Business
The justices are expected to rule quickly in the case.
When the Supreme Court hears arguments on Friday over whether protecting national security requires TikTok to be sold or closed, the justices will be working in the shadow of three First Amendment precedents, all influenced by the climate of their times and by how much the justices trusted the government.
During the Cold War and in the Vietnam era, the court refused to credit the government’s assertions that national security required limiting what newspapers could publish and what Americans could read. More recently, though, the court deferred to Congress’s judgment that combating terrorism justified making some kinds of speech a crime.
The court will most likely act quickly, as TikTok faces a Jan. 19 deadline under a law enacted in April by bipartisan majorities. The law’s sponsors said the app’s parent company, ByteDance, is controlled by China and could use it to harvest Americans’ private data and to spread covert disinformation.
The court’s decision will determine the fate of a powerful and pervasive cultural phenomenon that uses a sophisticated algorithm to feed a personalized array of short videos to its 170 million users in the United States. For many of them, and particularly younger ones, TikTok has become a leading source of information and entertainment.
As in earlier cases pitting national security against free speech, the core question for the justices is whether the government’s judgments about the threat TikTok is said to pose are sufficient to overcome the nation’s commitment to free speech.
Senator Mitch McConnell, Republican of Kentucky, told the justices that he “is second to none in his appreciation and protection of the First Amendment’s right to free speech.” But he urged them to uphold the law.
“The right to free speech enshrined in the First Amendment does not apply to a corporate agent of the Chinese Communist Party,” Mr. McConnell wrote.
Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said that stance reflected a fundamental misunderstanding.
“It is not the government’s role to tell us which ideas are worth listening to,” he said. “It’s not the government’s role to cleanse the marketplace of ideas or information that the government disagrees with.”
The Supreme Court’s last major decision in a clash between national security and free speech was in 2010, in Holder v. Humanitarian Law Project. It concerned a law that made it a crime to provide even benign assistance in the form of speech to groups said to engage in terrorism.
One plaintiff, for instance, said he wanted to help the Kurdistan Workers’ Party find peaceful ways to protect the rights of Kurds in Turkey and to bring their claims to the attention of international bodies.
When the case was argued, Elena Kagan, then the U.S. solicitor general, said courts should defer to the government’s assessments of national security threats.
“The ability of Congress and of the executive branch to regulate the relationships between Americans and foreign governments or foreign organizations has long been acknowledged by this court,” she said. (She joined the court six months later.)
The court ruled for the government by a 6-to-3 vote, accepting its expertise even after ruling that the law was subject to strict scrutiny, the most demanding form of judicial review.
“The government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions,” Chief Justice John G. Roberts Jr. wrote for the majority.
In its Supreme Court briefs defending the law banning TikTok, the Biden administration repeatedly cited the 2010 decision.
“Congress and the executive branch determined that ByteDance’s ownership and control of TikTok pose an unacceptable threat to national security because that relationship could permit a foreign adversary government to collect intelligence on and manipulate the content received by TikTok’s American users,” Elizabeth B. Prelogar, the U.S. solicitor general, wrote, “even if those harms had not yet materialized.”
Many federal laws, she added, limit foreign ownership of companies in sensitive fields, including broadcasting, banking, nuclear facilities, undersea cables, air carriers, dams and reservoirs.
While the court led by Chief Justice Roberts was willing to defer to the government, earlier courts were more skeptical. In 1965, during the Cold War, the court struck down a law requiring people who wanted to receive foreign mail that the government said was “communist political propaganda” to say so in writing.
That decision, Lamont v. Postmaster General, had several distinctive features. It was unanimous. It was the first time the court had ever held a federal law unconstitutional under the First Amendment’s free expression clauses.
It was the first Supreme Court opinion to feature the phrase “the marketplace of ideas.” And it was the first Supreme Court decision to recognize a constitutional right to receive information.
That last idea figures in the TikTok case. “When controversies have arisen,” a brief for users of the app said, “the court has protected Americans’ right to hear foreign-influenced ideas, allowing Congress at most to require labeling of the ideas’ origin.”
Indeed, a supporting brief from the Knight First Amendment Institute said, the law banning TikTok is far more aggressive than the one limiting access to communist propaganda. “While the law in Lamont burdened Americans’ access to specific speech from abroad,” the brief said, “the act prohibits it entirely.”
Zephyr Teachout, a law professor at Fordham, said that was the wrong analysis. “Imposing foreign ownership restrictions on communications platforms is several steps removed from free speech concerns,” she wrote in a brief supporting the government, “because the regulations are wholly concerned with the firms’ ownership, not the firms’ conduct, technology or content.”
Six years after the case on mailed propaganda, the Supreme Court again rejected the invocation of national security to justify limiting speech, ruling that the Nixon administration could not stop The New York Times and The Washington Post from publishing the Pentagon Papers, a secret history of the Vietnam War. The court did so in the face of government warnings that publishing would imperil intelligence agents and peace talks.
“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment,” Justice Hugo Black wrote in a concurring opinion.
The American Civil Liberties Union told the justices that the law banning TikTok “is even more sweeping” than the prior restraint sought by the government in the Pentagon Papers case.
“The government has not merely forbidden particular communications or speakers on TikTok based on their content; it has banned an entire platform,” the brief said. “It is as though, in Pentagon Papers, the lower court had shut down The New York Times entirely.”
Mr. Jaffer of the Knight Institute said the key precedents point in differing directions.
“People say, well, the court routinely defers to the government in national security cases, and there is obviously some truth to that,” he said. “But in the sphere of First Amendment rights, the record is a lot more complicated.”
Business
Commentary: The Dow just broke 50,000. Here’s what that means
The Dow Jones Industrial Average just crossed 50,000 points for the first time, but that doesn’t mean the economy is healthy
Round numbers always enchant humans, especially when they’re big round numbers.
So you’ll probably be reading and hearing a lot about how the Dow Jones Industrial Average crossed the 50,000-point threshold Friday for the first time.
Actually, “threshold” isn’t the right word. The mark’s significance is psychological, if that.
In real terms, nothing got triggered at that moment, which happened at about 2:27 p.m. Eastern time. No rules or regulations changed. In and of itself, it won’t create a jump-up in anyone’s personal net worth.
It’s doubtful that any trading algorithms kicked in, except those that might have been keyed to a sharp reversal of trading sentiment from earlier in the week, when it was pretty sour.
Still, the chances are that attention will be paid. The Dow gained 1,206.95 points or 2.47% Friday, closing at 50,115.67.
If you’re inclined to make a bet, you might put your money on the likelihood that President Trump or his minions will take this to mean the overall economy is firing on all cylinders, thanks to his policies. It doesn’t mean that.
So let’s dig a little deeper into the meaning of this particular round number. We can start by noting that the Dow not only doesn’t rank as a reliable picture of the U.S. economy, it doesn’t rank as a picture of the stock market as a whole. It’s a price-weighted average of only 30 stocks, with higher priced stocks having a bigger influence on the average, while the Standard & Poor’s 500 index tracks, well, 500, and the Nasdaq Composite more than 3,000. (Both those indices moved sharply higher Friday, too.)
Yet I confess I have a soft spot for the Dow. That dates from the 1980s, when it was treated as more of an economic bellwether than now, and I was the New York financial correspondent for The Times.
The Dow had been running up fairly smartly, and I pleaded with the business editor, the revered Paul Steiger, to rescind the rule mandating that I write a story on any day when the average moved 20 points or more. However, I got his agreement that the day it broke 2,000 points for the first time, I would write that story.
And I did! That day was Jan. 8, 1987.
“It’s a milestone because round numbers intrigue everyone,” Newton Zinder, chief market analyst for E.F. Hutton & Co., told me at the time.
William LeFevre, market strategist for the Hartford-based investment firm of Advest, added: “This will bring a lot of little investors into the market, because the publicity associated with it focuses a lot of attention on the Dow.”
But as I observed then, hullabaloo over “milestone” numbers is typically misplaced. The Dow’s first close over 1,000 was greeted with great fanfare on Nov. 14, 1972, when investors and Wall Street professionals read it as a sign that explosive economic growth lay in store for 1973.
Market analysts were nearly unanimous in forecasting that the Dow could rise an additional 150 to 300 points within two years.
Sadly, no. It took nearly 10 years, or until October, 1982, for the Dow to reach even 1,100.
Any optimism the 2,000-point mark inspired also proved to be misplaced. The Dow suffered a major crash of 508 points on Oct. 19, 1987, only nine months later.
Comparing the trajectories of the U.S. economy and the stock market over the four decades since Dow 2,000 is an interesting exercise. In the first quarter of 1987, U.S. gross domestic product was $4.72 trillion, or $13.77 trillion in today’s dollars.
Today it’s $31.1 trillion. So the U.S. economy has grown by 558% in nominal terms, or 125% adjusted for inflation.
In that same period, the Dow Industrial average has grown by 2,400% in real terms, or an inflation-adjusted 758%. The S&P 500 has grown by 2,588% in nominal terms, or an inflation-adjusted 821%.
Dissertations can be written about what these comparative numbers say about, first, the long-term strength of the U.S. economy and, second, whether its majestic growth in wealth is distributed fairly. But they certainly document that corporate and capital valuations have handily outstripped economic growth generally. The bottom line is that few American households feel as if their wealth has grown by 2,400% in the last 39 years, or even 758%.
As for whether it’s possible to read conclusions about the economy in the Dow Industrial figures, it’s hard to discern a clear pattern. For one thing, the 30 components change over time, as the average’s owner, a joint venture between Standard & Poor’s, and the financial services company CME Group.
There’s a bit of gamesmanship involved in these decisions — the most recent change, in November 2024, substituted chipmaker Nvidia for chipmaker Intel. The change kept the average consonant with the evolution of the semiconductor market; Intel shares had lost half their value in 2024, while Nvidia had more than doubled, riding the wave of its dominance over the AI chip market.
Nvidia validated the average-makers’ instincts: Its gain of 7.78% Friday powered much of the average’s advance. Big percentage gainers included Caterpillar (up 7.06%), Goldman Sachs (4.31%), JPMorgan Chase (3.95%) and Walmart (3.34%).
Somewhere in there may lie truths about the semiconductor, banking, retail and manufacturing sectors, but one day’s results probably don’t tell the whole story. Nvidia’s gain came on the heels of a nasty week — the stock had lost 10% of its value since Jan. 29.
History tells us that its unwise to take solid conclusions from short-term action in the Dow or any other index. Friday’s gains could mark a lasting recovery from the market meltdown of recent weeks, or could be what market followers call a “dead-cat bounce,” and the cat is still dead.
For the moment, still, the Dow had a very nice day. That doesn’t mean the euphoria will last.
Business
California bill would make fossil fuel companies help pay for rising insurance costs
A bill that would make oil and gas companies pay for rising insurance costs due to climate-related disasters was introduced this week in the Legislature.
SB 982, the Affordable Insurance Recovery Act, would authorize California’s attorney general to file civil litigation against fossil fuel companies to recover losses from climate-induced disasters experienced by policyholders and the state’s insurer of last resort.
California home insurance premiums have been rising by double-digit rates following a series of devastating wildfires across the state over the last decade. The Jan. 7, 2025, Eaton and Palisades fires alone are expected to result in up to $45 billion in insured damages.
“With California’s paying such a massive cost for climate-related disasters, we have to ask who is not paying?” Sen. Scott Wiener (D-San Francisco) said at a Thursday press conference held outside the state Capitol.
“We know who is — the survivors, taxpayers, policyholders, whose rates are going up throughout the state. But the answer in terms of who is not paying is fossil fuel corporations,” said Wiener, the bill’s lead author.
The recovered funds would compensate policyholders for rising premiums and other expenses, including the cost of fire-proofing their properties.
The California Fair Plan Assn. would be eligible for compensation, too. The insurer of last resort, operated and backed by the state’s licensed home insurers, has seen its rolls skyrocket as member insurers have dropped policyholders in wildfire-prone neighborhoods.
The plan expects to pay some $4 billion for claims stemming from the Jan. 7 wildfires and has had to assess member insurers $1 billion to meet its obligations.
About half of that is being paid through a surcharge on residential policyholders statewide. The plan also is seeking to raise rates 36%. A spokesperson for the plan declined to comment.
Sen. Ben Allen (D-Pacific Palisades), whose district includes the Palisades fire zone, is a co-author of the bill, which is supported by groups such as the Consumer Federation of California, California Environmental Voters and the Eaton Fire Survivors Network, a community group in Altadena.
Jim Stanley, a spokesperson for the Western States Petroleum Assn., an industry trade group, said the bill is bad public policy that would raise gas prices.
“This is a political stunt that will kill jobs and increase costs for consumers,” he said. “This bill would essentially make oil and gas companies financially liable for every natural disaster impacting California — creating a never-ending web of litigation and claims with no foundation in fact or science.”
This is not the first attempt in California to hold energy producers liable for the costs of natural disasters that environmentalists say are caused or worsened by climate change.
Atty. Gen. Rob Bonta sued Exxon Mobil, Shell, Chevron, ConocoPhillips and BP in 2023, accusing them of engaging in a “decades-long campaign of deception” about climate change that has forced the state to spend tens of billions of dollars to address environmental-related damages.
Two bills last year, known as the Polluters Pay Climate Superfund Act, would have required the largest oil and gas companies doing business in the state to pay into a Superfund to help the state adapt to climate change.
Similar legislation was passed in New York and Vermont but California’s bill, facing strong industry opposition, stalled in the Legislature.
California also is not alone in seeking to pass legislation that would hold fossil fuel companies responsible for higher insurance costs.
A bill being considered in New York would allow that state’s attorney general and property insurers to bring actions against parties responsible for climate-related disasters.
There is a similar bill under consideration in Hawaii, where the 2023 Maui wildfires caused an estimated $3 billion or more in losses.
Business
As post-production work moves out of California, workers push for a state incentive
As film and television post-production work has increasingly left California, workers are pushing for a new standalone tax credit focused on their industry.
That effort got a major boost Wednesday night when a representative for Assemblymember Nick Schultz (D-Burbank) said the lawmaker would take up the bill.
The news was greeted by cheers and applause from an assembled crowd of more than 100 people who attended a town hall meeting at Burbank’s Evergreen Studios.
“As big of a victory as this is, because it means we’re in the game, this is just the beginning,” Marielle Abaunza, president of the California Post Alliance trade group, a newly formed trade group representing post-production workers, said during the meeting.
The state’s post-production industry — which includes workers in fields like sound and picture editing, music, composition and visual effects — has been hit hard by the overall flight of film and TV work out of California and to other states and countries. Though post-production workers aren’t as visible, they play a crucial role in delivering a polished final product to TV, film and music audiences.
Last year, lawmakers boosted the annual amount allocated to the state’s film and TV tax credit program and expanded the criteria for eligible projects in an attempt to lure production back to California. So far, more than 100 film and TV projects have been awarded tax credits under the revamped program.
But post-production workers say the incentive program doesn’t do enough to retain jobs in California because it only covers their work if 75% of filming or overall budget is spent in the state. The new California Post Alliance is advocating for an incentive that would cover post-production jobs in-state, even if principal photography films elsewhere or the project did not otherwise qualify for the state’s production incentive.
Schultz said he is backing the proposed legislation because of the effect on workers in his district over the last decade.
“We are competing with other states and foreign countries for post production jobs, which is causing unprecedented threats to our workforce and to future generations of entertainment industry workers,” he said in a statement Thursday.
During the 1 1/2 hour meeting, industry speakers pointed to other states and countries, including many in Europe, with specific post-production incentives that have lured work away from the Golden State. By 2024, post-production employment in California dropped 11.2%, compared with 2010, according to a presentation from Tim Belcher, managing director at post-production company Light Iron.
“We’re all an integrated ecosystem, and losses in one affect losses in the other,” he said during the meeting. “And when post[-production] leaves California, we are all affected.”
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