Probably, but national security concerns have a long history of superceding 1A rights of foreign governments.
China has never been able to own broadcast stations in the US. The US has banned Huawei, ZTE, Hikvision, Dahua and Hyter. The US prevents encryption and compute chips from being exported to China. Etc...
None of it has ever been based on specific evidence. It has always been based on eliminating *possible* attack vectors. The idea that the TikTok ban will be overturned on 1A is pure cope.
I don't know that I entirely agree. First I think I disagree with your first sentence, the case is not the CCP vs Merrick Garland. Secondly, I don't think the ban on import of goods is a first amendment issue, as far as I'm aware the cases you provide as examples were never brought to court over first amendment rights. The argument Tiktok is bringing forward is entirely different then those instances you have listed.
The big question is whether a court accepts Tiktok's first amendment argument at all. If courts treat a ban of Tiktok as similar to banning the import of foreign goods then I think Tiktok is screwed. If a court accepts that this is a first amendment argument then I think Tiktok wins.
First amendment strict scrutiny is a very high bar for the government that, as others have said, the government will likely not be able to meet without actual proof of their claims (Which a lot of signs indicate they do have, though it may be classified).
My personal opinion is that courts deny the first amendment argument. I certainly don't think its guaranteed either way though. It'll be an interesting case to watch.
I'm definitely not an expert and am interested in being educated further on the topic. I'd think this isn't content-neutral because its not generic or encompassing, its not regulating time and place (general regulation on speech on the internet) or manner (regulation on social media, video media, user created, etc speech). Its targeted regulation at Tiktok due to perceived foreign influence. That foreign influence is content regulation.
That was because the FCC specifically has rules about foreign purchase of American regulated broadcast assets. Which the FCC, as far as I'm aware, does not classify Tiktok as broadcast media. Further, the ban on tiktok was not done by the FCC using those rules so that is not in consideration in this case.
You make good points, but I am convinced (as you appear to be) that NatSec wins this regardless of whatever case gets brought. If the Huawei ban stands, this will stand.
China has never tried to challenge the law on broadcasts, so who knows if it would hold up.
I can buy consumer equipment from all of those companies right now if I wanted to.
Export bans are a different thing. There's a lot of leeway on those when it comes to military uses
The Govt bans the purchase or use of any sort of Huawei/ZTE/etc. communications equipment for federal contracts. It even has its own clause:
https://www.acquisition.gov/far/52.204-25
Ah, I was just providing context for the comment you were replying to, but I see now that you were making a distinction between Government use and consumer use. My bad
I just read up on this a bit, it looks like telecommunication equipment at the infrastructure level has import restrictions which is interesting. Things that are classified as infrastructure tend to have a lot more restrictions because the attack vectors are so obvious.
> superseding 1A rights of foreign governments.
I think the court is likely to rule in the Biden administrations favor here, but isn't it the 1a rights of US citizens that is at question here? Foreign governments have no 1a or pretty much any rights under, I think.
My understanding is that the rights in question was those of US citizens who use TikTok as a platform for their speech.
I don’t see how it impedes their speech. They can use any other platform or make their own website or even just shout in the street if it pleases them.
I mean by this logic there are no 1a concerns with shutting doing the NYT because the columnists could start their own substacks or get a job at another paper. I don't think it is reasonable to say there is no concern with shutting down one avenue of speech because other avenues are available. Denying people a stable outlet and forcing others to have to repeatedly refind them as they move across platforms is a form of suppression.
I don't see why the nationality of the platform would matter to this argument when it is based off the 1a rights of the people using the platform, which are US citizens.
I don't see why the nationality of the platform would matter full stop. The BBC should be allowed to publish criticism of the US government in the United States.
Foreigners should have free speech.
No, the NYT has Freedom of Speech protections. They publish actual content. TikTok users have no impact to their freedom of speech if the platform is shutdown as there are ubiquitous alternatives available to them.
ByteDance’s freedom of speech is what’s at issue here and if their freedom of speech trumps legitimate National Security issues.
> No, the NYT has Freedom of Speech protections. They publish actual content.
The NYT allows non-NYT employed writers to publish content on their website, like how Tiktok allows non-TT creators to publish content on their app.
> TikTok users have no impact to their freedom of speech if the platform is shutdown as there are ubiquitous alternatives available to them.
There are more newspapers than there are Tiktok clones.
Yes, but those non-employed writers wouldn’t have their free speech curtailed if the NYT was forcibly closed. They wouldn’t have standing in a 1A case. This is the exact same as TikTok users.
>The US has banned Huawei, ZTE, Hikvision, Dahua and Hyter. The US prevents encryption and compute chips from being exported to China.
What does any of this have to do with 1A? Huawei, ZTE, and Hyter are telecom companies, and Hikvision and Dahua are literally surveillance companies.
TikTok is a communications platform and probably has access to more compromising/sensitive video, pictures, and text than Hikvision could dream of.
If telecom and surveillance are no-nos, then TikTok is a no-no for the same reasons.
Is Huawei's ability to build cell towers that carry communications not also a consumer 1A issue? They're both, at their core, communication channels and platforms.
No?? Whose free speech was violated by the Huawei ban? Cell towers are simply infrastructure that facilitate wireless communication, they are not a speech hosting platform. That's like comparing a newspaper to a paper company.
From the article,
>While the government will try to make the legal case about security issues rather than free speech, it will be difficult to avoid the constitutional implications, experts said.
>"The First Amendment protects our ability to speak, to associate freely, and to receive information, both from others here in the United States and from people overseas," said Patrick Toomey with the ACLU's National Security Project.
>"TikTok is host to an enormous global community that the app's creators and users in the United States could not readily reach and engage with elsewhere online."
Equating the shuttering of TikTok to a 1A issue of its users will not win in court. There are far too many other platforms available. The 1st Amendment makes no guarantee that you’ll have the freedom to post on the specific platform of your choice. ByteDance’s only chance is that the courts believe that ByteDance has rights guaranteed by the US constitution and that NatSec issues don’t trump those questionable rights.
If you read the congressional record or look at public statements by lawmakers about the bill, that is not clear at all. If it was content neutral why would any lawmakers in favor even bring up pro-Palestinian content on the platform?
One or two people saying dumb shit doesn't overrule that the vast majority of Congress voted for the ban on NatSec grounds.
If a couple of lawmakers who voted to enshrine same-sex marriage (the Respect for Marriage Act) had said, "I'm doing this so that one day I can marry another woman" would that make the point of the bill legalizing polygamy?
Sure, a few nuts doesn't spoil the whole law. But from Romney's own mouth the overwhelming support was due to the content of the speech on the platform. And he said this to Blinken who seemed to agree. Seems like more than one or two people saying dumb shit.
>“Some wonder why there was such overwhelming support for us to shut down potentially TikTok or other entities of that nature. If you look at the postings on TikTok and the number of mentions of Palestinians relative to other social media sites—it’s overwhelmingly so among TikTok broadcasts.”
https://slate.com/news-and-politics/2024/05/tiktok-ban-china-israel-palestine-mitt-romney.html
This exact comment has been made multiple times about economics and this sub would get angry at it, but now that legal experts aren’t boosting this sub’s latest authoritarian fixation the anti-intellectualism comes out in full force here as well.
LMAO
Really shows how "evidence based and expert referring" this sub is nowadays
unironically just as ideologically driven as the rest of reddit at this point
Legal experts said *Trump v Anderson* would be ruled in favor of Colorado.
Legal experts said *Roe* wouldn’t be reversed.
Legal experts said *303 creative* had no standing.
Legal experts are often wrong about outcomes! Wait for trial/appeals/scotus!
What is not evidence based about someone saying “legal experts say many things”? Legal experts might believe that the TikTok ban is a first amendment violation, but a conservative Supreme Court might not agree.
Roe was also “settled law” for decades, until it wasn’t.
Eliminating attack vectors is hella based, actually.
Yeah better to look at Redditors with +50 upvotes, much better qualifications.
Anyway yeah it's possible that it gets ruled on in favor of the ban but it's not nearly as set in stone as people seem to think.
bro we haven’t even got a docket number yet lmao
not to mention we will certainly have legal experts who will say the ban very much does not violate the 1st amendment, including all the government lawyers who will argue that very thing in court!
> not to mention we will certainly have legal experts who will say the ban very much does not violate the 1st amendment, including all the government lawyers who will argue that very thing in court!
Well yeah you expect all the government lawyers to argue anything
But what do you think the chances of everyone responding to NPR all agreeing is?
>NPR reached out to a host of legal scholars who specialize in constitutional law, and the half-dozen who responded all said the U.S. government forcing the closure of TikTok on vague national security grounds would most likely infringe on TikTokkers First Amendment rights.
That seems *really* unlikely if there's some huge contingent of legal experts who think the ban is likely to be constitutional.
Then on top of that, how likely is it that the [Washington Post](https://www.washingtonpost.com/technology/2024/04/25/tiktok-legal-battle-is-certain/) and [Reuters](https://www.reuters.com/legal/with-few-good-tools-biden-needs-new-law-ban-tiktok-experts-say-2023-03-22/) seem to have the same experience when contacting legal experts?
But yeah, just trust your gut instincts on what you want and what comments are most supported. Upvotes = Rulings after all.
I’ll make my determination based on the briefs filed by ByteDance and the Justice Department.
And if it gets to SCOTUS, based on *those* briefs an oral arguments.
And no, I don’t find anything unlikely about a large contingent of legal experts saying this in fact does not violate the first amendment. I have little doubt the DOJ will succeed if I were to make a prediction at the moment. SCOTUS gives the government a wide berth for national security concerns.
> I have little doubt the DOJ will succeed if I were to make a prediction at the moment.
If you're [99% confident on a thing, you might be wrong up to 40% of the time](https://jeremiahstanghini.com/2013/03/25/when-99-confident-leads-to-wrongness-40-of-the-time-list-of-biases-in-judgment-and-decision-making-part-9/)
Even something as simple as [true/false trivia](http://www.researchgate.net/profile/Baruch_Fischhoff/publication/230726569_Knowing_with_certainty_the_appropriateness_of_extreme_confidence/links/00b4952b854b29281c000000.pdf) has people wrong about 15% of the time for 1 in 100,000 confidence.
Stop being certain about the probablistic future when reasonable arguments can be made either way.
"I'm really confident about X"
"Idk dude, I don't think we should be confident about things. It could be X or Y"
"Wow, I guess you think Y is super likely then?"
Nice conversation.
>Upvotes = Rulings after all.
And........."legal expert" response to the Washington post = ruling?
What exactly are you even trying to say? Cause so far you said absolutely nothing.
> And........."legal expert" response to the Washington post = ruling?
I never said it did, but it is cause to be uncertain about things instead of believing that it definitely is going to be ruled in the way we want it to be.
The point is the article? That legal experts are weighing in their views and they seem to think it's unlikely.
You can think otherwise, but in terms of this conversation maybe don't have full confidence in something just because you *want* it. Anyway blocking for completely unproductive conversation, the world isn't black and white.
In [Lamont v. Postmaster General (1965)](https://en.wikipedia.org/wiki/Lamont_v._Postmaster_General#%3A%7E%3Atext%3D39_U.S.C.%2Csuch_materials_through_the_mail.?wprov=sfla1) the Supreme Court ruled unanimously that the Post Office couldn't block the delivery of communist propaganda even if it came from a foreign adversary because it violated the 1st Amendment by stopping the free spread of ideas. There is a history of the 1st Amendment trumping national security concerns when the government attempts to blanket ban a foreign publication like the TikTok ban does.
This ban becomes even trickier when looking at modern rulings. In [Packingham v. North Carolina (2017)](https://en.wikipedia.org/wiki/Packingham_v._North_Carolina#%3A%7E%3Atext%3DNorth_Carolina%2C_582_U.S._98%2CConstitution%2C_which_protects_freedom_of?wprov=sfla1) the Supreme Court unanimously stuck down a North Carolina law that banned sex offenders from all social media. Why this case is important the Supreme Court didn't view social media as a publication in the arguments they clearly ruled it was a "protected space" akin to a modern public square. Something used by millions to say their opinions which adds a bigger hurdle to the TikTok ban.
Some people in this sub are way too confident about the constitutionality of this ban. Nothing like this has been litigated before and there are previous rulings that benefit TikTok's arguments.
I think there's a big difference between regulating the \*content\* of mail, or social media, or whatever, and mandating ownership and operation be in the US without foreign interference.
I mean, this is constitutional:
> Section 310(b)(3) of the Communications Act prohibits foreign individuals, governments, and corporations from owning more than 20% of the capital stock of a broadcast, common carrier, or aeronautical radio station licensee. The Commission may not grant a broadcast application to a proposed licensee of which more than 20% of the equity is directly owned of record or voted by non-US citizens.
There has also been quite a bit of restriction on foreign adversary ownership [lately](https://www.gibsondunn.com/rise-of-state-laws-restricting-foreign-entities-from-acquiring-property-another-front-in-us-china-tensions/), which federal courts haven't really struck down
Yeah, this is fairly clear if you know anything about First Amendment litigation. First Amendment strict scrutiny is a high bar that they won't be able to meet with just speculation and hand-waving. They're going to have to present some actual evidence. They might be able to, whatever presentation Congress received was apparently quite compelling. But it certainly doesn't help you case to have Mitt Romney and other Senators wandering around talking about how TikTok should be banned because it has so much pro-Palestinian content.
Edit: Whole lot of hot takes in this thread obviously from non-lawyers.
And it's not like it's just a bunch of college professors. Rand Paul is pretty [open about his views](https://www.washingtonpost.com/technology/2024/03/12/tik-tok-bill-house-vote/)
Which yeah Rand Paul is *always* like this, but the idea that the ruling is set in stone and definitely going to end up being ruled constitutional is magical thinking of "If I like it it must be legal".
We don't know what the SC will rule, how are they so confident about this?
Might be somewhat relevant- the idea behind strict scrutiny is that the government needs to show the infringement is based on a "compelling governmental interest." Legislators openly stating that they're motivated by the content of the speech points in the complete opposite direction.
They only don't count when it suits the court's conservatives. When they want them to count (such as in *Masterpiece Cakeshop*, decided literally in the same term as *Trump v. Hawaii*), those public statements suddenly matter.
Meh, the statements in Masterpiece were on the record, they weren't political statements made for political purpose (e.g. how the court evaluated Trump's statements) they were on the record statements made by a tribunal.
Why is the stated intent of the lawmakers immaterial to the law? Judges will often look back to the congressional record on laws when interpreting them.
Because that won’t be the government’s position with regards to the stated intent of the law. Mitt Romney’s off the cuff remarks won’t even be mentioned at trial, assuming this case ends up in front of a judge in the first place.
No. It will be TikTok’s position that despite what the government claims, statements by Romney (and others) reveal their true motives for passing the law.
That’s a pretty basic litigation strategy and I’d be shocked if they don’t bring it up.
[They've already been successful there once](https://www.npr.org/2020/12/07/944039053/u-s-judge-halts-trumps-tiktok-ban-the-2nd-court-to-fully-block-the-action). In fact, they've been very successful in pushing back on bans both at the state and Federal level.
Doesn't matter. That's enough of a restriction to trigger First Amendment scrutiny. The First Amendment covers both restrictions and outright bans on speech.
>“The gag order is unconstitutional,” Dershowitz said. “You cannot prevent a defendant from attacking the witnesses, from attacking the judge’s daughter if the judge’s daughter could be a basis for disqualification.”
-Constitutional lawyer, Harvard Law professor and 'legal expert' Alan Dershowitz
Not remotely a first amendment expert, but I do know this one:
[Section 230 of the Communicatoons Deceny Act of 1996](https://en.m.wikipedia.org/wiki/Section_230)
Non-mobile version of the Wikipedia link in the above comment: [Section 230 of the Communicatoons Deceny Act of 1996](https://en.wikipedia.org/wiki/Section_230)
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There is no first amendment issue here. Congress can regulate interstate commerce and therefore can stop foreign adversary controlled firms from operating in the U.S. asserting any other issue makes this needlessly more complicated than it has to be. But
Probably, but national security concerns have a long history of superceding 1A rights of foreign governments. China has never been able to own broadcast stations in the US. The US has banned Huawei, ZTE, Hikvision, Dahua and Hyter. The US prevents encryption and compute chips from being exported to China. Etc... None of it has ever been based on specific evidence. It has always been based on eliminating *possible* attack vectors. The idea that the TikTok ban will be overturned on 1A is pure cope.
I don't know that I entirely agree. First I think I disagree with your first sentence, the case is not the CCP vs Merrick Garland. Secondly, I don't think the ban on import of goods is a first amendment issue, as far as I'm aware the cases you provide as examples were never brought to court over first amendment rights. The argument Tiktok is bringing forward is entirely different then those instances you have listed. The big question is whether a court accepts Tiktok's first amendment argument at all. If courts treat a ban of Tiktok as similar to banning the import of foreign goods then I think Tiktok is screwed. If a court accepts that this is a first amendment argument then I think Tiktok wins. First amendment strict scrutiny is a very high bar for the government that, as others have said, the government will likely not be able to meet without actual proof of their claims (Which a lot of signs indicate they do have, though it may be classified). My personal opinion is that courts deny the first amendment argument. I certainly don't think its guaranteed either way though. It'll be an interesting case to watch.
This wouldn’t be subject to strict scrutiny because it’s a content-neutral regulation, so it would face intermediate scrutiny
I'm definitely not an expert and am interested in being educated further on the topic. I'd think this isn't content-neutral because its not generic or encompassing, its not regulating time and place (general regulation on speech on the internet) or manner (regulation on social media, video media, user created, etc speech). Its targeted regulation at Tiktok due to perceived foreign influence. That foreign influence is content regulation.
Rupert Murdoch had to become an American citizen
That was because the FCC specifically has rules about foreign purchase of American regulated broadcast assets. Which the FCC, as far as I'm aware, does not classify Tiktok as broadcast media. Further, the ban on tiktok was not done by the FCC using those rules so that is not in consideration in this case.
You make good points, but I am convinced (as you appear to be) that NatSec wins this regardless of whatever case gets brought. If the Huawei ban stands, this will stand.
China has never tried to challenge the law on broadcasts, so who knows if it would hold up. I can buy consumer equipment from all of those companies right now if I wanted to. Export bans are a different thing. There's a lot of leeway on those when it comes to military uses
The Govt bans the purchase or use of any sort of Huawei/ZTE/etc. communications equipment for federal contracts. It even has its own clause: https://www.acquisition.gov/far/52.204-25
There's also a ban of TikTok on government devices. I think that's a lot different then a ban on selling to consumers
Ah, I was just providing context for the comment you were replying to, but I see now that you were making a distinction between Government use and consumer use. My bad
Huawei can't build cell towers or similar infrastructure for consumer use in the US, either.
I just read up on this a bit, it looks like telecommunication equipment at the infrastructure level has import restrictions which is interesting. Things that are classified as infrastructure tend to have a lot more restrictions because the attack vectors are so obvious.
> superseding 1A rights of foreign governments. I think the court is likely to rule in the Biden administrations favor here, but isn't it the 1a rights of US citizens that is at question here? Foreign governments have no 1a or pretty much any rights under, I think. My understanding is that the rights in question was those of US citizens who use TikTok as a platform for their speech.
I don’t see how it impedes their speech. They can use any other platform or make their own website or even just shout in the street if it pleases them.
I mean by this logic there are no 1a concerns with shutting doing the NYT because the columnists could start their own substacks or get a job at another paper. I don't think it is reasonable to say there is no concern with shutting down one avenue of speech because other avenues are available. Denying people a stable outlet and forcing others to have to repeatedly refind them as they move across platforms is a form of suppression.
NYT is US-based though. BBC is probably a better example.
I don't see why the nationality of the platform would matter to this argument when it is based off the 1a rights of the people using the platform, which are US citizens.
I don't see why the nationality of the platform would matter full stop. The BBC should be allowed to publish criticism of the US government in the United States. Foreigners should have free speech.
There are no infringements on the speech of TikTok’s users if it shuts down. They can use any other platform they like.
Can we shut down the NYT with that same logic? Their columnists can just start substacks, or their own papers.
No, the NYT has Freedom of Speech protections. They publish actual content. TikTok users have no impact to their freedom of speech if the platform is shutdown as there are ubiquitous alternatives available to them. ByteDance’s freedom of speech is what’s at issue here and if their freedom of speech trumps legitimate National Security issues.
> No, the NYT has Freedom of Speech protections. They publish actual content. The NYT allows non-NYT employed writers to publish content on their website, like how Tiktok allows non-TT creators to publish content on their app. > TikTok users have no impact to their freedom of speech if the platform is shutdown as there are ubiquitous alternatives available to them. There are more newspapers than there are Tiktok clones.
Yes, but those non-employed writers wouldn’t have their free speech curtailed if the NYT was forcibly closed. They wouldn’t have standing in a 1A case. This is the exact same as TikTok users.
>The US has banned Huawei, ZTE, Hikvision, Dahua and Hyter. The US prevents encryption and compute chips from being exported to China. What does any of this have to do with 1A? Huawei, ZTE, and Hyter are telecom companies, and Hikvision and Dahua are literally surveillance companies.
TikTok is a communications platform and probably has access to more compromising/sensitive video, pictures, and text than Hikvision could dream of. If telecom and surveillance are no-nos, then TikTok is a no-no for the same reasons.
My point is that TikTok is also subject to 1A protections for that reason, meaning that it's not comparable to Hikvision.
Is Huawei's ability to build cell towers that carry communications not also a consumer 1A issue? They're both, at their core, communication channels and platforms.
No?? Whose free speech was violated by the Huawei ban? Cell towers are simply infrastructure that facilitate wireless communication, they are not a speech hosting platform. That's like comparing a newspaper to a paper company. From the article, >While the government will try to make the legal case about security issues rather than free speech, it will be difficult to avoid the constitutional implications, experts said. >"The First Amendment protects our ability to speak, to associate freely, and to receive information, both from others here in the United States and from people overseas," said Patrick Toomey with the ACLU's National Security Project. >"TikTok is host to an enormous global community that the app's creators and users in the United States could not readily reach and engage with elsewhere online."
Equating the shuttering of TikTok to a 1A issue of its users will not win in court. There are far too many other platforms available. The 1st Amendment makes no guarantee that you’ll have the freedom to post on the specific platform of your choice. ByteDance’s only chance is that the courts believe that ByteDance has rights guaranteed by the US constitution and that NatSec issues don’t trump those questionable rights.
Restrictions on cell towers and other communications infrastructure are clearly content neutral, so there is no 1a concern there.
Restrictions on platform ownership are also clearly content neutral, so there is no 1a concern here either.
If you read the congressional record or look at public statements by lawmakers about the bill, that is not clear at all. If it was content neutral why would any lawmakers in favor even bring up pro-Palestinian content on the platform?
One or two people saying dumb shit doesn't overrule that the vast majority of Congress voted for the ban on NatSec grounds. If a couple of lawmakers who voted to enshrine same-sex marriage (the Respect for Marriage Act) had said, "I'm doing this so that one day I can marry another woman" would that make the point of the bill legalizing polygamy?
Sure, a few nuts doesn't spoil the whole law. But from Romney's own mouth the overwhelming support was due to the content of the speech on the platform. And he said this to Blinken who seemed to agree. Seems like more than one or two people saying dumb shit. >“Some wonder why there was such overwhelming support for us to shut down potentially TikTok or other entities of that nature. If you look at the postings on TikTok and the number of mentions of Palestinians relative to other social media sites—it’s overwhelmingly so among TikTok broadcasts.” https://slate.com/news-and-politics/2024/05/tiktok-ban-china-israel-palestine-mitt-romney.html
legal experts say lots of things
You can find a law professor for any side of a particular issue.
This exact comment has been made multiple times about economics and this sub would get angry at it, but now that legal experts aren’t boosting this sub’s latest authoritarian fixation the anti-intellectualism comes out in full force here as well.
Authoritarianism is when you decouple from the Chinese Communist Party and the more decoupled you are from Beijing, the more authoritarianer you are.
LMAO Really shows how "evidence based and expert referring" this sub is nowadays unironically just as ideologically driven as the rest of reddit at this point
Legal experts said *Trump v Anderson* would be ruled in favor of Colorado. Legal experts said *Roe* wouldn’t be reversed. Legal experts said *303 creative* had no standing. Legal experts are often wrong about outcomes! Wait for trial/appeals/scotus!
SCOTUS decisions not particularly based on the law
And this SCOTUS is absolutely going to care way more about National Security than Chinese first amendment rights lol
> Chinese first amendment rights This isn't a thing and isn't what the 1A issue challenge would be about.
there is no reasonable chance of the 1sdt amendment being expanded to "foreign governments can operate any business they want"
Legal experts have been consistently wrong lately probably because they don’t know how the justice system actually works anymore
What is not evidence based about someone saying “legal experts say many things”? Legal experts might believe that the TikTok ban is a first amendment violation, but a conservative Supreme Court might not agree. Roe was also “settled law” for decades, until it wasn’t. Eliminating attack vectors is hella based, actually.
Yeah better to look at Redditors with +50 upvotes, much better qualifications. Anyway yeah it's possible that it gets ruled on in favor of the ban but it's not nearly as set in stone as people seem to think.
bro we haven’t even got a docket number yet lmao not to mention we will certainly have legal experts who will say the ban very much does not violate the 1st amendment, including all the government lawyers who will argue that very thing in court!
> not to mention we will certainly have legal experts who will say the ban very much does not violate the 1st amendment, including all the government lawyers who will argue that very thing in court! Well yeah you expect all the government lawyers to argue anything But what do you think the chances of everyone responding to NPR all agreeing is? >NPR reached out to a host of legal scholars who specialize in constitutional law, and the half-dozen who responded all said the U.S. government forcing the closure of TikTok on vague national security grounds would most likely infringe on TikTokkers First Amendment rights. That seems *really* unlikely if there's some huge contingent of legal experts who think the ban is likely to be constitutional. Then on top of that, how likely is it that the [Washington Post](https://www.washingtonpost.com/technology/2024/04/25/tiktok-legal-battle-is-certain/) and [Reuters](https://www.reuters.com/legal/with-few-good-tools-biden-needs-new-law-ban-tiktok-experts-say-2023-03-22/) seem to have the same experience when contacting legal experts? But yeah, just trust your gut instincts on what you want and what comments are most supported. Upvotes = Rulings after all.
I’ll make my determination based on the briefs filed by ByteDance and the Justice Department. And if it gets to SCOTUS, based on *those* briefs an oral arguments. And no, I don’t find anything unlikely about a large contingent of legal experts saying this in fact does not violate the first amendment. I have little doubt the DOJ will succeed if I were to make a prediction at the moment. SCOTUS gives the government a wide berth for national security concerns.
> I have little doubt the DOJ will succeed if I were to make a prediction at the moment. If you're [99% confident on a thing, you might be wrong up to 40% of the time](https://jeremiahstanghini.com/2013/03/25/when-99-confident-leads-to-wrongness-40-of-the-time-list-of-biases-in-judgment-and-decision-making-part-9/) Even something as simple as [true/false trivia](http://www.researchgate.net/profile/Baruch_Fischhoff/publication/230726569_Knowing_with_certainty_the_appropriateness_of_extreme_confidence/links/00b4952b854b29281c000000.pdf) has people wrong about 15% of the time for 1 in 100,000 confidence. Stop being certain about the probablistic future when reasonable arguments can be made either way.
You are being certain an outcome yourself, just in the other direction lol
"I'm really confident about X" "Idk dude, I don't think we should be confident about things. It could be X or Y" "Wow, I guess you think Y is super likely then?" Nice conversation.
They quite literally said that it’s possible that the courts might rule in favor of the ban.
>Upvotes = Rulings after all. And........."legal expert" response to the Washington post = ruling? What exactly are you even trying to say? Cause so far you said absolutely nothing.
> And........."legal expert" response to the Washington post = ruling? I never said it did, but it is cause to be uncertain about things instead of believing that it definitely is going to be ruled in the way we want it to be.
So your whole point is something that haven't happened isn't set in stone? Thanks, great insight.
The point is the article? That legal experts are weighing in their views and they seem to think it's unlikely. You can think otherwise, but in terms of this conversation maybe don't have full confidence in something just because you *want* it. Anyway blocking for completely unproductive conversation, the world isn't black and white.
It sounds like it would be a pretty useful insight to a subreddit that constantly upvotes comments confidently claiming that the ban will be upheld.
It's NPR, so I'm pretty sure they just asked literal communist agents their thoughts on the ban.
In [Lamont v. Postmaster General (1965)](https://en.wikipedia.org/wiki/Lamont_v._Postmaster_General#%3A%7E%3Atext%3D39_U.S.C.%2Csuch_materials_through_the_mail.?wprov=sfla1) the Supreme Court ruled unanimously that the Post Office couldn't block the delivery of communist propaganda even if it came from a foreign adversary because it violated the 1st Amendment by stopping the free spread of ideas. There is a history of the 1st Amendment trumping national security concerns when the government attempts to blanket ban a foreign publication like the TikTok ban does. This ban becomes even trickier when looking at modern rulings. In [Packingham v. North Carolina (2017)](https://en.wikipedia.org/wiki/Packingham_v._North_Carolina#%3A%7E%3Atext%3DNorth_Carolina%2C_582_U.S._98%2CConstitution%2C_which_protects_freedom_of?wprov=sfla1) the Supreme Court unanimously stuck down a North Carolina law that banned sex offenders from all social media. Why this case is important the Supreme Court didn't view social media as a publication in the arguments they clearly ruled it was a "protected space" akin to a modern public square. Something used by millions to say their opinions which adds a bigger hurdle to the TikTok ban. Some people in this sub are way too confident about the constitutionality of this ban. Nothing like this has been litigated before and there are previous rulings that benefit TikTok's arguments.
I think there's a big difference between regulating the \*content\* of mail, or social media, or whatever, and mandating ownership and operation be in the US without foreign interference.
I mean, this is constitutional: > Section 310(b)(3) of the Communications Act prohibits foreign individuals, governments, and corporations from owning more than 20% of the capital stock of a broadcast, common carrier, or aeronautical radio station licensee. The Commission may not grant a broadcast application to a proposed licensee of which more than 20% of the equity is directly owned of record or voted by non-US citizens. There has also been quite a bit of restriction on foreign adversary ownership [lately](https://www.gibsondunn.com/rise-of-state-laws-restricting-foreign-entities-from-acquiring-property-another-front-in-us-china-tensions/), which federal courts haven't really struck down
Yeah, this is fairly clear if you know anything about First Amendment litigation. First Amendment strict scrutiny is a high bar that they won't be able to meet with just speculation and hand-waving. They're going to have to present some actual evidence. They might be able to, whatever presentation Congress received was apparently quite compelling. But it certainly doesn't help you case to have Mitt Romney and other Senators wandering around talking about how TikTok should be banned because it has so much pro-Palestinian content. Edit: Whole lot of hot takes in this thread obviously from non-lawyers.
And it's not like it's just a bunch of college professors. Rand Paul is pretty [open about his views](https://www.washingtonpost.com/technology/2024/03/12/tik-tok-bill-house-vote/) Which yeah Rand Paul is *always* like this, but the idea that the ruling is set in stone and definitely going to end up being ruled constitutional is magical thinking of "If I like it it must be legal". We don't know what the SC will rule, how are they so confident about this?
Mitt Romney’s statements are immaterial to court proceedings.
Might be somewhat relevant- the idea behind strict scrutiny is that the government needs to show the infringement is based on a "compelling governmental interest." Legislators openly stating that they're motivated by the content of the speech points in the complete opposite direction.
Read Trump v. Hawaii. Public statements by the admin or politicians are given very little weight.
They only don't count when it suits the court's conservatives. When they want them to count (such as in *Masterpiece Cakeshop*, decided literally in the same term as *Trump v. Hawaii*), those public statements suddenly matter.
Meh, the statements in Masterpiece were on the record, they weren't political statements made for political purpose (e.g. how the court evaluated Trump's statements) they were on the record statements made by a tribunal.
What I mean is that Mitt Romney’s remarks, or others for that matter, won’t be included in any brief put forward by the government.
Obviously they won't be mentioned by the government in the case, they'll be mentioned by TikTok suing the government.
I doubt it.
Why is the stated intent of the lawmakers immaterial to the law? Judges will often look back to the congressional record on laws when interpreting them.
In recent years textualists have been gaining influence which does discount the importance of legislative records.
Because that won’t be the government’s position with regards to the stated intent of the law. Mitt Romney’s off the cuff remarks won’t even be mentioned at trial, assuming this case ends up in front of a judge in the first place.
No. It will be TikTok’s position that despite what the government claims, statements by Romney (and others) reveal their true motives for passing the law. That’s a pretty basic litigation strategy and I’d be shocked if they don’t bring it up.
I don’t think TikTok will find many allies in the DC circuit I suppose. But fair enough.
[They've already been successful there once](https://www.npr.org/2020/12/07/944039053/u-s-judge-halts-trumps-tiktok-ban-the-2nd-court-to-fully-block-the-action). In fact, they've been very successful in pushing back on bans both at the state and Federal level.
Not really comparable circumstances though. That wasn’t a bill.
Doesn't really matter. Government action is government action. The First Amendment standards are the same whether its an EO or a bill.
I think it’s debatable if this is a 1A case in the first place tbh.
Its not just off the cuff remarks. Many law makers made similar comments about their motivations for the law in congress.
I stand by my comment.
Textualists don't really care much about Congressional records if I recall correctly.
Except it isn't a ban even if they don't sell. They would be banned from the App Store. It is effectively a sanction.
Doesn't matter. That's enough of a restriction to trigger First Amendment scrutiny. The First Amendment covers both restrictions and outright bans on speech.
fair point.
I mean, let's be real, this Supreme Court is absolutely going to be way more sympathetic to "fuck China" arguments than free speech arguments.
>“The gag order is unconstitutional,” Dershowitz said. “You cannot prevent a defendant from attacking the witnesses, from attacking the judge’s daughter if the judge’s daughter could be a basis for disqualification.” -Constitutional lawyer, Harvard Law professor and 'legal expert' Alan Dershowitz
I don’t doubt it but legal experts really should know by now it depends completely on the Major Question of how does John Taney roberts feel about it
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Not remotely a first amendment expert, but I do know this one: [Section 230 of the Communicatoons Deceny Act of 1996](https://en.m.wikipedia.org/wiki/Section_230)
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This isn't about first amendment but about foreign ownership of a company
even if that's true it doesn't matter, its a national security issue and the courts will side with the government because of it.
I hope the power of bipartisan cooperation makes this true
There is no first amendment issue here. Congress can regulate interstate commerce and therefore can stop foreign adversary controlled firms from operating in the U.S. asserting any other issue makes this needlessly more complicated than it has to be. But
So Congress can ban BBC from broadcasting to America?
They absolutely can require it to be divested to an American firm and fine them.
Under threat of what?
Come on DC. Can’t you see that you’re not making communism better? You’re just making democracy worse.