As soon as all appearances have been entered, we will begin the live blogging.
Hit refresh often, to see new material.
We are underway. . . .
✿ We will focus primarily on only matters that will not reveal classified matters, in our discussion of irreparable harm under Paragraph 1 of the challenged order, says USDC Judge Nichols. . . .
✿ This attempted shutting down of a US entity with one third of the nation as members, an expressive platform that adds 200,000 new members per day -- focusing primarily on protected expression, 30-some days away from a national election, is unprecedented in US history. Mr. Hall for TikTok speaking first. . . .
✿ There is simply no rational basis for tonight's single provision (Paragraph 1) taking effect, at midnight -- while all else (Paragraphs 2 through 5) is still another six weeks off -- is thus itself a violation of the APA in itself. . . .
✿ The cutoff tonight if it occurs, will end all security updates, to existing users -- which, if the goal is to prevent compromise by malign government actors outside the US, this app will become more not less vulnerable to misuse, by -- for example. . . Chinese state actors.
✿ Mr. Hall suggests the primary reason, after all, is to punish a business that embarrassed the 45th president. . . this is simply punitive. . . .
✿ The plain language of the statute the government relies on in issuing this directive. . . directly prohibits the action Trump attempts here, say the lawyers for TikTok.
✿ The able judge asks for TikTok's view of the constitutional questions; and the reply is that it cannot be that this is a simple business to business regulation case (as the Team Trump lawyers claim) like Acara, as the "core of the business here" amounts to a prior restraint of expressive conduct on matters of substantial public concern. . . .
✿ The government counsel (now up at the invitation of the judge) claims that decisions on national security are non-justiciable questions -- may not be reviewed by the courts. [This is a mis-statement of the existing federal law.]
✿ Judge Nichols (in the form of a question, adroitly) asks the government to explain whether determinations made about the carve-out in the statute it relies on are reviewable by a federal court. The government grudgingly concedes that the carve out is in fact reviewable. . . .
✿ The government's view is that shutting off security updates as of tonight will only cause "speculatve" harms, unless TikTok is admitting today that its app is insecure, as presently running. This is a silly rejoinder. If the goal is national security, the government ought to want security updates to continue. If on the other hand, the purpose is to punish Trump's perceived political enemies, this shutdown tonight makes perfectly good sense.
✿ Judge Nichols asks whether, if the government believes every video clip posted to TikTok is purely a "transaction, for an exchange of value" and not the communication of information, from one to another user. . . why isn't the government's action a "direct regulation" of communications based on their content. The government cites Walsh -- and the able judge says (correctly) Walsh is really all about a Chevron analysis (which considers how much deference a judge should give a government determination in an ordinary regulation of business transactions case -- not in a prior restraint / prohibition of expressions setting) -- i.e., not a case similar to our current TikTok case.
✿ In sum, the able judge clearly is implying he doesn't think Walsh controls, and it doesn't answer the questions set out here in TikTok.
✿ The judge asks for the government's best argument that the first amendment is not violated here. The answer offered claims that this executive action impacts all US citizens equally, so it cannot be expressive content related. This is an entirely preposterous view. The government cites business regulations cases -- and simply ignores the applicable law.
✿ Let's hear your defense of a due process claim, says the judge (and the judge broadly hints that TikTok wasn't accorded all the process it was due) -- and the government again lists business regulation decisions.
✿ The able judge is going to enjoin Paragraph 1 by late tonight -- that is now crystal clear.
✿ Judge Nichols is now accepting closing statements. . . TikTok will win. We are certain of it.
✿ Judge Nichols will issue an opinon by later today. . . with a public order containing the conclusion only (that TikTok will win). Then if there are materials to be redacted the parties will first see the opinion -- then the fuller opinion may be released tomorrow. We are adjourned.
It is fairly astonishing that my government would ever feel a need to make such patently stupid claims. But here we are.
नमस्ते
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