TikTok’s Future in U.S. Depends on Bet on First Amendment

TikTok takes its fight to court

TikTok fired the latest broadside in its battle with Washington, suing to block a law that could force the company to split from ByteDance, its Chinese owner, or face a ban in the U.S.

The company argues that the law violates the First Amendment by effectively killing an app in the U.S. that millions of Americans use to share their views. Another problem: a divestiture within 270 days is practically impossible, Sapna Maheshwari and David McCabe report for The Times.

DealBook spoke with Maheshwari about the lawsuit filed yesterday and what happens next.

Do legal experts think TikTok has a chance at winning?

It could go either way.

Alan Rozenshtein, an associate professor at the University of Minnesota Law School, says that a victory is possible based on the “very, very substantial First Amendment challenge” involved. But he emphasized that it isn’t a certainty.

The government can justify infringing on First Amendment rights in certain cases — especially in matters of national security — and it’s also offered ByteDance the option to sell the app.

How does the lawsuit address the accusation that TikTok is a national security risk?

TikTok has always said that it has spent billions on a security plan that has addressed the government’s concerns. But it also shared a bit of a bombshell in its filing: The company said it had agreed to offer the U.S. government a kill switch that would shut off the app if it violates terms of a draft national security agreement.

In a separate case, a federal judge in Montana blocked a statewide ban of the app. Does that tell us anything about what might happen this time?

The judge in the Montana case said the ban most likely violated the First Amendment. He also said it violated a clause that gives Congress the power to regulate commerce with other countries — but that isn’t relevant here, since Congress passed last month’s bill.

TikTok challenged the Montana law and bankrolled a separate lawsuit from creators that use the platform. A second lawsuit from TikTok users is likely in the coming weeks.

HERE’S WHAT’S HAPPENING

An investigation finds the F.D.I.C. has a toxic and misogynistic workplace culture. Discrimination, bullying and sexual harassment are rife at the agency, according to a report released yesterday. The findings essentially corroborated reporting by The Wall Street Journal last year, and puts more pressure on its chair, Martin Gruenberg, even though it didn’t call for him to step down or removed.

The N.F.L. is said to be closer to allowing private equity firms to become team owners. They would be able to purchase up to 30 percent of an N.F.L. franchise under proposals being discussed, Bloomberg reports. Team owners are expected to present the possible change in ownership guidelines at meetings this month.

Washington revokes some export licenses for U.S.-made chips to Huawei. The move means that Intel and Qualcomm would be prohibited from supplying chips that the Chinese telecommunications firm uses in its laptops and mobile phones, The Financial Times reports.

Stormy Daniels reveals explicit details of her relationship with Donald Trump. The porn star testified for nearly five hours yesterday in the hush-money case about a tryst with Trump that’s at the heart of the case; she is expected to return to the stand tomorrow. But the former president got better news in Florida, where a federal judge indefinitely postponed his classified documents case, dealing him a potential pivotal victory.

Redemption for FTX

The collapse of FTX appears poised to have a happy ending for the failed crypto exchange’s millions of customers: The company said that it planned to repay all of their money, with interest.

It’s a rare moment where a bankrupt company makes creditors whole. But it also raises a question: Was Sam Bankman-Fried, the former FTX leader who was sentenced to 25 years in prison for stealing billions from customers, right when he said he could repay them?

Creditors have been optimistic this would happen, since John Ray III, who became FTX’s chief executive after it filed for Chapter 11 protection, floated the idea this year. Even before that, speculative bets on FTX bankruptcy claims — some bought up for pennies on the dollar — had become a hot investment.

Yesterday’s news also helped drive a 37 percent jump in the price of FTX’s crypto token, FTT, amid a broader rally in crypto assets and Bitcoin.

There are some caveats:

• Customers will get back only what they were owed as of November 2022, when FTX filed for bankruptcy, plus interest. That means that they won’t benefit from the huge jump in crypto prices since then: A customer owed one Bitcoin, for example, would get less than $20,000 — despite the token now trading above $62,000.

• The federal judge overseeing FTX’s Chapter 11 case, John Dorsey, must approve the company’s restructuring plan. That means that any payouts won’t be made for months.

Is this vindication for Bankman-Fried? The FTX co-founder has argued that the exchange was always solvent and was fully capable of paying back customers. That argument was advanced by his lawyers, friends and family in pushing for a more lenient sentence. From an essay by Ian Ayres and John Donohue, two law school professors and friends of Bankman-Fried’s parents:

The public would view Bankman-Fried very differently if they realized that FTX had sufficient assets to make whole its customers and other creditors all along.

(Bankman-Fried’s allies also faulted Lewis Kaplan, the judge who oversaw the former FTX chief’s criminal trial, for excluding evidence and testimony that Bankman-Fried could make customers whole.)

But critics say that it was never a given that creditors would be made whole. What’s enabling the likely repayment of customers is a combination of the recovery in crypto prices; the sharp jump in the value of FTX’s stake in the A.I.-start-up Anthropic, most of which the crypto exchange has sold; the federal government reducing its claims for unpaid taxes; and asset sales and clawbacks.

At Bankman-Fried’s sentencing hearing in March, Kaplan said of the exchange’s victims: “The defendant’s assurance that they will be paid in full is misleading. It is logically flawed. It is speculative.”

Red states ramp up their attack on E.S.G.

The war against climate finance is heating up in red-state politics.

The latest salvo involves the State Financial Officers Foundation, a group that works with Republican state treasurers to blunt President Biden’s climate agenda. Their tactics have also had a chilling effect on boardrooms, as the coalition seeks to get companies to back off their climate and social commitments, often by threatening to cut off doing business with them.

The foundation is introducing a new lobbying and political pressure group, S.F.O.F. Action. Its target: E.S.G., or the environmental, social and governance investing principles that grew into a trillion-dollar force on Wall Street, only to face a conservative backlash. The foundation is closely linked to Leonard Leo, an activist who led efforts to move the judiciary to the right and now focuses on defeating the E.S.G. movement.

S.F.O.F. Action will bolster anti-E.S.G. candidates and promote legislation that opposes the adoption of such principles. “S.F.O.F. Action will fight until E.S.G. as we know it is no more,” its executive director, Noah Wall, told DealBook.

State treasurers have become a powerful political force. Of 113 anti-E.S.G. actions since 2018, treasurers pushed nearly half, far outpacing governors and most other officials, according to a new report from Pleiades Strategy, which tracks anti-E.S.G. measures.

The moves are signs that the fight over E.S.G. is going local. Since 2021, lawmakers have introduced bills in 39 states to target E.S.G.; 40 of them have passed, in 22 states. That has helped lead to large companies withdrawing from climate commitments and scaling back business in states hostile to the E.S.G. investing movement.

87

— The percentage of respondents in a survey published today by the employment law firm Littler of more than 400 executives who were concerned about managing divisive political and social beliefs among their employees ahead of the 2024 election.

Geopolitics and Trump 2.0 at Milken

At the Milken Institute Global Conference in Los Angeles this week, attendees are talking about everything from deals to artificial intelligence. Yet there’s one topic that they’re less worried about: the U.S. election, DealBook’s Lauren Hirsch reports from the event.

Business moguls are taking Donald Trump’s potential return in stride. Attendees told DealBook that they expected more M.&A. and more pro-business government policies if the former president was re-elected. But they don’t expect him to unwind President Biden’s big industrial policies, such as the CHIPS Act or the Inflation Reduction Act, given the benefits those measures have bestowed upon Republican-led states.

Many said that Trump’s advisers would constrain him from making aggressive moves to consolidate power, including over the Fed — and the market is already pricing in a Trump victory in November. (That said, betting markets currently favor Biden.)

They’re more worried about geopolitics:

• The war in Gaza dominated conversations on panels and in private dinners and side conversations. But in an acknowledgment of heated debate over the issue, some have taken to calling it the “Middle East conflict” to avoid implying support for one side.

• The challenge of doing business in China is another top concern. Attendees see the fight over TikTok as emblematic of the clash between the world’s two biggest economies. Few at Milken see an easy resolution to the standoff over the video app, such as a sale of its U.S. operations to avoid a ban.

The weighty issues haven’t stopped attendees from finding time for a little fun. One of the hottest tickets was a dinner that the private equity firm Cerberus held at the house of the Republican pollster Frank Luntz, where people toured his replica of the Oval Office.

THE SPEED READ

Deals

• Private equity firms are reportedly weighing a takeover of Peloton, the struggling fitness company whose market capitalization has shrunk to around $1 billion. (CNBC)

• Silver Lake, the tech-focused investment giant, has raised $20.5 billion for its latest private equity fund, its biggest ever. (FT)

Policy

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