Banning TikTok Is Unconstitutional. The Supreme Court Must Step In
aclu.org
aclu.org
If China sold candies that contained poison and marketed them to Us children, it would be easy, since the FDA prohibits this. If the FDA didn't exist, perhaps poisoned candy sales would prompt the creation of such a regulatory body.
So I guess I oppose the ban while recognizing the danger, and suggest we consider regulating digital goods in the same manner as consumable foods; if provable harmful effects are evident then that is grounds for a ban of a product on the basis of health protection.
A ban based on a feeling?
The main problem is the hyperoptimized addictive nature of some modern social media apps, not who makes them.
Starts with an F ends in L
The FDA was created by an act of Congress, as was this ban. These are identical scenarios -- the FDA has a mandate to block certain things, as does the TikTok ban. What's being debated is the constitutionality of it; and there are arguments both ways, but it seems very likely that the ban will hold.
If you aren't engaged in those practices then there's no need for any GDPR annoyances for users.
I may misunderstand, I'm in America currently.
Would you like to buy a bridge?
Source?
I'm a bit surprised it hasn't happened yet, although those companies are also willing to adjust policies in foreign nations—for instance, Meta saying it won't eliminate fact checking outside of the US.
IF there is a problem, let's solve the root issue (which may include looking at the algo feeds of all big tech, etc).
If I’ve learned anything about how the Supreme Court works, it’s that this is a political calculation, not a legal one. The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.
That's how the Prussian/German bureaucracy was designed too. Lifetime civil service and merit based selection basically means the bureaucracy manages itself removed from the political process. The US system is extremely personalized with elections and appointments so it's uniquely nepotistic in a lot of ways.
Just because you say something with enough conviction does not make it true.
I wasn't aware that the Constitution, the document, was English common law. Again, judicial review as a power of the court is not defined within the body of the Constitution. If it is, quote it please, I'll be happy to acquiesce.
Oh wait.. https://www.uscourts.gov/about-federal-courts/educational-re....
> Just because you say something with enough conviction does not make it true.
Indeed.
I feel the same way about the supreme court justices today as I do about Senators for lightly populated states: people operating with little oversight and with little to no accountability to the people who they hold power over. The bigger problem with the Supreme Court is that, largely, the political calculus is mostly cemented for life of the justice.
The only way out I see for the Supreme Court is a Congress and President who are focused on fixing the issue. But, it still feels general awareness of the Supreme Court issues are still to low and not universally felt- maybe in another 2-4 years.
The cynic in me wishes the Democrat appointed judges would start openly taking such large and egregious bribes too to make judicial term limits a bipartisan issue.
This is absolutely true. Not so much about the President, who has no legislative authority, but Congress, to be sure.
Congress seems to have abdicated its duty to ensure legislation is clear and consistent and evolves with the times. Many of the SCOTUS opinions I've read--perhaps a majority--get mired in trying to read the tea leaves about Congressional intent, or are frustrated because the parties are using the Court to solve problems that Congress could and should have solved.
I don't see a viable way forward since amendments also follow a state structure given Article Five.
FWIW, I think the Supreme Court will not uphold the ban. But TBH I don't know the details of the 'ban'.
Purely political. The law says clearly that states run their own elections and it says clearly that insurrection is disqualifying. Would've been politically inconvenient though (for either side of the spectrum, and especially inconvenient for one side).
> "Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns... state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer"
That's a political consideration, not a legal one.
> "In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up."
That's a political consideration, not a legal one.
You might like this commentary: https://www.cato.org/blog/agree-it-or-not-colorado-supreme-c...
For example, SCOTUS took literally every escape hatch possible NOT to decide the case on its merits, which they transparently say is because it would be politically undesirable.
That’s an excellent read though, thank you for sharing.
Also the constitution clearly gives the federal government the ability to conduct federal elections, not states, and that's exactly what they called out in their brief.
That has nothing to do with partisanship.
> Also the constitution clearly gives the federal government the ability to conduct federal elections
This is literally not true. Please tell me where in the Constitution the federal government is given this authority. You won't find it, which is why all the contortions around federal authority are political in nature and not legal.
The states run 100% of 100% of the elections within their states, including the elections of the electors in the Electoral College who ultimately elect the President.
The entire opinion (and the misconception that it produces, and you relay here) is a handwavy way to say: it sure would be politically inconvenient if the legal structure actually produced this outcome. If it were a legal decision, the political considerations would be irrelevant: the law says what the law says.
https://constitution.congress.gov/browse/amendment-14/sectio...
https://constitution.congress.gov/browse/amendment-14/sectio...
Section 5 gives congress the power, not the state, to enforce section 3.
If you want to say you were right that it's an amendment, ok.
Now you're mounting a totally different argument which is that Congress has the power to enforce Section 3. This is true, but that does not strip states of power to run their own elections how they see fit. This merely grants power to Congress to enforce Section 3.
You just misunderstand how the Constitution works.
Here's proof: The Constitution does not give states the power to pass laws. It does give Congress the power to pass laws. It giving Congress the power to pass laws obviously does not strip states of their power to pass their own laws.
I think this is the thing people don't get. Right or left, Democrat or Republican, it just doesn't matter anymore. You have nine of the best legal minds in the country, supposedly, and they constantly vote along party lines. There is no way that happens if the law is actually being respected.
You might appreciate Roberts' '24 year-end report on the federal judiciary: https://www.supremecourt.gov/publicinfo/year-end/2024year-en...
I don't think there's any reason they can't continue as a web app. I think American companies are barred from doing business with them.
https://gizmodo.com/tiktok-will-reportedly-shut-down-its-app...
"I'll burn down your house unless you sell it to me for $1"
See, that's not arson, because you always had a way out.
1/Selling something doesn't destroy it
2/You don't want to destroy it because you want to fetch a high price for it
3/Nobody's offering $1 for TikTok, and nobody expects ByteDance to accept $1 for it
4/A fair market price would make ByteDance whole
The only similarity between condemnation and arson is that you don't get to live in the house anymore. If your house is condemned and you get fair market value for it, you can buy a new house with it. If your house is burned to the ground, you have nothing.
Similarly, if ByteDance sells TikTok to someone else, TikTok can be to its users exactly how it has been all along. They've simply chosen not to, at least not yet. And it's in their best interest to characterize it as a ban to win hearts and minds, even though that characterization of "banning" is something they're choosing to do to themselves by shutting it down instead of selling.
Social media platforms hosted outside the USA are going to be banned, because national security.
People may not realize or acknowledge it, but we are in the very last days of "free speech" on the internet.
The law:
> It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of ) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following: ...
In order to take this seriously as speech infringement, you'd have to define software as speech. Precedent holds that the expressive part (source code) is speech, but that the functional part that operates is not speech. This law bans the software function.
From a EU perspective, regulating what companies do is not in conflict at all with human rights. The privilege to operate a company, provide advertisement, sell products and services, to use the local economy, all that is regulated. It should also be mentioned that companies generally tend to receive some benefits that individual persons do not, especially when it comes to taxes, risk taking, and debt. Companies can own and operate things which private person can't. The distinction between the rights, responsibilities and privileges that a private person has compared to a commercial company are fairly major.
Why is the ACLU talking like TikTok is a US citizen which free speech rights are being infringed?
The ban does not say that US citizens are not allowed to use the application (or apply speech). The method of the ban is similar to those blocking torrent sites, as in blocking them on an ISP level.
ISP already operating a fairly large block lists, both in the US and EU, blocking everything from pirate sites, scam sites, and more serious criminal ventures. The legal frame work generally do not talk about users (outside of deep packet inspection territory). They simply get applied more like industry regulation. It should be noted that the 1965 case has not prevented ISP block lists, and I would assume that the long list of pirate cases where ISP has objected to block lists in the last 30+ years has thoroughly tested the 1965 case. We can also look at the very recent net neutrality situation, where ISP has very much been defined as something very different from the postal service.
As a minor aspect being said in articles describing the ban, the ban would not prevent users from accessing the app if its already installed. As an ISP block it would break the functionality of the app, and new users would only get a spinning bar when trying to download it, but citizens would not be legally bound by the ban. That is mostly semantics but there is a legal distinction.
On the other hand, it doesn’t sit right with me that ”China scary” is enough to outright block whoever is successful in the surveillance capitalist game invented in the US. It screams of political hit job for hire by the tech oligarchs. It’s like banning Taco Bell for health reasons and leaving McDonalds alone. If the modern US was not a plutocracy, this would have been an opportunity for legislators to do real harm reduction and steer predatory mega-corps in a better direction.
"The law’s supporters have, at times, minimized the ban’s impact on the First Amendment, citing the mistaken belief that TikTok users can simply move to another platform. From a constitutional perspective, this is nonsense. The government can’t justify shutting down The Washington Post because readers can simply buy The New York Times instead."
> Although the D.C. Circuit ostensibly applied strict scrutiny in upholding the ban, it subjected the government’s assertions to little genuine scrutiny in the end
Does the author understand checks-and-balances? The DC Circuit found that Congress did a lot to try to investigate and come to an agreement with Bytedance that would resolve their concerns. After all that, it's Congress' power to decide what to do, not the courts. They are not just allowed to second-guess congress. They can only look at the "how" of the law, the "why" is largely non-justiciable. And if the goal is to stop CCP speech, through the TikTok algo, then there's really nothing to do other than ban TikTok.
Personally I think the ban is xenophobic and we should instead regulate ALL of these apps (X, Meta...) but it is legal
As such, I support the ban, for the sake of doing something. I admit it's not ideal but we live in a messy and tense world. User's speech isn't really taken away, just use another dopamine feed. Better yet: use none.
You'll find it's in particular activists protesting this move.
Something something PATRIOT Act.
All that to say, you get what you vote for. And we’ve been voting very poorly for well over thirty years. In any organization, you hire that poorly for that long and you will naturally have some deleterious consequences.
I was at the time a US citizen, and I thought it was moronic authoritarian bullshit. It was basically written by taking every obnoxious proposal that various cops and spies had been having trouble getting passed, shoving them all in one document, and rushing it through unexamined. In response to essentially no surprising new information, at that.
... and lots of other people said that.
I'll give you that the majority of you supported it, and that the people in Congress (who tend to have a personality type with a certain kind of blindness) supported it. "Everyone" didn't support it.
These are not the same thing, and it's depressing how vulnerable people seem to be to propaganda anymore. No one can even read a legal brief or a law.
Some of this is a tit-for-tat, I surmise.
<opinion> The embracing of terrorist sympathizers across the platform is not helping. </opinion>
Not as a pretext for speech regulation. And the right to free speech in the US is understood to include the right to listen.
> If TikTok was shipping books into the USA no one would be arguing whether it would be constitutional to ban them or not.
I'd like to think nobody would be arguing, because that would be clearly unconstitutional. But in fact people probably would try to claim it was somehow acceptable. They'd be wrong.
They might get away with a ban on all books from a given country, if they could show it was really, truly intended to affect only the physical process of printing and the market for that service. The instant it's even peripherally intended to affect the content, it's unconstitutional. And the TikTok thing is about content and who controls content.
You could buy obvious Russian propaganda in the US in the middle of the Cold War.
> The constitution hasn't been updated for the internet and smartphones but they absolutely can be governed the same way, as courts have ruled over and over again.
Great. Since banning book imports would be blatantly unconstitutional, so is this bullshit.
The entire argument is about their algorithm. They are not written and published in the USA if someone in China controls what goes in them.
So if Americans are discriminated in China, would you suggest to do the same with the Chinese in US?
One rule that I would like to see implemented to equalize trade is to not allow foreign citizens or corporations to be able to purchase real estate in this country or become majority shareholders in any corporation if the country of their citizenship or incorporation does not allow the same reciprocity. It is foolish to allow this kind of imbalanced ownership to happen.
For me, think the ACLU makes a valid argument, that this could set a bad precedent. But, the Chinese government already has a system to at least partially monitor and influence what some businesses do (requiring corporations to have role for the CCP in their charters). https://www.csis.org/analysis/new-challenge-communist-corpor.... It doesn't seem out of the realm of possibility that the CCP uses tik-tok to influence the US populace (think Russia and its use of social media during the 2016 election of Trump).
Yeah, this situation is pretty messy.
The fact they packaged it inside a funding bill that would have been politically unpopular for Congress to oppose also makes me speculate that they felt it wasn't strong enough to stand up to scrutiny on its own merits
My feed is very enjoyable: mostly neat cinematography tutorials, AI news, and just a little bit of OIIA.
So TikTok sells to a domestic company, domestic company wants to wire over $40bn to ByteDance but before the transfer goes through the Treasury Department decides a $40bn payment shouldn't be sent to a "foreign adversary". It's my understanding that the Treasury has a lot of leeway in this.
President Reagan, Mastermind - SNL:
It's not entirely clear if Biden thinks it's a good move but honestly I doubt very much he has his own opinion on this as it is.
[1]: https://docs.house.gov/billsthisweek/20240415/HSupp_01_xml.p...