But later Kagan grilled US Solicitor General Elizabeth Prelogar, arguing for Biden’s administration, with a Cold War-inspired hypothetical question about whether Congress could have forced the American Communist Party to divorce itself from the Soviet Union in the 1950s.
“Content manipulation is a content-based rationale: We think that this foreign government is going to manipulate content in a way … that concerns us and may very well affect our national security interests,” Kagan said.
“That’s exactly what they thought about Communist Party speech in the 1950s, which was being scripted in large part by international organisations or directly by the Soviet Union.”
Francisco told Kavanaugh that on Jan 19 “at least as I understand it, we (TikTok) go dark. Essentially, the platform shuts down unless there’s a divestiture, unless President Trump exercises his authority to extend it”.
But Trump could not do that on Jan 19 because he does not take office until the following day, Francisco said.
“It is possible that come Jan 20, 21 or 22, we might be in a different world,” Francisco added.
Responding to conservative Justice Amy Coney Barrett, Francisco said it could take “many years” for ByteDance to divest TikTok.
Francisco presented the hypothetical situation of the Chinese government taking hostage the children of Washington Post owner Jeff Bezos to force him and his newspaper to publish “whatever they wanted on the front page of the Post, so China effectively has total control”.
“I still don’t think that Congress could come in and tell Bezos, ‘either sell the Post or shut it down’ because that would violate Bezos’ rights and the Washington Post’s rights,” Francisco said.
