.

12 This is a hypothetical, but --

13 MR. FISHER: Yeah.

14 JUSTICE JACKSON: -- you know what I'm

15 saying?

16 MR. FISHER: I -- I get it. So I

17 think, if I understood Justice Kavanaugh

18 correctly, he was talking about the data

19 security arguments. Let me just pull these

20 apart.

21 You first have an argument -- and the

22 government itself separates these two arguments

23 in its brief. The first argument and the one

24 I'm focusing on initially is the content

25 manipulation argument, and that argument is that

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1 our national security is implicated if the

2 content on TikTok is anti-democracy, undermines

3 trust in our leaders. They use -- they use

4 various phrases like that in their brief. So my

5 primary submission is that is an impermissible

6 government interest that taints the entire Act.

7 Now there's a secondary argument the

8 government makes, and we say you don't even get

9 to that because, once you have an impermissible

10 motive like that, the law is unconstitutional.

11 But, even if you could get to that,

12 Justice Jackson, I do grant that data security

13 in -- in the way Justice Kavanaugh spelled it

14 out is compelling. That is compelling. But

15 that's not the question. You just don't ask in

16 the air, you know, was Congress worried about

17 data security or could it reasonably worry -- be

18 worried about data security? You say, can this

19 Act, the Act before you, be sustained on data

20 security grounds?

21 And our answer to that has to be no.

22 You don't have to look any further than the

23 divest -- the -- the divestiture provision

24 itself, which says that the content

25 recommendation algorithm cannot be used in the

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1 future. Well, that has nothing to do with data

2 security. So the core feature of the

3 divestiture provision is going at content

4 manipulation, which I say is impermissible. You

5 can't -- you can't uphold that under data

6 security grounds.

7 And the rest of the Act, when you look

8 at the covered companies provision, Justice

9 Jackson, if this were primarily a data security

10 law, what you think you'd find is, what kind of

11 data is procured? How is it stored? Is it

12 shared? Those are the things you think you'd

13 find under covered companies.

14 But you don't find that. What you

15 find is, are text images shared? Is content

16 being shared between users? Is it being created

17 and posted in a social media platform?

18 So I don't dispute for one second that

19 data security is a very important thing, and

20 Congress in this very law regulated data

21 security in other ways with the -- with data

22 brokers. That's perfectly permissible. But the

23 question before you today is narrower. The

24 question is, is this law before you sustainable

25 on data security grounds? And that answer has

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1 to be no.

2 JUSTICE GORSUCH: Mr. --

3 CHIEF JUSTICE ROBERTS: Congress

4 doesn't care about what's on TikTok. They don't

5 care about the expression. That's shown by the

6 remedy. They're not saying TikTok has to stop.

7 They're saying that the Chinese have to stop

8 controlling TikTok.

9 So it's -- it's not a direct burden on

10 the expression at all. Congress is fine with

11 the expression. They're not fine with a foreign

12 adversary, as they've determined it is,

13 gathering all this information about the 170

14 million people who use TikTok.

15 MR. FISHER: Well, again, Mr. Chief

16 Justice, if I may, let me separate the -- the --

17 where you started, which was the content

18 manipulation, and then go to the data security

19 part of it.

20 So I understand --

21 CHIEF JUSTICE ROBERTS: Well, the

22 first part was not -- I'm not talking about the

23 content manipulation. I'm talking about the

24 content harvesting.

25 MR. FISHER: I -- I -- when you say

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1 "content harvesting," do you mean people don't

2 know where the --

3 CHIEF JUSTICE ROBERTS: Well, they've

4 got all the information --

5 MR. FISHER: Yeah.

6 CHIEF JUSTICE ROBERTS: -- whatever

7 they -- whatever algorithms they want that has

8 access to the personal information or at least

9 information that is not readily available about

10 170 million Americans.

11 And whether they're going to use it in

12 10 or 15 years, when those people grow up and,

13 you know -- you know, have different jobs in

14 different places, or whether they're going to

15 use it now, that, at least as I look at the

16 Congressional Record, is what Congress was

17 concerned about.

18 MR. FISHER: Well, I think, though,

19 that --

20 CHIEF JUSTICE ROBERTS: And they're

21 not concerned about the fact that it is

22 available. As I said, the remedy is just

23 somebody else has to run TikTok.

24 MR. FISHER: Right.

25 CHIEF JUSTICE ROBERTS: So they're not

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1 concerned about the content. They're concerned

2 about what the foreign adversary is doing.

3 MR. FISHER: So, if I may, I think I

4 still -- to answer your question properly, I

5 think I have to separate two things.

6 One is the content recommendation

7 algorithm, and that's what I was speaking about

8 a moment ago. That has nothing to do with data

9 security. That doesn't itself procure data.

10 That just determines what videos people see on

11 their feed on TikTok.

12 As to that, I think the answer is

13 inescapably that the government and Congress

14 itself was worried about content. The

15 government itself is here saying: National

16 security.

17 So, like, a mix of cat videos or dance

18 videos doesn't affect national security. No

19 matter what happens, the only thing that can

20 affect data security -- I'm sorry, national

21 security are the substance of those videos.

22 And when the government's pressed in

23 its briefing, it outright tells you that. It

24 says: What we're really worried about is sowing

25 doubts about U.S. leaders, et cetera. So let me

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1 turn then to data security.

2 Yes, you know, there were various

3 Congresspersons, and in the record that we have

4 in the D.C. Circuit, there were conversation

5 about the problem of data security here. As I

6 said, I don't dispute that that is a valid

7 governmental interest.

8 So I think you address whether that

9 alone could sustain the Act in two steps.

10 First, you would ask: If you have an

11 impermissible motive and a permissible one, can

12 we sustain the Act based on the impermissible --

13 based simply on the permissible motive?

14 And I think, for the reasons

15 Mr. Francisco said and we lay out in our brief,

16 that alone, the answer is no under Hunter

17 against Underwood and other cases.

18 Even if you could get just to the data

19 security question, again, you'd have to ask the

20 question: Would this law have been passed by

21 Congress for data security reasons? Because

22 you're being asked to uphold a law based on that

23 single governmental interest. And when you look

24 through the provisions, like the content

25 recommendation algorithm provision, like the

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1 covered company provisions, the answer's no.

2 And if you're still in doubt on that,

3 just go back to the under-inclusiveness problem.

4 Would a Congress really worried about these very

5 dramatic risks leave out a e-commerce site like

6 Temu that has 70 million Americans using it and

7 every bit the connection to the world of

8 Chinese --

9 JUSTICE KAVANAUGH: Does Congress have

10 to go all or nothing on that? I mean --

11 MR. FISHER: It -- it doesn't have to

12 go all or nothing, Justice --

13 JUSTICE KAVANAUGH: -- if they -- they

14 isolate a particular problem, then they could --

15 they might be getting to what you're talking

16 about next, who knows, but you're really sitting

17 up there and saying Congress would not pass the

18 divestiture law if data security were the only

19 interest. I mean --

20 MR. FISHER: So I'm saying it would

21 not have passed this divestiture law if -- if --

22 if data security were the only interest.

23 It's very curious why you just single

24 out TikTok alone and not other companies with

25 tens of millions of people having their own data

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1 taken, you know, in the process of engaging with

2 those websites and equally, if not more,

3 available to Chinese control.

4 So I'm not trying to say that Congress

5 has to do everything at once. I'm trying to say

6 that once you've concluded that content

7 manipulation, for the reasons I've said, as a

8 matter of our history and tradition has to be

9 impermissible --

10 JUSTICE SOTOMAYOR: Is there another

11 site like this one that covers half the American

12 population?

13 MR. FISHER: I don't -- I don't think

14 just by way of sheer numbers, Justice Sotomayor,

15 that -- the answer has to be no.

16 JUSTICE SOTOMAYOR: All right. Now

17 put -- put --

18 MR. FISHER: But 70 million seems like

19 a lot.

20 JUSTICE SOTOMAYOR: A hundred and

21 seventy million is a lot, but put that aside.

22 MR. FISHER: Yeah.

23 JUSTICE SOTOMAYOR: And -- and -- and

24 then go to the next question, which is: How

25 many of these sites have all of the data

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1 collection mechanisms that TikTok has?

2 From what I understand from the

3 briefs, not only is it getting your information,

4 it's asking, and most people give it permission,

5 to access your contact list, whether that

6 contact list has permitted them to or not. So

7 they can now have data about all of your

8 contacts and anything you say about them.

9 How many other sites gather

10 information by keystrokes to be able to do voice

11 and finger ID information if they choose? I

12 mean, there's a whole lot of data stuff that was

13 discussed in the brief that I don't think any

14 other website gathers. So wouldn't this be a

15 unique site? If I view the evidence that way,

16 how would this be under-inclusive?

17 MR. FISHER: Justice Sotomayor, I -- I

18 don't think a lot of the suppositions you're

19 making actually bear out. And, as Justice

20 Gorsuch was pointing out, one of, obviously, the

21 real challenges in this case is it comes to you

22 without an ordinary trial record compiled and

23 all the rest. So we have only limited amounts

24 of information. But, absolutely, these other

25 websites are taking much the same kind of

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1 information, if not more.

2 And, as to the -- as to the contact

3 list thing, I think you also -- that points out

4 one other aspect of this. That is a voluntary

5 decision by an American user to share that

6 information.

7 You know, in the Riley case --

8 JUSTICE SOTOMAYOR: But not informed.

9 And even if informed, but he --

10 MR. FISHER: Well, but that could be

11 solved -- if you don't think it's informed, that

12 could be solved by a warning or disclosure.

13 JUSTICE SOTOMAYOR: Well, no, it can't

14 be because, for the United States, the threat of

15 using that information is what is at issue.

16 It's not whether the user thinks it's okay.

17 It's whether the U.S. believes that it could put

18 sites at issue.

19 But let me ask you one --

20 MR. FISHER: Mm-hmm.

21 JUSTICE SOTOMAYOR: -- last question

22 and fundamental question.

23 Assuming that content -- that

24 content-neutral data collection concerns were

25 Congress's -- is one of Congress's provisions,

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1 divest because of this --

2 MR. FISHER: Mm-hmm.

3 JUSTICE SOTOMAYOR: -- why can't we

4 separate that out from how we analyze the

5 algorithm question?

6 And couldn't we sever the two

7 provisions to say: Divestiture is right, but

8 you can't force them not to discuss algorithm?

9 MR. FISHER: Well, I think the reason

10 why you can't do that is -- is -- is what

11 Mr. Francisco explained. I -- I direct you to a

12 case like Hunter against Underwood and just

13 analogize it to this situation.

14 If what you had is the government

15 saying: We -- we are shutting down TikTok or

16 requiring divestiture for two reasons, one,

17 because we think it helps the Democratic Party

18 too much and, number two, because we're

19 concerned about data, I think that first

20 interest would be a poison pill. That would be

21 an impermissible -- or because we think, you

22 know, there's too much pro-Catholic content on

23 TikTok.

24 I think there are some interests that

25 are just so constitutionally verboten that I

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1 think that -- that just makes the Act

2 unconstitutional, and you can't go looking for

3 other interests.

4 You send it back to Congress: Look,

5 if you want to pass a data security law free and

6 clear of this impermissible interest, you go

7 ahead and do it.

8 JUSTICE SOTOMAYOR: Thank you,

9 counsel.

10 JUSTICE GORSUCH: So, Mr. --

11 MR. FISHER: Can I say one other

12 thing, Justice Sotomayor, just because I think

13 it is also telling here that even if you didn't

14 buy that poison pill argument and you just asked

15 whether Congress would have passed this law,

16 something else that I think you might notice is,

17 even if all this Act goes into effect and the --

18 and the law goes through, TikTok gets to keep

19 all the data.

20 So wouldn't a data security law

21 require them to expunge that data or get rid of

22 it or something? I mean, it's a very weird law

23 if you're just looking at it through a data

24 security lens --

25 JUSTICE GORSUCH: Mr. --

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1 MR. FISHER: -- and maybe Congress

2 could do better.

3 JUSTICE GORSUCH: -- Mr. Fisher, you

4 know, often we require divestiture for antitrust

5 reasons, for example. And, as I take it, your

6 argument here -- and we don't think of those as

7 normally implicating the First Amendment

8 interests of users or people who might speak

9 or --

10 MR. FISHER: Right.

11 JUSTICE GORSUCH: -- associate with

12 editors. And -- and the difference here is, as

13 I understand it, in your mind, that this law is

14 motivated by a content-based interest. Is -- is

15 that -- is that a fair summary?

16 MR. FISHER: I -- I think that -- the

17 only thing I would add to it is the prior step,

18 which it is -- it is regulating the speech

19 itself for content-based reasons, yes.

20 JUSTICE GORSUCH: Yeah. We don't do

21 that in the antitrust area --

22 MR. FISHER: Exactly.

23 JUSTICE GORSUCH: -- but you say this

24 law does.

25 MR. FISHER: Exactly.

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1 JUSTICE GORSUCH: Okay. And -- and it

2 does on -- on the content -- covert content

3 manipulation side, do you think that's a

4 compelling interest or not? Forget about the

5 tailoring for a moment.

6 MR. FISHER: No. My point is is that

7 preventing content manipulation, whether it's

8 covert or not --

9 JUSTICE GORSUCH: Is simply not

10 compelling?

11 MR. FISHER: -- is -- is

12 impermissible. If what you mean by "content

13 manipulation" are the kinds of interests the

14 government is saying, like undermining trust in

15 our leaders --

16 JUSTICE GORSUCH: Yeah.

17 MR. FISHER: -- you know, undermining

18 trust in democracy --

19 JUSTICE GORSUCH: And that's Whitney

20 and Abrams in your mind?

21 MR. FISHER: -- that's Whitney and

22 Abrams. And, like, those cases --

23 JUSTICE GORSUCH: Got it. I got it.

24 MR. FISHER: Yeah.

25 JUSTICE GORSUCH: I got it.

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1 JUSTICE KAGAN: So, Mr. Fisher --

2 JUSTICE GORSUCH: Just a couple more,

3 I'm sorry.

4 MR. FISHER: Yeah. Yeah.

5 JUSTICE GORSUCH: I'll finish up real

6 quick.

7 And so that would take us to the

8 tailoring question, and there, you say

9 disclosure and alerting Americans that there is

10 covert content manipulation possibility, putting

11 aside the -- the data collection part of it --

12 MR. FISHER: Yeah.

13 JUSTICE GORSUCH: -- telling Americans

14 that there -- there is content -- covert content

15 manipulation going on in TikTok or at least it's

16 possible.

17 And the government says that's just

18 simply not enough. And the D.C. Circuit did

19 too. And I wanted to give you a chance to

20 respond to that.

21 MR. FISHER: Right. So I think that's

22 the only aspect of the governmental interest

23 that could be permissible, the -- the covert

24 part.

25 And my answer, as you just said, is

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1 disclosure solves that problem. And -- and --

2 and you have a law, a longstanding law which we

3 haven't talked about yet today, that gives you

4 that example. Again, under a

5 history-and-tradition test, you look at not just

6 precedent but laws and our traditions of our

7 country. Look at the Foreign Agent Registration

8 Act, passed -- passed in the run-up to World War

9 II, and the concern was Americans would be

10 controlled by foreign agents to speak and

11 advocate certain causes.

12 JUSTICE GORSUCH: We didn't ban them.

13 We just required disclosure.

14 MR. FISHER: You did not ban them.

15 All you did is require --

16 JUSTICE GORSUCH: Okay.

17 MR. FISHER: You, Congress.

18 JUSTICE GORSUCH: Yeah.

19 MR. FISHER: All Congress did was

20 require a disclosure.

21 JUSTICE GORSUCH: I certainly

22 wasn't -- I wasn't around for that.

23 (Laughter.)

24 JUSTICE GORSUCH: On the secret

25 evidence point, I'm concerned about the

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1 government's attempt to lodge secret evidence in

2 this case without providing any mechanism for

3 opposing counsel to review it. And I expressed

4 that concern in Zubaydah, and I noted that there

5 are mechanisms to read in counsel and that other

6 countries, including our allies, often do that.

7 I just wanted to give you a chance to give me

8 your thoughts on that.

9 MR. FISHER: Yes, Justice Gorsuch. We

10 made all those arguments in the D.C. Circuit.

11 So there was a flurry of motion practice about

12 whether or not the government could rely on

13 classified evidence. Those motions were never

14 resolved.

15 What the D.C. Circuit did -- I think

16 you probably noticed from the decision -- is say

17 we're going to decide this case solely based on

18 the public record, and my understanding is

19 that's how it comes to this Court.

20 JUSTICE GORSUCH: It's interesting

21 that --

22 MR. FISHER: But, if the Court were

23 ever -- ever --

24 JUSTICE GORSUCH: It's interesting

25 that Congress hasn't acted in this field. I

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1 mean, we have in the FISA area, you know, lots

2 of opportunity. They have regulated this area,

3 and it does seem like an area that Congress

4 might want to -- to pay attention to given the

5 increased appeals to secret evidence that the

6 government has made in recent years.

7 Last question for you. Could the new

8 administration after January 20th -- Mr.

9 Francisco suggested that it might -- be able to

10 extend the deadline even though -- if you were

11 to lose here by January 19th, is that possible

12 as you read the law?

13 MR. FISHER: I'm not sure it is. I'm

14 not sure -- maybe -- maybe that's a question for

15 the Solicitor General, but --

16 JUSTICE GORSUCH: Oh, it certainly is.

17 I --

18 (Laughter.)

19 JUSTICE GORSUCH: -- I thought maybe

20 I'd give you a chance too.

21 MR. FISHER: So, you know, as I

22 understand the law, it's 270 days unless

23 extended, and once that time runs, I'm not sure

24 you're talking about an extension anymore.

25 JUSTICE GORSUCH: Okay.

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1 MR. FISHER: You know, there's ex post

2 facto law that --

3 JUSTICE GORSUCH: Yeah, yeah.

4 MR. FISHER: -- kind of does this

5 stuff.

6 JUSTICE GORSUCH: Got it. Thank you.

7 MR. FISHER: Yeah.

8 JUSTICE KAGAN: Can I take you back,

9 Mr. Fisher? Let's say I agree with you that if

10 you're talking about content manipulation,

11 that's an inherently content-based rationale for

12 acting. So, if Congress had passed a law that

13 says we hate the content manipulation that

14 TikTok is doing, that's strict scrutiny land,

15 and I don't know that the government can do

16 that, however important, you know, the -- the --

17 the interest.

18 But that's not what Congress is doing

19 here -- and this is the same kinds of questions

20 that I asked --

21 MR. FISHER: Mm-hmm.

22 JUSTICE KAGAN: -- Mr. Francisco --

23 because, if -- if -- let's take it as a given

24 that Congress actually can do whatever it wants

25 with respect to a wholly foreign corporation or

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1 a foreign government.

2 MR. FISHER: Yeah.

3 JUSTICE KAGAN: And so Congress could

4 act with the intent to interfere with the

5 content manipulation that a foreign corporation

6 is doing. And so now we're in this strange

7 world where we're saying they can't act with

8 respect to TikTok. They could act with respect

9 to ByteDance.

10 Why isn't this Congress acting with

11 respect to ByteDance in the sense that all it's

12 doing is saying ByteDance has to divest, and

13 then TikTok can go about its business, use

14 whatever algorithm it wants, use whatever

15 content-moderation policies it wants, just like

16 everybody else does, choosing from everything

17 that's available on the open market?

18 MR. FISHER: So let me answer that

19 question in two parts from the perspective of

20 the creator Americans who want to use this

21 platform to speak to other Americans.

22 So the first thing is what the Act

23 does, as you said, Justice Kagan, is prevent us

24 from working with a application that is owned by

25 ByteDance that uses this algorithm. Well,

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1 that's exactly what we want to do. That's our

2 editor and publisher of choice that we think

3 best disseminates our speech.

4 JUSTICE KAGAN: Yeah, but what I'm

5 saying to you is, if you just assume a world

6 without TikTok, that -- where it's only

7 ByteDance --

8 MR. FISHER: Yeah.

9 JUSTICE KAGAN: -- and you were trying

10 to -- you were trying to say, well, we really

11 want to work with ByteDance --

12 MR. FISHER: Yeah.

13 JUSTICE KAGAN: -- and Congress was

14 saying we think ByteDance presents national

15 security interests and they don't have First

16 Amendment rights, they're just a foreign

17 corporation, I think that in that case, the

18 government -- I mean, tell me if you think this

19 is wrong. It just doesn't matter --

20 MR. FISHER: Yeah.

21 JUSTICE KAGAN: -- that you have

22 creators who want to work with ByteDance because

23 ByteDance is a foreign corporation with no First

24 Amendment rights.

25 Is that what you're contesting?

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1 MR. FISHER: So that is what I'm

2 contesting. So you said two things, though. So

3 I could be clear, there's two aspects. Do we

4 have a First Amendment right to work with a

5 foreign company or even a foreign country to

6 publish our speech? And then there's a national

7 security part that you put into that, which goes

8 to the justification.

9 JUSTICE KAGAN: Forget that.

10 MR. FISHER: Forget that. Yes. Let's

11 do that. So, if that is right, Justice Kagan,

12 then American creators have no right to -- to

13 make documentaries with the BBC. They can't --

14 they can't work with Al Jazeera if Congress

15 wants to prevent that. Any number of other

16 publications that are state-owned wholly or

17 partially.

18 And even under Lamont, remember, where

19 you're not even creating speech, you're just

20 listening, you know, that was speech from China

21 that the Court said you have a First Amendment

22 right to receive.

23 JUSTICE KAGAN: So would I be right to

24 say that your position is that because of the

25 users who want to associate and want to partner

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1 with this foreign corporation, the foreign

2 corporation ends up having, in your view, the

3 exact same First Amendment rights as your users

4 do? In other words, it's -- it's irrelevant --

5 MR. FISHER: Yeah.

6 JUSTICE KAGAN: -- that the foreign

7 corporation doesn't have First Amendment rights.

8 MR. FISHER: I -- I don't think it's

9 irrelevant because you could imagine a situation

10 where no American distributor or speaker wants

11 to work with that.

12 But let me -- let me put it to you

13 this way: The Communist Manifesto written by

14 Karl Marx has no First Amendment standing on its

15 own in America, but if a bookstore wants to sell

16 that publication, I don't think Congress can

17 prevent it from doing so.

18 JUSTICE BARRETT: Well --

19 MR. FISHER: A --

20 JUSTICE BARRETT: Oh, sorry. Go

21 ahead.

22 MR. FISHER: No, I'm -- I'm fine.

23 JUSTICE BARRETT: No, no, no. It's --

24 JUSTICE KAGAN: I'm good.

25 JUSTICE BARRETT: Okay. So I want

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1 to -- but I want to press you a little bit on

2 the distinction because, in Lamont, the --

3 the -- the prohibition worked directly on the

4 American, like you have to specifically request

5 this information that comes.

6 This is working -- kind of as Justice

7 Kagan's questions were -- were pressing you,

8 this is working on ByteDance. It's not saying

9 to your creators you can't post on ByteDance.

10 That's -- that's indirectly going to happen --

11 MR. FISHER: Right.

12 JUSTICE BARRETT: -- if ByteDance

13 chooses itself not to permit TikTok to walk away

14 with the code.

15 So does that matter, that distinction

16 between Lamont and this case?

17 MR. FISHER: No, for two reasons.

18 One, under the Sorrell case, you look

19 to not just the law itself but its practical

20 operation. And the practical operation does

21 prevent us from working with ByteDance. So

22 that's one answer.

23 And, you know, you bring up Lamont,

24 and Lamont's actually a very important case, as

25 I'm sure you all recognize here. It's important

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1 to look not just at the Court's opinion but look

2 at the briefing in that case. The government

3 itself never came in and argued there's no right

4 to receive this information. That's the sort of

5 greater argument. All the government argued

6 was, of course, Americans have a right to

7 receive this, but it's just not so much of a

8 burden to require them to raise their hand to

9 get it.

10 So Archibald Cox, when he was the

11 Solicitor General, said to the Court quite

12 explicitly in the brief we're not even going to

13 make this argument because we think it's so

14 contrary to history and tradition. All we're

15 going to argue is the burden isn't enough.

16 Now what happened is the D.C. Circuit

17 kind of turned that upside down and said, oh,

18 Lamont's just a case about the burden. Well,

19 that's because that's the only argument the

20 government was even willing to make in this

21 Court. There was no argument that Americans

22 didn't have the right to hear that speech.

23 JUSTICE BARRETT: What about -- so I

24 think this goes to Justice Gorsuch's questions

25 about antitrust divestiture. Let's say that --

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1 let's say that for antitrust reasons or -- or

2 let's even say not for that. Let's say, for

3 suspect First Amendment reasons, Congress tells

4 Jeff Bezos that he has to divest in the

5 Washington Post. You know, he can no longer own

6 the Post. And let's say that neither Bezos nor

7 the Post challenges that. But let's say that

8 you represent clients who really like the Post

9 as it was, who really want to keep receiving the

10 Post, who really want to publish op eds in the

11 Post.

12 MR. FISHER: Yeah.

13 JUSTICE BARRETT: Would you have

14 standing? Like, what kind of a claim would you

15 be making then?

16 MR. FISHER: I believe so, Justice

17 Barrett. And the Court has cited Lamont in

18 other cases in more recent years to say we've

19 recognized the right of American listeners to

20 receive information from others. And remember

21 even that is a lot -- that's only a small part

22 of the argument I'm making on behalf of the

23 creators.

24 You know, I don't mean to diminish

25 Mr. Francisco's arguments on behalf of the

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1 company and ByteDance, but the core speech in

2 front of you in this case are the videos and

3 other forms of communication that people like my

4 clients are posting by the millions every day on

5 this platform to share with other Americans.

6 JUSTICE BARRETT: Can you win if -- is

7 it possible for you to win and Mr. Francisco to

8 lose? Or you rise or fall together?

9 MR. FISHER: No, I think it's

10 possible.

11 JUSTICE BARRETT: How?

12 MR. FISHER: I mean, I don't think we

13 should.

14 (Laughter.)

15 MR. FISHER: But -- but --

16 JUSTICE BARRETT: Well, is it possible

17 for you to win and him to lose? I mean, you

18 want to win.

19 MR. FISHER: Well, let me put it this

20 way: If you were to conclude that something

21 about the corporate ownership structure -- and I

22 think there was some conversation about this

23 earlier -- impeded Mr. Francisco from being able

24 to assert full-throated First Amendment rights

25 in this case, I would step in and say, well,

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1 certainly, we can do that and get you to the

2 strict scrutiny.

3 And then the arguments pretty much

4 line up. Then you're in a question of, can the

5 government satisfy strict scrutiny? And I

6 think, Mr. Chief Justice, you asked about do we

7 have cases for this and that. I think that the

8 idea is, yes, we have cases that say once you're

9 in strict scrutiny that regulating the content

10 because you don't think it's going to be

11 pro-American enough or it's going to be too

12 pro-foreign interest is just verboten under the

13 First Amendment. That's the history and

14 tradition.

15 And, Justice Kavanaugh, when you asked

16 about the broadcast cases, they're grounded not

17 just in scarcity, but they're grounded in

18 scarcity in a particular way, and it has to do

19 with the absolute need Congress has for

20 licensing in a world of scarce resources. And

21 so that's the very small carveout that even in

22 Turner the Court wouldn't extend to cable

23 television that exists for broadcast licensing.

24 And if you look in the 200-plus years

25 of our country for any other example of foreign

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1 ownership of media being regulated by Congress,

2 let alone being permitted in the case law, you

3 are not going to find it, and I think the reason

4 why is because everybody has understood that if

5 you're not in a world of scarcity where

6 licensing is impossible, you cannot give the

7 government and, in this -- in this more extreme

8 example, the President himself unbridled

9 discretion to choose who is a proper owner of a

10 speech platform in this country.

11 Because it is so hand-in-hand with

12 viewpoint, as I said earlier, any number of

13 owners of big media enterprises, whether they be

14 Americans or foreign citizens, could be accused

15 of having a particular viewpoint, but speakers

16 who engage in those platforms have choices they

17 can make.

18 And so, you know, on behalf of our

19 creator clients, we find it -- we find it not at

20 all satisfactory to be told: Well, look, just

21 go post somewhere else. You know, it's not

22 enough to tell a writer: Well, you can't

23 publish an op ed in the Wall Street Journal

24 because you can publish it in the New York Times

25 instead. Just like here, to say: You can

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1 publish it on Instagram or some other platform,

2 not just TikTok.

3 TikTok has a distinct editorial and

4 publicational perspective, and it particularly

5 benefits people like my clients, who are not

6 famous people. They're not actors from

7 Hollywood who have a lot of people following

8 them. They're ordinary American citizens whose

9 content that they create on the platform gets

10 privileged by way of the quality of that

11 content.

12 And that's what's so powerful about

13 the platform. So whether you're an ordinary

14 American citizen or, I might add, whether you're

15 a presidential candidate in our last election,

16 if you want to reach new and different

17 audiences, TikTok is the place people go.

18 JUSTICE ALITO: Well, this may not

19 make any difference for constitutional purposes,

20 but just out of curiosity, I'd like you to

21 explain what the practical consequences would

22 likely be for your clients if TikTok went dark,

23 as Mr. Francisco put it.

24 There, I assume, is a great demand for

25 what TikTok provides, and if TikTok was no

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1 longer there to provide what your clients really

2 want, is there a reason to doubt that some other

3 social media company would not jump in and take

4 advantage of this very lucrative market?

5 MR. FISHER: There are two reasons,

6 Justice Alito. One is many of the declarations

7 from my clients actually explain they have tried

8 on other platforms to generate the kind of

9 audience and engagement they've been able to on

10 TikTok, and they've fallen dramatically --

11 JUSTICE ALITO: Yeah, I know, they

12 haven't so far. And I'm just -- you know, I'm

13 just wondering whether this is like somebody's

14 attachment to an old article of clothing.

15 I mean, I really love this old shirt

16 because I've been wearing this old shirt, but I

17 could go out and buy something exactly like

18 that, but, no, I like the old shirt.

19 Is that what we have here, or is there

20 some -- some reason to think that only

21 ByteDance --

22 MR. FISHER: Yeah.

23 JUSTICE ALITO: -- has this -- can --

24 that ByteDance has devised this magical

25 algorithm that all of the geniuses at Meta and

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1 all of these other social media companies, they

2 couldn't -- no matter, if they put their minds

3 to it, they couldn't come up with this magical

4 thing?

5 MR. FISHER: I -- I think,

6 empirically, the other companies have been

7 trying for a few years to catch up with TikTok

8 and replicate it and have been very

9 unsuccessful, and so that ought to tell you

10 something.

11 And so just imagine the algorithm here

12 as a collection of thousands of editors. You

13 know, imagine the floors of an office building

14 being filled with a collection of editors. You

15 could imagine a situation where that collection

16 of genius that is on a particular floor cannot

17 be replicated by another group of people.

18 JUSTICE ALITO: Okay. All right.

19 MR. FISHER: And that's kind of what

20 you have here.

21 JUSTICE ALITO: All right. I

22 understand that.

23 CHIEF JUSTICE ROBERTS: Thank you,

24 counsel.

25 Justice Thomas?

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1 Anything further, Justice Alito?

2 JUSTICE ALITO: Yeah, one other -- one

3 other question. I'm intrigued by your Mt.

4 Healthy, Hunter versus Underwood argument. I

5 mean, maybe you're right, but Mt. Healthy arose

6 in an entirely different context, where you're

7 trying to get to an employer's motivation.

8 Hunter verse -- versus Underwood

9 involved an extreme situation where the Court

10 looked at the records of a state constitutional

11 convention and came to the conclusion apparently

12 that racism was the only motivation for what was

13 done. But it does seem to me to be potentially

14 quite unworkable and contrary to what we've

15 generally said about legislative intent to apply

16 the Mt. Healthy framework to a congressional

17 enactment.

18 Do you -- do you -- do you recognize

19 or do you -- do you acknowledge that that would

20 be very difficult? Because, when an act of

21 Congress is passed, there could be more than 250

22 different motivations for the votes that were

23 cast by the members.

24 MR. FISHER: Mm-hmm. Yeah, I totally

25 understand that. And, in Hunter, the Court

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1 actually engaged with that problem to some

2 degree, and what Hunter said is, to avoid that

3 problem, we're going to look just to two things.

4 One is the state's brief, which I would say is

5 the Solicitor General's brief by comparison

6 here, and the text of the law.

7 And, here, that's the only thing I

8 need to rely on to get you to the place that

9 they wouldn't have announced -- wouldn't have

10 enacted this --

11 JUSTICE ALITO: Well, it gets you to

12 the -- it gets you to the place that this was

13 part of what motivated Congress, but why does it

14 get you home?

15 MR. FISHER: Well --

16 JUSTICE ALITO: Particularly when

17 there's a severability clause in this Act.

18 MR. FISHER: -- it can't be only part

19 of it. It has to be enough to sustain the

20 entire Act or at least the parts that you

21 wouldn't sever from the Act.

22 And so I think the reason why is

23 because it's not just the content recommendation

24 algorithm part that can be theoretically, I

25 guess, severed out. It's also the covered

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1 company provisions, and it's just the whole

2 approach of the statute that is based on

3 content, not on data security.

4 JUSTICE ALITO: All right. Thank you.

5 MR. FISHER: So -- okay.

6 CHIEF JUSTICE ROBERTS: Justice

7 Sotomayor?

8 JUSTICE SOTOMAYOR: No. I'll save it

9 for the SG.

10 CHIEF JUSTICE ROBERTS: Justice Kagan?

11 Justice Gorsuch?

12 Justice Kavanaugh?

13 Justice Jackson?

14 JUSTICE JACKSON: One quick question.

15 You -- you repeatedly say that from your

16 perspective, the government's motivation is that

17 the content might be too anti-American or too

18 pro-China, et cetera.

19 MR. FISHER: Uh-huh.

20 JUSTICE JACKSON: So that's why you

21 think this is a content-based restriction.

22 But I guess I'm curious if you would

23 say the same thing if the government had

24 articulated its rationale as saying, you know,

25 our motivation is to limit foreign -- foreign

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1 interference --

2 MR. FISHER: Yeah.

3 JUSTICE JACKSON: -- in American

4 social media platforms or discourse. Isn't that

5 a different motivation --

6 MR. FISHER: I wouldn't -- I --

7 JUSTICE JACKSON: -- from the

8 standpoint of how we characterize this?

9 MR. FISHER: I agree, but then the

10 question I would ask if the government said

11 that, which I think kind of in the reply brief

12 maybe the government does say that, is that how

13 on earth are you then serving a national

14 security interest?

15 You know, if all you're doing is just

16 saying we don't like a foreign country

17 rearranging cat and dance videos, like, it's

18 hard to come in and make a national security

19 argument.

20 So the only way you get to national

21 security, which is the government's own

22 argument, is to look at the substance that's

23 being rearranged and say we don't like the way

24 the substance is going to be rearranged and --

25 and curated differently.

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1 JUSTICE JACKSON: Thank you.

2 CHIEF JUSTICE ROBERTS: Thank you,

3 counsel.

4 General Prelogar.

5 ORAL ARGUMENT OF GEN. ELIZABETH B. PRELOGAR

6 ON BEHALF OF THE RESPONDENT

7 GENERAL PRELOGAR: Mr. Chief Justice,

8 and may it please the Court:

9 The Chinese government's control of

10 TikTok poses a grave threat to national

11 security. No one disputes that the PRC seeks to

12 undermine U.S. interests by amassing vast

13 quantities of sensitive data about Americans and

14 by engaging in covert influence operations, and

15 no one disputes that the PRC pursues those goals

16 by compelling companies like ByteDance to

17 secretly turn over data and carry out PRC

18 directives.

19 Those realities mean that the Chinese

20 government could weaponize TikTok at any time to

21 harm the United States. TikTok collects

22 unprecedented amounts of personal data. And, as

23 Justice Sotomayor noted, it's not just about the

24 170 million American users but also about their

25 non-user contacts, who might not even be

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1 engaging with the platform.

2 That data would be incredibly valuable

3 to the PRC. For years, the Chinese government

4 has sought to build detailed profiles about

5 Americans, where we live and work, who our

6 friends and coworkers are, what our interests

7 are, and what our vices are.

8 TikTok's immense data set would give

9 the PRC a powerful tool for harassment,

10 recruitment, and espionage. On top of that, the

11 Chinese government's control over TikTok gives

12 it a potent weapon for covert influence

13 operations. And my friends are wrong to suggest

14 that Congress was seeking to suppress specific

15 types of content or specific types of

16 viewpoints.

17 Instead, the national security harm

18 arises from the very fact of a foreign

19 adversary's capacity to secretly manipulate the

20 platform to advance its geopolitical goals in

21 whatever form that kind of covert operation

22 might take.

23 The Act addresses the threat of

24 foreign adversary control with laser-like focus.

25 It requires only divestiture of TikTok to

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1 prevent Chinese government control, and that

2 divestiture remedy follows a long tradition of

3 barring foreign control of U.S. communications

4 channels and other critical infrastructure.

5 So, no matter what level of First

6 Amendment scrutiny applies, this Act is valid

7 because it's narrowly tailored to address

8 compelling national security threats.

9 Now my friend, Mr. Fisher, just

10 emphasized and I acknowledge that millions of

11 Americans enjoy expressing themselves on this

12 platform. But the important thing to recognize

13 is that the Act leaves all of that speech

14 unrestricted once TikTok is freed from foreign

15 adversary control.

16 The First Amendment does not bar

17 Congress from taking that critical and targeted

18 step to protect our nation's security.

19 I welcome the Court's questions.

20 JUSTICE THOMAS: Is there any

21 difference between content manipulation by a

22 non-U.S. company as opposed to a U.S. company?

23 I didn't hear Mr. Fisher make a distinction

24 between the two.

25 GENERAL PRELOGAR: Yes. And I think

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1 the important thing to recognize is that the Act

2 here is targeting covert content manipulation by

3 a foreign adversary nation.

4 Now I understand my friends to say --

5 JUSTICE THOMAS: What difference does

6 that make?

7 GENERAL PRELOGAR: The difference is

8 that there is no protected First Amendment right

9 for a foreign adversary to exploit its control

10 over a speech platform.

11 JUSTICE THOMAS: No, I mean the

12 difference -- the difference between covert and

13 non-covert.

14 GENERAL PRELOGAR: So I think that --

15 that Congress's concern with a covert operation

16 was that a foreign adversary could effectively

17 weaponize this platform behind the scenes in

18 order to achieve any number of geopolitical

19 goals.

20 Here -- here are some of the examples

21 that come to mind. One of the pages out of the

22 playbook here is for a foreign adversary to

23 simply try to get Americans arguing with one

24 another to create chaos and distraction in order

25 to weaken the United States as a general matter

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1 and distract from any activities that the

2 foreign adversary --

3 JUSTICE KAGAN: I guess, what --

4 GENERAL PRELOGAR: -- might want to

5 conduct on the world stage.

6 JUSTICE KAGAN: -- what do you mean by

7 "covert," though? I mean, does "covert" just

8 mean it's hard to figure out how the algorithm

9 works? Because we could say that about every

10 algorithm.

11 GENERAL PRELOGAR: No. The covert

12 nature of it comes from the fact that it's not

13 apparent that the PRC is the one behind the

14 scenes pulling the strings here and deciding

15 exactly what content is going to be made to

16 appear on the site.

17 And another way that the PRC --

18 JUSTICE KAGAN: It's just because we

19 don't know that China's behind it? That's what

20 "covert" means?

21 GENERAL PRELOGAR: Well, I think --

22 JUSTICE KAGAN: It doesn't have

23 anything to do with the difficulty of figuring

24 out what the algorithm is doing? It's just

25 because people don't know that China is pulling

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1 the strings? That's what "covert" means?

2 GENERAL PRELOGAR: What it means is

3 that Americans are on this platform thinking

4 that they are speaking to one another, and this

5 recommendation engine that is apparently so

6 valuable is organically directing their speech

7 to each other. And what is covert is that the

8 PRC, a foreign adversary nation, is instead

9 exploiting a vulnerability in the system to

10 suppress and silence views --

11 JUSTICE KAGAN: Well, that's all it

12 means, that, like, people don't know that

13 China's behind it? Like, everybody now knows

14 that China is behind it.

15 (Laughter.)

16 GENERAL PRELOGAR: No, but it -- but

17 it's the specific -- the specific content that's

18 being manipulated would be unapparent. And so I

19 think that --

20 JUSTICE KAGAN: Well, that's true of

21 every search engine. I mean, you can -- you can

22 take any of these algorithms, whether it's X or

23 whether it's, you know, you name it -- what are

24 the new ones, Bluesky -- I mean, none of

25 these -- none of these are apparent, right?

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1 You -- you get what you get and you think that's

2 puzzling. And --

3 (Laughter.)

4 JUSTICE KAGAN: -- and it's all a

5 little bit of a black box. So you can't just

6 mean it's a black box, it's covert. They're all

7 black boxes. And if you just mean what's covert

8 is the fact that there's China behind it, I

9 mean, honestly, really, like, everybody does

10 know now that there's China behind it.

11 So I just don't get what this "covert"

12 word does for you.

13 GENERAL PRELOGAR: I think the problem

14 with just saying, as a general matter, China has

15 this capability and might at some point be able

16 to exercise it and manipulate the platform is it

17 doesn't put anyone on notice of when that

18 influence operation is actually happening, and,

19 therefore, it doesn't guard against the national

20 security harm from the operation itself.

21 JUSTICE GORSUCH: General, isn't that

22 a pretty paternalistic point of view? I mean,

23 don't we normally assume that the best remedy

24 for problematic speech is counter-speech? And,

25 you know, TikTok says it could even live with

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1 a -- a disclaimer on its website saying this can

2 be covertly manipulated by China in case anybody

3 were left in doubt after today about that

4 possibility. So you're saying that won't work

5 because?

6 GENERAL PRELOGAR: That won't work

7 because it is such a generic generalized

8 disclosure that it wouldn't put anyone

9 reasonably on notice about when it's actually

10 happening. And the example I've --

11 JUSTICE GORSUCH: That's your best --

12 GENERAL PRELOGAR: -- been thinking

13 about is --

14 JUSTICE GORSUCH: -- that's your best

15 argument, is that the average American won't be

16 able to figure out that the cat feed -- feed

17 he's getting on TikTok could be manipulated even

18 though there's a disclosure saying it could be

19 manipulated?

20 GENERAL PRELOGAR: But imagine if you

21 walked into a store and it had a sign that said

22 one of one million products in this store causes

23 cancer. That is not going to put you on notice

24 about what product is actually jeopardizing your

25 health. And I think that's roughly equivalent

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1 to the type of disclosure they're contemplating

2 here.

3 They brought up the example of the

4 Foreign Agents Registration Act, FARA.

5 JUSTICE GORSUCH: If that -- if that's

6 true --

7 GENERAL PRELOGAR: There, you have to

8 disclose the actual content.

9 JUSTICE GORSUCH: -- if that's true,

10 then wouldn't that be true for all social media

11 companies for all content? I mean, every

12 editor, every newspaper in its editorial room

13 makes decisions about what it's going to run and

14 how it's going to say it. And every algorithm

15 has preferences, whether it's domestic or

16 foreign. And nobody really knows exactly when

17 those editorial decisions are being made or how,

18 but they're generally aware, and we think that

19 that's enough.

20 GENERAL PRELOGAR: I think, though,

21 that there is a real risk that when a foreign

22 adversary has control of that kind of mechanism

23 and a speech platform in the United States, it

24 could weaponize -- weaponize that platform to

25 harm United States interests. And one of the

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1 key ways that the PRC --

2 JUSTICE GORSUCH: That -- I'm --

3 I'm --

4 GENERAL PRELOGAR: -- flexes its

5 muscle is to suppress speech.

6 JUSTICE GORSUCH: General, I'm sorry

7 to interrupt you, but I'm -- again, I'm not --

8 not -- we're not arguing about the compelling

9 interest. We're arguing about the tailoring.

10 GENERAL PRELOGAR: Right. And so I

11 guess what I would say -- you began by saying

12 the -- the cure for concerning speech is

13 counter-speech. Here, I dispute the premise

14 that Congress was specifically concerned about

15 any particular subject or any particular

16 viewpoint. It wanted to close off the

17 capability of a foreign government.

18 But, in any event, it's very hard to

19 engage in counter-speech when you don't know

20 because someone is secretly manipulating the

21 platform behind the scenes. And, in particular,

22 what the PRC has the capability to do --

23 JUSTICE GORSUCH: Well, wouldn't the

24 same thing be true --

25 GENERAL PRELOGAR: -- is simply

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1 silence American voices.

2 JUSTICE GORSUCH: -- with a newspaper

3 owned by a foreign company and a foreign

4 government? You wouldn't know when it's

5 exercising editorial discretion about this

6 article or that article or how it's doing it, so

7 maybe we just need to shut down the Oxford

8 University Press in America or, you pick it, any

9 other foreign-owned -- Politico I was told today

10 is owned by Germany.

11 GENERAL PRELOGAR: So what that --

12 JUSTICE GORSUCH: That would all be

13 okay on your theory so long as Congress

14 designates that country a foreign adversary?

15 GENERAL PRELOGAR: We are not asking

16 the Court to articulate bright-line rules to

17 govern all kinds of hypothetical situations.

18 JUSTICE GORSUCH: I -- I understand

19 that, but I am testing --

20 GENERAL PRELOGAR: And --

21 JUSTICE GORSUCH: -- I am testing your

22 argument.

23 GENERAL PRELOGAR: Yes. And in -- and

24 what I want to acknowledge is that sometimes the

25 Court has recognized that a speaker-based

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1 preference might reflect a content-based

2 preference. And in the context of ownership of

3 a newspaper, for example, in part, because a

4 newspaper is a one-way channel of communication

5 and is generally understood to represent to some

6 extent its publisher's views, maybe the Court

7 would more readily infer that a regulation

8 targeting that is actually aiming to target

9 conduct -- content.

10 JUSTICE GORSUCH: Again, I'm talking

11 about the --

12 GENERAL PRELOGAR: But I don't think

13 that the Court could draw the same conclusion

14 here.

15 JUSTICE GORSUCH: -- I'm not talking

16 about the compelling interest or any of that.

17 GENERAL PRELOGAR: Right.

18 JUSTICE GORSUCH: I'm talking about

19 the tailoring. And -- and you're saying we have

20 no alternative but to stop this speech

21 altogether. We can't -- we can't rely on

22 disclosure. But you say that wouldn't apply to

23 Politico or to the Oxford University Press

24 because?

25 GENERAL PRELOGAR: In the circumstance

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1 where you have a newspaper that is understood to

2 reflect its publisher's views, then you might

3 think that disclosure would be a more adequate

4 remedy there because it's not just holding

5 itself out as a forum for speech between other

6 people.

7 I think social media platforms do

8 raise distinct interests in this regard because

9 what people think when they're engaging with

10 TikTok is that it's organically feeding them

11 videos based on the recommendation engine. And

12 if actually China is behind the scenes engaging

13 in this kind of covert operation, it does

14 present a distinct national security risk.

15 Of course, the other big difference

16 with a newspaper is it's not likely to be

17 collecting sensitive personal information about

18 170 million-plus people and then having the

19 capacity to send that back to a foreign

20 adversary.

21 JUSTICE BARRETT: General Prelogar,

22 can I --

23 CHIEF JUSTICE ROBERTS: Counsel --

24 JUSTICE BARRETT: Oh. Go ahead.

25 CHIEF JUSTICE ROBERTS: -- I was just

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1 going to say, did I understand you to say a few

2 minutes ago that one problem that Byte -- is

3 that ByteDance might be, through TikTok, trying

4 to get Americans to argue with each other?

5 GENERAL PRELOGAR: That it might be

6 just trying to foment disruption or --

7 CHIEF JUSTICE ROBERTS: If they do, I

8 say they're winning.

9 (Laughter.)

10 GENERAL PRELOGAR: That might very

11 well be true, Mr. Chief Justice, and I think the

12 point I'm trying to make is that China is a

13 foreign adversary nation that looks for every

14 opportunity it has to weaken the United States

15 and to try to threaten our national security.

16 And if it has control over this key

17 communications channel, it's hard to predict ex

18 ante exactly how it's going to use that as a

19 tool to harm our interests.

20 But we know it's going to try first

21 and foremost by seeking to get the data of these

22 American users, which would be of a piece of all

23 of the activity the PRC has already undertaken

24 to breach our laws, hack OPM, for example, and

25 exfiltrate the background files and security

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1 clearances of 20 million government employees,

2 the breach of Equifax to get sensitive financial

3 data, Anthem to get sensitive healthcare data.

4 We know that the PRC has a voracious

5 appetite to get its hands on as much information

6 about Americans as possible, and that creates a

7 potent weapon here because the PRC could command

8 that ByteDance comply with any request it gives

9 to obtain that data that's in the hands of the

10 U.S. subsidiary.

11 CHIEF JUSTICE ROBERTS: Thank you.

12 JUSTICE ALITO: Suppose --

13 JUSTICE BARRETT: General Prelogar --

14 go ahead.

15 JUSTICE ALITO: Suppose that TikTok

16 had no connection whatsoever with any foreign

17 government. It was owned instead by an

18 immensely, immensely rich multinational

19 corporation, and Congress concluded that this

20 multinational corporation really has it in for

21 the United States and is going to use this

22 extremely popular platform to do everything it

23 can to undermine the United States in all the

24 ways in which you think that TikTok may -- may

25 pursue at the direction of the PRC.

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1 Would this -- would that be the same

2 case?

3 GENERAL PRELOGAR: I think there would

4 be a first-order question of whether the

5 multinational corporation itself has First

6 Amendment rights.

7 JUSTICE ALITO: All right. It's a --

8 it's an American corporation.

9 GENERAL PRELOGAR: So, if it were an

10 American corporation, I think that -- and

11 Congress disagreed with the viewpoints or

12 content the corporation would display,

13 obviously, that's a direct regulation of

14 protected speech, and it would trigger strict

15 scrutiny.

16 I think that's different in kind from

17 what Congress was worried about here, which was

18 not regulating speech as such but instead

19 regulating foreign adversary control and --

20 JUSTICE ALITO: So your whole -- your

21 argument depends on the fact that what is at

22 bottom here is the -- the People's Republic of

23 China using TikTok. That's what your argument

24 depends on. If this were an American

25 corporation, it would be an entirely different

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1 thing.

2 GENERAL PRELOGAR: Exactly. And the

3 reason we know this statute is different is

4 because all of the same speech that's happening

5 on TikTok could happen post-divestiture. The

6 Act doesn't regulate that at all. So it's not

7 saying you can't have pro-China speech, you

8 can't have anti-American speech. It's not

9 regulating the algorithm. TikTok, if it were

10 able to do so, could use precisely the same

11 algorithm to display the same content by the

12 same users.

13 All the Act is doing is trying to

14 surgically remove the ability of a foreign

15 adversary nation to get our data and to be able

16 to exercise control over the platform.

17 JUSTICE BARRETT: General Prelogar --

18 oh, sorry.

19 JUSTICE SOTOMAYOR: I'm sorry.

20 JUSTICE BARRETT: I just wanted you to

21 respond to Mr. Fisher's argument about the

22 rights of Americans to receive information, say,

23 from the PRC or anyone else and that even if

24 ByteDance did not itself have First Amendment

25 rights, that Americans would have a First

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1 Amendment right to -- to receive that

2 information in the Lamont sense.

3 GENERAL PRELOGAR: Yes. So I think

4 that Lamont reflected a principle that there can

5 be a right of American listeners to receive

6 information. And if Congress is directly

7 regulating that based on disagreement with the

8 speech that's being sent into this country,

9 that's obviously going to trigger heightened

10 scrutiny under the First Amendment.

11 But, here, I think the users have to

12 be asserting a different type of interest

13 because what Congress was safeguarding against

14 was not the ability of TikTok to continue to

15 operate or the users to post content. It was

16 focused only on foreign adversary control.

17 And so the users would have to

18 demonstrate that they have some unqualified

19 First Amendment right to post on a platform

20 that's controlled by a foreign adversary, which

21 could use that access to then threaten our

22 nation's security by gathering data on tens or

23 hundreds of millions of Americans and also use

24 it for covert influence operations of whatever

25 form.

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1 And I don't think there's a First

2 Amendment right to do that.

3 JUSTICE KAGAN: I was trying to think

4 of whether there's a historical analog here, and

5 this is what I came up with, and you can tell me

6 whether it's fallacious.

7 You know, in the mid-20th century, we

8 were very concerned about the Soviet Union and

9 what the Soviet Union was doing in this country.

10 And the Communist Party of the United States at

11 that time was integrally attached to the

12 Communist International, which was essentially a

13 Soviet operation, right?

14 So, if Congress had said: Well, it's

15 very nice, we can have the Communist Party

16 U.S.A., but it has to divest, it has to

17 completely divorce itself from the Comintern and

18 from any international ties that it has, do you

19 think that that would have been absolutely fine?

20 And so, if the answer is yes, yes, it would have

21 been fine, it's just like this case, or, if the

22 answer is no, why is it not like this case?

23 GENERAL PRELOGAR: So I guess I think

24 I would need to know info -- more information

25 about how the international organization is able

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1 to exercise control over the American affiliate

2 and if it had the capacity, for example, to, in

3 an unqualified fashion, gather data from that

4 affiliate in a way that was going to jeopardize

5 our nation's security or --

6 JUSTICE KAGAN: Well, I'm talking more

7 about --

8 GENERAL PRELOGAR: Yeah.

9 JUSTICE KAGAN: -- sort of the

10 content. Let's put --

11 GENERAL PRELOGAR: Yeah.

12 JUSTICE KAGAN: -- the data collection

13 piece of this aside, which seems not very

14 pertinent to my 1950s analog.

15 But, you know, we were very concerned

16 about the kind of speech that the Communist

17 Party was making in the United States, and it

18 turns out that that content was pretty well

19 scripted someplace else.

20 GENERAL PRELOGAR: I think, if it was

21 specifically a concern about the content, then

22 that would trigger heightened scrutiny under the

23 First Amendment. We're not trying to run away

24 from that principle here. Instead, we're

25 making, I think, a narrower argument.

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1 JUSTICE KAGAN: Well, then I think

2 that -- that you're a little -- I think you've

3 just given your thing away because content

4 manipulation is a content-based rationale.

5 We think that this foreign government

6 is going to manipulate content in a way that

7 will -- that concerns us and may very well

8 affect our national security interests. Well,

9 that's exactly what they thought about Communist

10 Party speech in the 1950s, which was being

11 scripted in large part by international

12 organizations or directly by the Soviet Union.

13 GENERAL PRELOGAR: I disagree that the

14 concern with covert content manipulation is

15 itself content-based or that it looks anything

16 like the kinds of laws this Court has previously

17 said are content-based.

18 The Court most recently in City of

19 Austin said you only have a content-based law

20 when Congress is setting out to discriminate

21 against particular subject matters or particular

22 viewpoints.

23 So it's not enough that the law is --

24 is regulating in the space that involves content

25 in some way. You have to have this motive by

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1 Congress to actually want to suppress speech on

2 certain topics or certain viewpoints.

3 Here, Congress just wants to cut the

4 PRC out of the equation altogether, and all of

5 the same speech could continue to happen on the

6 platform.

7 It's like patching up a backdoor

8 vulnerability that the PRC has that we can't

9 totally see around all the corners to imagine

10 how it could use it against our interests, but

11 we know the PRC will do whatever it can to try.

12 And I think that is different in kind

13 from imputing to Congress some motive to

14 specifically get more speech on certain topics

15 or with certain viewpoints. You know, this law

16 was passed by broad bipartisan majorities in

17 both houses of Congress, and our legislatures --

18 our legislators don't always agree on

19 everything. I think it's unlikely that all of

20 them had exactly the same views about what's

21 good content on TikTok or what are good

22 viewpoints. They weren't united on that.

23 What they were united around was the

24 idea that it is a grave threat to our nation if

25 the PRC can itself behind the scenes be

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1 controlling how this platform operates.

2 JUSTICE ALITO: Why doesn't this --

3 why doesn't this Act classify on the basis of

4 speaker?

5 GENERAL PRELOGAR: I do think that

6 when it comes to the PRC and ByteDance, you

7 could treat this as a speaker-based restriction.

8 JUSTICE ALITO: And aren't speech --

9 speaker-based restrictions almost always

10 viewpoint-based restrictions, content-based

11 restrictions?

12 GENERAL PRELOGAR: The Court has said

13 it depends. It hasn't applied an inflexible

14 rule that anytime you are regulating certain

15 speakers you are invariably regulating based on

16 content. Instead, the Court has said it

17 warrants closer consideration.

18 And, here, if you look at the U.S.

19 speakers, TikTok U.S. and the users, none of

20 them are being regulated in a way that suggests

21 its disagreement with their content. It's all

22 about what our foreign adversary is doing with

23 respect to the platform.

24 JUSTICE ALITO: It's hard for me to --

25 it's hard for me to think of situations, maybe

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1 they exist, where a classification based on

2 speaker is not viewpoint- or content-based

3 restrictions.

4 I mean, somebody says Joe can't talk

5 anymore. We're going to shut Joe up. And we

6 don't know what he's going to say tomorrow or

7 two weeks from now. We don't know what he's

8 going to discuss. But whatever he says is bad

9 because Joe is a bad person.

10 I mean, that's -- that's viewpoint-

11 and content-based, isn't it?

12 GENERAL PRELOGAR: I think, when it

13 comes to a foreign adversary, it's not right to

14 view it that way, and the reason for that again

15 is this is a sophisticated adversary nation, and

16 we can't just simplistically say: Oh, what the

17 PRC is going to want is to see more pro-China

18 content on this app.

19 As Chief Judge Srinivasan observed,

20 there are various ways that the PRC could try to

21 create some kind of false flag operation and

22 actually promote anti-China content, not to

23 dictate how Americans should think about things

24 but simply to create some trumped-up

25 justification for a military or economic action

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1 that the foreign adversary wants to take against

2 us.

3 And I don't think a concern with

4 trying to ward off that capability --

5 JUSTICE GORSUCH: Why -- why isn't

6 that -- why isn't that viewpoint or content

7 still? We don't know what the content's going

8 to be, but we know Joe is bad.

9 GENERAL PRELOGAR: Because I think the

10 better classification is to recognize that what

11 we're trying to prevent is not the specific

12 subject matter, the specific viewpoints, but the

13 technical capability of a foreign adversary

14 nation to use a communications channel against

15 this.

16 JUSTICE GORSUCH: I guess I'm just

17 struggling how covert content manipulation isn't

18 content-based restriction.

19 GENERAL PRELOGAR: So, again, it's

20 because --

21 JUSTICE GORSUCH: I mean, the word --

22 it's kind of hard to avoid the word "content" --

23 GENERAL PRELOGAR: I don't --

24 JUSTICE GORSUCH: -- and it's kind of

25 hard to avoid the word "viewpoint" here, isn't

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1 it?

2 GENERAL PRELOGAR: I don't dispute

3 that it's related to content, but I don't think

4 it reflects Congress seeking to set out in

5 advance what kind of speech we should have

6 reflecting certain views on certain topics.

7 Instead, it's about trying to close

8 off a vulnerability that our foreign adversary

9 nation could exploit.

10 And I would be remiss if I didn't

11 point out that even if you thought this was

12 content-based, all that means is that we're in

13 strict scrutiny. And, as the D.C. Circuit

14 recognized here, we think that this law serves

15 compelling national security concerns that sound

16 in some of the same arguments that I'm making

17 here and that have a longstanding correspondence

18 to history and tradition --

19 JUSTICE GORSUCH: And then we get to

20 the --

21 GENERAL PRELOGAR: -- of trying to

22 prevent foreign control.

23 JUSTICE GORSUCH: -- and then we get

24 to the question whether there's a less

25 restrictive means, I get that, and whether

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1 disclosure might suffice.

2 On -- on -- on -- on the data security

3 point, your friends on the other side make the

4 argument that if that were the concern, Congress

5 could ban TikTok U.S. from sharing data with

6 anyone on -- on pains of penalties that would

7 put people in prison and shut the company down

8 in the future, as the government did, for

9 example, with Arthur Andersen.

10 Why -- why isn't that a less

11 restrictive means available?

12 GENERAL PRELOGAR: So I was surprised

13 to hear Petitioner offer that up today because

14 there was a long course of discussion between

15 the executive branch and ByteDance and TikTok

16 leading up to Congress's enactment of this Act

17 that spanned over four years, an extensive

18 conversation about what limitations could be

19 placed to protect Americans' data.

20 And it was never a suggestion that

21 there would be any way to create a true firewall

22 that would prevent the U.S. subsidiary from

23 sharing data with the corporate parent.

24 And the reason for that sounds in the

25 technological features of this application. I

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1 think there can be no reasonable dispute that

2 the source code development and the maintenance

3 of this algorithm rests in China, which is why

4 China has sought to try to control export

5 restrictions with respect to the algorithm. And

6 what that means is you need substantial data

7 flows between the companies in order to continue

8 to modify that algorithm, refine it and so

9 forth.

10 So I don't think that that was an

11 option ever on the table, including with respect

12 to the proposed national security agreement that

13 was insufficient in -- in protecting our data

14 privacy and security concerns.

15 JUSTICE SOTOMAYOR: That didn't come

16 across enough in the briefs. If we are in the

17 world of data protection as opposed to

18 content -- content control, I think the -- it's

19 hard to get around the post-divestiture

20 provision that says you can't do business with

21 them on the algorithm because that very much is

22 content-based. It's a content-based

23 restriction.

24 But what you're saying is you can't do

25 it for a data control reason, meaning that you

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1 can't really run their algorithm without sharing

2 the very data that we are concerned about as a

3 threat, correct?

4 GENERAL PRELOGAR: That's right,

5 Justice Sotomayor. And you don't have to take

6 my word for it. You can look at the specific

7 terms of the national security agreement that

8 ByteDance itself proposed. The relevant

9 definition of the accepted data is at JA 239 to

10 240, and it references categories of information

11 that would of necessity, technological necessity

12 and business necessity, have to flow back to

13 China.

14 And the relevant categories are in the

15 sealed appendix, but I would really encourage

16 the Court to look this up because it's

17 eye-opening. It is at the court of appeals

18 sealed appendix, 249 to 252 and 254.

19 If you look at that information, it

20 was a wealth of data about Americans that was

21 going to have to go back to China in order for

22 the platform to just continue its basic

23 operations. And there's a -- a legitimate

24 commercial justification for that, but it

25 creates this gaping vulnerability in the system

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1 because, once that data is in China, the PRC can

2 demand that ByteDance turn it over and keep that

3 assistance secret.

4 And the one final point on this is

5 that ByteDance was not a trusted partner here.

6 It wasn't a company that the United States could

7 simply expect to comply with any requirements in

8 good faith. And there was actual factual

9 evidence to show that even during a period of

10 time when the company was representing that it

11 had walled off the U.S. data and it was

12 protected, there was a well-publicized incident

13 where ByteDance and China surveilled U.S.

14 journalists using their location data -- this is

15 the protected U.S. data -- in order to try to

16 figure out who was leaking information from the

17 company to those journalists.

18 CHIEF JUSTICE ROBERTS: General, you

19 want us to look at that and you get to look at

20 it, but your friends on the other side don't get

21 to look at it. That doesn't seem fair.

22 GENERAL PRELOGAR: That's the sealed

23 appendix, Mr. Chief Justice, so it's their

24 information. They can look at it. It's just

25 under seal to protect their proprietary business

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1 information.

2 CHIEF JUSTICE ROBERTS: Okay.

3 JUSTICE BARRETT: General, so I want

4 to go back to the discussion about content

5 discrimination and we're going to shut Joe up.

6 Here, it seems to me like we are saying to

7 ByteDance we want to shut you up. And so let's

8 say that I think that that is content

9 discrimination based on speaker.

10 Tell me -- if -- if I think that, tell

11 me if I have to conclude that it is also

12 speaker-based discrimination and content-based

13 discrimination for TikTok.

14 GENERAL PRELOGAR: No, it is not, and

15 the reason for that is because it would be an

16 anomalous principle to say that an entity

17 outside the United States that can't assert its

18 own First Amendment rights can somehow

19 manufacture that right through the expediency of

20 forming a U.S. subsidiary, especially one that

21 it wholly controls.

22 JUSTICE BARRETT: So you don't have to

23 stand on that argument that you were having with

24 Justice Alito and Justice Gorsuch to still have

25 your point about content discrimination?

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1 GENERAL PRELOGAR: That's right. And

2 I think, if you're focusing in on the relevant

3 U.S. entities here, TikTok U.S. and the users

4 themselves, this Act isn't regulating them in

5 any way. It's not trying to dictate the

6 algorithm that TikTok U.S. can use. And, in

7 fact, Congress, I think, was doing everything it

8 could to preserve access to TikTok in the United

9 States, in recognition that Americans enjoy

10 expressing themselves and building community on

11 the site.

12 JUSTICE BARRETT: One last quick

13 question --

14 JUSTICE ALITO: Well, I don't know,

15 General --

16 JUSTICE BARRETT: Sorry, just one last

17 quick question.

18 JUSTICE ALITO: No, no, go ahead.

19 JUSTICE BARRETT: Justice Gorsuch had

20 asked your friends on the other side whether the

21 new administration on January 20th could extend

22 the deadline. What's the -- your position on

23 that?

24 GENERAL PRELOGAR: So I think it tees

25 up a statutory interpretation question of

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1 whether there can be an extension after the time

2 period for divestiture has lapsed. I would

3 think the Court might start with its decision in

4 the HollyFrontier case, which did recognize the

5 ability to get an extension after a lapse like

6 that.

7 JUSTICE BARRETT: So it's your

8 position that they could?

9 GENERAL PRELOGAR: We have not run it

10 to ground, in part, because it's simply not

11 presented here, and I'm not prepared to take a

12 position on that statutory interpretation

13 question.

14 I do want to emphasize, though, that

15 my friends have pointed to January 19th or nine

16 days from now as a moment when TikTok might go

17 dark. At the outset, of course, Congress was

18 hoping to prompt a divestiture, but I think the

19 more important thing to -- to focus on now is

20 that even if that were to happen, Congress

21 specifically anticipated it and provided

22 authority to lift these restrictions as soon as

23 there's a qualified divestiture.

24 And the reason for that is because

25 foreign adversaries do not willingly give up

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1 their control over this mass communications

2 channel in the United States, and I think

3 Congress expected we might see something like a

4 game of chicken, ByteDance saying we can't do

5 it; China will never let us do it.

6 But, when push comes to shove and

7 these restrictions take effect, I think it will

8 fundamentally change the landscape with respect

9 to what ByteDance is willing to consider, and it

10 might be just the jolt that Congress expected

11 the company would need to actually move forward

12 with the divestiture process.

13 JUSTICE ALITO: Well, that's --

14 GENERAL PRELOGAR: So it's not

15 irrevocable.

16 JUSTICE ALITO: That -- that's an

17 interesting point, and I hope Mr. Francisco or

18 Mr. Fisher, whoever's delivering the rebuttal,

19 will address it.

20 So, if we were to affirm and TikTok

21 were forced to cease operations on January 19th,

22 you say that there could be divestiture after

23 that point and TikTok could again begin to

24 operate the way -- continue to operate?

25 GENERAL PRELOGAR: That's exactly

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1 right. There's nothing permanent or irrevocable

2 that happens on January 19th. And I think that

3 Congress might have thought that we get in a

4 situation here where a foreign adversary is

5 doing whatever it can to just not comply. It's

6 hoping the United States is going to blink first

7 through our court system or through the

8 executive branch getting cold feet about

9 enforcing the law. But Congress set a deadline

10 and I think it thought that deadline would have

11 a forcing function.

12 JUSTICE ALITO: Let me ask you a

13 question about your -- your effort to draw a

14 distinction between ByteDance's speech and

15 TikTok's speech.

16 So suppose that the -- the People's

17 Republic of China funds a movie and -- and there

18 is an entity in the United States, a U.S.

19 corporation, that thinks, wow, this is a great

20 movie. And while the PRC would not have a First

21 Amendment right to show it in the United States,

22 would you say that the American company would

23 not have a First Amendment right to do that

24 because whatever expression there is in that

25 movie, it's the PRC's expression; it's not their

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1 expression?

2 GENERAL PRELOGAR: No. No, I wouldn't

3 make that argument. And I want to be really

4 careful --

5 JUSTICE ALITO: I thought that was the

6 argument that was being made. No?

7 GENERAL PRELOGAR: No. So our

8 argument is that this is not a direct regulation

9 of protected speech in the first place, or at

10 most, it would warrant intermediate scrutiny

11 because of the indirect effects that it might

12 have on the American users or on the U.S.

13 subsidiary. We're not suggesting that if

14 Congress sought to directly regulate and

15 prohibit speech in the United States based on

16 concerns about its content or viewpoint, that's

17 somehow immune from First Amendment scrutiny

18 just because it comes from a foreign source.

19 Obviously, that kind of law is going

20 to trigger strict scrutiny. And I imagine it

21 would be a different constitutional analysis

22 because it's hard to imagine the same profound

23 national security harms that would exist in that

24 scenario as compared to what we have here.

25 JUSTICE ALITO: Thank you.

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1 JUSTICE JACKSON: General, isn't the

2 whole point of the divestiture requirement that

3 the content on TikTok would be different if it

4 was owned by a different company? I'm still

5 struggling with your insistence that this is

6 content-neutral versus content-based when we

7 have that kind of circumstance.

8 GENERAL PRELOGAR: The reason that I

9 am continuing to try to hold the line on that is

10 because there is nothing in the Act that would

11 directly dictate any different mix of content on

12 TikTok. The U.S. subsidiary could use the same

13 algorithm, show the same content by the same

14 users in exactly the same order. It's not about

15 trying to interfere with the U.S. subsidiary's

16 exercise of editorial judgment in any relevant

17 sense.

18 Instead, all Congress was doing was

19 homing in on the problems of having a foreign

20 adversary be able to interject itself and be

21 able to harvest the data or exercise --

22 JUSTICE JACKSON: But your friends on

23 the other side say that the motivation for doing

24 that is because the foreign adversary might

25 influence or change the content. So content

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1 is -- I mean, content matters, doesn't it?

2 GENERAL PRELOGAR: I -- certainly, I

3 think that content was relevant to Congress's

4 concern about an adversary having control over

5 the communications channel. I think not, again,

6 because of any particular concern about

7 viewpoints or subjects --

8 JUSTICE JACKSON: But isn't that

9 relevance --

10 GENERAL PRELOGAR: -- but just that

11 this would be a --

12 JUSTICE JACKSON: -- isn't that

13 relevance enough to trigger at least some

14 scrutiny, a heightened scrutiny, from the

15 standpoint of our legal tests?

16 GENERAL PRELOGAR: I certainly

17 understand that intuition, and if the Court

18 thought that it were prudent to simply try to

19 rule narrowly here and not dictate broader First

20 Amendment principles, we have no problem with

21 the Court assuming that heightened scrutiny

22 applies. We think the law easily satisfies it.

23 We do think that intermediate scrutiny is a more

24 appropriate framework for this kind of law

25 that's not directly targeting protected speech.

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1 But, in any event, there's a

2 compelling national security interest here, and

3 the law isn't just narrowly tailored; it's

4 precisely tailored. It's trying to fix the

5 thing that's creating the problem, which is the

6 PRC's involvement and the Chinese government's

7 ability to exercise this control over the

8 corporate entities.

9 JUSTICE KAVANAUGH: How are we

10 supposed to think about the two different

11 rationales here and how they interact, the data

12 collection rationale, which seems to me at least

13 very strong; the covert content manipulation

14 rationale, as the hypotheticals have

15 illustrated, raise much more challenging

16 questions for you about how far that goes.

17 And if that alone -- if you didn't

18 have the data collection piece, you only had the

19 covert content manipulation piece, and then

20 Mr. Fisher's point, Mr. Francisco's, that

21 Congress would not have enacted this just based

22 on the data collection rationale alone, just

23 your understanding of how the two arguments fit

24 together.

25 GENERAL PRELOGAR: Sure. And -- and

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1 let me walk through our defense of the data

2 protection rationale and why we think it's a

3 full justification for this law and the Court

4 could stop there and then be responsive to their

5 arguments that somehow the interest in

6 preventing covert manipulation somehow taints

7 it.

8 So just on data protection, I think

9 that it should be beyond dispute that, of

10 course, our nation has an enormous interest in

11 keeping the sensitive data out of the hands of

12 our foreign adversary. And it should also be

13 beyond dispute that our foreign adversary has an

14 existing capability through its laws and through

15 the way that these companies are integrated to

16 get its hands on that data.

17 There is no question that Congress was

18 sincerely motivated by that concern. There's a

19 whole lead-up to the statute here where the

20 executive branch across two different

21 presidential administrations was expressing

22 concerns about the data problems. Congress was

23 extensively briefed on those problems.

24 It passed a companion data protection

25 statute at the same time that was intended to

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1 prevent selling data to foreign adversary

2 nations. The statute is shot-through with

3 protections that I think are key to this concern

4 about closing off the vulnerability of access to

5 the data.

6 So that's a sincere justification for

7 Congress's desire here to act. We think it's a

8 compelling interest and it's narrowly tailored.

9 Then you get to the question of what

10 to do about the fact that there's also this

11 interest in covert content manipulation. And in

12 the First Amendment context, this Court in cases

13 like Heffron has made clear that once you have a

14 justification that satisfies the First

15 Amendment, you don't need to go further and look

16 at other justifications to decide whether they

17 would independently satisfy First Amendment

18 scrutiny.

19 So I think it's not necessary for the

20 Court to go on and probe whether it thinks that

21 covert content manipulation itself independently

22 justifies the law.

23 Now my friends say that's all fine and

24 good, but they think covert content manipulation

25 is just per se illegitimate. And I honestly

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1 don't understand how that argument could carry

2 the day because just imagine if Congress passed

3 a law that said the PRC can't covertly

4 manipulate TikTok. Obviously, that law's not

5 going to violate any constitutional principle.

6 It's a laudable goal, I think, for our

7 legislature to protect us from foreign adversary

8 interference like that. And so there's nothing

9 something -- there's nothing that's in --

10 inherently impermissible about wanting to guard

11 against that risk.

12 Maybe you could say that it sweeps in

13 too much protected speech in the way it's

14 operationalized in the Act here, but there's

15 certainly no fundamental taint -- taint or

16 anything akin to racial discrimination to call

17 into question whether Congress could seek to

18 vindicate that as one of many interests.

19 So I guess, to just kind of bring it

20 all together, what I would say to the Court is

21 they have basically acknowledged that data

22 protection is a compelling interest. That was

23 Congress's real interest. It provides a

24 sufficient basis on its own to uphold this law.

25 The Court could say just that and -- and affirm.

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1 JUSTICE SOTOMAYOR: I don't know how

2 we do that unless we accept your argument that

3 the post-divestiture provision that stops them

4 from conferring on the algorithm is not a speech

5 impediment, meaning it -- it's very hard for me

6 to say that it's not motivate -- to decide that

7 question, that it is a speech impediment and one

8 that on its face itself has to be analyzed

9 separately from the data.

10 GENERAL PRELOGAR: So, Justice

11 Sotomayor, let me begin by saying again that we

12 do think that an interest in preventing any

13 operational agreement between the U.S.

14 subsidiary and ByteDance, which is the relevant

15 provision you're talking about, is justified by

16 data protection alone. And that includes with

17 respect to cooperation on a content

18 recommendation algorithm specifically because of

19 the concern that it necessitates data flows

20 between the companies.

21 So I think that as a factual matter,

22 that could justify Congress enacting --

23 JUSTICE SOTOMAYOR: So, if it's --

24 GENERAL PRELOGAR: But, to the extent

25 that you think that actually the prohibition on

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1 coordinating with respect to an algorithm

2 reflects some kind of impermissible

3 content-based problem with the statute, the

4 statute has a severability clause.

5 And I certainly don't think that it

6 would give the Court a basis to invalidate this

7 law or to -- or to stop it from operating with

8 respect to all of the provisions that operate to

9 protect data security. At most, it would

10 suggest that that little piece of the law has to

11 be on its own severed from the rest of how the

12 statute operates.

13 JUSTICE SOTOMAYOR: How does that

14 affect whether we would apply -- because,

15 assuming it's data protection, then I would

16 think that strict scrutiny wouldn't necessarily

17 apply. I could understand applying intermediate

18 scrutiny.

19 But how do we do that with respect to

20 this part, the algorithm issue? How do we get

21 to intermediate scrutiny with respect to that?

22 GENERAL PRELOGAR: The way you get to

23 intermediate scrutiny there is to recognize that

24 prohibiting foreign adversary control over the

25 operations of the platform, including with

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1 respect to the fundamental backbone of the

2 system, is not based on any protected speech

3 or -- or content-based in the relevant sense.

4 I've been thinking of it as akin to

5 something like a piece of software you might

6 have on your phone that would allow the Chinese

7 government to listen in on every American

8 conversation. If Congress wanted to enact a law

9 that patched up that vulnerability and said you

10 can't use that piece of software or you can't

11 coordinate with Chinese companies with respect

12 to it, clearly, we would recognize that closing

13 off that capability of China is a laudable and,

14 in fact, compelling government interest.

15 And I think, when it comes to the

16 risks that foreign adversary control pose here,

17 it's similar in kind. It's simply trying to

18 prevent access by the Chinese government to the

19 TikTok system writ large, and that includes

20 through the use of the algorithm.

21 JUSTICE SOTOMAYOR: Thank you.

22 JUSTICE KAVANAUGH: Could the

23 president say that we're not going to enforce

24 this law?

25 GENERAL PRELOGAR: I think, as a

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1 general matter, of course, the president has

2 enforcement discretion.

3 JUSTICE KAVANAUGH: And would that

4 then adequately -- would that be binding, in

5 other words, protect the regulated community

6 such that it could rely on that under due

7 process principles going forward?

8 GENERAL PRELOGAR: That raises a

9 tricky question, so I think there would be a

10 strong --

11 JUSTICE KAVANAUGH: Well, then it's

12 not going to be adequate, right?

13 GENERAL PRELOGAR: Well, I -- I think

14 there is a strong due process argument that the

15 third-party service providers could invoke if

16 there were enforcement action based on a period

17 of time when the president said the law wouldn't

18 be enforced. The con -- kind of canonical

19 case --

20 JUSTICE KAVANAUGH: They're not going

21 to take that risk unless they have the assurance

22 that a presidential statement of non-enforcement

23 is, in fact, something that can be fully relied

24 on because the risk is too severe otherwise,

25 right?

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1 GENERAL PRELOGAR: I think that they

2 might judge that based on this Court's precedent

3 in the due process space and principles of

4 entrapment by estoppel, maybe they have a

5 sufficient safeguard here to allow them to

6 continue to operate.

7 I would think, even before a

8 non-enforcement policy were announced, of

9 course, the President-Elect would want to review

10 all of the updated national security information

11 that has come in over the last four years that

12 undergird Congress's judgment here.

13 But the final thing I would say is

14 that even if you think the third-party providers

15 are simply going to choose not to continue to

16 provide these services because it's too much of

17 a risk to take on, again, that's not anything

18 permanent or irrevocable, and that might be just

19 what the PRC and ByteDance need to start taking

20 seriously some of the -- the public reporting

21 about interest in acquiring the company.

22 JUSTICE ALITO: At one point, Mr.

23 Francisco suggested that what we might want to

24 do and what he would regard as certainly

25 preferable to a decision affirming on the merits

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1 was -- is to issue an injunction pending, I

2 guess, consideration of what we now regard as

3 the -- as the cert petition that was filed here.

4 What do you think of that suggestion?

5 GENERAL PRELOGAR: So I think this

6 Court doesn't have any basis to enter a

7 temporary injunction unless it thinks

8 Petitioners are likely to succeed on the merits

9 of their First Amendment claim.

10 And, to be honest, you know, I -- I

11 would -- I think that there is no argument to be

12 made that you should find that likelihood of

13 success. This is an act of Congress. This

14 isn't some unilateral action by the executive

15 branch, but it actually was action in parallel

16 between the Executive and Congress where

17 Congress took action to close up a loophole in

18 some of our laws. The Executive had tried to

19 force divestiture of TikTok under the Trump

20 administration, but that had gotten tied up in

21 litigation about those authorities.

22 So Congress came in and provided

23 additional authority based on a substantial

24 record, including with respect to the data harm.

25 And I don't see any basis for this Court to

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1 displace the deadline that Congress set without

2 finding that actually there is a potential First

3 Amendment problem here.

4 JUSTICE ALITO: Do -- do you think we

5 have the authority to issue an administrative

6 stay, as we have done in -- in other cases, or

7 do you think that the January 20 deadline

8 prohibits us from doing that?

9 GENERAL PRELOGAR: I don't think this

10 Court has a formal basis to not issue an

11 administrative stay if it believed that that was

12 necessary to assist in the Court's own

13 consideration of the case.

14 I would obviously defer to the Court

15 and whether it has a sufficient time to resolve

16 the case, but we are here ready to submit the

17 case today. And I think it is in the interest

18 of Congress's work and our national security to

19 resolve the case and allow the statute to take

20 effect.

21 JUSTICE ALITO: Can I just test

22 your -- to see whether your recollection of what

23 Mr. Francisco said about a warning is consistent

24 with mine? I did not hear him say -- he can

25 address this in -- in rebuttal -- that it would

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1 be acceptable to his client if Congress had said

2 there has to be a stark warning on every TikTok

3 such as: Warning, Communist -- Communist China

4 is using TikTok to manipulate your thinking and

5 to gather potential blackmail material. Did you

6 hear him say that that would be okay?

7 GENERAL PRELOGAR: I don't think he's

8 made that concession, but, even if he had, I

9 don't think that would address the government's

10 national security concerns.

11 And one of the -- the points here is

12 that it's not just data privacy. So, even if

13 you could somehow put users on notice that the

14 PRC could obtain their data and they choose to

15 disregard that, it's not a data privacy

16 interest. It's a national security interest.

17 There's a distinct sovereign harm to

18 the United States if our foreign adversary could

19 collect this massive data set about 170 million

20 Americans. And, as Justice Kavanaugh touched

21 on, you know, there are a lot of teenagers using

22 TikTok today who might ignore a warning like

23 that and not really care, but they're going to

24 grow up and they might become members of our

25 military, they might become senior government

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1 officials. And for the -- the Chinese

2 government to have this vast trove of incredibly

3 sensitive data about them I think obviously

4 exposes our nation as a whole to a risk of

5 espionage and blackmail.

6 JUSTICE ALITO: Thank you.

7 GENERAL PRELOGAR: I did want to touch

8 briefly on the questions about history and

9 tradition here because my friends have said

10 several times that the Communications Act of

11 1934, which we think is roughly analogous to the

12 type of restriction that Congress was seeking to

13 enact here, is justified entirely by concerns

14 about scarcity, how you can't have sufficient

15 bandwidth.

16 And I, of course, recognize that

17 scarcity is what created the need for a

18 licensing regime in the first place, but I think

19 it's important to clarify the historical record

20 here that in choosing to limit foreign control

21 of radio stations, of broadcast stations,

22 Congress specifically cited a concern about

23 national security. That is written into the

24 statute. National defense was one of the listed

25 purposes of having that kind of restriction.

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1 And so I don't think my friends can

2 succeed in being dismissive of that concern

3 about history and tradition and what it shows

4 about the national security judgments that

5 undergird this law.

6 The one other factual point I wanted

7 to make to be responsive to a few points that my

8 friends have touched on relates to whether

9 TikTok U.S. has the ability to alter this

10 algorithm, whether divestiture is feasible, how

11 ByteDance has manipulated the platform in the

12 past.

13 With respect to the algorithm, I think

14 we're simply talking past each other. We don't

15 dispute that TikTok U.S. might engage in some

16 functions in the United States to customize the

17 algorithm for a U.S. audience. The thing we're

18 worried about is happening long before that,

19 over in China, where ByteDance is developing the

20 source code, creating the basic backbone and

21 functioning of the system, and is then blasting

22 out the algorithm for use by the various

23 subsidiaries in their home country.

24 So we're not seeking to regulate any

25 activity that TikTok U.S. is engaged in here.

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1 Instead, what Congress is doing is trying to

2 close off the vulnerability of PRC access

3 abroad.

4 With respect to the feasibility of

5 divestiture, my friends have said it would have

6 been impossible to do this within 270 days. You

7 know, at the outset, obviously, there's no

8 inherent impediment to divesting a social media

9 company. We just saw Elon Musk buy X, or

10 Twitter, in about six months from offer to

11 completion.

12 And even with respect to this

13 particular company, I think my friends are not

14 well positioned to complain about the timeline

15 because they've been on notice since 2020 that

16 unless they could satisfy the federal

17 government's national security concerns,

18 divestiture might be required.

19 But, in any event, I don't think that

20 the Court should fault Congress for trying to

21 balance competing interests here in making sure

22 that there was a period for compliance and

23 trying to preserve access to the platform for

24 Americans while taking steps to safeguard

25 against the risk to national security.

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1 Finally, with respect to the question

2 of whether ByteDance has taken action on the

3 PRC's demands, there is evidence in the record

4 that Congress consulted to demonstrate that

5 outside of China, ByteDance has taken action to

6 misappropriate data at the PRC's request. That

7 included efforts to track dissidents in Hong

8 Kong, protestors there, to track Uyghurs in

9 China itself. We know that ByteDance has

10 misappropriated U.S. data with respect to

11 surveilling of U.S. journalists. And there was

12 evidence in the record reinforcing the

13 conclusion that ByteDance has been asked by the

14 PRC to undertake efforts to censor content and

15 manipulate the platform at the behest of the

16 Chinese government.

17 So I don't think there is a factual

18 basis to dispute the record that Congress had

19 before it.

20 If the Court has no further questions.

21 CHIEF JUSTICE ROBERTS: Justice

22 Thomas?

23 JUSTICE SOTOMAYOR: I have a question.

24 General, if I understood correctly,

25 under President-Elect's first term, he passed an

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1 executive order requiring divestiture, correct?

2 GENERAL PRELOGAR: That's right.

3 JUSTICE SOTOMAYOR: And this -- that

4 was challenged in court and stayed as a result

5 of him exceeding his executive power to do that.

6 But this bill followed a bipartisan

7 investigation, correct?

8 GENERAL PRELOGAR: Yes, that's right.

9 JUSTICE SOTOMAYOR: I am a little

10 concerned that a suggestion that a

11 president-elect or anyone else should not

12 enforce the law when a law is in effect and has

13 prohibited certain action, that a company would

14 choose to ignore enforcement on any assurance

15 other than the change in that law. But putting

16 that aside, on the 19th, if it doesn't shut

17 down, there is a violation of law, correct?

18 GENERAL PRELOGAR: Yes.

19 JUSTICE SOTOMAYOR: And whatever the

20 new president does doesn't change that reality

21 for these companies?

22 GENERAL PRELOGAR: That's right.

23 JUSTICE SOTOMAYOR: How long is the

24 statute of limitations in effect? Assuming that

25 they violated it that day and later continued to

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1 violate it, but how long does the statute of

2 limitations exist for a civil violation --

3 GENERAL PRELOGAR: It --

4 JUSTICE SOTOMAYOR: -- of this sort?

5 GENERAL PRELOGAR: It would be a

6 five-year statute of limitations.

7 JUSTICE SOTOMAYOR: All right. Thank

8 you.

9 CHIEF JUSTICE ROBERTS: Thank you,

10 counsel.

11 Rebuttal?

12 REBUTTAL ARGUMENT OF NOEL J. FRANCISCO

13 ON BEHALF OF PETITIONERS TIKTOK, INC., ET AL.

14 MR. FRANCISCO: Thank you, Mr. Chief

15 Justice. Four points, all of which go to why we

16 think this would law -- law would fail whether

17 you apply intermediate scrutiny or strict

18 scrutiny.

19 I'd like to begin with the least

20 restrictive alternative, simply prohibiting

21 TikTok, Incorporated, from disseminating any of

22 the sensitive user data to anyone, including

23 ByteDance, under the threat of massive

24 penalties. That is definitely a less

25 restrictive alternative.

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1 Now my friend pointed to the NSA

2 negotiations. Well, the sensitive user data

3 that we're talking about and that were of

4 concern in the NSA negotiations were not the

5 type of technical data that she's talking about.

6 The NSA did allow certain types of nonsensitive

7 technical data to go back and forth, but that

8 wasn't anybody's concern. And, as we say in

9 20 -- page 23 of our briefs, they simply cut off

10 the negotiations without ever raising those

11 concerns.

12 But, to be clear, if that's a concern,

13 sweep that into the ban too. Put in that

14 nonsensitive technical data into the ban too.

15 We'll deal with that. It's a lot better than

16 simply being forced to shut down. So that is

17 most definitely a less restrictive alternative

18 that would address data security.

19 We talked about the

20 under-inclusiveness in Temu and Shein, the two

21 large e-commerce sites. Justice Kagan, you

22 might have seen Temu during the Super Bowl. It

23 was heavily advertised. It's got -- it's one of

24 the most popular e-commerce applications in the

25 United States. It's got 70 million users.

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1 Justice Sotomayor, you were asking

2 what they collect. This is from Joint Appendix

3 339 to 343, the U.S./China Economic and Security

4 Commission Review Report. Shein relies on

5 tracking and analyzing user data, draws on

6 customer data and search history with the

7 assistance of artificial intelligence

8 algorithms. It requests users share their data

9 and activity from other apps, including social

10 media. So they apparently go into your social

11 media apps and suck up all of the information.

12 Because they're e-commerce apps, they take

13 names, addresses, and credit card information.

14 If you look at the privacy policies on

15 their website, they were -- they collect

16 location data. It -- it looks like they might

17 even collect at some level GPS location data.

18 So they collect massive amounts of data.

19 Point 3: Their mere covertness

20 argument makes no sense for the reasons that the

21 Court explored. If mere covertness were the

22 issue, a disclosure would make perfect sense.

23 Yet they're not concerned about mere covertness.

24 They're concerned, as my friend suggested, with

25 getting Americans to argue with each other.

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1 Well, you know, as far as I can tell, that's

2 what news organizations do in this country every

3 single day. That's what we call editorial

4 content. That's what we call content itself.

5 And so it's trained directly on the content.

6 But, even if you thought somehow that

7 the mere covertness were the issue, that

8 definitely could be addressed through a risk

9 disclosure. So the data-sharing ban, the risk

10 disclosure, those are obvious less restrictive

11 alternatives. And had the government considered

12 them and rejected them, we would be in a

13 different position. But, if you look at this

14 record, those are two less restrictive

15 alternatives that the government did not address

16 at all.

17 Whether you apply strict scrutiny or

18 intermediate scrutiny, that is fatal because,

19 under both standards, restricting speech has to

20 be the last resort, not the first one. And when

21 you fail to consider less restrictive

22 alternatives, you fail under either standard.

23 My final substantive point is we

24 absolutely think this Court has the authority to

25 enter an administrative stay. I didn't

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1 understand my friend to disagree with that. We

2 think that given the enormity of this decision,

3 given the complexity of this case, it would make

4 perfect sense for this Court to enter an

5 administrative stay.

6 I also think you could enter a

7 preliminary injunction. Yes, likelihood of

8 success is one standard, but you don't have to

9 determine ultimate success. And, as you do in

10 other related contexts, like with respect to

11 stays, you often make clear that you're not

12 addressing the merits of the case. I think you

13 could do that here.

14 The bottom line, Your Honor, is this

15 case ultimately boils down to speech. What

16 we're talking about is ideas. And my friends on

17 the other side, when you cut through everything

18 else, are ultimately worried that the ideas that

19 appear on the TikTok platform could in the

20 future somehow manipulate Americans, could

21 somehow persuade them, could somehow get them to

22 think something that they ought not be thinking.

23 Well, that whole notion is at war with

24 the First Amendment. If the First Amendment

25 means anything, it means that the government

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1 cannot restrict speech in order to protect us

2 from speech.

3 That's precisely what this law does

4 from beginning to end, whether you look at its

5 text, whether you look at the government's

6 justifications in its brief, where they talk

7 about being worried about speech criticizing our

8 leaders or undermining democracy.

9 It's what you see in the House report,

10 which turns specifically on the dangers of

11 misinformation, disinformation, and propaganda.

12 And it's what you see in this legislative record

13 writ large, which is saturated with objections

14 to -- to TikTok's existing content.

15 We ask that you reverse the Court

16 below. Thank you, Your Honor.

17 CHIEF JUSTICE ROBERTS: Thank you,

18 counsel.

19 The case is submitted.

20 (Whereupon, at 12:38 p.m., the case

21 was submitted.)

22

23

24

25

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22 addresses [2] 116:23 172: 8 98:14,25 109:25 110:11 42:11 51:25 63:15 72:10,
1 abroad [1] 167:3 13 112:24 119:8,10,24 123:14 23 74:17 86:11 88:5 100:
1 [1] 59:9 absent [1] 60:23 addressing [1] 174:12 131:9,11 142:3,5,8,21 143: 12 101:10 102:4 104:19
10 [4] 1:18 33:4,5 82:12 absolute [1] 106:19 adequate [3] 49:19 127:3 1 146:6 151:13 157:4,18 108:8,14 114:3 115:24
10:08 [2] 1:22 4:2 absolutely [5] 28:9 31:25 160:12 158:1,20 159:20 166:10,13, 122:15 125:1 128:22 130:
100 [1] 70:6 87:24 133:19 173:24 adequately [1] 160:4 17,22 8,10,24 132:5 134:1 149:
115 [1] 3:12 accept [1] 157:2 administration [3] 96:8 algorithms [4] 27:9 82:7 22 150:12 159:7
12:38 [1] 175:20 acceptable [1] 164:1 146:21 162:20 120:22 172:8 Americans [38] 5:14 14:6
15 [1] 82:12 accepted [1] 143:9 administrations [1] 154: ALITO [52] 16:16,24 17:7 52:20,20 55:9 71:24 73:1
170 [8] 3:16 55:8 71:24 81: access [12] 8:18 24:10,11 21 18:10,14 19:9,13 32:9 42: 74:2 76:2,13 82:10 85:6
13 82:10 115:24 127:18 29:11 82:8 87:5 132:21 administrative [4] 163:5, 4,5,22 43:6,9,18,24 44:4, 93:9,13 94:9 98:20,21 103:
164:19 146:8 155:4 159:18 167:2, 11 173:25 174:5 21 45:12,16,20 46:20,22 6,21 105:5 107:14 115:13
1934 [1] 165:11 23 admits [1] 24:22 108:18 109:6,11,23 110:18, 116:5 117:11 118:23 120:
1950s [2] 134:14 135:10 accessing [1] 52:19 advance [2] 116:20 140:5 21 111:1,2 112:11,16 113: 3 128:4 129:6 131:22,25
19th [9] 55:20 56:8,9,10 96: account [3] 6:19 19:17 59: advantage [1] 109:4 4 129:12,15 130:7,20 137: 132:23 138:23 143:20 146:
11 147:15 148:21 149:2 1 adversaries [5] 66:13 68: 2,8,24 145:24 146:14,18 9 164:20 167:24 172:25
169:16 accusation [1] 26:4 21 73:9 78:7 147:25 148:13,16 149:12 150:5,25 174:20
2 accused [1] 107:14 adversary [37] 18:16 70:3 161:22 163:4,21 165:6 Americans' [1] 141:19
2 [1] 59:12 achieve [1] 118:18 81:12 83:2 116:24 117:15 Alito's [2] 47:12 51:14 among [1] 17:17
20 129:1 163:7 171:9
[3] acknowledge [5] 53:25 54: 118:3,9,16,22 119:2 120:8 Alliance [1] 32:12 amount [3] 6:18 10:15 15:
200-plus [1] 106:24 7 111:19 117:10 125:24 123:22 125:14 127:20 128: allies [1] 95:6 24
2020 167:15
[1] acknowledged [1] 156:21 13 130:19 131:15 132:16, allow [5] 6:3 159:6 161:5 amounts [3] 87:23 115:22
2025 [1] 1:18 acquiring [1] 161:21 20 137:22 138:13,15 139:1, 163:19 171:6 172:18
20s [1] 52:21 acquisition [1] 9:10 13 140:8 149:4 151:20,24 allowed [1] 76:6 analog [2] 133:4 134:14
20th 56:12 96:8 146:21
[3] across [2] 142:16 154:20 152:4 154:12,13 155:1 allowing [1] 17:14 analogize [1] 89:13
21st [1] 56:13 Act [48] 4:11,15,21 5:7,21 6: 156:7 158:24 159:16 164: almost [1] 137:9 analogous [1] 165:11
22nd [1] 56:13 1,12 13:22 33:16 41:23 42: 18 alone [9] 68:7,16 84:9,16 analysis [9] 9:2,24 14:22
6 57:1 72:9,16,18,20 79:6, adversary's [1] 116:19 85:24 107:2 153:17,22 19:23 30:7 59:9 69:10 74:
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249 [1] 143:18 13 118:1 123:4 131:6,13 158:14 alter [4] 20:20 22:23 35:9 analyzing [1] 172:5
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252 [1] 143:18 10 155:7 156:14 162:13 affecting [5] 11:7 35:2,2,5 alternative [13] 5:23 36:23 announced [2] 112:9 161:
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254 [1] 143:18
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3 action [9] 14:20 138:25 affirming [1] 161:25 50:8,12 173:11,15,22 110:17 118:24 119:17 120:
3 [1] 172:19 160:16 162:14,15,17 168:2, Agent [1] 94:7 altogether [2] 126:21 136: 4
339 [1] 172:3 5 169:13 agents [2] 94:10 123:4 4 answer [13] 19:14 46:10
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activity [5] 12:13,18 128: agree [9] 14:21 28:23 29:9 Amazon [1] 53:17 86:15 93:25 98:18 102:22
4 23 166:25 172:9 30:9 48:25 57:22 97:9 114: AMC [2] 18:23 19:1 133:20,22
4 [1] 3:5 actor [1] 33:25 9 136:18 Amendment [76] 4:20 5: answer's [1] 85:1
7 actors [1] 108:6 agreed [1] 22:1 17 8:2,3 10:18 11:1,11,17 answers [1] 31:14
acts [1] 33:15 agreement [5] 22:1 53:11 12:2 14:14 17:4,16 19:14, ante [1] 128:18
70 [3] 85:6 86:18 171:25
actual [3] 44:11 123:8 144: 142:12 143:7 157:13 18 20:3 22:4 28:24 32:17, Anthem [1] 129:3
72 3:9
[1]
8 ahead [5] 90:7 101:21 127: 18,19,20 33:17 35:19 36:1, anti-American [4] 35:11
A actually [23] 10:3 15:15 19: 24 129:14 146:18 3,6,7,12,17 42:14,18 43:13 61:1 113:17 131:8
a.m 1:22 4:2
[2] 5 21:25 49:13 50:8 51:4 aiming [1] 126:8 55:6 59:10 60:13 64:11 70: anti-China [1] 138:22
abandon [1] 21:20 87:19 97:24 102:24 109:7 air [1] 79:16 24 71:8 72:10,18 73:10 74: anti-democracy [1] 79:2
abate [3] 37:4,5,7 112:1 121:18 122:9,24 akin [2] 156:16 159:4 12 75:2 91:7 99:16,24 100: anticipated [1] 147:21
abatement [1] 37:3 126:8 127:12 136:1 138: AL [12] 1:3,10 2:3,5 3:5,9, 4,21 101:3,7,14 104:3 105: antitrust [4] 91:4,21 103:
abet [1] 37:4 22 148:11 157:25 162:15 16 4:8 18:8 72:5 100:14 24 106:13 117:6,16 118:8 25 104:1
ability [10] 11:7 20:20 26: 163:2 170:13 130:6 131:24 132:1,10,19 anybody [7] 36:17 53:14,
15 32:25 33:22 131:14 add [2] 91:17 108:14 alerting [1] 93:9 133:2 134:23 145:18 149: 17 54:25 55:14,15 122:2
132:14 147:5 153:7 166:9 addition [2] 37:5 57:1 algorithm [64] 6:11 7:3,12 21,23 150:17 152:20 155: anybody's [1] 171:8
able [14] 31:17 35:23 68:21 additional [1] 162:23 20:21 21:18,20 26:17,20, 12,15,17 162:9 163:3 174: anytime [1] 137:14
87:10 96:9 105:23 109:9 address [10] 13:19 53:7 54: 20 27:14,23 29:21 31:17, 24,24 apart [3] 67:15 72:8 78:20
121:15 122:16 131:10,15 3 84:8 117:7 148:19 163: 18 32:25 34:1 35:6,23 45: America [4] 71:15 72:15 apologize [1] 31:22
133:25 151:20,21 25 164:9 171:18 173:15 1 51:21,23 52:1,5 58:8 63: 101:15 125:8 app [4] 56:24,25,25 138:18
above-entitled [1] 1:20 addressed [5] 5:12 17:5 20,22,22 64:7,15,16 65:3, America's [1] 4:11 apparent [2] 119:13 120:
Abrams [4] 77:8,20 92:20, 28:18 54:22 173:8 21 79:25 83:7 84:25 89:5, American [29] 27:19 39:13 25

Heritage Reporting Corporation

Sheet 1 1 - apparent
 177
Official - Subject to Final Review
apparently [3] 111:11 120: articulating [3] 63:1264:2, background [1] 128:25 15 broadcast [5] 75:10,14
5 172:10 6 bad [4] 21:19 138:8,9 139:8 between [14] 37:20 60:2 106:16,23 165:21
appeals [2] 96:5 143:17 artificial [1] 172:7 balance [2] 55:4 167:21 80:16 102:16 117:21,24 broader [1] 152:19
appear [2] 119:16 174:19 asbestos [4] 37:3,4,6,8 balancing [1] 71:18 118:12 127:5 141:14 142: broadly [1] 13:22
APPEARANCES [1] 2:1 aside [6] 34:18 51:10 86:21 ban [7] 4:18 94:12,14 141:5 7 149:14 157:13,20 162:16 brokers [1] 80:22
appendix [4] 143:15,18 93:11 134:13 169:16 171:13,14 173:9 beyond [2] 154:9,13 brought [1] 123:3
144:23 172:2 aspect [2] 88:4 93:22 bandwidth [3] 15:17 16:13 Bezos [11] 7:24 10:3,5,10, build [1] 116:4
appetite [1] 129:5 aspects [1] 100:3 165:15 19 11:10 26:13 27:16 29: building [3] 37:6 110:13
applicable [1] 13:3 assert [4] 36:11 67:2 105: banning [1] 5:23 14 104:4,6 146:10
application [4] 28:22 42:9 24 145:17 bar [1] 117:16 Bezos's [3] 7:19 8:1 10:12 buildings [1] 37:4
98:24 141:25 asserted [3] 28:11 44:10, bare [1] 71:21 Biden [1] 56:9 built [3] 26:21 27:3 36:22
applications [1] 171:24 12 BARRETT [56] 26:10,23 big [2] 107:13 127:15 burden [20] 4:19 6:15,16 7:
applied [3] 66:17,19 137: asserting [1] 132:12 27:1,11,18,25 28:5,19,22 bill [1] 169:6 6,8,16 8:5 29:6 37:21 51:
13 assessment [2] 10:17 53: 29:3,8,25 30:10 31:15 32: binding [1] 160:4 17 60:10,11 63:10,12 67:
applies [9] 4:20,22 29:1 47: 2 3,6 57:19,20,25 58:7,21,24 bipartisan [2] 136:16 169: 12 74:12 81:9 103:8,15,18
19 57:23 58:1 69:16 117:6 assist [2] 8:15 163:12 59:4,11,23 60:1,4 61:2,5, 6 burdening [2] 30:8,12
152:22 assistance [2] 144:3 172: 17 62:7,14,22 63:7 101:18, bit [8] 9:25 31:13 52:6 61: burdens [1] 44:8
apply [12] 11:21 16:11 44: 7 20,23,25 102:12 103:23 24 77:12 85:7 102:1 121:5 business [9] 4:24 21:19
15 53:20 59:14 69:12 111: associate [5] 63:20 64:7 104:13,17 105:6,11,16 127: black [3] 121:5,6,7 30:20 34:7 42:21 98:13
15 126:22 158:14,17 170: 77:17 91:11 100:25 21,24 129:13 131:17,20 blackmail [3] 52:23 164:5 142:20 143:12 144:25
17 173:17 associated [1] 65:22 145:3,22 146:12,16,19 147: 165:5 businesses [1] 7:20
applying [1] 158:17 associating [2] 76:2,14 7 blasting [1] 166:21 buy [4] 56:16 90:14 109:17
approach [1] 113:2 association [10] 63:13 64: barring [1] 117:3 blink [1] 149:6 167:9
appropriate [1] 152:24 11 65:24 66:1,3,5,6,11,12 based [25] 34:6 39:7 40:21 Bluesky [1] 120:24 Byte [1] 128:2
approval [1] 17:25 67:16 41:15,16,24 44:4 46:1 69: body [1] 38:14 ByteDance [75] 4:16 6:13,
apps [4] 44:19 172:9,11,12 assume [5] 17:20 47:17 99: 25 84:12,13,22 95:17 113: boil [1] 75:17 23 7:4,14 8:12 9:17,23 24:
Arcara [10] 40:12,12 44:7, 5 108:24 121:23 2 127:11 132:7 137:15 boils [1] 174:15 25 28:1 31:17,19 32:4,8
23 45:3,4,6,8 46:13,14 assuming [9] 11:18 33:15 138:1 145:9 150:15 153: bona [1] 19:5 33:6,14 35:3,9,21 36:2 50:
Archibald [1] 103:10 51:12 61:7 69:15 88:23 21 159:2 160:16 161:2 books [2] 8:6 16:11 14 53:15 55:1,14,15 58:10,
area [6] 16:7,15 91:21 96:1, 152:21 158:15 169:24 162:23 bookstore [1] 101:15 11,13,17,19 60:21 63:20
2,3 assurance [2] 160:21 169: basic [5] 33:3 37:22 61:11 bookstores [2] 45:8 46:15 64:8,19,22 65:22 66:7 98:
aren't [2] 33:19 137:8 14 143:22 166:20 both [7] 10:19 40:18 41:20 9,11,12,25 99:7,11,14,22,
argue [4] 71:12 103:15 128: AT&T [1] 75:8 basically [3] 26:21 34:14 64:13 68:18 136:17 173: 23 102:8,9,12,21 105:1
4 172:25 attached [1] 133:11 156:21 19 109:21,24 115:16 128:3
argued [3] 22:8 103:3,5 attachment [1] 109:14 basis [9] 15:25 44:5 137:3 bottom [4] 49:10 75:25 129:8 131:24 137:6 141:
arguing [3] 118:23 124:8,9 attack [1] 13:23 156:24 158:6 162:6,25 130:22 174:14 15 143:8 144:2,5,13 145:7
argument [63] 1:21 3:2,6, attempt [1] 95:1 163:10 168:18 bought [1] 63:22 148:4,9 157:14 161:19
10,13 4:4,7 10:25 16:20,22 attention [1] 96:4 battleships [1] 77:25 bounce [1] 30:25 166:11,19 168:2,5,9,13
19:15 32:11,14 34:19,21, ATTORNEY [2] 1:7,14 BBC [1] 100:13 Bowl [1] 171:22 170:23
22 40:25 43:25 44:1 45:22 audience [2] 109:9 166:17 bear [1] 87:19 box [2] 121:5,6 ByteDance's [6] 7:11 20:
46:4 47:7,8,18 49:9 67:18 audiences [1] 108:17 become [2] 164:24,25 boxes [1] 121:7 22 33:8 58:22 64:7 149:14
69:21 72:4 74:16 75:7 78: Austin [1] 135:19 becomes [2] 11:16 51:16 branch [4] 141:15 149:8
21,23,25,25 79:7 90:14 91: author [1] 6:18 began [3] 8:8 9:5 124:11 154:20 162:15
C
6 103:5,13,19,21 104:22 authorities [1] 162:21 begin [3] 148:23 157:11 brand-new [1] 62:2 cable [1] 106:22
111:4 114:19,22 115:5 authority [10] 20:20 21:8, 170:19 Brandeis [1] 77:7 calculus [1] 73:7
122:15 125:22 130:21,23 22,23 36:11 56:7 147:22 beginning [2] 4:22 175:4 breach [2] 128:24 129:2 California [1] 2:4
131:21 134:25 141:4 145: 162:23 163:5 173:24 behalf [14] 2:3,5,7 3:4,8,12, break [2] 10:25 16:17 call [4] 4:17 156:16 173:3,4
23 150:3,6,8 156:1 157:2 automatically [1] 62:12 15 4:8 72:5 104:22,25 107: breakup [1] 75:8 called [1] 72:12
160:14 162:11 170:12 172: available [7] 34:1 56:25 82: 18 115:6 170:13 breathing [1] 56:17 came [8] 1:20 54:13 63:21
20 9,22 86:3 98:17 141:11 behest [1] 168:15 BRIAN [4] 1:10 2:5 3:8 72: 68:12 103:3 111:11 133:5
arguments [13] 43:11 44: average [1] 122:15 behind [11] 72:21 118:17 5 162:22
14 47:25 48:2,5 78:19,22 avoid [3] 112:2 139:22,25 119:13,19 120:13,14 121:8, brief [15] 20:4,23 25:3 31:6 campaigns [1] 73:9
95:10 104:25 106:3 140: aware [2] 39:13 123:18 10 124:21 127:12 136:25 63:14 76:19 78:23 79:4 84: cancer [1] 122:23
16 153:23 154:5 away [4] 45:17 102:13 134: believe [5] 14:14,23 36:3 15 87:13 103:12 112:4,5 candidate [1] 108:15
arises [2] 15:16 116:18 23 135:3 47:18 104:16 114:11 175:6 cannot [13] 5:20 6:13 7:2
arose [1] 111:5 believed [1] 163:11 briefed [1] 154:23 14:6 33:6 36:18 53:13,17
around [7] 31:8 60:25 62:
B believes [1] 88:17 briefing [2] 83:23 103:2 64:24 79:25 107:6 110:16
10 94:22 136:9,23 142:19 back [14] 15:7 36:8 38:11 below [1] 175:16 briefly [1] 165:8 175:1
arsenal [1] 42:10 41:5,18 63:6 85:3 90:4 97: benefit [1] 57:16 briefs [3] 87:3 142:16 171: canonical [1] 160:18
Arthur [1] 141:9 8 127:19 143:12,21 145:4 benefits [2] 55:9 108:5 9 capability [7] 121:15 124:
article [3] 109:14 125:6,6 171:7 best [9] 6:12 34:1 38:1 64: bright-line [1] 125:16 17,22 139:4,13 154:14 159:
articles [2] 26:16,16 backbone [2] 159:1 166: 15,17 99:3 121:23 122:11, bring [2] 102:23 156:19 13
articulate [1] 125:16 20 14 bringing [1] 76:9 capacity [3] 116:19 127:19
articulated [1] 113:24 backdoor [1] 136:7 better [3] 91:2 139:10 171: broad [1] 136:16 134:2

Heritage Reporting Corporation

Sheet 2 apparently - capacity
 178
Official - Subject to Final Review
card [1] 172:13 CHIEF [48] 4:3,9 8:7,11 9:4, clause [2] 112:17 158:4 10 80:8,13 85:24 110:1,6 88:24 135:7 140:15 142:
care [8] 30:1,4 40:15 41:6 16 15:1 37:14,18 38:8,12, clear [18] 4:18 22:9 27:15 115:16 123:11 142:7 154: 14 150:16 154:22 164:10
68:14 81:4,5 164:23 21 39:25 40:24 42:2 46:23 32:13 38:16 40:18 41:20 15 157:20 159:11 169:21 165:13 167:17 171:11
careful [1] 150:4 47:1 52:13 57:18 63:4 72: 44:7 49:19,22 51:6 74:16 companies' [1] 72:8 concession [2] 34:9 164:8
carefully [1] 6:3 1,6 81:3,15,21 82:3,6,20, 76:16 90:6 100:3 155:13 companion [1] 154:24 conclude [3] 36:5 105:20
carry [3] 70:23 115:17 156: 25 106:6 110:23 113:6,10 171:12 174:11 company [45] 4:15 7:12 8: 145:11
1 115:2,7 127:23,25 128:7, clearances [1] 129:1 8,12,18 9:6 11:2 17:6 18: concluded [2] 86:6 129:19
carveout [1] 106:21 11 129:11 138:19 144:18, clearly [3] 21:23 26:14 159: 25 19:6,12 21:10,11,18 22: concludes [1] 42:23
Case [55] 4:4,5 6:6,17 20:5 23 145:2 168:21 170:9,14 12 3 32:5,9,15,23 33:21 38:17 conclusion [3] 111:11 126:
26:7 36:18,21,22 38:10 39: 175:17 client [2] 28:6 164:1 39:4 43:5 44:25 63:23 74: 13 168:13
3,12 40:7 47:2 49:14 50: Chief's [1] 51:14 clients [8] 73:25 104:8 105: 9 85:1 100:5 105:1 109:3 condition [1] 33:9
10 55:20 64:11 68:8 70:22 children [3] 10:3 11:10 13: 4 107:19 108:5,22 109:1,7 113:1 117:22,22 125:3 conduct [5] 37:21,24 38:5
72:20 73:2 74:11 76:13,17 17 close [5] 8:6 124:16 140:7 141:7 144:6,10,17 148:11 119:5 126:9
77:16 87:21 88:7 89:12 95: China [42] 5:3 7:18,22 9:21 162:17 167:2 149:22 151:4 161:21 167: conferring [1] 157:4
2,17 99:17 102:16,18,24 10:7,20 16:19 23:23 25:1, closer [1] 137:17 9,13 169:13 confront [1] 17:1
103:2,18 105:2,25 107:2 16,18 27:21,21 28:10 35:8 closing [2] 155:4 159:12 company's [2] 38:20,23 Congress [102] 8:13 9:8
122:2 130:2 133:21,22 44:20 52:18 53:15 55:15 clothing [1] 109:14 comparable [1] 44:20 10:9 18:25 19:2,3 39:14
147:4 160:19 163:13,16,17, 100:20 119:25 120:14 121: CNN [2] 69:4 70:10 compared [1] 150:24 42:5,8,22,23 43:16 49:12
19 174:3,12,15 175:19,20 8,10,14 122:2 127:12 128: code [15] 22:17 23:25 27:5, comparison [1] 112:5 52:17 53:3 54:1 55:3,5 64:
cases [24] 16:1,2,7 40:12, 12 130:23 142:3,4 143:13, 6,7 29:12 58:14 61:14,14, compelled [1] 70:25 8 66:9,11 68:12 71:17 74:
14,18,22 48:17,20 63:15 21 144:1,13 148:5 149:17 22,25 62:4 102:14 142:2 compelling [23] 12:11,23 20 76:2,12 79:16 80:20 81:
66:8,10,17 68:17 71:9 75: 159:13 164:3 166:19 168: 166:20 13:15 19:20,24 67:22 68:3 3,10 82:16 83:13 84:21 85:
14 84:17 92:22 104:18 5,9 coercion [3] 10:15 13:16 69:18 70:5,8 79:14,14 92: 4,9,17 86:4 90:4,15 91:1
106:7,8,16 155:12 163:6 China's [2] 119:19 120:13 14:4 4,10 115:16 117:8 124:8 94:17,19 95:25 96:3 97:12,
cast [1] 111:23 Chinese [35] 5:16 7:20 8: cold [1] 149:8 126:16 140:15 153:2 155: 18,24 98:3,10 99:13 100:
cat [4] 30:5 83:17 114:17 14,15,17,22 9:9 10:2 11:11 collaborate [1] 14:7 8 156:22 159:14 14 101:16 104:3 106:19
122:16 18:24 19:6,7 21:25 22:8, collect [5] 164:19 172:2,15, competing [1] 167:21 107:1 111:21 112:13 116:
catch [1] 110:7 13,19 40:7 41:2,5 51:20 17,18 compiled [1] 87:22 14 117:17 124:14 125:13
categorically [1] 44:19 61:8 81:7 85:8 86:3 115:9, collecting [1] 127:17 complain [1] 167:14 129:19 130:11,17 132:6,13
categories [2] 143:10,14 19 116:3,11 117:1 153:6 collection [12] 52:17 54:16 complaining [1] 63:19 133:14 135:20 136:1,3,13,
causes [2] 94:11 122:22 159:6,11,18 165:1 168:16 87:1 88:24 93:11 110:12, complaint [2] 20:6 31:16 17 140:4 141:4 146:7 147:
cease [2] 44:25 148:21 choice [6] 21:18 28:3 33:8 14,15 134:12 153:12,18,22 complete [2] 19:10,14 17,20 148:3,10 149:3,9
censor [3] 19:1 25:1 168: 58:22 74:18 99:2 collects [1] 115:21 completely [2] 48:25 133: 150:14 151:18 153:21 154:
14 choices [3] 59:2,4 107:16 colloquy [4] 63:17 67:20 17 17,22 156:2,17 157:22 159:
century [1] 133:7 choose [9] 11:8,9 35:6 63: 69:23 77:2 completion [1] 167:11 8 162:13,16,17,22 163:1
cert [1] 162:3 16 87:11 107:9 161:15 combination [1] 29:22 complexity [1] 174:3 164:1 165:12,22 167:1,20
certain [13] 6:18 15:24 76: 164:14 169:14 come [16] 7:23 10:10,13 30: compliance [1] 167:22 168:4,18
3 94:11 136:2,2,14,15 137: chooses [1] 102:13 25 35:8 36:13 38:11 45:9 complications [1] 70:24 Congress's [10] 45:25 88:
14 140:6,6 169:13 171:6 choosing [2] 98:16 165:20 56:12 65:3 77:16 110:3 comply [3] 129:8 144:7 25,25 118:15 141:16 152:3
certainly [12] 11:23 46:7 chose [2] 11:12 54:3 114:18 118:21 142:15 161: 149:5 155:7 156:23 161:12 163:
54:6 75:14 94:21 96:16 chosen [1] 53:6 11 component [2] 22:12 64: 18
106:1 152:2,16 156:15 CIA [1] 52:25 comes [14] 27:4 40:25 60: 14 congressional [3] 43:20
158:5 161:24 Circuit [8] 15:2 22:7 84:4 15 61:14 76:11 87:21 95: compulsion [2] 12:5 13: 82:16 111:16
cetera [2] 83:25 113:18 93:18 95:10,15 103:16 19 102:5 119:12 137:6 16 Congresspersons [1] 84:
chains [1] 16:12 140:13 138:13 148:6 150:18 159: con [1] 160:18 3
challenged [1] 169:4 circumstance [2] 126:25 15 concede [3] 19:15 39:11 conjunction [1] 72:24
challenges [2] 87:21 104: 151:7 coming [1] 41:4 67:21 connection [4] 37:20 40:3
7 cited [2] 104:17 165:22 Comintern [1] 133:17 conceded [1] 19:5 85:7 129:16
challenging [1] 153:15 cites [1] 21:9 command [1] 129:7 concedes [1] 59:21 consequence [1] 57:12
chance [3] 93:19 95:7 96: citing [1] 40:11 commentating [1] 75:1 concern [30] 9:8 27:22 41: consequences [3] 55:7
20 citizen [4] 6:24 27:19 74:8 commercial [1] 143:24 1,1,7,7 43:21 49:4,5 51:16 57:4 108:21
change [9] 9:23 18:18 21: 108:14 Commission [1] 172:4 54:17,20,21 94:9 95:4 118: consequential [1] 57:14
12 65:15 73:7 148:8 151: citizens [3] 42:11 107:14 communicate [1] 73:24 15 134:21 135:14 139:3 consider [8] 6:3 38:11 49:
25 169:15,20 108:8 communication [3] 41:9 141:4 152:4,6 154:18 155: 3 53:23 55:7 71:13 148:9
changes [1] 9:1 City [1] 135:18 105:3 126:4 3 157:19 165:22 166:2 173:21
changing [3] 34:24 43:19, civil [2] 6:20 170:2 communications [7] 73: 171:4,8,12 consideration [3] 137:17
19 claim [5] 32:1 75:2 77:19 24 117:3 128:17 139:14 concerned [24] 28:14,15 162:2 163:13
channel [6] 41:8 126:4 128: 104:14 162:9 148:1 152:5 165:10 29:16 30:23 40:19 52:7,8, considered [6] 50:9,16 53:
17 139:14 148:2 152:5 clarification [1] 64:3 Communist [8] 101:13 18 54:2 69:25 74:5 82:17, 19 55:3,17 173:11
channels [1] 117:4 clarify [1] 165:19 133:10,12,15 134:16 135:9 21 83:1,1 89:19 94:25 124: consistent [1] 163:23
chaos [1] 118:24 classification [2] 138:1 164:3,3 14 133:8 134:15 143:2 consolidated [1] 4:5
characterize [1] 114:8 139:10 community [2] 146:10 160: 169:10 172:23,24 constitute [1] 73:11
charge [1] 35:12 classified [1] 95:13 5 concerning [1] 124:12 constitutes [1] 37:23
chicken [1] 148:4 classify [1] 137:3 companies [15] 18:5,7 75: concerns [12] 69:22 74:6 constitutional [4] 108:19
Heritage Reporting Corporation
Sheet 3 card - constitutional
 179
Official - Subject to Final Review
111:10 150:21 156:5 131:16 132:16 134:1 140: 169:4 172:21 173:24 174: 49:5 50:14,24 52:16 53:8, determine [1] 174:9
constitutionally [1] 89:25 22 142:4,18,25 148:1 152: 4 175:15 8,14 54:14,16,25 55:13 68: determined [1] 81:12
consulted [1] 168:4 4 153:7 158:24 159:16 Court's [7] 70:22 72:20 73: 7,10,11,14,15 69:22 74:6 determines [1] 83:10
contact [3] 87:5,6 88:2 165:20 17 103:1 117:19 161:2 78:8,18 79:12,17,18,19 80: develop [1] 52:23
contacts [2] 87:8 115:25 controlled [4] 17:24 53:8 163:12 1,5,9,11,19,20,21,25 81:18 developing [1] 166:19
contemplating [1] 123:1 94:10 132:20 courts [1] 70:23 83:8,9,20 84:1,5,18,21 85: development [1] 142:2
contends [1] 70:2 controlling [2] 81:8 137:1 cover [1] 25:21 18,22,25 86:25 87:7,12 88: devised [2] 63:23 109:24
content [143] 4:24 6:12 9:9, controls [2] 8:12 145:21 covered [4] 80:8,13 85:1 24 89:19 90:5,19,20,21,23 devoid [1] 55:2
11 12:15 20:1,6 24:7,10,24 convention [1] 111:11 112:25 93:11 113:3 115:13,17,22 dictate [4] 138:23 146:5
25:1,14,18,22 26:14 27:9, conversation [4] 84:4 105: covers [1] 86:11 116:2,8 128:21 129:3,3,9 151:11 152:19
23 28:9,17 29:4,17,22 30:4, 22 141:18 159:8 covert [41] 24:23 25:22 27: 131:15 132:22 134:3,12 difference [8] 91:12 108:
18,19,21 31:2 34:6,6,24 35: converted [1] 61:15 22 29:16,17 42:7 51:12,15 141:2,5,19,23 142:6,13,17, 19 117:21 118:5,7,12,12
7,10 40:20,21 41:12,12,21 converting [1] 7:10 52:6 54:11 78:7 92:2,8 93: 25 143:2,9,20 144:1,11,14, 127:15
42:6,20 43:21 46:1,2,8 58: cooperate [1] 8:15 10,14,23 115:14 116:12,21 15 151:21 153:11,18,22 different [39] 13:19 17:1
2 60:7,18,24 62:6,12,25 64: cooperation [1] 157:17 118:2,12,15 119:7,7,11,20 154:1,8,11,16,22,24 155:1, 18:1,3 26:13 32:11,14 43:
16,17 68:9,22,23 69:1,3,6 coordinate [1] 159:11 120:1,7 121:6,7,11 127:13 5 156:21 157:9,16,19 158: 11 46:13 47:25 50:10,22
70:7,12 78:24 79:2,24 80: coordinating [1] 158:1 132:24 135:14 139:17 153: 9,15 162:24 164:12,14,15, 54:13 56:13 58:4 62:8,24,
3,15 81:17,23,24 82:1 83:1, coordination [1] 24:3 13,19 154:6 155:11,21,24 19 165:3 168:6,10 170:22 25 67:11 68:8 76:18 82:13,
6,14 84:24 86:6 88:23 89: core [5] 18:19 32:1 69:7 80: covertly [2] 122:2 156:3 171:2,5,7,14,18 172:5,6,8, 14 108:16 111:6,22 114:5
22 92:2,2,7,12 93:10,14,14 2 105:1 covertness [10] 5:11 28: 16,17,18 130:16,25 131:3 132:12
97:10,13 98:5 106:9 108:9, corners [1] 136:9 12,14,16 52:7 69:8 172:19, data-sharing [1] 173:9 136:12 150:21 151:3,4,11
11 112:23 113:3,17 116:15 corporate [8] 9:18 18:19 21,23 173:7 day [4] 105:4 156:2 169:25 153:10 154:20 173:13
117:21 118:2 119:15 120: 38:3,7 39:8 105:21 141:23 coworkers [1] 116:6 173:3 differently [3] 45:9 67:6
17 123:8,11 126:9 130:12 153:8 Cox [1] 103:10 days [8] 4:13 23:15 33:4,5 114:25
131:11 132:15 134:10,18, corporation [16] 35:18 97: create [5] 108:9 118:24 61:7 96:22 147:16 167:6 difficult [4] 23:20 24:19 26:
21 135:3,6,14,24 136:21 25 98:5 99:17,23 101:1,2,7 138:21,24 141:21 deadline [6] 96:10 146:22 2 111:20
137:16,21 138:18,22 139:6, 129:19,20 130:5,8,10,12, created [4] 24:8,9 80:16 149:9,10 163:1,7 difficulty [1] 119:23
17,22 140:3 142:18,18 145: 25 149:19 165:17 deal [1] 171:15 dig [2] 75:12 77:18
4,8,25 150:16 151:3,11,13, correct [11] 11:13 29:20 47: creates [2] 129:6 143:25 decade [1] 72:12 diminish [1] 104:24
25,25 152:1,3 153:13,19 9,10 48:2 51:23 65:10 143: creating [4] 74:1 100:19 decide [3] 95:17 155:16 direct [16] 6:15 37:23 38:4
155:11,21,24 157:17 168: 3 169:1,7,17 153:5 166:20 157:6 39:5,17 40:5,10 41:1 53:7
14 173:4,4,5 175:14 correctly [2] 78:18 168:24 creator [2] 98:20 107:19 deciding [2] 19:17 119:14 54:24 67:7,12 81:9 89:11
content's [1] 139:7 correspondence [1] 140: creators [10] 36:6 72:11,23 decision [9] 5:17 21:20 57: 130:13 150:8
content-based [41] 4:21, 17 73:25 74:4,17 99:22 100: 15 59:17 88:5 95:16 147:3 directing [1] 120:6
25 30:13,15 31:8 34:20 35: couldn't [10] 7:23 12:14 24: 12 102:9 104:23 161:25 174:2 direction [1] 129:25
12 39:19 59:16,16,17,18, 15 61:8,21 62:17 76:1 89: creators' [1] 73:20 decisions [2] 123:13,17 directives [2] 20:22 115:
20,21 60:5,15,17 63:1 65: 6 110:2,3 credit [1] 172:13 declarations [1] 109:6 18
14 69:2,11 91:14,19 97:11 Counsel [13] 8:7 10:24 37: criminal [2] 12:5,12 deeper [1] 75:12 directly [22] 7:5,16 10:19
113:21 126:1 135:4,15,17, 15,19 72:2 90:9 95:3,5 critical [4] 20:7 31:4 117:4,defense [2] 154:1 165:24 31:10 35:12,25 37:12 38:
19 137:10 138:2,11 139:18 110:24 115:3 127:23 170: 17 defer [1] 163:14 19,23 54:22 63:2 64:20 72:
140:12 142:22,22 145:12 10 175:18 criticizing [1] 175:7 definitely [5] 33:14 66:19 9 73:23 77:6 102:3 132:6
151:6 158:3 159:3 counter-speech [3] 121: curated [1] 114:25 170:24 171:17 173:8 135:12 150:14 151:11 152:
content-moderation [1] 24 124:13,19 cure [1] 124:12 definition [4] 15:22 36:24 25 173:5
98:15 countries [2] 25:2 95:6 curiosity [1] 108:20 69:1 143:9 disagree [5] 20:23 34:3 41:
content-neutral [4] 14:20 country [17] 18:6 24:24 54: curious [2] 85:23 113:22 defy [1] 72:21 18 135:13 174:1
69:11 88:24 151:6 18 62:11 73:15 74:9 76:16 current [7] 41:20 74:21,22 degree [1] 112:2 disagreed [1] 130:11
contesting [2] 99:25 100:2 94:7 100:5 106:25 107:10 75:1,20,21,22 delivering [1] 148:18 disagreement [2] 132:7
context [8] 15:15,16,17 44: 114:16 125:14 132:8 133: customer [1] 172:6 demand [2] 108:24 144:2 137:21
16 73:6 111:6 126:2 155: 9 166:23 173:2 customers [1] 26:22 demands [2] 24:25 168:3 disclaimer [1] 122:1
12 couple [4] 9:2 20:16 44:13 customize [1] 166:16 democracy [6] 20:9 31:5 disclaiming [1] 28:6
contexts [1] 174:10 93:2 cut [3] 136:3 171:9 174:17 73:13 76:22 92:18 175:8 disclose [3] 10:14 13:7
continue [8] 65:20 132:14 course [9] 32:11 103:6 127: cutout [1] 19:7 democratic [2] 17:17 89: 123:8
136:5 142:7 143:22 148: 15 141:14 147:17 154:10 17 disclosure [19] 5:12 28:18
24 161:6,15 160:1 161:9 165:16
D demonstrate [2] 132:18 70:18,22 71:1 88:12 93:9
continued [1] 169:25 COURT [51] 1:1,21 4:10 6: D.C [11] 1:17 2:2,7 15:2 22: 168:4 94:1,13,20 122:8,18 123:1
continuing [3] 45:13,16 16 17:5,9 20:17 72:7,12 7 84:4 93:18 95:10,15 103: deny [1] 25:2 126:22 127:3 141:1 172:
151:9 73:16 95:19,22 100:21 16 140:13 Department [2] 2:7 53:1 22 173:9,10
contrary [2] 103:14 111:14 103:11,21 104:17 106:22 dance [2] 83:17 114:17 depends [3] 130:21,24 137: disclosures [2] 71:11,17
contrived [1] 18:19 111:9,25 115:8 125:16,25 danger [1] 76:16 13 discourse [1] 114:4
control [35] 8:18 9:18 10:8, 126:6,13 135:16,18 137:12, dangers [1] 175:10 derivative [1] 39:7 discretion [8] 15:25 16:14
21 15:4 21:10 22:13 41:14 16 143:16,17 147:3 149:7 dark [5] 4:16 8:6 55:23 108: designates [1] 125:14 26:24 27:3,13 107:9 125:5
47:14,17,22 86:3 115:9 152:17,21 154:3 155:12,20 22 147:17 designed [1] 36:24 160:2
116:11,24 117:1,3,15 118: 156:20,25 158:6 162:6,25 data [130] 5:19,25 8:18 43:7 desire [1] 155:7 discriminate [1] 135:20
9 123:22 128:16 130:19 163:10,14 167:20 168:20 44:13 46:16 47:14,17,21 detailed [1] 116:4 discrimination [9] 26:14
Heritage Reporting Corporation
Sheet 4 constitutional - discrimination
 180
Official - Subject to Final Review
29:4 58:3 145:5,9,12,13,25 doling [1] 15:19 emphasize [3] 36:20 67:3 Equifax [1] 129:2 executive [8] 141:15 149:8
156:16 domestic [1] 123:15 147:14 equivalent [1] 122:25 154:20 162:14,16,18 169:1,
discuss [2] 89:8 138:8 done [5] 25:10 37:17 71:22 emphasized [2] 15:3 117: escrow [1] 6:19 5
discussed [1] 87:13 111:13 163:6 10 especially [1] 145:20 exempts [1] 44:19
discussion [2] 141:14 145: doubt [4] 73:12 85:2 109:2 empire [1] 7:19 espionage [2] 116:10 165: exercise [8] 9:21 64:22
4 122:3 empirically [1] 110:6 5 121:16 131:16 134:1 151:
disentangle [1] 52:10 doubtful [1] 21:21 employees [3] 53:13 55: ESQ [4] 3:3,7,11,14 16,21 153:7
disentanglement [1] 62: doubts [2] 76:22 83:25 11 129:1 ESQUIRE [2] 2:2,4 exercises [2] 56:7 64:19
18 down [34] 4:12 6:16 7:9,25 employer's [1] 111:7 essence [4] 47:7,7 75:17, exercising [1] 125:5
disinformation [1] 175:11 10:11,25 16:17 21:24 36: enact [2] 159:8 165:13 19 exfiltrate [1] 128:25
dismissive [1] 166:2 14 39:14,18,22 40:25 43:5 enacted [2] 112:10 153:21 essential [1] 31:16 exist [4] 68:1 138:1 150:23
displace [1] 163:1 55:8,24 56:11,20 58:8,9,20 enacting [1] 157:22 essentially [5] 55:11,23 57: 170:2
display [3] 60:7 130:12 66:5,24 71:14,24 74:23 75: enactment [2] 111:17 141: 6,9 133:12 existing [2] 154:14 175:14
131:11 17 89:15 103:17 125:7 16 estoppel [1] 161:4 exists [1] 106:23
displays [2] 29:21 30:4 141:7 169:17 171:16 174: encourage [1] 143:15 ET [12] 1:3,10 2:3,5 3:5,9, expect [1] 144:7
disproportionate [1] 29:6 15 end [2] 4:22 175:4 16 4:8 72:5 83:25 113:18 expected [2] 148:3,10
disproportionately [1] 44: dramatic [1] 85:5 ends [1] 101:2 170:13 expediency [1] 145:19
8 dramatically [2] 44:18 109: enemies [2] 14:7 73:14 Europe [1] 23:24 explain [2] 108:21 109:7
dispute [14] 9:16,20 20:17 10 Enemy [1] 13:21 even [44] 5:15 9:21 14:14 explained [2] 6:5 89:11
23:14 60:1 80:18 84:6 124: draw [4] 17:8 40:16 126:13 enforce [2] 159:23 169:12 30:4 40:6 50:16,20 51:9 explaining [1] 66:2
13 140:2 142:1 154:9,13 149:13 enforced [1] 160:18 53:19 55:17 61:7 67:4 68: explanation [1] 22:16
166:15 168:18 drawing [1] 18:12 enforcement [3] 160:2,16 2 71:18 73:1 79:8,11 84: explicitly [1] 103:12
disputes [2] 115:11,15 draws [1] 172:5 169:14 18 88:9 90:13,17 96:10 exploit [2] 118:9 140:9
disputing [2] 53:5,5 due [3] 160:6,14 161:3 enforcing [1] 149:9 100:5,18,19 103:12,20 104: exploiting [1] 120:9
disregard [1] 164:15 during [2] 144:9 171:22 engage [7] 67:9,10,10,12 2,21 106:21 115:25 121:25 explored [1] 172:21
disruption [1] 128:6 107:16 124:19 166:15 122:17 131:23 140:11 144: export [1] 142:4
disseminate [2] 5:5 36:16
E engaged [3] 24:23 112:1 9 147:20 161:7,14 164:8, exposes [1] 165:4
disseminates [1] 99:3 e-commerce [5] 44:19 85: 166:25 12 167:12 172:17 173:6 expressed [2] 76:20 95:3
disseminating [1] 170:21 5 171:21,24 172:12 engagement [1] 109:9 event [3] 124:18 153:1 167: expressing [3] 117:11 146:
dissent [2] 77:20,20 each [4] 120:7 128:4 166: engaging [7] 34:5 75:1 86: 19 10 154:21
dissidents [1] 168:7 14 172:25 1 115:14 116:1 127:9,12 events [1] 75:1 expression [9] 39:4 40:5
distinct [4] 108:3 127:8,14 earlier [2] 105:23 107:12 engine [6] 20:21 22:11,12 everybody [6] 56:16 69:3 41:15 81:5,10,11 149:24,
164:17 earth [1] 114:13 120:5,21 127:11 98:16 107:4 120:13 121:9 25 150:1
distinction [5] 69:2 102:2, easily [2] 28:17 152:22 engineering [1] 29:12 everything [8] 25:5 27:21 expressive [3] 37:21,24
15 117:23 149:14 economic [2] 138:25 172: engineers [4] 23:23 24:3 86:5 98:16 129:22 136:19 38:5
distinguishable [1] 77:10 3 62:1,3 146:7 174:17 expunge [1] 90:21
distract [1] 119:1 ed [1] 107:23 enjoin [1] 6:2 evidence [14] 24:23 26:6 extend [5] 16:7 56:7 96:10
distraction [1] 118:24 editor [2] 99:2 123:12 enjoy [2] 117:11 146:9 43:14 54:23 55:2 71:16 87: 106:22 146:21
distributor [1] 101:10 editorial [10] 26:23 27:2,13 enjoyed [1] 72:24 15 94:25 95:1,13 96:5 144: extended [1] 96:23
divest [12] 22:10 32:23 33: 37:9 108:3 123:12,17 125: enormity [1] 174:2 9 168:3,12 extension [4] 56:5 96:24
21 47:8 58:10 61:7,21 79: 5 151:16 173:3 enormous [3] 17:14 57:4 ex [2] 97:1 128:17 147:1,5
23 89:1 98:12 104:4 133: editors [3] 91:12 110:12,14 154:10 exact [1] 101:3 extensive [1] 141:17
16 eds [1] 104:10 enormously [4] 42:9 46:9 Exactly [14] 6:8 73:19 91: extensively [1] 154:23
divested [2] 58:11,17 effect [8] 35:16,20 36:19 56:18 57:14 22,25 99:1 109:17 119:15 extent [3] 36:2 126:6 157:
divesting [1] 167:8 90:17 148:7 163:20 169: enough [12] 49:20,22 77: 123:16 128:18 131:2 135: 24
divestiture [41] 4:17,18 6: 12,24 22 93:18 103:15 106:11 9 136:20 148:25 151:14 extortion [1] 12:6
14 7:4 23:5,19 24:2,6 33:7 effective [1] 13:25 107:22 112:19 123:19 135: example [22] 12:3 13:2 18: extraordinarily [1] 24:19
42:13 44:24 56:1,3 60:6, effectively [4] 10:7,21 46: 23 142:16 152:13 3,23 24:8 26:13 29:15 38: extreme [2] 107:7 111:9
16,23 64:9,20,23 65:4 79: 16 118:16 ensure [2] 8:16 12:7 1 39:7 40:4 50:12 76:14 extremely [1] 129:22
23 80:3 85:18,21 89:7,16 effectiveness [1] 14:11 enter [4] 162:6 173:25 174: 91:5 94:4 106:25 107:8 eye-opening [1] 143:17
91:4 103:25 116:25 117:2 effects [4] 33:14,18 34:3 4,6 122:10 123:3 126:3 128:
147:2,18,23 148:12,22 151: 150:11 enterprises [1] 107:13 24 134:2 141:9
F
2 162:19 166:10 167:5,18 effort [1] 149:13 entire [2] 79:6 112:20 examples [3] 27:15 31:5 face [4] 21:24 59:17,19 157:
169:1 efforts [2] 168:7,14 entirely [3] 111:6 130:25 118:20 8
divestment [1] 22:10 either [4] 7:24 10:10 57:3 165:13 exceeding [1] 169:5 faced [1] 73:8
divorce [2] 24:6 133:17 173:22 entities [5] 36:9,10,11 146: exceedingly [1] 23:20 facial [1] 34:19
documentaries [1] 100:13 election [1] 108:15 3 153:8 except [2] 4:24 34:7 facially [1] 34:19
doing [24] 8:22 12:6 14:9 elements [1] 27:4 entity [5] 27:19 42:23,25 exchange [1] 61:10 fact [29] 8:20,21 9:17 10:14
30:3 34:23 70:3 83:2 97: ELIZABETH [3] 2:6 3:11 145:16 149:18 excuse [1] 65:17 20:13 21:2,12,14,15,17 22:
14,18 98:6,12 101:17 114: 115:5 entrapment [1] 161:4 executable [2] 27:6,7 6,23 23:7 24:21 31:8 46:9
15 119:24 125:6 131:13 Elon [1] 167:9 equal [1] 43:25 execute [1] 62:17 48:20 60:14 65:16,17 82:
133:9 137:22 146:7 149:5 else's [1] 39:19 equally [1] 86:2 executed [1] 61:16 21 116:18 119:12 121:8
151:18,23 163:8 167:1 embodied [1] 22:18 equating [2] 68:20,22 executes [4] 4:16 6:14 7:4 130:21 146:7 155:10 159:
dole [1] 15:21 emphasis [2] 34:13 39:1 equation [1] 136:4 33:6 14 160:23

Heritage Reporting Corporation

Sheet 5 discrimination - fact
 181
Official - Subject to Final Review
facto [1] 97:2 3:8 72:5 21 171:16 15 89:11 96:9 97:22 105:7, generalized [1] 122:7
factor [1] 19:16 firewall [1] 141:21 forcing [1] 149:11 23 108:23 148:17 161:23 generally [4] 13:2 111:15
facts [2] 20:17 70:1 First [100] 4:14,19 5:17 8:1, foreign [99] 5:5,9 15:4 17:2, 163:23 170:12,14 123:18 126:5
factual [7] 71:5,6,7 144:8 3 10:18 11:1,11,17 12:2 10,13,22,24,25 18:6,15 22: Francisco's [2] 104:25 generate [2] 34:15 109:8
157:21 166:6 168:17 14:14 17:3,16 19:14,18 20: 21 27:19 32:4,8,15,15,22 153:20 generation [1] 52:24
fail [4] 50:20 170:16 173:21, 3 22:4 23:22 25:9 28:24 33:21 35:18 63:16 66:13 free [6] 9:15 12:4 17:10 18: generic [1] 122:7
22 30:8 32:17,17,19,20 33:16 68:21 70:3 72:25,25 73:3, 17 63:16 90:5 genius [1] 110:16
fails [1] 72:18 35:19 36:1,3,5,7,11,17 42: 3,9 75:9,9,9,13,15 76:3 78: freed [1] 117:14 geniuses [1] 109:25
fair [2] 91:15 144:21 14,18 43:13 44:17 54:21 7 81:11 83:2 94:7,10 97: Friday [1] 1:18 geopolitical [2] 116:20
faith [1] 144:8 55:6 59:6,10 60:10,12 61: 25 98:1,5 99:16,23 100:5,5 friend [4] 117:9 171:1 172: 118:18
fall [4] 58:17 60:11 66:14 13 64:11 70:24 71:8,18 72: 101:1,1,6 106:25 107:14 24 174:1 German [1] 18:7
105:8 10,17 73:10,22 74:12,15 113:25,25 114:16 116:18, friends [15] 116:6,13 118:4 Germany [1] 125:10
fall-back [1] 5:10 75:2 78:21,23 81:22 84:10 24 117:3,14 118:3,9,16,22 141:3 144:20 146:20 147: gets [9] 10:22 16:15 30:16
fallacious [1] 133:6 89:19 91:7 98:22 99:15,23 119:2 120:8 123:4,16,21 15 151:22 155:23 165:9 46:25 47:6 90:18 108:9
fallen [1] 109:10 100:4,21 101:3,7,14 104:3 124:17 125:3,3,14 127:19 166:1,8 167:5,13 174:16 112:11,12
falls [5] 7:5,16 54:12 60:11 105:24 106:13 117:5,16 128:13 129:16 130:19 131: front [3] 7:22 10:6 105:2 getting [5] 85:15 87:3 122:
63:2 118:8 128:20 130:5 131: 14 132:16,20 135:5 137:22 Full [2] 64:24 154:3 17 149:8 172:25
false [1] 138:21 24,25 132:10,19 133:1 134: 138:13 139:1,13 140:8,22 full-throated [1] 105:24 give [15] 18:23 53:14,15,16,
famous [1] 108:6 23 145:18 149:6,20,23 150: 147:25 149:4 150:18 151: fully [2] 5:15 160:23 16,17 87:4 93:19 95:7,7
far [4] 11:2 109:12 153:16 9,17 152:19 155:12,14,17 19,24 154:12,13 155:1 156: function [1] 149:11 96:20 107:6 116:8 147:25
173:1 162:9 163:2 165:18 168: 7 158:24 159:16 164:18 functioning [1] 166:21 158:6
FARA [1] 123:4 25 173:20 174:24,24 165:20 functions [1] 166:16 Given [9] 5:19 11:16 18:4,5
fashion [1] 134:3 first-order [1] 130:4 foreign-owned [1] 125:9 fundamental [5] 45:3 76: 96:4 97:23 135:3 174:2,3
fatal [1] 173:18 FISA [1] 96:1 foremost [1] 128:21 25 88:22 156:15 159:1 gives [3] 94:3 116:11 129:8
fault [1] 167:20 FISHER [93] 2:4 3:7 72:3,4, Forget [3] 92:4 100:9,10 fundamentally [3] 62:24 glad [1] 76:8
FBI [1] 52:25 6 73:21 74:10 75:4,11 76: form [5] 30:19 44:14 60:15 76:18 148:8 global [4] 23:22 24:3,7,10
fear [3] 5:14 20:6 35:7 8,11 77:13 78:4,13,16 81: 116:21 132:25 funds [1] 149:17 goal [1] 156:6
fears [1] 5:3 15,25 82:5,18,24 83:3 85: formal [1] 163:10 further [5] 42:3 79:22 111: goals [3] 115:15 116:20
feasibility [1] 167:4 11,20 86:13,18,22 87:17 forming [1] 145:20 1 155:15 168:20 118:19
feasible [6] 23:6,12,15 24: 88:10,20 89:2,9 90:11 91: forms [1] 105:3 furthering [1] 17:18 Google [1] 53:16
17 32:24 166:10 1,3,10,16,22,25 92:6,11,17, forth [2] 142:9 171:7 future [8] 5:4 31:2,3 41:21 GORSUCH [74] 20:11,15,
feature [2] 29:12 80:2 21,24 93:1,4,12,21 94:14, forum [2] 72:14 127:5 54:17 80:1 141:8 174:20 25 21:13 22:5 23:1,4,9,12
features [1] 141:25 17,19 95:9,22 96:13,21 97: forward [2] 148:11 160:7 24:13,16,20 25:20,25 26:5,
federal [1] 167:16 1,4,7,9,21 98:2,18 99:8,12, fostering [1] 17:17
G 9 52:14 61:11,18 69:25 81:
feed [3] 83:11 122:16,16 20 100:1,10 101:5,8,19,22 found [1] 8:13 game [1] 148:4 2 87:20 90:10,25 91:3,11,
feeding [1] 127:10 102:11,17 104:12,16 105:9, four [3] 141:17 161:11 170: gaping [1] 143:25 20,23 92:1,9,16,19,23,25
feet [1] 149:8 12,15,19 109:5,22 110:5, 15 GARLAND [3] 1:6,13 4:5 93:2,5,13 94:12,16,18,21,
few [3] 110:7 128:1 166:7 19 111:24 112:15,18 113:5, Fox [3] 69:4 70:10 75:21 gather [3] 87:9 134:3 164:5 24 95:9,20,24 96:16,19,25
fide [1] 19:6 19 114:2,6,9 117:9,23 148: framework [2] 111:16 152: gathering [3] 42:10 81:13 97:3,6 113:11 121:21 122:
field [1] 95:25 18 24 132:22 11,14 123:5,9 124:2,6,23
figure [10] 28:25 29:4 35: Fisher's [2] 131:21 153:20 FRANCISCO [171] 2:2 3:3, gathers [1] 87:14 125:2,12,18,21 126:10,15,
21 48:15 58:1,2 59:1 119: fit [1] 153:23 14 4:6,7,9 6:10 7:1,15 8: gave [2] 31:14 54:8 18 139:5,16,21,24 140:19,
8 122:16 144:16 five-year [1] 170:6 10,24 9:12,19 11:4,14,20, GEN [3] 2:6 3:11 115:5 23 145:24 146:19
figuring [1] 119:23 fix [1] 153:4 23 12:16,21 13:9,13 14:1,5, GENERAL [98] 1:7,14 2:6 Gorsuch's [1] 103:24
filed [1] 162:3 flag [1] 138:21 12,18,21 15:6,9,14 16:6,16, 36:23 37:13 96:15 103:11 got [16] 17:6 23:1,4 24:13
files [1] 128:25 flexes [1] 124:4 21,25 18:2,13,21 19:11,19 115:4,7 117:25 118:7,14, 27:11 53:23 55:6 62:13 71:
filled [1] 110:14 floor [2] 24:21 110:16 20:11,14,24 21:4,16 22:14 25 119:4,11,21 120:2,16 13 82:4 92:23,23,25 97:6
final [3] 144:4 161:13 173: floors [1] 110:13 23:3,8,11,17 24:14,18 25:4, 121:13,14,21 122:6,12,20 171:23,25
23 flow [1] 143:12 23 26:2,8,10,18,25 27:2,17, 123:7,20 124:4,6,10,25 gotten [3] 68:2,3 162:20
Finally [2] 5:7 168:1 flows [2] 142:7 157:19 24 28:2,8,21 29:2,7,19 30: 125:11,15,20,23 126:12,17, govern [1] 125:17
financial [1] 129:2 flurry [1] 95:11 6,11 31:20,25 33:2,11,23 25 127:21 128:5,10 129:13 government [89] 5:3,8 7:
find [10] 34:1 60:24 80:10, focus [3] 28:11 116:24 147: 34:2 35:4,24 37:16 38:6,9, 130:3,9 131:2,17 132:3 23 8:17,23 10:3 12:3,10,14
13,14,15 107:3,19,19 162: 19 15 39:10 40:9 41:17 42:17 133:23 134:8,11,20 135:13 13:6,11,18 15:18 16:15 17:
12 focused [5] 20:5 41:20,25 43:2,7,10,22 44:2,6 45:2, 137:5,12 138:12 139:9,19, 2,10,13,22,24 18:1,9,16 19:
finding [1] 163:2 42:19 132:16 14,18 46:5,21 47:10,15,20, 23 140:2,21 141:12 143:4 7 20:8,19 22:8,19 23:13
fine [9] 30:2 58:15 66:22 81: focusing [2] 78:24 146:2 23 48:3,8,12,21,24 49:16, 144:18,22 145:3,14 146:1, 24:22 29:25 30:2,2 34:9,
10,11 101:22 133:19,21 follow [2] 20:12,22 21,25 50:4,7,19,25 51:3,7, 15,24 147:9 148:14,25 150: 23 36:13,25 40:7 41:5 51:
155:23 followed [1] 169:6 24 52:3,12 53:4 54:4,6,19 2,7 151:1,8 152:2,10,16 20 59:21 60:5,19 61:8 69:
fines [1] 55:12 following [2] 57:21 108:7 55:22 56:2,6,22,24 57:24 153:25 157:10,24 158:22 18 70:2,5 73:4 76:18 77:4,
finger [2] 49:5 87:11 follows [2] 25:6 117:2 58:6,16,23 59:3,7,12,25 60: 159:25 160:1,8,13 161:1 15 78:22 79:6,8 83:13,15
fingertips [2] 38:10,13 foment [1] 128:6 3,8 61:3,9,23 62:8,21,23 162:5 163:9 164:7 165:7 89:14 92:14 93:17 95:12
finish [1] 93:5 force [5] 7:20 10:5 38:19 64:4,12 65:6,9,13,25 66:16, 168:24 169:2,8,18,22 170: 96:6 97:15 98:1 99:18 103:
Finland [1] 62:10 89:8 162:19 23 67:15 68:5,25 69:14,19 3,5 2,5,20 106:5 107:7 113:23
FIREBAUGH [4] 1:10 2:5 forced [4] 13:8 22:10 148: 70:6,15 71:3,21 77:3 84: General's [1] 112:5 114:10,12 115:20 116:3

Heritage Reporting Corporation

Sheet 6 facto - government
 182
Official - Subject to Final Review
117:1 124:17 125:4 129:1, 13 hypothetical [13] 7:17 9: incorporated [16] 4:14 5: 13:15 19:21,25 31:11 44:
17 135:5 141:8 159:7,14, health [1] 122:25 25 13:15 18:4 43:3,20 45: 24 9:13 21:17 22:3,25 25: 10,11,12 52:17 67:22 68:3
18 164:25 165:2 168:16 healthcare [1] 129:3 15,17 46:11,16 67:5 78:12 11 41:22 42:1 50:13 53:12 69:18 70:8,9 76:25 77:4
173:11,15 174:25 Healthy [4] 54:12 111:4,5, 125:17 54:24 60:22 63:2 64:22 79:6 84:7,23 85:19,22 89:
government's [18] 5:13,19 16 hypotheticals [1] 153:14 170:21 20 90:6 91:14 92:4 93:22
8:16 20:4 29:16 31:6 35:7 hear [8] 4:3 35:15 67:25 Incorporated's [1] 67:13 97:17 106:12 114:14 124:
69:21 83:22 95:1 113:16 103:22 117:23 141:13 163:
I incorrect [2] 51:3 54:3 9 126:16 132:12 153:2
114:21 115:9 116:11 153: 24 164:6 ID [1] 87:11 incorrectly [1] 46:4 154:5,10 155:8,11 156:22,
6 164:9 167:17 175:5 heavily [1] 171:23 idea [3] 34:13 106:8 136:24 increased [1] 96:5 23 157:12 159:14 161:21
governmental [8] 12:19 Heffron [1] 155:13 ideas [4] 73:10 76:20 174: incredibly [3] 21:19 116:2 163:17 164:16,16
19:21,24 70:8,9 84:7,23 heightened [4] 132:9 134: 16,18 165:2 interested [1] 34:22
93:22 22 152:14,21 identifying [1] 37:1 indeed [3] 72:19 73:3 74: interesting [3] 95:20,24
governments [2] 22:22 73: held [1] 17:9 ideological [1] 73:9 25 148:17
3 help [2] 10:1 19:20 ignore [4] 8:20,25 164:22 independent [2] 19:11 62: interests [22] 17:16 19:23
GPS [1] 172:17 helps [2] 7:17 89:17 169:14 19 28:12 31:10 67:1 70:5 72:
grant [1] 79:12 hidden [1] 18:18 ignores [1] 5:22 independent-making [1] 9 76:4 89:24 90:3 91:8 92:
grappling [1] 59:13 himself [1] 107:8 ignoring [1] 9:8 21:8 13 99:15 115:12 116:6
grave [2] 115:10 136:24 historical [2] 133:4 165:19 II [1] 94:9 independently [4] 5:20 11: 123:25 127:8 128:19 135:
great [2] 108:24 149:19 history [14] 15:1,12,16 39: illegitimate [1] 155:25 13 155:17,21 8 136:10 156:18 167:21
greater [2] 16:14 103:5 13 72:21 73:8 77:5 86:8 illustrate [2] 7:17 10:1 indirect [1] 150:11 interfere [2] 98:4 151:15
grossly [1] 5:21 103:14 106:13 140:18 165: illustrated [1] 153:15 indirectly [3] 5:4 41:3 102: interference [4] 41:2,3
ground [1] 147:10 8 166:3 172:6 images [2] 73:24 80:15 10 114:1 156:8
grounded [2] 106:16,17 history-and-tradition [1] imagine [10] 74:18 101:9 inescapably [2] 72:16 83: interfering [1] 37:22
grounds [3] 79:20 80:6,25 94:5 110:11,13,15 122:20 136:9 13 interject [1] 151:20
group [2] 66:14 110:17 hitching [1] 27:20 150:20,22 156:2 infeasible [1] 23:14 intermediate [16] 44:16 45:
grow [2] 82:12 164:24 Hobby [1] 36:22 immense [1] 116:8 infer [1] 126:7 10 46:19 47:18 48:6,15,19
guard [2] 121:19 156:10 hold [3] 9:5 17:11 151:9 immensely [2] 129:18,18 inflexible [1] 137:13 50:20 53:21 150:10 152:
guess [13] 32:19 35:16 63: Holder [2] 76:5 77:11 immune [1] 150:17 influence [6] 11:9 115:14 23 158:17,21,23 170:17
6 70:21 77:9 112:25 113: holding [1] 127:4 impeded [2] 73:20 105:23 116:12 121:18 132:24 151: 173:18
22 119:3 124:11 133:23 holds [1] 8:19 impediment [3] 157:5,7 25 international [5] 7:19 133:
139:16 156:19 162:2 HollyFrontier [1] 147:4 167:8 info [1] 133:24 12,18,25 135:11
Hollywood [1] 108:7 impermissible [15] 54:11 information [32] 42:10 52: interpretation [3] 24:1
H Holmes [2] 77:8,19 70:9,13 77:3 79:5,9 80:4 19,22 73:2 81:13 82:4,8,9 146:25 147:12
hack [1] 128:24
home [3] 30:23 112:14 166: 84:11,12 86:9 89:21 90:6 87:3,10,11,24 88:1,6,15 interpreted [1] 23:19
half [1] 86:11 23 92:12 156:10 158:2 102:5 103:4 104:20 127: interpreting [1] 24:5
hammer [1] 30:23 homing [1] 151:19 impinged [1] 14:15 17 129:5 131:22 132:2,6 interrupt [1] 124:7
hand [1] 103:8 honest [1] 162:10 implicate [1] 43:12 133:24 143:10,19 144:16, intrigued [1] 111:3
hand-in-hand [1] 107:11 honestly [2] 121:9 155:25 implicated [5] 10:20 28:24 24 145:1 161:10 172:11,13 intuition [1] 152:17
handling [1] 70:20 Hong [1] 168:7 32:21 33:3 79:1 informed [4] 5:15 88:8,9, invalidate [1] 158:6
hands [4] 129:5,9 154:11, Honor [46] 6:10 8:10,24 9: implicating [1] 91:7 11 invariably [1] 137:15
16 19 11:24 12:21 13:13 14: implication [1] 73:5 infrastructure [1] 117:4 invent [1] 30:3
happen [7] 4:13 24:15 50: 18 16:22 18:3 19:19 20:10 implications [1] 72:18 inherent [1] 167:8 invented [2] 31:18,19
23 102:10 131:5 136:5 21:4,16 22:14 23:17 24:18 important [12] 15:12,15 19: inherently [2] 97:11 156: investigation [1] 169:7
147:20 25:5,23 26:8,18 28:2,21 16 46:9 80:19 97:16 102: 10 invoke [1] 160:15
happened [2] 65:4 103:16 29:20 31:22 33:2 35:24 38: 24,25 117:12 118:1 147:19 initially [1] 78:24 involved [4] 33:17 42:25
happening [5] 77:11 121: 9 39:10 41:17 45:19 48:3 165:19 injecting [1] 43:20 45:4 111:9
18 122:10 131:4 166:18 49:2 50:5 52:12 53:4 54: imposed [2] 33:11 38:19 injunction [4] 56:16 162:1, involvement [1] 153:6
happens [6] 40:16 41:14 19 58:16 59:8 64:13 65:10, imposes [2] 7:6 39:16 7 174:7 involves [1] 135:24
42:25 55:19 83:19 149:2 25 68:5 71:3 174:14 175: imposition [1] 39:5 insistence [1] 151:5 Ireland [2] 24:9 62:10
harassment [1] 116:9 16 impossible [3] 61:6 107:6 Instagram [1] 108:1 Irish [1] 24:11
hard [12] 77:21 114:18 119: hope [1] 148:17 167:6 instead [10] 107:25 116:17 irrelevant [2] 101:4,9
8 124:18 128:17 137:24,25 hoping [2] 147:18 149:6 imputing [1] 136:13 120:8 129:17 130:18 134: irrevocable [3] 148:15 149:
139:22,25 142:19 150:22 hostage [1] 10:4 inability [1] 63:19 24 137:16 140:7 151:18 1 161:18
157:5 hostile [1] 76:4 INC [6] 1:3 2:3 3:4,15 4:8 167:1 Isn't [23] 11:22 32:5 33:17
harm [10] 13:17 36:25 77: House [1] 175:9 170:13 insufficient [1] 142:13 49:20 63:13 64:10 65:23
24 115:21 116:17 121:20 houses [1] 136:17 incident [1] 144:12 integrally [1] 133:11 98:10 103:15 114:4 121:
123:25 128:19 162:24 164: however [4] 5:16 32:24 40: incidental [3] 33:18,19 34: integrated [1] 154:15 21 138:11 139:5,6,17,25
17 19 97:16 3 intellectual [1] 22:18 141:10 146:4 151:1 152:8,
harms [1] 150:23 huge [1] 54:17 included [1] 168:7 intelligence [3] 8:16,22 12 153:3 162:14
harsh [1] 5:2 Humanitarian [1] 76:6 includes [2] 157:16 159:19 172:7 isolate [1] 85:14
harvest [1] 151:21 hundred [2] 31:20 86:20 including [10] 7:20 27:16 intended [1] 154:25 issue [16] 6:4 11:22 12:1
harvesting [3] 9:10 81:24 hundreds [1] 132:23 52:21 55:1 95:6 142:11 intent [2] 98:4 111:15 47:3 51:13 56:15 63:9 70:
82:1 Hunter [6] 84:16 89:12 111: 158:25 162:24 170:22 172: interact [1] 153:11 18 88:15,18 158:20 162:1
hate [4] 37:8 68:15,23 97: 4,8,25 112:2 9 interest [47] 5:9 12:11,23 163:5,10 172:22 173:7

Heritage Reporting Corporation

Sheet 7 government - issue
 183
Official - Subject to Final Review
issues [2] 11:24 77:21 19,25 56:4,19,23 57:17,18, Kagan's [2] 58:25 102:7 39:16 40:6,13,15,19 42:18 limit [2] 113:25 165:20
itself [29] 5:14 7:6 19:8 30: 18,20,21,25 58:7,21,24,25 Karl [1] 101:14 43:16 44:7,17 45:5,6,14 limitations [5] 75:9 141:18
13 44:7 63:3 67:7 78:22 59:4,11,23 60:1,4 61:2,5, KAVANAUGH [31] 14:25 50:12 53:12 54:10,14 57: 169:24 170:2,6
79:24 83:9,14,15 91:19 10,17,18 62:7,14,22 63:4,4, 15:7,10 16:4 52:15,16 53: 12 58:9,17,18,18,19 59:6, limited [3] 15:19,22 87:23
102:13,19 103:3 121:20 6,7,8,18 64:5,25 65:7,11, 25 54:5,15 55:19,25 56:4, 16 60:14,16 63:24 64:18, limiting [2] 16:10 25:24
127:5 130:5 131:24 133: 16 66:4,21 67:14,17,20 68: 19,23 57:17 67:20 69:24 21 66:22,25 68:13,16 70: line [6] 17:8 18:12 20:12
17 135:15 136:25 143:8 19 69:9,15,20,23,25 70:14, 78:3,5,17 79:13 85:9,13 22,23 72:20 74:21 76:6 79: 106:4 151:9 174:14
151:20 155:21 157:8 168: 16 71:20,25 72:1,6 73:19, 106:15 113:12 153:9 159: 10 80:10,20,24 84:20,22 lines [1] 40:10
9 173:4 21 74:3 75:3,6,13 76:1,10, 22 160:3,11,20 164:20 85:18,21 90:5,15,18,20,22 list [3] 87:5,6 88:3
17 77:7,8,9,19 78:2,2,5,5, Kavanaugh's [1] 57:21 91:13,24 94:2,2 96:12,22 listed [1] 165:24
J 14,17 79:12,13 80:8 81:2,3, keep [6] 16:4 49:8 58:8 90: 97:2,12 102:19 107:2 112: listen [1] 159:7
JA [1] 143:9
16,21 82:3,6,20,25 85:9,12, 18 104:9 144:2 6 135:19,23 136:15 140:14 listeners [2] 104:19 132:5
Jackson [38] 63:5,6 64:5,
13 86:10,14,16,20,23 87: keeping [1] 154:11 149:9 150:19 152:22,24 listening [1] 100:20
25 65:7,11,16 66:4,21 67: 17,19 88:8,13,21 89:3 90:8, key [7] 22:12 50:1,7,11 124: 153:3 154:3 155:22 156:3, litigation [1] 162:21
14,17 68:19 69:9,15,20 70: 10,12,25 91:3,11,20,23 92: 1 128:16 155:3 24 158:7,10 159:8,24 160: little [17] 9:25 20:18 22:15
14,16 71:20,25 76:1,10,17 1,9,16,19,23,25 93:1,2,5, keystrokes [1] 87:10 17 166:5 169:12,12,15,17 26:12 31:13 48:9 52:6 56:
77:9 78:2,5,14 79:12 80:9 13 94:12,16,18,21,24 95:9, kidnapped [2] 12:9 14:3 170:16,16 175:3 17 61:24 72:12 75:12 77:
113:13,14,20 114:3,7 115: 20,24 96:16,19,25 97:3,6,8, kidnapping [1] 12:6 law's [1] 156:4 12 102:1 121:5 135:2 158:
1 151:1,22 152:8,12 22 98:3,23 99:4,9,13,21 kind [41] 13:16 18:19 24:2 laws [8] 8:14 13:3,20 94:6 10 169:9
jail [1] 55:12 100:9,11,23 101:6,18,20, 27:4 28:9 45:10 51:16 54: 128:24 135:16 154:14 162: live [2] 116:5 121:25
January [13] 1:18 55:20 56: 23,24,25 102:6,12 103:23, 23 57:21 62:9,20 66:14 67: 18 lives [1] 12:9
8,9,10,12 96:8,11 146:21 24 104:13,16 105:6,11,16 11 73:14 80:10 87:25 97:4 lay [1] 84:15 living [1] 74:25
147:15 148:21 149:2 163: 106:6,15 108:18 109:6,11, 102:6 103:17 104:14 109: lead-up [1] 154:19 Lobby [1] 36:22
7 23 110:18,21,23,25 111:1, 8 110:19 114:11 116:21 leaders [5] 73:13 79:3 83: located [2] 6:24 78:1
Jazeera [2] 18:8 100:14 2 112:11,16 113:4,6,6,8,10, 123:22 127:13 130:16 134: 25 92:15 175:8 location [3] 144:14 172:16,
Jeff [3] 7:19,24 104:4 10,11,12,13,14,20 114:3,7 16 136:12 138:21 139:22, leadership [1] 76:21 17
JEFFREY [3] 2:4 3:7 72:4 115:1,2,7,23 117:20 118:5, 24 140:5 150:19 151:7 leading [1] 141:16 lodge [1] 95:1
jeopardize [1] 134:4 11 119:3,6,18,22 120:11, 152:24 156:19 158:2 159: leaking [1] 144:16 long [10] 15:3 32:24 65:21
jeopardizing [1] 122:24 20 121:4,21 122:11,14 123: 17 160:18 165:25 least [21] 23:18 34:21 37: 72:23 117:2 125:13 141:
jobs [1] 82:13 5,9 124:2,6,23 125:2,12,18, kinds [4] 92:13 97:19 125: 10 43:15 45:10 46:19 48: 14 166:18 169:23 170:1
Joe [5] 138:4,5,9 139:8 145: 21 126:10,15,18 127:21,23, 17 135:16 18 49:1,2 53:22,23 55:7,22 longer [2] 104:5 109:1
5 24,25 128:7,11 129:11,12, known [1] 74:20 66:16 82:8,15 93:15 112: longstanding [2] 94:2 140:
Joint [1] 172:2 13,15 130:7,20 131:17,19, knows [3] 85:16 120:13 20 152:13 153:12 170:19 17
jolt [1] 148:10 20 133:3 134:6,9,12 135:1 123:16 leave [1] 85:5 look [41] 7:13 9:3 20:3 21:8
Journal [2] 69:5 107:23 137:2,8,24 139:5,16,21,24 Kong [1] 168:8 leaves [4] 5:17 33:21 73:4 30:12 34:22 41:19 49:13
journalists [3] 144:14,17 140:19,23 142:15 143:5 117:13 62:11 69:3 71:4 74:11 76:
168:11 144:18,23 145:2,3,22,24,
L left [1] 122:3 24 77:4 79:22 80:7 82:15
Judge [3] 15:1 138:19 161: 24 146:12,14,16,18,19,19 Lamont [8] 73:2 100:18 legal [2] 72:8 152:15 84:23 90:4 94:5,7 102:18
2 147:7 148:13,16 149:12 102:2,16,23 104:17 132:2, legislative [2] 111:15 175: 103:1,1 106:24 107:20
judgment [3] 6:21 151:16 150:5,25 151:1,22 152:8, 4 12 112:3 114:22 137:18 143:
161:12 12 153:9 157:1,10,23 158:Lamont's [2] 102:24 103: legislators [1] 136:18 6,16,19 144:19,19,21,24
judgments [1] 166:4 13 159:21,22 160:3,11,20 18 legislature [1] 156:7 155:15 172:14 173:13 175:
jump [1] 109:3 161:22 163:4,21 164:20 land [1] 97:14 legislatures [1] 136:17 4,5
jurisprudence [1] 66:15 165:6 168:21,21,23 169:3,lands [1] 27:10 legitimate [2] 76:25 143: looked [1] 111:10
Justice [431] 2:7 4:3,9 6:8, 9,19,23 170:4,7,9,15 171:landscape [1] 148:8 23 looking [4] 10:16 70:1 90:2,
22 7:10 8:7,11 9:4,16 10: 21 172:1 175:17 lapse [1] 147:5 lens [1] 90:24 23
24 11:6,15,21,25 12:17 13: lapsed [1] 147:2
justification [7] 40:21 100: less [14] 5:22 6:15 7:7 36: looks [3] 128:13 135:15
4,10,24 14:2,10,13,19,25 8 138:25 143:24 154:3 large [4] 135:11 159:19 22 50:7,11 72:12 140:24 172:16
15:7,10 16:4,16,24 17:7 155:6,14 171:21 175:13 141:10 170:24 171:17 173: loophole [1] 162:17
18:10,14 19:9,13 20:11,15, justifications [2] 155:16 larger [1] 71:10 10,14,21 lose [4] 55:20 96:11 105:8,
25 21:13 22:5 23:1,4,9,12 175:6 largest [1] 71:15 level [14] 11:19 14:17,23 17
24:13,16,20 25:20,25 26:5, laser-like [1] 116:24
justified [2] 157:15 165:13 15:11 28:20,25 33:4 41:3 losers [1] 15:23
9,10,23 27:1,11,18,25 28:5, justifies [2] 16:14 155:22Last [17] 24:20,20 36:20 50: 42:16 57:23 58:1 72:19 lot [14] 13:19 18:5 26:20 27:
19,22 29:3,8,24,25 30:10 justify [2] 54:10 157:22 3 51:10 61:6 62:14,15 70: 117:5 172:17 15 34:12 74:15 86:19,21
31:12,14,23 32:2,2,5,8,9 17 77:2 88:21 96:7 108:15 leverage [2] 7:18 10:4 87:12,18 104:21 108:7
33:10,13,24 34:12 35:15 K 146:12,16 161:11 173:20 licenses [2] 15:20,22 164:21 171:15
37:14,18 38:8,12,21 39:25 KAGAN [41] 29:24 31:12, later [2] 26:7 169:25 licensing [4] 106:20,23 lots [5] 22:17 54:7,9 69:4
40:24 42:2,3,4,5,22 43:6,9, 23 32:2,8 33:10,13,24 34: laudable [2] 156:6 159:13 107:6 165:18 96:1
18,24 44:4,21 45:12,16,20 12 35:15 52:13 63:8,18 93: Laughter [8] 11:5 32:7 94: lie [1] 32:18 love [1] 109:15
46:20,22,23,23,25 47:1,1, 1 97:8,22 98:3,23 99:4,9, 23 96:18 105:14 120:15 lift [1] 147:22 lower [1] 70:23
11,12,16,21,24 48:7,10,13, 13,21 100:9,11,23 101:6, 121:3 128:9 likelihood [2] 162:12 174: lucrative [1] 109:4
22 49:7,18,23 50:2,6,17,21 24 113:10 119:3,6,18,22 law [105] 7:1,5 8:5 23:15 30: 7
51:1,5,9,14 52:2,9,13,13, 120:11,20 121:4 133:3 8,11,13,15,16 33:5,12 34:4 likely [4] 78:10 108:22 127:
M
14,15,16 53:25 54:5,15 55: 134:6,9,12 135:1 171:21 35:17 36:10,21 37:3 38:19 16 162:8 made [10] 22:8 63:18 95:10

Heritage Reporting Corporation

Sheet 8 issues - made
 184
Official - Subject to Final Review
96:6 119:15 123:17 150:6 127:7 167:8 172:10,11 21 50:11 53:6,19,23 66:19 necessitates [1] 157:19 obviously [8] 87:20 130:13
155:13 162:12 164:8 members [2] 111:23 164: 72:14 77:6 87:4 135:18 necessity [3] 143:11,11,12 132:9 150:19 156:4 163:
magazines [1] 16:12 24 150:10 158:9 171:17,24 need [14] 7:24 10:14 24:10, 14 165:3 167:7
magical [2] 109:24 110:3 Menlo [1] 2:4 motion [1] 95:11 11 48:15 106:19 112:8 odd [1] 52:6
maintain [2] 23:25 62:1 mere [8] 28:14 69:8 73:10 motions [1] 95:13 125:7 133:24 142:6 148: offender [3] 42:12,13,24
maintenance [1] 142:2 75:13 172:19,21,23 173:7 motivate [1] 157:6 11 155:15 161:19 165:17 offer [2] 141:13 167:10
major [2] 9:8 39:14 merely [1] 5:10 motivated [3] 91:14 112: negotiations [3] 171:2,4, office [1] 110:13
majorities [1] 136:16 merits [3] 161:25 162:8 13 154:18 10 officials [1] 165:1
Manifesto [1] 101:13 174:12 motivation [8] 59:20,22 neither [2] 36:5 104:6 often [3] 91:4 95:6 174:11
manipulate [8] 68:21 116: MERRICK [2] 1:6,13 111:7,12 113:16,25 114:5 NetChoice [1] 27:13 okay [26] 11:3 22:5 23:1,3
19 121:16 135:6 156:4 Meta [1] 109:25 151:23 never [9] 17:9 53:19 55:3 24:16,20 26:1 31:23 43:22
164:4 168:15 174:20 mid-20th [1] 133:7 motivations [4] 30:14 46: 61:21 71:18 95:13 103:3 49:9,23 61:2 62:14 66:4
manipulated [6] 74:6 120: might [46] 22:15 35:16 49: 1,8 111:22 141:20 148:5 69:15 70:14 88:16 92:1 94:
18 122:2,17,19 166:11 22 56:13 71:4 72:13 73:12 motive [5] 79:10 84:11,13 New [13] 37:2,5,8,11 44:25 16 96:25 101:25 110:18
manipulates [1] 69:3 76:20,21,22,22 85:15 90: 135:25 136:13 62:23 69:5 96:7 107:24 113:5 125:13 145:2 164:6
manipulating [3] 69:6 70: 16 91:8 96:4,9 108:14 113: move [1] 148:11 108:16 120:24 146:21 169: old [4] 109:14,15,16,18
11 124:20 17 115:25 116:22 119:4 movie [5] 18:24 19:1 149: 20 once [9] 16:9 79:9 86:5,6
manipulation [42] 9:9 19: 121:15 126:1 127:2 128:3, 17,20,25 News [5] 69:5 70:10 75:1, 96:23 106:8 117:14 144:1
25 24:24 25:22 27:23 28: 5,10 141:1 147:3,16 148:3, movies [2] 19:1,2 21 173:2 155:13
10 29:17 42:7 51:12,15 52: 10 149:3 150:11 151:24 MSNBC [1] 75:22 newspaper [6] 123:12 125: one [81] 4:11,18 6:16 7:8 8:
6 54:11 68:10 69:1,22 70: 159:5 161:2,18,23 164:22, Mt [5] 54:12 68:17 111:3,5, 2 126:3,4 127:1,16 4 11:23 17:13,25 27:16 29:
4,7 78:8,25 80:4 81:18,23 24,25 166:15 167:18 171: 16 newspapers [2] 16:12,12 10 30:16,22,24,25 31:14,
86:7 92:3,7,13 93:10,15 22 172:16 much [19] 6:15 7:7,7 34:2 next [4] 11:18 50:3 85:16 20 34:10,21 37:7 38:13 40:
97:10,13 98:5 117:21 118: military [2] 138:25 164:25 35:5,11 44:23 45:3 69:8 86:24 14 43:4 45:25 46:7 47:4
2 135:4,14 139:17 153:13, million [12] 55:9 71:24 81: 87:25 89:18,22 103:7 106: nice [1] 133:15 50:5 51:10,13 53:6 54:8,
19 154:6 155:11,21,24 14 82:10 85:6 86:18,21 3 129:5 142:21 153:15 nine [2] 4:12 147:15 14 56:14,24 60:19,20 61:6
manufacture [1] 145:19 115:24 122:22 129:1 164: 156:13 161:16 nobody [1] 123:16 68:13 69:17 70:17 71:14
many [5] 62:2 86:25 87:9 19 171:25 multinational [3] 129:18, NOEL [5] 2:2 3:3,14 4:7 78:23 80:18 83:6 84:11 86:
109:6 156:18 million-plus [1] 127:18 20 130:5 170:12 11 87:20 88:4,19,25 89:16
march [1] 19:22 millions [6] 52:19,20 85:25 muscle [1] 124:5 non-covert [1] 118:13 90:11 102:18,22 109:6
market [2] 98:17 109:4 105:4 117:10 132:23 Musk [1] 167:9 non-enforcement [2] 160: 111:2,2 112:4 113:14 115:
Marx [1] 101:14 mind [3] 91:13 92:20 118: must [1] 20:21 22 161:8 11,15 118:21,23 119:13
mass [1] 148:1 21 mute [2] 64:23 65:19 non-U.S [1] 117:22 120:4 122:22,22 123:25
massive [5] 53:18 55:12 minds [1] 110:2 non-user [1] 115:25 128:2 144:4 145:20 146:
164:19 170:23 172:18 mine [1] 163:24
N none [5] 36:8,10 120:24,25 12,16 156:18 157:7 161:22
material [2] 66:18 164:5 minimum [5] 6:2 37:17 55: name [1] 120:23 137:19 164:11 165:24 166:6 171:
matter [13] 1:20 15:11 83: 5 57:1 71:21 names [1] 172:13 nonsensitive [2] 171:6,14 23 173:20 174:8
19 86:8 99:19 102:15 110: minutes [1] 128:2 narrower [2] 80:23 134:25 nor [1] 104:6 one-way [1] 126:4
2 117:5 118:25 121:14 misappropriate [1] 168:6 narrowing [1] 45:21 normally [2] 91:7 121:23 ones [2] 73:25 120:24
139:12 157:21 160:1 misappropriated [1] 168: narrowly [5] 70:19 117:7 noted [2] 95:4 115:23 online [1] 75:18
matters [3] 9:21 135:21 10 152:19 153:3 155:8 nothing [13] 21:5 42:6 50: only [32] 4:22 12:7 13:5,11
152:1 misinformation [3] 5:5,16 nation [10] 118:3 120:8 15 55:16 63:24 80:1 83:8 32:17 33:20 34:4 35:17 40:
mean [45] 22:11 28:23 29: 175:11 128:13 131:15 136:24 138: 85:10,12 149:1 151:10 6 42:19 43:4 45:8 74:5 83:
10 30:1 32:12 54:6 56:19 mix [10] 6:12 35:7,10 46:12 15 139:14 140:9 154:10 156:8,9 19 85:18,22 87:3,23 91:17
58:8,24,25 59:24 65:1 66: 60:23,25 64:15,17 83:17 165:4 notice [6] 90:16 121:17 93:22 99:6 103:19 104:21
10 67:24 76:5,7 82:1 85: 151:11 nation's [3] 117:18 132:22 122:9,23 164:13 167:15 109:20 111:12 112:7,18
10,19 87:12 90:22 92:12 Mm-hmm [22] 11:20 12:16 134:5 noticed [1] 95:16 114:20 116:25 132:16 135:
96:1 99:18 104:24 105:12, 14:12 15:14 20:14 27:17, national [40] 22:1 53:10 73: notion [1] 174:23 19 153:18
17 109:15 111:5 115:19 24 47:15,20,23 48:21 50:6 6,11 74:7 76:12 77:14,16, notwithstanding [1] 10: op [2] 104:10 107:23
118:11 119:6,7,8 120:21, 57:24 58:6 59:3 61:9 64:4 18,23 79:1 83:15,18,20 99: 20 Open [3] 32:13 35:22 98:17
24 121:6,7,9,22 123:11 69:14 88:20 89:2 97:21 14 100:6 114:13,18,20 115: NSA [5] 51:6,8 171:1,4,6 operate [9] 25:16 30:17 65:
138:4,10 139:21 152:1 111:24 10 116:17 117:8 121:19 number [8] 15:19,22 69:17 5,20 132:15 148:24,24 158:
meaning [2] 142:25 157:5 moderation [4] 27:4,8,9 127:14 128:15 135:8 140: 78:6 89:18 100:15 107:12 8 161:6
means [21] 22:15,16 36:12 42:7 15 142:12 143:7 150:23 118:18 operated [1] 22:24
48:16,16,19,23 49:1 53:6, modern [1] 72:13 153:2 161:10 163:18 164: numbers [1] 86:14 operates [3] 25:16 137:1
22 54:2 119:20 120:1,2,12 modify [1] 142:8 10,16 165:23,24 166:4 167: 158:12
140:12,25 141:11 142:6 moment [4] 75:15 83:8 92: 17,25 O operating [5] 8:8 9:6,14
174:25,25 5 147:16 nations [1] 155:2 O'Brien [1] 40:14 57:10 158:7
mechanism [2] 95:2 123: momentous [1] 6:4 nature [4] 48:5 65:14 77:14 objectionable [1] 60:24 operation [9] 102:20,20
22 monopolize [1] 49:9 119:12 objections [1] 175:13 116:21 118:15 121:18,20
mechanisms [2] 87:1 95:5 months [1] 167:10 necessarily [2] 25:21 158: observed [1] 138:19 127:13 133:13 138:21
media [16] 4:23 15:4 30:17 moot [1] 6:6 16 obtain [2] 129:9 164:14 operational [1] 157:13
75:18,18 80:17 107:1,13 morning [1] 4:4 necessary [4] 57:8,16 155: obvious [5] 5:22 50:11 53: operationalized [1] 156:
109:3 110:1 114:4 123:10 most [17] 4:11 5:22 33:3 34: 19 163:12 20,23 173:10 14

Heritage Reporting Corporation

Sheet 9 made - operationalized
 185
Official - Subject to Final Review
operations [6] 115:14 116: 18 52:22 77:17,22 115:17 passes [1] 37:2 places [2] 70:4 82:14 posting [2] 74:1 105:4
13 132:24 143:23 148:21 116:11 118:10 128:16 131: passing [1] 68:13 platform [51] 21:24 24:7 potent [2] 116:12 129:7
158:25 16 134:1 141:17 144:2 past [6] 47:12 51:1 68:2,3 25:14 27:10 28:4 29:23 30: potential [5] 41:2,21 78:6
opinion [2] 15:2 103:1 148:1 152:4 153:7 158:24 166:12,14 17 31:3 39:15,23 55:8,24 163:2 164:5
opinions [1] 77:7 161:11 166:19 patched [1] 159:9 60:7,18 61:4 62:13,24 63: potentially [4] 6:5 45:11
OPM [1] 128:24 overwhelming [1] 9:22 patching [1] 136:7 3 68:22 74:22,24 75:24 80: 55:12 111:13
opportunity [2] 96:2 128: own [19] 9:15 10:17 21:7 paternalistic [1] 121:22 17 98:21 105:5 107:10 power [3] 8:17 9:22 169:5
14 22:4 40:8 63:22 65:3,20, path [1] 66:5 108:1,9,13 116:1,20 117: powerful [3] 42:9 108:12
opposed [3] 35:2 117:22 21 70:23 76:19 85:25 101: pay [1] 96:4 12 118:10,17 120:3 121:16 116:9
142:17 15 104:5 114:21 145:18 penalties [3] 53:18 141:6 123:23,24 124:21 129:22 powers [1] 12:19
opposing [1] 95:3 156:24 158:11 163:12 170:24 131:16 132:19 136:6 137: practical [3] 102:19,20 108:
option [1] 142:11 owned [11] 16:19 17:22 18: pending [1] 162:1 1,23 143:22 158:25 166:11 21
Oracle [1] 53:9 8,8,24 22:18 98:24 125:3, people [34] 5:18 10:16 12: 167:23 168:15 174:19 practice [1] 95:11
oral [7] 1:21 3:2,6,10 4:7 10 129:17 151:4 8 14:3 34:24 37:25 41:6 platforms [8] 4:12,23 71: PRC [30] 24:25 115:11,15,
72:4 115:5 owner [7] 74:21,22 75:18, 52:21,23,24,24 69:4 74:4, 15 78:8 107:16 109:8 114: 17 116:3,9 119:13,17 120:
order [11] 10:4 19:1 24:10 21,21,22 107:9 24 78:10 81:14 82:1,12 83: 4 127:7 8 124:1,22 128:23 129:4,7,
118:18,24 142:7 143:21 owners [2] 18:6 107:13 10 85:25 87:4 91:8 105:3 playbook [1] 118:22 25 131:23 136:4,8,11,25
144:15 151:14 169:1 175: ownership [13] 7:11 15:4 108:5,6,7,17 110:17 119: Playboy [1] 36:21 137:6 138:17,20 144:1
1 37:23 47:3 74:5,14 75:10, 25 120:12 127:6,9,18 141: Pleasant [1] 68:17 149:20 156:3 161:19 164:
ordinary [4] 21:10 87:22 13,15,24 105:21 107:1 126: 7 please [3] 4:10 72:7 115:8 14 167:2 168:14
108:8,13 2 People's [3] 16:19 130:22 point [34] 7:18 10:1 13:21 PRC's [4] 149:25 153:6
organically [2] 120:6 127: Oxford [2] 125:7 126:23 149:16 14:13 21:9 35:14 36:20 47: 168:3,6
10 per [2] 70:13 155:25 13 48:25 50:10 51:18 58: pre-divestiture [1] 65:3
organization [2] 9:18 133:
P percent [2] 31:20 70:6 25 62:15 63:9 73:22 74:14 precedent [7] 38:2 40:2,10
25 p.m [1] 175:20 perfect [4] 56:15 71:11 77:6 92:6 94:25 121:15,22 41:10 72:22 94:6 161:2
organizations [7] 63:17 PAGE [5] 3:2 7:22 10:6 37: 172:22 174:4 128:12 140:11 141:3 144: precedents [1] 40:11
66:12 76:3,15,15 135:12 9 171:9 perfectly [1] 80:22 4 145:25 148:17,23 151:2 precisely [3] 131:10 153:4
173:2 pages [1] 118:21 period [6] 6:20 64:24 144:9 153:20 161:22 166:6 172: 175:3
original [1] 23:25 pains [1] 141:6 147:2 160:16 167:22 19 173:23 predicate [3] 71:5,6,7
other [69] 17:17 21:6 24:4 paper [1] 10:16 permanent [2] 149:1 161: pointed [2] 147:15 171:1 predict [2] 26:22 128:17
25:1,15,16 26:5,16 33:25 parallel [1] 162:15 18 pointing [1] 87:20 prefer [2] 7:3 29:22
35:14 37:24,25 38:13 40:7 parent [3] 8:21 21:10 141: permissible [5] 54:5 80:22 points [4] 88:3 164:11 166: preferable [1] 161:25
41:4 42:20 48:2 55:3 57:2 23 84:11,13 93:23 7 170:15 preference [2] 126:1,2
63:23 70:4,23 74:2,7 76: Park [1] 2:4 permission [1] 87:4 poison [2] 89:20 90:14 preferences [1] 123:15
15 80:21 84:17 85:24 87:9, part [17] 38:13 43:15 68:4 permit [5] 11:12 22:10 51: policies [2] 98:15 172:14 preliminarily [1] 6:2
14,24 88:4 90:3,11 95:5 74:15 81:19,22 93:11,24 20,25 102:13 policy [2] 11:11 161:8 preliminary [2] 56:15 174:
98:21 100:15 101:4 104: 100:7 104:21 112:13,18,24 permitted [2] 87:6 107:2 Politico [3] 18:7 125:9 126: 7
18 105:3,5 106:25 108:1 126:3 135:11 147:10 158: person [1] 138:9 23 PRELOGAR [84] 2:6 3:11
109:2,8 110:1,6 111:2,3 20 personal [3] 82:8 115:22 politics [1] 75:2 115:4,5,7 117:25 118:7,14
117:4 120:7 125:9 127:5, partially [1] 100:17 127:17 popular [5] 4:12 16:11 42: 119:4,11,21 120:2,16 121:
15 128:4 141:3 144:20 participate [1] 72:11 perspective [6] 63:25 75: 9 129:22 171:24 13 122:6,12,20 123:7,20
146:20 151:23 155:16 160: particular [22] 26:16 29:11 16,23 98:19 108:4 113:16 population [1] 86:12 124:4,10,25 125:11,15,20,
5 163:6 166:6,14 169:15 39:20,23 41:8 42:23 46:18 persuade [1] 174:21 pose [2] 76:15 159:16 23 126:12,17,25 127:21
172:9,25 174:10,17 75:5,16,22,23 85:14 106: persuaded [1] 5:15 poses [1] 115:10 128:5,10 129:13 130:3,9
others [1] 104:20 18 107:15 110:16 124:15, pertinent [1] 134:14 posited [1] 43:17 131:2,17 132:3 133:23
others' [1] 39:4 15,21 135:21,21 152:6 167: petition [1] 162:3 position [11] 15:19 36:8,19 134:8,11,20 135:13 137:5,
otherwise [1] 160:24 13 Petitioner [1] 141:13 37:22 41:14 77:15 100:24 12 138:12 139:9,19,23 140:
ought [2] 110:9 174:22 particularly [6] 17:13 18: Petitioners [11] 1:4,11 2:3, 146:22 147:8,12 173:13 2,21 141:12 143:4 144:22
out [47] 5:1 15:19,21 25:19 16 30:22 43:13 108:4 112: 5 3:4,8,15 4:8 72:5 162:8 positioned [1] 167:14 145:14 146:1,24 147:9
28:25 29:4 34:8,10 35:21 16 170:13 possibility [2] 93:10 122:4 148:14,25 150:2,7 151:8
44:9,10 45:9 46:12 48:14, parties [3] 20:17 38:24 59: phone [1] 159:6 possible [8] 56:12 70:19 152:2,10,16 153:25 157:10,
15 55:21 56:21 58:1,2 59: 5 phrase [1] 73:6 93:16 96:11 105:7,10,16 24 158:22 159:25 160:8,13
1 63:9 74:14 79:14 84:15 partly [2] 18:8 66:1 phrases [1] 79:4 129:6 161:1 162:5 163:9 164:7
85:5,24 87:19,20 88:3 89: partner [2] 100:25 144:5 physical [1] 12:12 possibly [3] 28:13 36:18 165:7 169:2,8,18,22 170:3,
4 108:20 109:17 112:25 parts [5] 22:17 25:15,16 98: pick [2] 15:23 125:8 67:1 5
115:17 118:21 119:8,24 19 112:20 piece [8] 27:23 128:22 134: Post [25] 7:21,22,25 9:24 premise [1] 124:13
122:16 127:5 134:18 135: party [6] 39:17 89:17 133: 13 153:18,19 158:10 159:5, 10:5,7,11,19,23 11:8 13:7 prepared [2] 21:14 147:11
20 136:4 140:4,11 144:16 10,15 134:17 135:10 10 26:15 74:19,24 97:1 102:9 present [2] 76:16 127:14
154:11 166:22 pass [2] 85:17 90:5 pieces [1] 12:22 104:5,6,7,8,10,11 107:21 presented [2] 78:6 147:11
outright [2] 16:18 83:23 passed [16] 33:5 43:16 54: pill [2] 89:20 90:14 132:15,19 presents [1] 99:14
outset [2] 147:17 167:7 13 59:6 74:20 84:20 85:21 place [8] 59:6 71:19 77:5 Post's [2] 8:3 10:12 preserve [2] 146:8 167:23
outside [3] 25:1 145:17 90:15 94:8,8 97:12 111:21 108:17 112:8,12 150:9 post-divestiture [4] 65:2 President [10] 52:18 53:3
168:5 136:16 154:24 156:2 168: 165:18 131:5 142:19 157:3 54:1 56:6,9 107:8 159:23
over [21] 7:19 10:21 21:11, 25 placed [1] 141:19 posted [1] 80:17 160:1,17 169:20

Heritage Reporting Corporation

Sheet 10 operations - President
 186
Official - Subject to Final Review
President-Elect [3] 6:5 7 42:21 122:24 99:2 raises [1] 160:8 recognized [3] 104:19 125:
161:9 169:11 products [1] 122:22 publisher's [2] 126:6 127: raising [1] 171:10 25 140:14
President-Elect's [1] 168: profiles [1] 116:4 2 ratchet [1] 9:25 recollection [1] 163:22
25 profound [1] 150:22 publishers [1] 73:1 rather [1] 5:13 recommendation [11] 20:
presidential [4] 56:4 108: prohibit [6] 24:2 45:7 51: pull [2] 31:5 78:19 rational [1] 44:4 21 22:11,12 29:12 79:25
15 154:21 160:22 24 76:2,13 150:15 pulling [2] 119:14,25 rationale [10] 5:20 29:17 83:6 84:25 112:23 120:5
press [3] 102:1 125:8 126: prohibited [2] 64:8 169:13 punished [1] 14:8 68:12 97:11 113:24 135:4 127:11 157:18
23 prohibiting [4] 66:11,12 pure [1] 47:3 153:12,14,22 154:2 reconstruct [1] 62:2
pressed [1] 83:22 158:24 170:20 purpose [2] 34:24 45:21 rationales [1] 153:11 record [32] 20:4 21:3,5,6,9
pressing [1] 102:7 prohibition [3] 54:24 102: purposes [2] 108:19 165: re-create [1] 62:19 25:8,9,12,24 26:1 39:21
pressure [3] 5:4 21:25 35: 3 157:25 25 reach [1] 108:16 41:19 44:20 49:18,21 50:
8 prohibits [2] 50:13 163:8 pursue [1] 129:25 read [5] 25:6 46:3 65:18 95: 15,22 54:23 55:1,16 71:17
pretty [6] 32:13 33:18 39: Project [1] 76:6 pursues [1] 115:15 5 96:12 82:16 84:3 87:22 95:18
12 106:3 121:22 134:18 prolong [1] 44:22 push [1] 148:6 readily [2] 82:9 126:7 162:24 165:19 168:3,12,18
prevent [11] 5:11 98:23 promote [7] 11:10 19:2 51: put [26] 6:19 25:19 28:4 34: ready [1] 163:16 173:14 175:12
100:15 101:17 102:21 117: 21,22 52:3,4 138:22 18 35:22 43:22 49:5 50:24 real [9] 5:13 39:24 40:1 70: records [1] 111:10
1 139:11 140:22 141:22 prompt [1] 147:18 51:17 69:7 86:17,17,21 88: 2 77:24 87:21 93:5 123:21 recruitment [1] 116:10
155:1 159:18 prong [1] 69:17 17 100:7 101:12 105:19 156:23 redacted [1] 25:6
preventing [8] 5:9 13:16 propaganda [3] 5:6,9 175: 108:23 110:2 121:17 122: real-time [1] 73:24 Reed [1] 40:22
15:4 29:10 42:8 92:7 154: 11 8,23 134:10 141:7 164:13 realistic [1] 53:2 references [1] 143:10
6 157:12 proper [1] 107:9 171:13 realities [1] 115:19 refine [1] 142:8
previously [1] 135:16 properly [1] 83:4 puts [1] 34:12 reality [2] 59:1 169:20 reflect [2] 126:1 127:2
primarily [2] 44:24 80:9 property [1] 22:18 putting [3] 51:10 93:10 realize [1] 33:10 reflected [1] 132:4
primary [1] 79:5 proposed [3] 45:20 142:12 169:15 really [35] 16:2,6,9,11,14 reflecting [1] 140:6
principal [2] 23:21 31:11 143:8 puzzling [1] 121:2 20:5 32:21 36:13 60:9 61: reflects [6] 6:11 35:6 64:15,
principle [5] 16:10 132:4 proprietary [1] 144:25 19,20 63:13,19,21 64:10 16 140:4 158:2
134:24 145:16 156:5 prostitution [2] 45:7 46:15
Q 65:23 67:23 68:14 76:7 83: regard [3] 127:8 161:24
principles [3] 152:20 160: protect [8] 36:24 117:18 Qatar [1] 18:9 24 85:4,16 99:10 104:8,9, 162:2
7 161:3 141:19 144:25 156:7 158: qualified [10] 4:17 6:14 7:4 10 109:1,15 121:9 123:16 regime [1] 165:18
print [1] 75:18 9 160:5 175:1 23:19 24:2,6 33:7 64:19, 129:20 143:1,15 150:3 Registration [2] 94:7 123:
printed [1] 10:22 protected [10] 17:14 69:7 23 147:23 164:23 4
prior [1] 91:17 118:8 130:14 144:12,15 quality [1] 108:10 rearranged [2] 114:23,24 regular [1] 25:19
prison [1] 141:7 150:9 152:25 156:13 159: quantities [1] 115:13 rearranging [1] 114:17 regulate [4] 70:11 131:6
privacy [4] 142:14 164:12, 2 question [53] 11:15,18 12: reason [24] 16:10 18:11,15 150:14 166:24
15 172:14 protecting [1] 142:13 22 14:16 17:2 22:6 24:21 19:4 24:4 46:13 54:22 55: regulated [5] 80:20 96:2
private [1] 8:18 protection [9] 14:16 43:25 26:11 32:20 47:1,6,6 50:3 1 59:5 62:8,25 71:16 89:9 107:1 137:20 160:5
privileged [1] 108:10 142:17 154:2,8,24 156:22 51:11,14,16 58:5 59:13 60: 107:3 109:2,20 112:22 regulates [2] 73:23 74:13
pro-American [1] 106:11 157:16 158:15 10 61:6 67:19 79:15 80:23, 131:3 138:14 141:24 142: regulating [12] 39:3 41:8
pro-Catholic [1] 89:22 protections [1] 155:3 24 83:4 84:19,20 86:24 88: 25 145:15 147:24 151:8 91:18 106:9 130:18,19
pro-China [4] 76:23 113: protestors [1] 168:8 21,22 89:5 93:8 96:7,14 reasonable [2] 48:23 142: 131:9 132:7 135:24 137:
18 131:7 138:17 provide [3] 57:3 109:1 161: 98:19 106:4 111:3 113:14 1 14,15 146:4
pro-Chinese [2] 35:10 61: 16 114:10 130:4 140:24 146: reasonably [2] 79:17 122: regulation [10] 37:20,24
1 provided [3] 23:15 147:21 13,17,25 147:13 149:13 9 38:3,4,6 39:8,17 126:7
pro-Democrat [1] 36:15 162:22 154:17 155:9 156:17 157: reasons [27] 4:13 6:4 9:2 130:13 150:8
pro-foreign [1] 106:12 providers [4] 57:3,5 160: 7 160:9 168:1,23 23:21 31:1 34:10 37:7 39: reinforcing [1] 168:12
pro-Republican [1] 36:15 15 161:14 questioning [2] 12:15 20: 20 49:20 54:8,9 56:14 60: rejected [1] 173:12
probably [2] 24:17 95:16 provides [2] 108:25 156: 13 20 61:12 68:13 72:21 84: related [2] 140:3 174:10
probe [1] 155:20 23 questions [15] 6:7 20:13 14,21 86:7 89:16 91:5,19 relates [1] 166:8
problem [25] 25:5 32:4 39: providing [2] 57:8 95:2 23:7 26:6 51:15 57:22 63: 102:17 104:1,3 109:5 172: relevance [3] 15:1 152:9,
24 40:1 42:15,18 45:25 50: provision [11] 23:19 36:24 7 73:18 97:19 102:7 103: 20 13
22 64:1,5 67:22 70:3 71: 43:4 47:22 79:23 80:3,8 24 117:19 153:16 165:8 REBUTTAL [6] 3:13 38:15 relevant [8] 26:11 143:8,14
11 84:5 85:3,14 94:1 112: 84:25 142:20 157:3,15 168:20 148:18 163:25 170:11,12 146:2 151:16 152:3 157:
1,3 121:13 128:2 152:20 provisions [6] 84:24 85:1 quick [4] 93:6 113:14 146: recall [1] 62:22 14 159:3
153:5 158:3 163:3 88:25 89:7 113:1 158:8 12,17 receive [8] 73:2 100:22 relied [1] 160:23
problematic [1] 121:24 prudent [1] 152:18 quite [5] 38:16 41:19 59:24 103:4,7 104:20 131:22 relies [1] 172:4
problems [8] 13:23 46:17 public [6] 13:7 22:9 51:25 103:11 111:14 132:1,5 rely [4] 95:12 112:8 126:21
71:1,8 74:8 151:19 154:22, 72:13 95:18 161:20 quote [1] 8:13 receiving [1] 104:9 160:6
23 publication [3] 75:19,20 R recent [2] 96:6 104:18 remains [1] 51:13
proceeds [2] 6:19 14:22 101:16
racial [1] 156:16 recently [1] 135:18 remedy [7] 13:11 14:11 81:
process [6] 37:13 86:1 publicational [1] 108:4 racism [1] 111:12 recognition [1] 146:9 6 82:22 117:2 121:23 127:
148:12 160:7,14 161:3 publications [1] 100:16 radio [2] 15:8 165:21 recognize [9] 102:25 111: 4
procure [1] 83:9 publish [6] 10:6 100:6 104: raise [3] 103:8 127:8 153: 18 117:12 118:1 139:10 remember [2] 100:18 104:
procured [1] 80:11 10 107:23,24 108:1
15
147:4 158:23 159:12 165: 20
product [5] 4:24 30:19 34: publisher [3] 74:18 75:5 16 remiss [1] 140:10
Heritage Reporting Corporation
Sheet 11 President-Elect - remiss
 187
Official - Subject to Final Review
remove [1] 131:14 9,10,11 138:3 142:5 147: 16 150:22 151:12,13,13,14 secretly [3] 115:17 116:19 20 116:8 140:4 149:9 163:
removed [3] 25:13,17,20 22 148:7 154:25 124:20 1 164:19
repeat [2] 27:19 29:14 restrictive [14] 5:22 36:23 sanctions [1] 13:22 security [84] 5:20 22:1 43: setting [1] 135:20
repeatedly [1] 113:15 49:1 50:8,11 53:22 140:25 satisfactory [1] 107:20 8 44:13 46:17 49:5 50:24 seventy [1] 86:21
replicate [1] 110:8 141:11 170:20,25 171:17 satisfied [1] 67:1 53:11 54:14 68:7,11,11,14, sever [2] 89:6 112:21
replicated [1] 110:17 173:10,14,21 satisfies [2] 152:22 155:14 15 73:6,11 74:7 76:12 77: severability [2] 112:17
reply [3] 20:23 25:2 114:11 restricts [2] 22:20 72:9 satisfy [5] 5:7 6:20 106:5 14,16,18,23 78:19 79:1,12, 158:4
Report [2] 172:4 175:9 rests [1] 142:3 155:17 167:16 17,18,20 80:2,6,9,19,21,25 several [1] 165:10
reporting [1] 161:20 result [1] 169:4 saturated [1] 175:13 81:18 83:9,16,18,20,21 84: severe [2] 33:18 160:24
reports [2] 25:13,19 results [1] 39:18 save [1] 113:8 1,5,19,21 85:18,22 90:5,20, severed [2] 112:25 158:11
represent [3] 23:5 104:8 reverse [2] 73:16 175:15 saw [1] 167:9 24 99:15 100:7 113:3 114: severely [1] 14:8
126:5 review [7] 27:8 30:20 39:6 saying [53] 8:8 9:6,13 12: 14,18,21 115:11 116:17 SG [2] 52:10 113:9
representation [1] 21:15 40:4 95:3 161:9 172:4 11,18 13:8 18:15 32:3,10 117:8,18 121:20 127:14 share [5] 53:13 55:13 88:5
representing [1] 144:10 reviews [3] 4:25 34:8 42: 34:14 38:17 41:6,11,13 44: 128:15,25 132:22 134:5 105:5 172:8
reprieve [1] 57:13 21 3,6 46:7 54:2 55:10 58:8 135:8 140:15 141:2 142: shared [3] 80:12,15,16
Republic [3] 16:19 130:22 rich [1] 129:18 62:16 65:19 67:7 68:6 70: 12,14 143:7 150:23 153:2 sharing [8] 5:24 50:13,23
149:17 rid [1] 90:21 4,7 74:21 78:15 81:6,7 83: 158:9 161:10 163:18 164: 54:25 62:5 141:5,23 143:1
request [4] 25:18 102:4 rights [34] 8:2,3 9:15 10:12, 15 85:17,20 89:15 92:14 10,16 165:23 166:4 167:17, she's [1] 171:5
129:8 168:6 12,18 14:15 17:4,11 18:17 98:7,12 99:5,14 102:8 113: 25 171:18 172:3 sheer [1] 86:14
requests [1] 172:8 22:4 32:17,18,19,21 33:3 24 114:16 121:14 122:1,4, see [18] 16:17 17:8 26:22 Shein [2] 171:20 172:4
require [7] 8:14 42:12 90: 35:19 36:1,4,6,7,12 60:13 18 124:11 126:19 131:7 29:23 34:25 35:1,5 57:9 shirt [3] 109:15,16,18
21 91:4 94:15,20 103:8 72:10,10 99:16,24 101:3,7 142:24 145:6 148:4 157: 59:24 66:25 83:10 136:9 short [3] 6:1,20 57:13
required [3] 71:1 94:13 105:24 130:6 131:22,25 11 138:17 148:3 162:25 163: shot [2] 66:2 75:24
167:18 145:18 says [34] 6:13 7:2 20:19 21: 22 175:9,12 shot-through [1] 155:2
requirement [1] 151:2 Riley [1] 88:7 6 24:24 25:7 27:20 30:22 seek [1] 156:17 shouldn't [1] 4:13
requirements [1] 144:7 rise [1] 105:8 32:6,22 33:20 40:12 43:4 seeking [9] 29:11,18,20 64: shove [1] 148:6
requires [5] 4:16 44:25 51: risk [18] 5:12 28:18 54:1,3, 46:16,16 49:14 53:12 57:2 2 116:14 128:21 140:4 show [4] 21:3 144:9 149:21
19 58:19 116:25 7,9,11 69:24 123:21 127: 58:10 59:19,19 60:17 64: 165:12 166:24 151:13
requiring [3] 64:9 89:16 14 156:11 160:21,24 161: 18,21 65:1 69:25 79:24 83: seeks [2] 5:10 115:11 shown [1] 81:5
169:1 17 165:4 167:25 173:8,9 24 93:17 97:13 121:25 seem [5] 49:12 66:8 96:3 shows [6] 25:8,9,12 44:20
resist [1] 28:9 risks [7] 53:3,5 67:25 68:1 138:4,8 142:20 111:13 144:21 50:23 166:3
resolve [2] 163:15,19 78:6 85:5 159:16 scarce [1] 106:20 seems [8] 9:7 20:15 34:20 shut [21] 4:12 7:25 10:11
resolved [1] 95:14 road [1] 66:25 scarcity [8] 15:17 16:8,13 54:17 86:18 134:13 145:6 21:24 36:14 39:14,22 43:5
resort [1] 173:20 ROBERTS [37] 4:3 8:7,11 106:17,18 107:5 165:14,17 153:12 56:10,20 58:8,9,19 74:23
resources [2] 17:14 106: 9:4,16 37:14,18 38:8,12,21 scenario [3] 10:21 12:24 seen [1] 171:22 125:7 138:5 141:7 145:5,7
20 39:25 40:24 42:2 46:23 52: 150:24 self-government [1] 17: 169:16 171:16
respect [27] 25:11 32:14 13 57:18 63:4 72:1 81:3, scenes [5] 118:17 119:14 18 shuts [1] 55:24
62:3,5 70:17 97:25 98:8,8, 21 82:3,6,20,25 110:23 124:21 127:12 136:25 sell [4] 7:24 10:10 74:22 shutting [5] 39:18 55:8 71:
11 137:23 142:5,11 148:8 113:6,10 115:2 127:23,25 Schuster [2] 6:17 7:9 101:15 14,23 89:15
157:17 158:1,8,19,21 159: 128:7 129:11 144:18 145: scripted [2] 134:19 135:11 selling [1] 155:1 side [9] 12:1 43:23 55:3 92:
1,11 162:24 166:13 167:4, 2 168:21 170:9 175:17 scrutiny [66] 5:8 11:19 14: send [3] 62:9 90:4 127:19 3 141:3 144:20 146:20
12 168:1,10 174:10 room [1] 123:12 17,23,24 15:12 19:22 28: senior [1] 164:25 151:23 174:17
respond [4] 26:3 48:24 93: roughly [2] 122:25 165:11 20,25 34:16,25 36:17 40: sense [11] 5:11 45:3 56:15 sign [2] 62:13 122:21
20 131:21 rubble [1] 30:25 23 42:16 44:9,14,15,16 45: 57:13 98:11 132:2 151:17 significant [1] 7:8
responded [1] 24:25 rule [2] 137:14 152:19 11,11 46:19 47:18 48:6,15, 159:3 172:20,22 174:4 silence [2] 120:10 125:1
Respondent [5] 1:8,15 2:8 rules [1] 125:16 19 50:20 51:19 53:21,21 sensitive [12] 5:24 50:14 similar [2] 48:4 159:17
3:12 115:6 run [6] 48:14 82:23 123:13 57:23 58:1 59:14 66:18,20, 54:25 55:13 115:13 127: Simon [2] 6:17 7:9
response [2] 15:13 25:24 134:23 143:1 147:9 25 68:2 69:12,13,16 72:17, 17 129:2,3 154:11 165:3 simplistically [1] 138:16
responses [1] 54:20 run-up [1] 94:8 19 97:14 106:2,5,9 117:6 170:22 171:2 simply [28] 5:23 7:13 12:18,
responsive [2] 154:4 166: runs [1] 96:23 130:15 132:10 134:22 140: sent [1] 132:8 25 18:18 19:6 20:22 46:14
7 Russia [1] 13:22 13 150:10,17,20 152:14,14, sentence [1] 50:5 50:12 53:12 55:10 56:16
rest [4] 20:4 80:7 87:23 21,23 155:18 158:16,18,21, sentences [1] 55:12 73:7 84:13 92:9 93:18 118:
158:11
S 23 170:17,18 173:17,18 separate [3] 81:16 83:5 89: 23 124:25 138:24 144:7
restrict [3] 22:20 41:12 safeguard [2] 161:5 167:
se [2] 70:13 155:25 4 147:10 152:18 159:17 161:
175:1 24 seal [1] 144:25 separately [2] 62:13 157:9 15 166:14 170:20 171:9,16
restricted [4] 25:14,17,21 safeguarding 132:13
[1]
sealed [3] 143:15,18 144: separates [1] 78:22 since [2] 5:11 167:15
48:19 safety [1] 12:8
22 seriously [1] 161:20 sincere [1] 155:6
Restricting [2] 73:12 173: sake 47:17
[1]
search [3] 17:19 120:21 serve [1] 17:15 sincerely [1] 154:18
19 sale [1] 22:21 172:6 servers [1] 53:8 single [6] 5:1 34:8 41:25
restriction [16] 6:23,25 7: salesmen 62:9
[1]
Second [5] 4:21 9:5 25:12 serves [1] 140:14 84:23 85:23 173:3
11,12,14 31:9 40:5 63:1 same [23] 16:20,22 40:3 87:
66:6 80:18 service [4] 57:2,3,5 160:15 singled [1] 34:10
65:15 67:8 113:21 137:7 25 97:19 101:3 113:23 secondary [1] 79:7 services [2] 57:8 161:16 singles [2] 5:1 34:8
139:18 142:23 165:12,25 124:24 126:13 130:1 131: secret [6] 26:6 52:8 94:24 serving [1] 114:13 site [6] 74:5 85:5 86:11 87:
restrictions 34:15 137: 4,10,11,12 136:5,20 140:
[8] 95:1 96:5 144:3 set [9] 9:15 22:4 43:11 49: 15 119:16 146:11

Heritage Reporting Corporation

Sheet 12 remove - site
 188
Official - Subject to Final Review
sites [4] 86:25 87:9 88:18 12 start [4] 9:12 17:21 147:3 struggling [2] 139:17 151: sweeps [1] 156:12
171:21 sow [2] 73:12 76:22 161:19 5 system [6] 120:9 143:25
sits [2] 53:8 54:10 sowing [1] 83:24 started [2] 32:9 81:17 stuff [2] 87:12 97:5 149:7 159:2,19 166:21
sitting [2] 68:10 85:16 space [3] 56:17 135:24 state [5] 12:11 32:15 37:2 subject [9] 8:14,21 27:8 34:
situation [8] 13:5 38:2 71: 161:3 52:25 111:10 25 44:9 72:17 124:15 135:
T
2 89:13 101:9 110:15 111: spanned [1] 141:17 state's [1] 112:4 21 139:12 table [1] 142:11

9 149:4 speaker [19] 5:1 12:4 18: state-owned [1] 100:16 subjects [1] 152:7 tailored [5] 70:19 117:7
situations [2] 125:17 137: 22 30:22,24 31:1 34:8,11 statement [1] 160:22 submission [2] 77:1 79:5 153:3,4 155:8
25 39:21 42:1 44:8 46:18 60: statements [1] 22:9 submit [1] 163:16 tailoring [6] 67:23 70:18
six [1] 167:10 11,12 63:10 101:10 137:4 STATES [47] 1:1,22 4:15 8: submitted [2] 175:19,21 92:5 93:8 124:9 126:19
small [2] 104:21 106:21 138:2 145:9 9 9:7,14,14 15:5 17:3 18: subsidiaries [1] 166:23 taint [2] 156:15,15
social [11] 4:22 30:17 80: speaker's [1] 60:12 17 19:12 20:7 22:20,24 23: subsidiary [9] 9:14 21:7, taints [3] 68:11 79:6 154:6
17 109:3 110:1 114:4 123: speaker-based [5] 34:15 24 24:9 25:10 27:6,7 31:4 11 129:10 141:22 145:20 talked [3] 74:15 94:3 171:
10 127:7 167:8 172:9,10 125:25 137:7,9 145:12 33:25 36:3 60:22 72:15 76: 150:13 151:12 157:14 19
Society [1] 32:13 speakers [12] 12:25 41:24 4 78:11 88:14 115:21 118: subsidiary's [1] 151:15 target [4] 5:13 12:25 37:11
software [2] 159:5,10 42:19 43:15 45:5 46:17 63: 25 123:23,25 128:14 129: substance [3] 83:21 114: 126:8
solely [1] 95:17 15 72:25 73:3 107:15 137: 21,23 133:10 134:17 144:6 22,24 targeted [3] 35:18 43:14
Solicitor [4] 2:6 96:15 103: 15,19 145:17 146:9 148:2 149:6, substantial [2] 142:6 162: 117:17
11 112:5 speaking [6] 4:15 17:3 19: 18,21 150:15 164:18 166: 23 targeting [4] 31:1 118:2
solution [1] 45:24 7 36:2 83:7 120:4 16 171:25 substantive [1] 173:23 126:8 152:25
solved [2] 88:11,12 specific [7] 116:14,15 120: stations [2] 165:21,21 succeed [2] 162:8 166:2 team [4] 23:23 24:3 61:25
solves [1] 94:1 17,17 139:11,12 143:6 statute [19] 32:22 33:20 65: success [3] 162:13 174:8, 62:3
Somebody [11] 20:25 21:1 specifically [11] 34:23 48: 18 66:19 73:23 74:13 113: 9 technical [4] 139:13 171:5,
25:3 34:5 38:18 39:8,18 25 60:17 102:4 124:14 2 131:3 154:19,25 155:2 suck [1] 172:11 7,14
40:7 74:19 82:23 138:4 134:21 136:14 147:21 157: 158:3,4,12 163:19 165:24 suffer [1] 33:18 technological [2] 141:25

somebody's [1] 109:13 18 165:22 175:10 169:24 170:1,6 suffering [1] 8:4 143:11
somehow [11] 30:13 31:4 speech [107] 4:12,19 5:14 statutory [2] 146:25 147: suffice [1] 141:1 technology [1] 29:13
145:18 150:17 154:5,6 6:9,15 7:7,13 9:15 13:1 17: 12 sufficient [4] 156:24 161:5 teenagers [2] 52:21 164:
164:13 173:6 174:20,21,21 10,12 18:17 26:11,17 29: stay [4] 163:6,11 173:25 163:15 165:14 21
someone [4] 12:5,13 74:8 15,18 30:9,12 31:9 34:5 174:5 suggest [3] 49:12 116:13 tees [1] 146:24
124:20 36:16 38:20,23,24 39:6,14, stayed [1] 169:4 158:10 teeth [1] 20:2
someplace [1] 134:19 19,23 40:15,16,20,22 41:1, stays [1] 174:11 suggested [5] 48:18 50:9 television [2] 15:8 106:23
sometimes [1] 125:24 24,25,25 43:1,16,21 47:4,9, step [8] 36:8 41:18 59:9,12 96:9 161:23 172:24 tells [4] 60:19 76:19 83:23
somewhere [1] 107:21 14 51:22 52:4 55:8 63:14 71:23 91:17 105:25 117: suggesting [5] 35:17 49: 104:3
soon [1] 147:22 65:15 67:4,8,9,11,11,13 68: 18 17 67:25 71:9 150:13 temporary [1] 162:7
sophisticated [1] 138:15 15 69:7 70:25 71:15 72:14 steps [2] 84:9 167:24 suggestion [3] 141:20 162: Temu [3] 85:6 171:20,22
Sorrell [2] 74:11 102:18 73:12,20 74:1,14,19 91:18 still [18] 10:9 14:2,3 19:21 4 169:10 tens [3] 52:20 85:25 132:22
sorry [9] 23:6 55:14 83:20 99:3 100:6,19,20 103:22 20:17 32:24 43:12 44:2,6 suggests [4] 50:16 55:17 term [1] 168:25
93:3 101:20 124:6 131:18, 105:1 107:10 117:13 118: 54:9 56:9 59:8 65:5 83:4 65:17 137:20 terms [3] 39:6 65:21 143:7
19 146:16 10 120:6 121:24 123:23 85:2 139:7 145:24 151:4 summary [1] 91:15 terrible [1] 78:11
sort [5] 12:2 63:8 103:4 124:5,12 126:20 127:5 stop [8] 38:17 57:9 64:24 Super [1] 171:22 terrorism [1] 77:25
134:9 170:4 130:14,18 131:4,7,8 132:8 81:6,7 126:20 154:4 158:7 supply [1] 19:20 terrorist [2] 66:11 76:14
SOTOMAYOR [66] 10:24 134:16 135:10 136:1,5,14 stops [1] 157:3 support [1] 66:19 test [4] 53:22 72:19 94:5
11:6,15,21,25 12:17 13:4, 137:8 140:5 149:14,15 store [2] 122:21,22 Suppose [8] 7:18 10:2 16: 163:21
10,24 14:2,10,13,19 46:24, 150:9,15 152:25 156:13 stored [1] 80:11 18 37:2 43:16 129:12,15 testing [2] 125:19,21
25 47:11,16,21,24 48:7,10, 157:4,7 159:2 173:19 174: stores [1] 56:25 149:16 tests [1] 152:15
13,22 49:7,18,23 50:2,6,17, 15 175:1,2,7 straight [1] 35:12 supposed [3] 8:20,25 153: text [6] 73:22,23 74:13 80:
21 51:1,5,9 52:2,9 86:10, speech-neutral [3] 13:20 strange [1] 98:6 10 15 112:6 175:5
14,16,20,23 87:17 88:8,13, 40:13 45:5 Street [2] 69:5 107:23 suppositions [1] 87:18 theaters [2] 18:24 19:1
21 89:3 90:8,12 113:7,8 spell [2] 55:21 56:20 strict [28] 14:24 19:22 34: suppress [4] 116:14 120: themselves [3] 117:11
115:23 131:19 142:15 143: spelled [1] 79:13 15,25 40:23 44:15 45:11 10 124:5 136:1 146:4,10
5 157:1,11,23 158:13 159: spies [2] 52:23 78:10 48:6 51:19 53:21 66:18,19, SUPREME [2] 1:1,21 theoretically [3] 65:10 67:
21 168:23 169:3,9,19,23 square [1] 72:13 24 68:2 69:12,13,16 72:17 Surely [3] 7:23 36:6 37:10 5 112:24
170:4,7 172:1 Srinivasan [2] 15:2 138:19 97:14 106:2,5,9 130:14 surgically [1] 131:14 theory [3] 18:25 62:9 125:
sought [3] 116:4 142:4 stage [1] 119:5 140:13 150:20 158:16 170: surprised [2] 31:13 141:12 13
150:14 stand [2] 6:1 145:23 17 173:17 surveilled [1] 144:13 there's [46] 16:9,10 18:14
sound [1] 140:15 standard [6] 5:8 39:6 40:4 strikes [1] 26:12 surveilling [1] 168:11 19:18 23:22 29:5 30:22 31:
sounds [2] 68:1 141:24 59:14 173:22 174:8 strings [2] 119:14 120:1 suspect [1] 104:3 7 39:2 40:2 41:9 50:15 54:
source [14] 22:17 23:25 27: standards [1] 173:19 strong [4] 43:14 153:13 suss [2] 44:9,10 22 55:16,25 56:2 57:4 58:
5 29:11 35:22 58:14 61:14, standing [3] 68:6 101:14 160:10,14 sustain [5] 5:20 68:16 84:9, 2 70:2 71:16 74:10 79:7
14,22,25 62:4 142:2 150: 104:14 stronger [1] 34:21 12 112:19 87:12 89:22 97:1 100:3,6
18 166:20 standpoint [2] 114:8 152: struck [2] 6:16 7:9 sustainable [1] 80:24 103:3 112:17 121:8,10
sovereign [1] 164:17 15 structure [5] 18:20 38:3,7 sustained [1] 79:19 122:18 133:1,4 140:24
Soviet [4] 133:8,9,13 135: stark [1] 164:2 39:8 105:21 sweep [1] 171:13 143:23 147:23 149:1 153:

Heritage Reporting Corporation

Sheet 13 sites - there's
 189
Official - Subject to Final Review
1 154:18 155:10 156:8,9, 174:19 151:15 153:4 159:17 167: 66:8 73:13 76:21 115:12 unworkable [1] 111:14
14 164:17 167:7 TikTok's [13] 4:196:9,15 7: 1,20,23 129:23 up [32] 8:6 9:25 20:12 57:
therefore [5] 7:5 64:7 69: 7,13 28:3 31:15 55:10 67: turn [6] 39:18 52:23 78:10 undermines [1] 79:2 21 62:13 63:21 65:3 76:9
12 72:16 121:19 4,8 116:8 149:15 175:14 84:1 115:17 144:2 undermining [3] 92:14,17 82:12 85:17 93:5 101:2
they've [8] 23:18 34:10 53: timeframe [4] 23:6,13,21 turned [1] 103:17 175:8 102:23 106:4 110:3,7 123:
6 81:12 82:3 109:9,10 167: 61:20 Turner [1] 106:22 underneath [1] 77:18 3 133:5 136:7 138:5 141:
15 timeline [2] 24:17 167:14 turns [2] 134:18 175:10 underscores [3] 22:2 65: 13,16 143:16 145:5,7 146:
thinking [5] 120:3 122:12 today [10] 67:7 72:14 78:9 Twitter [2] 74:20 167:10 14 71:10 25 147:25 159:9 162:17,20
159:4 164:4 174:22 80:23 94:3 122:3 125:9 two [30] 23:21 25:8 37:7,8 understand [39] 10:16,25 164:24 172:11
thinks [4] 88:16 149:19 141:13 163:17 164:22 52:10 54:20 61:11 68:13, 13:14 17:7 18:11 23:10,18 update [2] 23:25 62:1
155:20 162:7 together [4] 27:5 105:8 14 73:21 74:10 78:22 83:5 24:1,5,14 43:3 46:6 54:15 updated [1] 161:10
third [3] 38:24 39:17 59:5 153:24 156:20 84:9 89:6,16,18 98:19 100: 55:23 56:10 62:15 63:11 upheld [1] 66:22
third-party [3] 59:2 160:15 tomorrow [1] 138:6 2,3 102:17 109:5 112:3 66:17 67:17,21,24 68:19, uphold [3] 80:5 84:22 156:
161:14 took [1] 162:17 117:24 138:7 153:10,23 24 69:21 76:7 77:10 81:20 24
THOMAS [15] 6:8,22 7:10 tool [2] 116:9 128:19 154:20 171:20 173:14 87:2 91:13 96:22 110:22 upside [1] 103:17
42:3 73:19,22 74:3 75:3,6, top [2] 75:25 116:10 type [6] 41:10 52:4 123:1 111:25 118:4 125:18 128: user [11] 5:24 50:14 53:7,
13 110:25 117:20 118:5,11 topics [3] 136:2,14 140:6 132:12 165:12 171:5 1 152:17 156:1 158:17 14 54:25 55:13 88:5,16
168:22 total [2] 10:7,21 types [7] 21:10 22:21 37:3 174:1 170:22 171:2 172:5
though [12] 25:21,22 36:21 totally [5] 17:23 40:13 45:4 57:2 116:15,15 171:6 understanding [2] 95:18 user-generated [4] 4:23
38:16 65:1 82:18 96:10 111:24 136:9 Typically [1] 59:15 153:23 30:18 34:6 42:20
100:2 119:7 122:18 123: touch [1] 165:7 understood [8] 31:15 45: users [18] 29:22 80:16 91:8
20 147:14 touched [2] 164:20 166:8
U 23 69:23 78:17 107:4 126: 100:25 101:3 115:24 128:
thoughts [1] 95:8 track [2] 168:7,8 U.S [43] 4:14
6:24 8:8 9:6 5 127:1 168:24 22 131:12 132:11,15,17
thousands [1] 110:12 tracking [1] 172:5 11:2 17:6 18:21 19:6 20: undertake [2] 13:12 168: 137:19 146:3 150:12 151:
threat [12] 11:9 12:12,13 Trading [2] 13:3,21 19 21:17 22:3 24:6,12 53: 14 14 164:13 171:25 172:8
53:18 73:11 77:14 88:14 tradition [10] 15:3 72:22 13 76:21 83:25 88:17 115: undertaken [1] 128:23 uses [2] 6:11 98:25
115:10 116:23 136:24 143: 77:5 86:8 103:14 106:14 12 117:3,22 129:10 137:18, undertook [1] 71:18 using [10] 10:4 44:25 75:6
3 170:23 117:2 140:18 165:9 166:3 19 141:5,22 144:11,13,15 Underwood [4] 84:17 89: 78:7 85:6 88:15 130:23
threaten [2] 128:15 132:21 traditions [1] 94:6 145:20 146:3,3,6 149:18 12 111:4,8 144:14 164:4,21
threatened [2] 12:9,9 trained [1] 173:5 150:12 151:12,15 157:13 undisputed [1] 17:23 utter [1] 29:18
threats [1] 117:8 translated [1] 27:5 166:9,15,17,25 168:10,11 unfold [1] 30:8 Uyghurs [1] 168:8
three [1] 4:13 transparency [2] 25:13,19 U.S./China [1] 172:3 unilateral [1] 162:14
threshold [1] 63:9 travel [4] 4:25 30:19 34:7 U.S.A [3] 12:2 51:17 133: Union [3] 133:8,9 135:12
V
Throughout [2] 73:8 77:4 42:21 16 unique [1] 87:15 valid [3] 5:984:6 117:6
throw [1] 37:12 treat [2] 40:5 137:7 ultimate [4] 8:12,21 9:17 uniquely [1] 5:2 valuable [2] 116:2 120:6
tied [1] 162:20 treated [2] 38:4 39:5 174:9 UNITED [49] 1:1,22 4:15 8: various [4] 79:4 84:2 138:
ties [2] 44:20 133:18 treatment [1] 5:2 ultimately [8] 8:4 13:17 27: 9 9:7,13,14 15:5 17:3 18: 20 166:22
TIKTOK [154] 1:3 2:3 3:4, trial [1] 87:22 10 28:3 39:22 66:22 174: 17 19:12 20:7 22:20,24 23: vast [2] 115:12 165:2
15 4:4,8,14 5:4,23 6:10,13, tricky [1] 160:9 15,18 24 24:8 25:10 27:6,7 31:4 verboten [2] 89:25 106:12
25 7:2,2,6,16 9:3,13,18,22 tried [3] 39:14 109:7 162: unapparent [1] 120:18 33:25 36:2 60:22 72:15 76: verse [1] 111:8
12:1 16:18 17:21,23 20:19 18 unbridled [1] 107:8 4 78:11 88:14 115:21 118: versus [8] 4:5 9:22 26:16
21:6,17 22:2,24 24:23 25: trigger [8] 30:16 40:23 46: unclear [1] 31:21 25 123:23,25 128:14 129: 69:11 76:5 111:4,8 151:6
11,14,15 27:10 32:18,24 19 130:14 132:9 134:22 unconstitutional [2] 79: 21,23 133:10 134:17 136: vetting [1] 27:8
33:4,5,14,17,22 35:2,5,8,9, 150:20 152:13 10 90:2 22,23 144:6 145:17 146:8 vibrant [1] 72:14
9,13,22 36:1,14 37:21,23 triggered [2] 34:5 41:24 Under [41] 4:11 8:5 10:15 148:2 149:6,18,21 150:15 vices [1] 116:7
40:8 41:5,6,21,21 42:1,1 triggers [1] 60:12 12:4,4 18:19,25 22:13 23: 164:18 166:16 171:25 videos [14] 24:8,9,11,12 30:
46:2 50:13 51:17 53:12 54: trove [1] 165:2 20 44:14 48:5,19 50:20 53: universe [3] 5:1 30:21 36: 5 60:25 73:25 83:10,17,18,
24 55:14 58:9,11,18,19 60: true [10] 17:9 32:12 65:17 17 54:12 55:6 64:11 67:1, 9 21 105:2 114:17 127:11
6,21,21,22 61:3 62:19,23 120:20 123:6,9,10 124:24 4 68:17 70:22 71:8 72:19 University [2] 125:8 126: view [6] 6:11 66:8 87:15
63:2,21 64:21 65:2,8,19,20 128:11 141:21 73:1,10 80:5,13 84:16 94: 23 101:2 121:22 138:14
66:7 67:13 68:15 76:21 79: Trump [2] 56:6 162:19 4 100:18 102:18 106:12 unless [15] 4:16 6:13 7:3 viewed [1] 42:8
2 81:4,6,8,14 82:23 83:11 trumped-up [1] 138:24 132:10 134:22 144:25 160: 30:18 33:6 38:18 55:25 56: viewpoint [9] 75:20 107:
85:24 87:1 89:15,23 90:18 trust [3] 79:3 92:14,18 6 162:19 168:25 170:23 2,3 64:19 96:22 157:2 160: 12,15 124:16 138:2,10 139:
93:15 97:14 98:8,13 99:6 trusted [1] 144:5 173:19,22 21 162:7 167:16 6,25 150:16
102:13 108:2,3,17,22,25, truth [2] 17:19,19 under-inclusive [3] 5:21 unlikely [1] 136:19 viewpoint-based [2] 39:
25 109:10 110:7 115:10,20, try [9] 118:23 128:15,20 44:18 87:16 unpack [2] 48:8 61:24 20 137:10
21 116:11,25 117:14 121: 136:11 138:20 142:4 144: under-inclusiveness [3]
unprecedented [4] 39:12 viewpoints [8] 116:16 130:
25 122:17 127:10 128:3 15 151:9 152:18 48:1 85:3 171:20 71:23,23 115:22 11 135:22 136:2,15,22 139:
129:15,24 130:23 131:5,9 trying [35] 28:23,25 29:3,14 undergird [2] 161:12 166: unqualified [2] 132:18 134: 12 152:7
132:14 136:21 137:19 141: 46:10,11 57:25 58:2,25 63: 5 3 views [6] 76:23 120:10 126:
5,15 145:13 146:3,6,8 147: 11 68:23 69:20 86:4,5 99: underlies [1] 27:14 unrestricted [1] 117:14 6 127:2 136:20 140:6
16 148:20,23 151:3,12 156: 9,10 110:7 111:7 128:3,6, underlying [4] 17:15 28:16 unsuccessful [1] 110:9 vindicate [1] 156:18
4 159:19 162:19 164:2,4, 12 131:13 133:3 134:23 61:13,25 untethered [1] 28:16 vindicated [1] 77:22
22 166:9,15,25 170:13,21 139:4,11 140:7,21 146:5 undermine [7] 20:8 31:5 unusual [1] 20:18 violate [5] 8:1,2 10:11 156:

Heritage Reporting Corporation

Sheet 14 there's - violate
 190
Official - Subject to Final Review
5 170:1 weird [1] 90:22 works [3] 34:4 59:9 119:9
violated [1] 169:25 welcome [3] 6:7 73:17 117: World [18] 16:8 25:15,17
violating [1] 57:5 19 55:16 56:13 57:14 62:10
violation [4] 19:18 59:10 well-publicized [1] 144: 68:3 69:13,17 85:7 94:8
169:17 170:2 12 98:7 99:5 106:20 107:5
Virginia [1] 53:8 whatever [25] 7:21 10:6 11: 119:5 142:17
voice [1] 87:10 8 12:15 30:5 32:25 35:20 worried [13] 31:2 60:18,20
voices [2] 71:24 125:1 44:14 49:20 51:21 52:4 63: 76:19 79:16,18 83:14,24
voluntary [1] 88:4 24 65:2 82:6,7 97:24 98: 85:4 130:17 166:18 174:
voracious [1] 129:4 14,14 116:21 132:24 136: 18 175:7
votes [1] 111:22 11 138:8 149:5,24 169:19 worry [1] 79:17
vulnerability [7] 120:9 136: whatsoever [1] 129:16 worst [3] 42:12,24,24
8 140:8 143:25 155:4 159: Whereupon [1] 175:20 wow [1] 149:19
9 167:2 Whether [57] 4:17 14:19 writ [2] 159:19 175:13
17:2 19:17 28:4 30:13,14 write [1] 7:21
W 32:23 41:15,15 44:10,15 writer [1] 107:22
wagon [1] 27:20 47:2 53:20 54:23 60:15 63: written [2] 101:13 165:23
walk [3] 45:17 102:13 154: 12,16 69:12 70:21 76:24
1 82:11,14 84:8 87:5 88:16,
Y
walked 122:21
[1]
17 90:15 92:7 95:12 107: years 62:2 82:12 96:6
[9]
Wall [2] 69:5 107:23 13 108:13,14 109:13 120: 104:18 106:24 110:7 116:
walled [1] 144:11 22,23 123:15 130:4 133:4, 3 141:17 161:11
wanted [12] 7:22 10:6 19:3 6 140:24,25 146:20 147:1 yield [1] 24:21
20:12 44:15 74:19 93:19 155:16,20 156:17 158:14 York [6] 37:2,5,8,11 69:5
95:7 124:16 131:20 159:8 163:15,22 166:8,10 168:2 107:24
166:6 170:16 173:17 175:4,5 yourself [1] 30:3
wanting [1] 156:10 Whitney [3] 77:7 92:19,21 youths 78:9
[1]
wants [12] 28:1 33:1,4 51: who's [2] 74:8,9
22 97:24 98:14,15 100:15 whoever's [1] 148:18
Z
101:10,15 136:3 139:1 Zauderer [1] 71:8
whole [9] 15:25 59:5 87:12 Zubaydah [1] 95:4
war [3] 78:4 94:8 174:23 113:1 130:20 151:2 154:
ward [1] 139:4 19 165:4 174:23
warning [5] 88:12 163:23 wholly [5] 67:15 72:8 97:
164:2,3,22 25 100:16 145:21
warrant [2] 22:15 150:10 Wide [1] 16:8
warrants [1] 137:17 will [17] 4:3,12 6:3 33:15 35:
Wash [1] 7:21 21,23 52:24 58:18 60:23,
Washington [13] 1:17 2:2, 24 74:6,7 135:7 136:11
7 7:21,25 8:3 9:24 10:5,12, 148:5,7,19
23 11:8 13:6 104:5 willing [5] 19:15 58:13,13
way [36] 11:8 12:7 14:22 30: 103:20 148:9
7 31:7 33:15 34:4 35:21 willingly [1] 147:25
53:6,7 59:9 60:25 62:20 win [4] 105:6,7,17,18
70:12,19 79:13 86:14 87: winners [1] 15:23
15 101:13 105:20 106:18 winning [1] 128:8
108:10 114:20,23 119:17 Within [8] 4:25 23:6 26:21
134:4 135:6,25 137:20 27:3 30:21 36:22 61:20
138:14 141:21 146:5 148: 167:6
24 154:15 156:13 158:22 without [8] 11:9 17:25 87:
ways [7] 13:19 73:21 74:10 22 95:2 99:6 143:1 163:1
80:21 124:1 129:24 138: 171:10
20 wonder [1] 41:9
weaken [2] 118:25 128:14 wondering [3] 40:2 70:21
wealth [1] 143:20 109:13
weapon [2] 116:12 129:7 word [5] 121:12 139:21,22,
weaponize [4] 115:20 118: 25 143:6
17 123:24,24 words [3] 41:4 101:4 160:5
wearing [1] 109:16 work [16] 8:16,22 48:5 72:
Web [1] 16:8 25 74:17,19 75:4 99:11,22
website [3] 87:14 122:1 100:4,14 101:11 116:5
172:15 122:4,6 163:18
websites [2] 86:2 87:25 worked [1] 102:3
weeks [1] 138:7 working [6] 52:25 75:23
weight [1] 69:8 98:24 102:6,8,21

Heritage Reporting Corporation

Sheet 15 violate - Zubaydah