Comment by majormajor | Hacker News Reader

Comment by majormajor | Hacker News Reader

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What? Many people just don't think the First Amendment applies to foreign nations. (Why would it??) And that restrictions on corporate control/structure for the US-based parts are not speech issues (e.g. imagine if free speech was a defense against an anti-trust prosecution).

The simplest case for banning TikTok is simple reciprocity. China is no longer a market that needs the level of protectionism they currently have to develop. The second best is data privacy. Just a shame they won't apply the same to US companies yet. And then an additional reason is the one that's being used currently - risk of foreign influence. You'd hate to not ban it "because it hasn't happened yet" just for it to happen in the future. China keeping out US apps seems to have worked out great for their local industry, I'm hardly convinced it wouldn't also be a good thing for US citizens. And with the foreign-country thing tossing Constitutional issues out the window, go nuts.

Let's remind ourselves of what the First Amendment says:

> 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.

The Constitution does not consider Freedom of Speech a positive right, one that can be granted to some but not others. It is a negative right against the government. It's about as broad and as absolute as you can get. This is why the right also applies to legal entities (eg: companies), even foreign legal entities. It is not limited to citizens, it is not limited to persons.

The First Amendment famously has limits, which have been tested and have held, repeatedly. These limits generally arise from conflict with other rights or societal good. On the latter point, obscenity is one of the most well-known exceptions. The government can and does make laws against it.

The idea that a foreign, adversarial government would have a Constitutional right to propagandize our citizenry at-scale is obviously not consistent with the societal good (or the "common defense", for that matter), so is outside of the First Amendment's scope/intent.

If you want to make an argument that it's not happening, that's one thing. But, your assertions about TikTok having some blanket "right" here are false.

> The idea that a foreign, adversarial government would have a Constitutional right to propagandize our citizenry at-scale is obviously not consistent with the societal good (or the "common defense", for that matter), so is outside of the First Amendment's scope/intent.

https://en.wikipedia.org/wiki/Lamont_v._Postmaster_General

In this case, a U.S. citizen sued, not the Chinese government.

Again, foreign governments don't have a Constitutional right to propagandize our citizenry.

You seem oddly enthusiastic about giving your government the right to violate freedom of speech for entities you do not like, thus removing a platform used both as a platform for speech and for commerce, for 150 million Americans. It totally makes sense to violate the First Amendment over unproven and hypothetical fears of FYP algorithm misuse. Enjoy your slippery slope :)

Feel free to re-read my comments and address my actual statement, pointing out that your initial assertion is wrong. That, versus changing the subject.

>Enjoy your slippery slope

There's certainly a slippery slope here—and a strawman, but they ain't mine.

You just refuse to accept that entities that you do not like also have Freedom of Speech rights. You continue to believe that Freedom of Speech is a positive right to people, rather than a negative right against the government. You are therefore perfectly fine with preemptively suppressing the speech (and commerce) for over a hundred million American citizens, because you perceive a threat from the FYP algorithm, because you do not value the Freedom of Speech rights of entities you do not like. That is a slippery slope. If you don't want to recognise that either, that's your prerogative.

At this point, why even have a negative-right Freedom of Speech if you're just going to treat it like a positive right anyway? Ridiculous.

No need to keep repeating yourself. SCOTUS has already ruled:

https://www.cbsnews.com/news/supreme-court-tiktok-ban/

So, feel free to take it up with them.

This is my last reply. Thanks for the chat. Take care.

Yup, the composition of the Court has changed, thus its stance has changed. But if you choose to defer any and all thought to this Court, who consistently give the government wide latitude to do whatever it wants so long as it invokes the magic words "national security", that's your prerogative. It's a sad way to live though.

If we're parsing at a super detailed level "Congress shall make no law abridging the freedom of speech" seems even further away from the TikTok law, if anything.

"Apple has a first amendment right to be able to list any app it wants, regardless of source" seems like the only claim you could make. The Lamont case doesn't directly apply since the government isn't an intermediary between Apple and ByteDance saying "are you SURREEEE you want to get this app from them?" And the existence of restrictions on what you can send/receive through the mail make it clear that Lamont isn't a blanket "you can't regulate messages between people" restriction.

So is "hey Apple, don't list things that meet that criteria" different than "hey UPS, don't send things that meet this other criteria"?

AFAICT the Supreme Court didn't really consider it from this angle anyway and just looked at it as a regulation on corporate control, which also seems completely legitimate. Can the US gov't say "certain things require US-person-owned/controlled companies?" They do for other things already.

I think you're both conflating the concept of "free speech = good" with what forms of speech are, at this moment, permitted or forbidden by US law.

For someone who believes in the concept of free speech, the fact that US constitutional rights to free speech in practice almost certainly do not protect overseas business interests is really an embarrassing corner case. Even if you do genuinely consider national and foreign actors to be different kinds of entity, so that it could be ethically sound to protect one and not the other, there's a simple technical reason for constantly the distinction to be artificial: Free speech protection can be gained merely by funnelling the speech through an intermediary US citizen.

https://firstamendment.mtsu.edu/article/lamont-v-postmaster-...

This case shows that there is a first amendment right to receive.

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