Matt Schettenhelm
@mattschett.bsky.social
Bloomberg Intelligence, Litigation & Policy Analyst. TMT suits, FCC & FTC, after a decade practicing law. @umich, @gwlaw. Opinions mine, RTs≠endorse.
The curious thing about Trump's TikTok "qualified divestiture": it appears not to involve any divestiture by ByteDance at all. Our take today.
September 26, 2025 at 4:11 PM
The curious thing about Trump's TikTok "qualified divestiture": it appears not to involve any divestiture by ByteDance at all. Our take today.
Worth reading Judge Pan's dissent today raising dispensing power.
D.C. Circuit said groups that were denied appropriated funding couldn't sue for constitutional violation, only a statutory one. On statutory issue, court found no "extreme" violation. media.cadc.uscourts.gov/opinions/doc...
D.C. Circuit said groups that were denied appropriated funding couldn't sue for constitutional violation, only a statutory one. On statutory issue, court found no "extreme" violation. media.cadc.uscourts.gov/opinions/doc...
August 13, 2025 at 7:51 PM
Worth reading Judge Pan's dissent today raising dispensing power.
D.C. Circuit said groups that were denied appropriated funding couldn't sue for constitutional violation, only a statutory one. On statutory issue, court found no "extreme" violation. media.cadc.uscourts.gov/opinions/doc...
D.C. Circuit said groups that were denied appropriated funding couldn't sue for constitutional violation, only a statutory one. On statutory issue, court found no "extreme" violation. media.cadc.uscourts.gov/opinions/doc...
Puzzlingly, the "irrevocably relinquish" language is only included for some companies, for some periods. For example, it wasn't included in a 4/5 letter to Microsoft. But it then was added in a second letter to the company on 4/8.
x.com/mattschett/s...
x.com/mattschett/s...
July 7, 2025 at 1:57 PM
Puzzlingly, the "irrevocably relinquish" language is only included for some companies, for some periods. For example, it wasn't included in a 4/5 letter to Microsoft. But it then was added in a second letter to the company on 4/8.
x.com/mattschett/s...
x.com/mattschett/s...
Key Paramount-Trump legal backdrop:
1) Texas has anti-SLAPP law -- path to speedy dismissal of free-speech cases -- but CA5 says it doesn't apply in federal courts. There's no federal anti-SLAPP law.
2) No time limit in law on FCC reviews. FCC's on day 230 of informal 180-day review.
1) Texas has anti-SLAPP law -- path to speedy dismissal of free-speech cases -- but CA5 says it doesn't apply in federal courts. There's no federal anti-SLAPP law.
2) No time limit in law on FCC reviews. FCC's on day 230 of informal 180-day review.
July 3, 2025 at 12:56 PM
Key Paramount-Trump legal backdrop:
1) Texas has anti-SLAPP law -- path to speedy dismissal of free-speech cases -- but CA5 says it doesn't apply in federal courts. There's no federal anti-SLAPP law.
2) No time limit in law on FCC reviews. FCC's on day 230 of informal 180-day review.
1) Texas has anti-SLAPP law -- path to speedy dismissal of free-speech cases -- but CA5 says it doesn't apply in federal courts. There's no federal anti-SLAPP law.
2) No time limit in law on FCC reviews. FCC's on day 230 of informal 180-day review.
Admin law question re TikTok law extension:
Would AG letters "stating that there has been no violation of the statute" qualify as "agency action" ("statement of...particular applicability and future effect designed to...interpret... law") under APA?
www.whitehouse.gov/presidential...
Would AG letters "stating that there has been no violation of the statute" qualify as "agency action" ("statement of...particular applicability and future effect designed to...interpret... law") under APA?
www.whitehouse.gov/presidential...
June 26, 2025 at 1:44 PM
Admin law question re TikTok law extension:
Would AG letters "stating that there has been no violation of the statute" qualify as "agency action" ("statement of...particular applicability and future effect designed to...interpret... law") under APA?
www.whitehouse.gov/presidential...
Would AG letters "stating that there has been no violation of the statute" qualify as "agency action" ("statement of...particular applicability and future effect designed to...interpret... law") under APA?
www.whitehouse.gov/presidential...
The FCC has now passed its nonbinding 180-day timeline to act on Skydance-Paramount matter. FCC Chair Brendan Carr told Congress last July that he would support "deemed granted" remedy so FCC shot clock would have "teeth."
www.fcc.gov/transaction/...
www.congress.gov/118/meeting/...
www.fcc.gov/transaction/...
www.congress.gov/118/meeting/...
May 15, 2025 at 2:06 PM
The FCC has now passed its nonbinding 180-day timeline to act on Skydance-Paramount matter. FCC Chair Brendan Carr told Congress last July that he would support "deemed granted" remedy so FCC shot clock would have "teeth."
www.fcc.gov/transaction/...
www.congress.gov/118/meeting/...
www.fcc.gov/transaction/...
www.congress.gov/118/meeting/...
Reposted by Matt Schettenhelm
@mattschett.bsky.social thanks again for pointing this out! I updated my piece to refer to it and gave you a hat tip in the update.
www.americanprogress.org/article/publ...
www.americanprogress.org/article/publ...
Public Companies Should Be Transparent About Not Complying With TikTok Ban
Public companies’ reliance on Trump’s questionable executive orders allowing them to not comply with the TikTok ban raises questions about their potential liability and whether they should disclose th...
www.americanprogress.org
May 1, 2025 at 2:09 PM
@mattschett.bsky.social thanks again for pointing this out! I updated my piece to refer to it and gave you a hat tip in the update.
www.americanprogress.org/article/publ...
www.americanprogress.org/article/publ...
Fox settled Dominion suit about 2020 election coverage for $787 million. Summary judgment briefs in Smartmatic’s similar case against Fox are due today.
April 30, 2025 at 4:25 PM
Fox settled Dominion suit about 2020 election coverage for $787 million. Summary judgment briefs in Smartmatic’s similar case against Fox are due today.
Brendan Carr, 2019: regulating hot-button issues like immigration "dangerous"; "How do you define?"; "Facebook wants politicians to start making those decisions"
www.bloomberg.com/news/videos/...
Carr, 2025: news coverage doesn't meet my definition of public interest: x.com/BrendanCarrF...
www.bloomberg.com/news/videos/...
Carr, 2025: news coverage doesn't meet my definition of public interest: x.com/BrendanCarrF...
Zuckerberg's Regulation Call Violates First Amendment, FCC's Carr Says (Video)
www.bloomberg.com
April 22, 2025 at 4:13 PM
Brendan Carr, 2019: regulating hot-button issues like immigration "dangerous"; "How do you define?"; "Facebook wants politicians to start making those decisions"
www.bloomberg.com/news/videos/...
Carr, 2025: news coverage doesn't meet my definition of public interest: x.com/BrendanCarrF...
www.bloomberg.com/news/videos/...
Carr, 2025: news coverage doesn't meet my definition of public interest: x.com/BrendanCarrF...
Two qs about CA5 ruling in ATT v FCC on 4/17:
1-Is constitutional avoidance still a thing? Court skipped statutory challenge to take up constitutional issue.
2-Judge Haynes said she concurs in judgment only, but didn't explain why. Is that common?
www.ca5.uscourts.gov/opinions/pub...
1-Is constitutional avoidance still a thing? Court skipped statutory challenge to take up constitutional issue.
2-Judge Haynes said she concurs in judgment only, but didn't explain why. Is that common?
www.ca5.uscourts.gov/opinions/pub...
www.ca5.uscourts.gov
April 21, 2025 at 2:55 PM
Two qs about CA5 ruling in ATT v FCC on 4/17:
1-Is constitutional avoidance still a thing? Court skipped statutory challenge to take up constitutional issue.
2-Judge Haynes said she concurs in judgment only, but didn't explain why. Is that common?
www.ca5.uscourts.gov/opinions/pub...
1-Is constitutional avoidance still a thing? Court skipped statutory challenge to take up constitutional issue.
2-Judge Haynes said she concurs in judgment only, but didn't explain why. Is that common?
www.ca5.uscourts.gov/opinions/pub...
TikTok itself explained the law's "operational relationship" language in its petition to the D.C. Circuit last May. It said that the statute "requires" moving all TikTok source code to a new TikTok owner.
April 4, 2025 at 2:12 PM
TikTok itself explained the law's "operational relationship" language in its petition to the D.C. Circuit last May. It said that the statute "requires" moving all TikTok source code to a new TikTok owner.
For a transaction to be a "qualified divestiture" under the TikTok law, Trump must determine there's no "operational relationship" between a new US entity and any "formerly affiliated" entity (ByteDance), including "any" cooperation with respect to algorithm's operation.
April 3, 2025 at 1:40 PM
For a transaction to be a "qualified divestiture" under the TikTok law, Trump must determine there's no "operational relationship" between a new US entity and any "formerly affiliated" entity (ByteDance), including "any" cooperation with respect to algorithm's operation.
The FCC has been described as an independent agency for decades, including by SCOTUS itself.
But yesterday, the US Solicitor General basically seemed to admit the FCC is *not* actually an independent agency at all.
www.supremecourt.gov/oral_argumen...
But yesterday, the US Solicitor General basically seemed to admit the FCC is *not* actually an independent agency at all.
www.supremecourt.gov/oral_argumen...
March 27, 2025 at 1:51 PM
The FCC has been described as an independent agency for decades, including by SCOTUS itself.
But yesterday, the US Solicitor General basically seemed to admit the FCC is *not* actually an independent agency at all.
www.supremecourt.gov/oral_argumen...
But yesterday, the US Solicitor General basically seemed to admit the FCC is *not* actually an independent agency at all.
www.supremecourt.gov/oral_argumen...
Challenges to the FCC's media-ownership rules have been stuck in the Third Circuit for decades.
Not anymore.
On March 19, broadcasters are likely to urge an Eighth Circuit panel of 3 Republican-named judges to wipe the FCC rules off the books entirely.
Not anymore.
On March 19, broadcasters are likely to urge an Eighth Circuit panel of 3 Republican-named judges to wipe the FCC rules off the books entirely.
March 14, 2025 at 12:58 PM
Challenges to the FCC's media-ownership rules have been stuck in the Third Circuit for decades.
Not anymore.
On March 19, broadcasters are likely to urge an Eighth Circuit panel of 3 Republican-named judges to wipe the FCC rules off the books entirely.
Not anymore.
On March 19, broadcasters are likely to urge an Eighth Circuit panel of 3 Republican-named judges to wipe the FCC rules off the books entirely.
Two areas where new facts could be critical on potential legal issues in the TMT space right now:
March 12, 2025 at 4:11 PM
Two areas where new facts could be critical on potential legal issues in the TMT space right now:
Legit question: If a special federal govt employee also owns a social-media platform and prioritizes or deprioritizes speech on that platform, does that constitute state action for First Amendment purposes?
Does Lindke also set the appropriate test in case of platform ownership by a fed employee?
Does Lindke also set the appropriate test in case of platform ownership by a fed employee?
March 6, 2025 at 7:05 PM
Legit question: If a special federal govt employee also owns a social-media platform and prioritizes or deprioritizes speech on that platform, does that constitute state action for First Amendment purposes?
Does Lindke also set the appropriate test in case of platform ownership by a fed employee?
Does Lindke also set the appropriate test in case of platform ownership by a fed employee?
FCC Chair Brendan Carr again made key point about an FCC Sec. 230 rulemaking: 230(c)(1) "makes a lot of sense, it's a pro-speech provision."
"The problems come in at 230(c)(2)."
For platforms, much more important protection in 230's liability shield is (c)(1).
t.co/q2V0pRgxrg
"The problems come in at 230(c)(2)."
For platforms, much more important protection in 230's liability shield is (c)(1).
t.co/q2V0pRgxrg
March 3, 2025 at 3:28 PM
FCC Chair Brendan Carr again made key point about an FCC Sec. 230 rulemaking: 230(c)(1) "makes a lot of sense, it's a pro-speech provision."
"The problems come in at 230(c)(2)."
For platforms, much more important protection in 230's liability shield is (c)(1).
t.co/q2V0pRgxrg
"The problems come in at 230(c)(2)."
For platforms, much more important protection in 230's liability shield is (c)(1).
t.co/q2V0pRgxrg
If this is true, a comparison of those letters would be fascinating.
NEW: Apple and Google reinstated TikTok to their app stores last week after receiving a letter from the DOJ. But sources tell Forbes it took two letters to convince them they wouldn’t be liable, because they found the first version not legally sufficient. www.forbes.com/sites/richar...
It Took Two Tries For The DOJ To Convince Apple And Google To Restore TikTok
Fearing enormous fines, Google and Apple held off from reinstating TikTok to their app stores until the DOJ sent them a second version of President Trump’s “written guidance.”
www.forbes.com
February 28, 2025 at 2:27 PM
If this is true, a comparison of those letters would be fascinating.
Reposted by Matt Schettenhelm
Just a tremendous honor to debate my friend @alanrozenshtein.com on the TikTok case, with @zittrain.bsky.social's expert moderation, with Justice Breyer in the front row. Even more special to have my kids there--and relieved that they (and Justice Breyer) sided with me!
February 25, 2025 at 2:04 PM
Just a tremendous honor to debate my friend @alanrozenshtein.com on the TikTok case, with @zittrain.bsky.social's expert moderation, with Justice Breyer in the front row. Even more special to have my kids there--and relieved that they (and Justice Breyer) sided with me!
Still would like to see these TikTok AG letters. Possible that lawmakers could ask her what factual support she had to reach that conclusion.
This presumably reflects what Bondi said in letter ("our provision of services to this customer has not violated the law and that we can continue providing services as contemplated by the Executive Order without violating the law and without incurring any legal liability") bsky.app/profile/matt...
Akamai addresses its potential liability exposure tied to TikTok in its latest 10-K. www.ir.akamai.com/sec-filings/...
February 25, 2025 at 1:15 PM
Still would like to see these TikTok AG letters. Possible that lawmakers could ask her what factual support she had to reach that conclusion.
Reposted by Matt Schettenhelm
9 Justices and three D.C. Circuit judges, but who's counting!
I'm just excited that Anupam and I get to keep our frenemy Vaudeville act going for a little longer.
I'm just excited that Anupam and I get to keep our frenemy Vaudeville act going for a little longer.
On Monday, I'll be at Harvard Law School debating @alanrozenshtein.com on constitutionality of TikTok sale-or-ban law, moderated by @zittrain.bsky.social. Alan may have 9 Justices, but I will have the 1st Amendment on my side. Come watch (in person or online)! 12EST.
hls.harvard.edu/events/harva...
hls.harvard.edu/events/harva...
Harvard Law School Rappaport Forum - TikTok and Free Speech - Harvard Law School
Guest Speakers: Anupam Chander Scott K. Ginsburg Professor of Law and Technology Georgetown University Law Center Alan Rozenshtein Associate Professor of Law University of Minnesota Law School Moderat...
hls.harvard.edu
February 19, 2025 at 9:03 PM
9 Justices and three D.C. Circuit judges, but who's counting!
I'm just excited that Anupam and I get to keep our frenemy Vaudeville act going for a little longer.
I'm just excited that Anupam and I get to keep our frenemy Vaudeville act going for a little longer.
Reposted by Matt Schettenhelm
I don't know enough about the rest of the EO, but I think it's worth saying what this part on interpretation of law is all about. For most agencies, they are already bound to AG's position on what the law is. DOJ represents them in court. /1
February 19, 2025 at 4:37 AM
I don't know enough about the rest of the EO, but I think it's worth saying what this part on interpretation of law is all about. For most agencies, they are already bound to AG's position on what the law is. DOJ represents them in court. /1
In Lindke, SCOTUS set out a two-part test to address whether there's state action when a public official "uses" social media. Will test be the same to address if there's state action when a public official privately *owns and controls* a social-media platform?
www.supremecourt.gov/opinions/23p...
www.supremecourt.gov/opinions/23p...
February 18, 2025 at 4:47 PM
In Lindke, SCOTUS set out a two-part test to address whether there's state action when a public official "uses" social media. Will test be the same to address if there's state action when a public official privately *owns and controls* a social-media platform?
www.supremecourt.gov/opinions/23p...
www.supremecourt.gov/opinions/23p...
If TikTok users challenged EO, they wouldn't rely on a "chain of possibilities" as attenuated as in Clapper. Decent case a threatened injury is "certainly impending" when EO ignores law and keeps sending data to parent in China. DC Circuit & SCOTUS already addressed if harm was speculative.
This is an excellent, comprehensive piece on the lawlessness of the Trump/Bondi TikTok moves--including that they "seriously erode[] the credibility of the political branch’s national security determinations" in future litigation. SCOTUS can't be very pleased about Trump's contempt for its judgment.
With Apple and Google capitulating, TikTok's gambit to have Trump save it through non-enforcement may have actually worked, but at a terrible cost for the rule of law. My latest for @lawfare.bsky.social. www.lawfaremedia.org/article/the-...
February 18, 2025 at 2:19 PM
If TikTok users challenged EO, they wouldn't rely on a "chain of possibilities" as attenuated as in Clapper. Decent case a threatened injury is "certainly impending" when EO ignores law and keeps sending data to parent in China. DC Circuit & SCOTUS already addressed if harm was speculative.
Reposted by Matt Schettenhelm
How can she say that there has been no violation of the statute? (As opposed to saying that she won’t bring any enforcement actions pending XYZ.)
February 14, 2025 at 4:24 AM
How can she say that there has been no violation of the statute? (As opposed to saying that she won’t bring any enforcement actions pending XYZ.)