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Comment by vivekd | Hacker News Reader

I don't know if it's a free speech issue but legally speaking it's definitely not a first amendment issue because the law targets foreign corporations and the Constitution doesn't apply to foreign entities

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But there are American users making and viewing content on that platform.

The physical equivalent would be if China was hosting a TED-talk-like conference where anyone can come and hold a presentation, and after certain kinds of talks became popular congress would tell them that they are no longer allowed to let Americans in, neither to hold presentations nor to listen to them.

Technically that doesn't violate the constitution, but it's not difficult to argue that it does violate the spirit of the constitution

An issue arises when popularity is manipulated through artificial boosting by an adversarial government.

At some point, it becomes State Propaganda masquerading as grassroots activists.

Control over content can influence and distort public discourse and understanding. This is also against the spirit of free expression envisioned in the constitution and instead injecting an intentionally divisive voice.

The physical equivalent would be if the Chinese intelligence apparatus opened an auditorium where they said "come sit here and let us read your mind and we will feed you what advances our national interest".

> But there are American users making and viewing content on that platform.

Those Americans can host the exact same content on youtube or any of the many other video hosting sites.

This is not a free speech issue, it is a megaphone issue.

Just as a thought experiment, take your reasoning and try to ban as much speech with as much specificity as you can. You can't ban the content of the speech but you can ban venues where speech takes place and and means of transmitting speech so long as at least one venue and means remains.

Making things harder is not separable from making things impossible.

That's true and that's actually something the courts consider. The standard is unreasonable burden. So it's not necessarily anything that makes speech harder, but if it does make speech unreasonably burdensome then it would run afoul of the first amendment.

So if the alternative places where such speech could be hosted were extremely limited, expensive or very difficult to use then the law banning a platform could create an unreasonable burden.

Suggesting that a shuttering of TikTok represents any impediment to your First Amendment rights — even if no comparable alternative existed — is to misunderstand what was promised by the Constitution.

Of course, plenty of comparable alternatives do exist.

It would be harder for me to learn piano if my teacher was convicted of murder.

For the sake of the one downvote, please allow me to complete the implied dialogue tree:

>>>> It would be harder for me to learn piano if my teacher was convicted of murder.

>>> Nonsense. You can easily find another piano teacher.

>> Right, just like people who use TikTok can easily find another short form video platform.

> That's a terrible analogy.

Nonsense. If TikTok was convicted and shut down because of rampant financial fraud, your First Amendment rights would be similarly unaffected.

TikTok was told to close because they refused to bring their corporate ownership in line with requirements set out in US Code passed by Congress. The content of any video was never at issue.

This make no sense, at all, in any context. Law enforcement, security, philosophy, competition, politics. None of it.

Correct, but requiring American content creators and consumers to move to a different platform (when those platforms are already large, have huge reach, and have low switching costs) would likely not meet the bar for an unreasonable burden. I don't think the courts would strike down this law on first amendment grounds.

> after certain kinds of talks became popular congress would tell them that they are no longer allowed to let Americans in,

I think if that were the situation then yes the first amendment would be in issue. But I don't think anyone is saying that this is happening here. As I understand it this has nothing to do with what anyone is saying on TikTok and there are no social or protest movements gaining ground on TikTok that the government is trying to suppress. The only issue here is the foreign ownership and how that ownership is used. I don't think anyone is saying the government is doing this to silence any TikTok users

> the Constitution doesn't apply to foreign entities

Sort of true. Sometimes the constitution just says "persons", which has generally been interpreted to anyone.

But it's not material, because the 1st amendment is a restriction on congress. That's why it starts with "Congress shall make no law...". The argument isn't about if TikTok has rights, it's about if congress is authorized to take this action. They're inter-mixed a bit because if TikTok does have the rights they claim, then congress automatically isn't authorized, but they are separate.

you're right, my statement is an extreme oversimplification and there are situations where the constitution does apply to noncitizens (like due process during deportation) or places where things are unclear (if speech of foreign nationals were being regulated). But this case where we are talking about a foreign media platform's right to operate in the US without any reference to the content they are broadcasting... this seems to be one of those rare clear cut cases. I mean no one saw any issue with America effectively banning RT.

There were some people on here saying that national security is just a pretense and the government is actually doing this because they dislike some of the content being posted on TikTok. I don't know if that's the case but if it were then I would concede there is a first amendment issue. But absent that I think it's safe to say that this case doesn't raise the first amendment.

> But absent that I think it's safe to say that this case doesn't raise the first amendment.

I still think it does, but it's Apple and Google's right to propagate the app, not TikTok's right to be on the app store. And since neither Apple nor Google are party to the lawsuit, nobody really has standing to take that particular line of argument.

Yes, of course Congress has the authority to restrict foreign companies purely from the Commerce Clause alone. Their power over restricting foreign entities in the U.S. is nearly total. The U.S. is under no obligation to host speech or operations from any foreign business, entity, or application for any reason whatsoever.

And we have a long history of restricting foreign media ownership

So if a particular book were published by a French company, the government could ban it from being sold in the US? I’m sure that’s not true.

No, they couldn't ban just one book printed by a French company. They'd have to ban the company entirely. And that's what happened here too. It's not just TikTok that got banned, but all of ByteDance's other apps too, e.g., Marvel Snap and CapCut.

And it's also important that divesting was an option instead. In your analogy, they couldn't ban the books outright, but could demand they be published somewhere else.

No. But they could ban American companies from providing services directly to that French publisher (e.g., a US company couldn't print books for or sell paper to that French publisher). However, a US law could not stop me from legally reading a copy I owned, or from selling or giving that copy to someone else within the US...

The First Amendment case would be much clearer if this was actually about banning access to TikTok (it's not: TikTok self-blocked US users, Amazon/Oracle shut off servers, and app stores stopped distributing to US users). TikTok could choose to operate their service (like many other Chinese companies) using only non-US infra and without relying on American companies to distribute their app; indeed, the Chinese version of TikTok, Douyin, hosted entirely from Chinese servers, continued to work just fine.

This case is also a reminder of why the iOS App Store is so bad for rights: at least on Android, you could sideload a 'banned' app; Google can comply with the law and US users can still download TikTok. On iOS, you don't have that option.

Using such restraints on foreign trade to censor publications is a very transparent end run around 1A.

It is a big sign that we live in a police state that the courts are willing to be politicized to the point that they are willing to ignore this obvious trampling upon the human rights of both the app publisher and the app’s users.

Also, iOS users can go buy a tablet or phone that can sideload. Also, tiktok.com is a thing that works on everything.

If this law is a trampling of human rights, then so would basically any anti-trust enforcement on media corporations

This isn't an "end run around 1A" - the law doesn't target any speech or content at all. TikTok can keep operating with all the same content, they just need to separate from Chinese ownership first. If this was about censorship, why include that option?

This isn't about censoring content, it's about preventing ByteDance from collecting personal data from 170M Americans that Chinese law requires them to hand over to their government.

Oh please. TikTok isn't a publication. The individual creators on TikTok have not been censored; they've merely been told that TikTok is not permitted to operate in the US, and that they will have to post their creations -- unedited, unaltered -- on other services. And those other services exist, and have wide reach, so it's not like saying "sure, you can continue to create, but your audience is now 5% the size it was before".

> Also, tiktok.com is a thing that works on everything.

Sounds like you're arguing against yourself. TikTok hasn't actually been banned.

yes, tiktok is publication of an application program.

It's not end run around 1A. 1A is a law protecting the people (and their various forms of organization) of the United States. Congress has every right to regulate or ban foreign entities of any kind for any reason from operating in the United States.

The rights enumerated by the constitution are human rights (“endowed by their creator”) and are not specific to americans.

Furthermore, the 1A is a restriction on the government and isn’t related to whether or not someone is a citizen.

There are lots of things congress is prohibited from doing under the constitution, including against foreign entities. Congress can’t ban a foreign religion operating in the US, for example.

> rights enumerated by the constitution are human rights (“endowed by their creator”)

You’re quoting the Declaration of Independence.

Correct.

So not "rights enumerated by the constitution." Which is why the degree to which the First Amendment provides protection does turn on legal status with America [1].

[1] https://constitution.congress.gov/browse/essay/artI-S8-C18-8...

The constitution applies to American users and to non-Americans on American soil. It's not like the cops can execute you for being here on a tourist visa.

I do not think that the constitution necessarily applies to corporations. Corporations, for example, do not have a vote.

Forced corporate divestiture is a thing, for example Merck.

Corporations have First Amendment rights as ruled by Citizens United v. FEC. Even though corporations don’t have a vote (which is its own can of worms because of their economic power, money = vote), they still enjoy some of the same constitutional protections as individuals do.

i mean that's old law. theres a new law in town and it was a 9-0 ruling too.

Thats only because those corporations are owned by Americans. Foreign corporations do not have first amendment rights.

No, there's no such reasoning in that decision, which confirmed that speech itself is protected by the first amendment, regardless of who originates it.

And this ruling had little to do with any of that -- the first amendment challenge was that the ban imposed content-based burdens on the speech of the users of TikTok, and the court ruled that it did not. So the ban therefore survived the challenge under intermediate scrutiny.

The domestic vs. foreign ownership element of the ruling only pertained to the evaluation of whether there was a compelling government interest in enacting the ban, not whether the government was exempt from first amendment scrutiny at all.

Something being a free speech violation does not imply it being illegal, free speech exist as a independent concept from the US constitution

The constitution applies to the government. It establishes the government and defines -- and therefor limits -- what the government is allowed to do.

Corporations are considered "legal persons" for the purpose of applying the law to them in a convenient and organized way, but in real life, corporations are just organizational models employed by human beings for the purpose of coordinating their activities.

The restrictions applicable to what the government is allowed to do to "people" as defined in the constitution apply regardless of what organizational models those people are using to coordinate their activities. Ultimately, everything in society reduces to people, and the government is not entitled to use reified abstractions to escape the constraints on its authority.

The constitution applies to the people of the United States. It's in the first line: "We the people of the United States..."

That Constitution also includes numerous clauses granting Congress the authority to regulate international commerce (Article 1, Section 8, Clause 3). TikTok is a foreign commercial enterprise. We have restricted foreign products and services since the Boston Tea Party.

But wouldn't you be infringing the rights of the US users if you ban the platform they want to message other US users over? Isn't that indirectly infringing their free speech? Or does the first amendment not protect stuff like this?

That indirectness is exactly why it's not. The first amendment ensures you can express what you want, but you're not owed a platform.

But can the government actively interfere with my communication by banning the platform? If the government notices that a lot of critics are organizing over Discord, can they ban Discord, because they're not banning speech specifically, only a platform used to spread the speech?

> can the government actively interfere with my communication by banning the platform?

Yes. Foreign-ownership rules have been a thing in America for almost a century [1].

[1] https://www.fcc.gov/general/foreign-ownership-rules-and-poli...

I think what you raise is something the courts should consider if the government were trying to shut down a platform because of what it's users were doing on it. But it's not a live issue in this case. There is no allegation that the US seeks to suppress TikTok because of what Americans are posting on it. TikTok isn't saying the government is doing that and I don't believe the government is seeking to control the speech of TikTok users. The consern seems to be more about who controls the algorithm and data collection (a foreign state with adversarial interests) and it seems to me that it has nothing to do with anything Americans are posting on TikTok. I mean the content on TikTok isn't all that political or revolutionary

> There is no allegation that the US seeks to suppress TikTok because of what Americans are posting on it.

Of course there is. It’s obvious that a huge chunk of the momentum behind the TikTok ban stems from a desire to suppress anti-Israel content.

If that were the case, then why was ByteDance given the option to divest?

How is that incompatible? Who would control it

Because the drafters knew they wouldn't/couldn't/aren't allowed to/would only be able to do so to someone more under the thumb of the US government?

The actual purpose of a law or system is the actual outcome of it and not what it's dressed up to say its purpose is. A law that says "we don't allow mosques unless they're owned by people not descended from countries on a terrorism watch list" is still an infringement of the freedom of religion. We don't have to pretend there's good faith here.

> Because the drafters knew they wouldn't/couldn't/aren't allowed to/would only be able to do so to someone more under the thumb of the US government?

This is at best vacuously true. Since China is the most powerful adversary of the US, you'd say that literally anyone else is more under the thumb of the US government than they are.

Because if they were owned by an American company it’s much less likely they’d allow that content to go viral.

The law didn't require the new owner to be in America. Anywhere other than Iran, North Korea, China, or Russia would have been allowed.

Given how laws and American rights have been established to work. Yes, absolutely. They just need a legally acceptable reason to do so separate from the speech. Banning a platform because of speech they don't want isn't allowed, but banning a platform for other reasons is, even if that platform also happens to facilitate speech.

Like with tik tok, the ban itself isn't a speech issue because there's nothing bytedance can change about it's communication to not be banned, it's an ownership problem.

They could filter Palestine content, then although some people still want to ban it, it won't be easy

Welcome to the religious fallacy of strict textualism, currently worshipped by the Supreme Court majority

By your very broad definition of infringement if a newspaper refuses to pay it's taxes, and then the government shuts down the newspaper down for that, this would be infringement.

Clearly it's not.

Yes, the government can make laws that effect speech platforms just like we can make them pay taxes.

You may wish to read FIRE and other organizations amicus brief where they lay out exactly why they think the ban is a free speech issue, legally speaking: https://www.thefire.org/sites/default/files/2024/12/Amici-Ti...

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