TikTok owner has strong First Amendment case against US ban, professors say | Hacker News Reader

TikTok owner has strong First Amendment case against US ban, professors say

arstechnica.com

31 pointsrntn48 comments

This will be really interesting if it makes it to SCOTUS. They really don’t like pitting two principles against each other. In this case it would be national security and First Amendment protections. They will try to find any reason why this doesn’t really fit on procedural grounds or some limited circumstances.

As a layperson I find the oral arguments surprisingly accessible. Oyez even has them in podcast format. All of the justices ask sharp questions despite media loving to portray them as clowns or partisan hacks.

> All of the justices ask sharp questions despite media loving to portray them as clowns or partisan hacks.

The intent of laws is to be understandable at specifying and clear in application. If it takes efforts of highly professional people to determine the application and explain the rationale - the latter part often not really done - then those sharp questions aren't worth much, and loving to portray as clowns gets quite old and turns into hopeless illustrations of the lost of reason in the important activity.

> They really don’t like pitting two principles against each other.

They shouldn't have any animosity here. If two principles do conflict, it's not the judges' job to invent a solution - they have to uncover the conflict, make it visible - a sort of a bug report - and apply some decision, with all caveats clearly stated.

It’s not that you have to be professional to understand, it’s that professionals reliably do. The vast majority of Americans can’t even name what the Bill of Rights does, or what the enumerated powers of Congress are, for example. It’s not that these are inaccessible pieces of knowledge, but people aren’t aware of them.

With a basic grounding in civics and after brushing up on the laws in question, I think most people could follow along.

No, they can't. There is no legal codebase in the world that is grokkable to ordinary people anymore. 8th grade story-telling level of understanding is not the performance level you need in the legal game. That's enough understanding to make you sound smart while getting into trouble.

Tensions between fundamental values is exactly what top courts are for!

> While the Chinese government engaging in propaganda is a problem, "we need to address that as a government propaganda problem, and not just limited to China,"

Don't disagree with that.

But I don't get why TikTok the company gets speech. The company it self isn't saying anything. Its just providing a way for people to share their message. Individual them selves aren't being told they cant share. They can still make videos.

AFAIU from the article, the 1st amendment argument is not about the company, it's about the users. Quoting from the article:

> Molloy's ruling said that without TikTok, "User Plaintiffs are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate."

The complication for me is that banning TikTok is action against a third party. The primary purpose of banning TikTok is not about the speech of TikTok but of its users who are not parties to the suit. If a bar is forced to shut down the bar can’t argue that it is illegal because closing it might infringe on its patrons first amendment rights.

The only way such a suit works is if the users sued, not TikTok.

if the bar also had open-mic nights and the government said "we're going to ban this bar because we don't like the speech they have at open-mic nights" then it would be a first amendment issue for the same reason that banning tiktok is a first amendment issue.

I don't really understand why banning one short form video platform infringes on speech.

Wouldn't that mean banning any web 2.0 platform infringes on my speech if I use that platform? Regardless of why the platform might be banned? There's no way that holds water

IMO, it matters why they're banning it. The reasons are a worry about "national security" as related to Chinese propaganda and manipulating opinions. Those two things are speech, which makes it a valid avenue of challenge.

Why something is done matters to US law just as what was done matters.

And personally, since the spread of propaganda and manipulation is happening on Facebook, only targeting just the new kid on the block is terribly suspect. Especially when there's no plans to address the existing platforms and their use by foreign entities.

Tiktok is a platform used by millions of people, and it acts like a news site for many people. Banning it due to unproved national security problem kinda make it speech problem. If web 2.0 like facebook was banned for national security issue I think it would be first amendment problem. We haven't banned rt.com yet.

"unproved national security problem" and yet Congress was fairly well galvanized to vote for this bill after their intelligence briefings - multiple senators seem to want the briefing declassified: https://www.npr.org/2024/03/21/1239691465/tiktok-ban-bill-se...

Say what you want about the US government, Americans vote for them and their job is to synthesize the information brought to them and take action. The Senate obviously wasn't as overwhelmingly enthusiastic about this bill as the house, but it sure seems like people on capital hill saw something concerning.

We should all probably want this information to be declassified so we can judge it for ourselves, but until then it feels unjustified to say there is no basis for the national security concern

Do users have a right to express themselves on a private platform? Private platforms aren’t a public forum.

Instead if the company was bought by big tech then shutdown some time later, is this also a free speech violation, as users are deprived of communicating by their preferred means?

The First Amendment is a limit on what the government can do.

So a private company can shut down or ban users as it wishes. In this case, the key fact is that Congress passed a law.

However, they didn't pass a law shutting it down, they passed a law about location of ownership. Therefore it is still the company making the choice to shutdown vs selling, moving, or taking another action to comply.

Yeah I saw that quote. I don't get why preference matters? If my preferred medium was spray painting walls, I still don't get to do that because it's destructive.

Im also curious how many people are already sharing their content to everyone else who is hosts videos.

TikTok isn't the only video host. Probably not even the best. The only thing to prefer is their discovery algorithm, and I don't think tiktoks algorithm is speech. I don't think anyone is entitled to a platform.

Corporate personhood for me but not for thee?

But TikTok was not banned… Nor was this about speech. It was about Chinese CCP ownership and control. If the CCP divests and sells it to an American company, TikTok will live on.

Can't you argue that stifling speech is as bad as all out forbidding it?

And if it's about CCP ownership and control, I guess we should probably institute a ban on relying on China for anything at all, including building all of the cell phones kids watch TikTok from.

Interesting how the narrative is that social media can only be a thing if it's controlled by an entity that the US government can effectively bully into violating our privacy domestically. This doesn't strike you as a plain old case of common xenophobia, does it? Citizens in the US will mock other countries for censoring the internet, but this doesn't strike me as all that different from that.

The actual criteria is greater than 20% ownership by:

(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;

I assume this means the law would also force sales of WeChat and VK in the US as well?

The bill doesn’t, but it should. Banning all apps owned by adversaries like China, Russia, Iran, North Korea, and Palestine would make it fair

And one of the consequences of TikTok not divesting would be banning it. So if banning TikTok is illegal, that removes the entire reason they would divest.

I'm not sure why you're being downvoted.

The law doesn't ban TikTok. It was written carefully with the doj, and being passed by Congress holds real weight vs an executive order (as it should!)

A lot of people like TikTok and I would venture most of HN falls in that. People want what they want and when it becomes threatened they get angry.

I do think some of these people here probably don't have the best interests of the US in mind.

The reaction to this, calling out "hypocrisy" or essentially insulting Congress does nothing to assuage the central question of whether TikTok is a national security threat. It's only going to make those with suspicions dig their heels in deeper.

Explain how it is a national security threat, and I can start to work on explaining why it isn’t.

Let’s flip it, explain why US social media is not a national security threat to China.

While not written as a de jure ban, it is a de facto ban.

China has said from the earliest ban attempts under Trump that they would not allow the divestment of Chinese interests. Legislators knew this - they knew that the divestment would never happen, and so in my eyes, they wrote ban into law with a thin veneer of distraction.

I want to see how the TikTok owner sends its representative - a high ranked CCP officer - to defend TikTok in the US court.

I assume they'll have no problem finding American Ivy League Lawyers willing to represent the company in court for a handsome fee.

As long as US social media is banned in China, they don’t have much legal ground, as it can be seen as a tit for tat trade embargo / national security

I'm not finding a game theory exception to the first amendment.

A Chinese company, you just found one.

"Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Not seeing exceptions for a tit for tat trade embargo or a Chinese company here.

> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

> Not seeing exceptions for a tit for tat trade embargo or a Chinese company here.

It's not that simple. I don't see any exceptions for laws against defamation, child porn either, or limits on foreign ownership of TV stations, yet they're there.

Huawei is an example. Foreign companies don’t have the same rights, in large part because of national security concerns. For example is the concern is that a China is trying to infringe on American rights, such as using algorithms, then it’s a moot argument to say TikTok is protected by us law.

> China is trying to infringe on American rights, such as using algorithms

There is no constitutionally protected right for American citizens to not be subjected to propaganda. In fact, it's quite the opposite, since propaganda has been specifically identified as a form of speech protected by the first amendment.

You may not mean this, but this comment really comes off as racist to me. It takes conscious effort to read it through any other lens. I’ll consider that this could be a me-problem.

> You may not mean this, but this comment really comes off as racist to me. It takes conscious effort to read it through any other lens. I’ll consider that this could be a me-problem.

I think that's a you problem. I read "Chinese" as "foreign adversary company," and not as anything to do with race.

I’m married to an ethnic Chinese, I was referring to the CCP, which most people colloquially call “Chinese”. But agree that people will confuse this colloquial term for the Chinese government the CCP for the ethnicity. Most Chinese people outside of china despise the CCP.

Applying constitutional rights to entities you don't have the monopoly on violence on strikes me as suicidal.

Am I misreading this or did you just say 'cause government can always apply violence to you if they don't like your speech'.

IIUC, and I may be wrong, but the Meta/Google/et.al. aren't under a trade embargo in China, they can't do business there because they were unwilling or unable to follow all of the laws required to do business there.

Heck, Google's still trying to arrange the appropriate censorship and filters so they can do business in China.

Can’t reply to your other comment, too nested.

> There is no constitutionally protected right for American citizens to not be subjected to propaganda. In fact, it's quite the opposite, since propaganda has been specifically identified as a form of speech protected by the first amendment.

I would say almost anything can be classified as a national threat, and to consider an algorithms or technology that are limiting free speech or us liberties as propaganda would be a gross misclassification. The cia most likely killed a president under the name of national security, I don’t think a Chinese company has more rights than a us president.

Believe Facebook was banned for a specific national reason in 2009. Hard to do business with a country that doesn’t have something similar to the bill of rights. All Chinese companies are the same as government, meaning their companies don’t have to respect human rights either.

Technically that's exactly the same thing happening here, and under very similar requirements.

Apple played ball, and iCloud in China was handed over to a Chinese state corporation to run.

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