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The TikTok Case Will Be Determined by What's Behind the Government's Black Lines

In the high-stakes legal battle over TikTok’s fate in America, the government just played its hand. And it’s largely hidden from view.

Opening with Justice Louis Brandeis’s famous observation that “[s]unlight is said to be the best of disinfectants,” it accuses the government of wanting “this case to be litigated in the dark—with the free speech rights of Petitioners and 170 million Americans hanging in the balance.” More recently, the Ninth Circuit reviewed classified information as part of its decision rejecting Twitter’s request for the ability to publish more detailed transparency reports on government surveillance orders. It would not be unreasonable for the court to want to convince itself—and credibly signal to the challengers and the public—that it has done everything it could to check the government’s work, even if it means that a substantively thorny case is sidetracked by a procedural fight over secret evidence.

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