US government claiming there's no First Amendment issue at all in banning TikTok is, well, a choice. www.supremecourt.gov/DocketPDF/24... - ThreadSky

mmasnick.bsky.social • 68 days ago

US government claiming there's no First Amendment issue at all in banning TikTok is, well, a choice.

https://www.supremecourt.gov/DocketPDF/24/24-656/336144/20241227161148472_24-656tsGovt_final.pdf

Comments

sportshotchris.bsky.social•67 days ago

I haven't seen you (I might have missed it) discuss that the Communications Act and its amendments have seriously limited the right of non-citizens to own US broadcasting outlets. Doesn't seem like that was seen to violate the first amendment. https://www.broadcastlawblog.com/2024/08/articles/fcc-allows-100-ownership-of-us-radio-station-by-canadian-owner-once-again-demonstrating-openness-to-foreign-investment-in-the-us-broadcast-industry/#:~:text=Section%20310(b)%20limits%20non,wrote%20here%2C%20the%20FCC%20decided

mmasnick.bsky.social•67 days ago

Broadcast is seen as different under the First Amendment because of the scarcity of spectrum. See red lion.

sportshotchris.bsky.social•66 days ago

I'm not sure we should focus squarely on scarcity, I think there is real danger in allowing too much foreign ownership of media and I think our traditions in the US support that despite recently not adhering to many

egrattan.bsky.social•65 days ago

I think there’s more danger in the government telling me what content I get to consume regardless of who owns it.

sportshotchris.bsky.social•65 days ago

For decades the government has made sure that neither Russia nor China owned television stations. It was the right decision then and is still good policy today.

egrattan.bsky.social•65 days ago

And it’s been explained to you that broadcast is a narrow carve out only due to the unique nature of the government owned and licensed spectrum.

Ignoring this is nonsense.

hellocthulhu.bsky.social•65 days ago

Just a reminder that if those in charge don't want to abide by laws they're just words on paper, even the Constitution.

fredlushoi.bsky.social•65 days ago

How sad, BUT TRUE

dfs4114.bsky.social•65 days ago

natsecguy.bsky.social•68 days ago

TilTok is a trojan horse for the ccp. There are limits to free speech. The constitution is not a suicide pact.

mmasnick.bsky.social•68 days ago

OOOOOOOOH. Three nonsense tropes in one! Did you get a discount?

Now, can you address the ACTUAL 1st Amendment arguments?

natsecguy.bsky.social•68 days ago

Ah ok. Well, thanks for your response.

texas-ip-lawyer.bsky.social•68 days ago

Strict in theory, merely xenophobic in fact

liteman.bsky.social•67 days ago

Especially when they didn't do it to fox news.

serioustalk.bsky.social•68 days ago

It is content neutral.
🤷🏾‍♀️

mjiyq2623.bsky.social•68 days ago

Are they arguing it is a “content-neutral” restriction, in that this is a manner restriction (i.e. company owned by foreign actor) thus requiring lessened scrutiny rather than just saying this has nothing to do with the first amendment?

That makes more sense to me.

deadsouls1917.bsky.social•68 days ago

That's the second argument.

The first argument, which is objectively true, is that TikTok is allowed to host exactly the same content and use exactly the same algorithms as long as it is no longer controlled by a foreign adversary. And foreign adversaries have no first amendment rights.

mjiyq2623.bsky.social•68 days ago

Understood. Thanks for the explanation.

I don’t think I agree with that argument, but that makes more sense than what I originally read into the original post here.

escmike.bsky.social•68 days ago

I had someone explain to me it isn’t illegal because it’s a new law and laws can’t be illegal.

seersnively.bsky.social•65 days ago

Trying to say 'oh, they are a foreign company, so no First Amendment rights for you' would have pretty huge implications for anyone who sells any products inside the US.

Can any US customer just steal whatever from foreign companies, as they have no US rights? Why not?

lifschitz.esq•65 days ago

We have treaties and trade agreements with foreign countries requiring that certain rights be respected across borders (like intellectual property), so there are floodgates that will remain closed irrespective of how the TikTok case gets resolved.

seersnively.bsky.social•64 days ago

But how can you be sure of that, in this political environment, if you rely on those laws for your business?

If a politician can make up bullshit that targets a single media company, whose to say it stops at one, after a success?

cj23creh.bsky.social•68 days ago

Similar legal justification

techsocial.bsky.social•68 days ago

Ron, this is just a piece of paper saying you can do what you want.

mrmonkeybusiness.bsky.social•68 days ago

Well if it DID trigger first amendment scrutiny, that would be devastating to their case, so...

iancd.bsky.social•68 days ago

I don't understand how banning TikTok stops people from sharing their beliefs, which is basically what's protected by 1st. To me, it doesn't look like much else of scoring points against China which has nothing to do with free speech.

mmasnick.bsky.social•68 days ago

"I don't understand how banning the NYTs stops other newspapers from sharing their beliefs."

iancd.bsky.social•68 days ago

But from what I understand, TikTok does not publish content, just as much as Bluesky does not. So I think it would be different. So if it doesn't create content on its own, unlike a newspaper, then it wouldn't suppress ideas

mmasnick.bsky.social•68 days ago

Destroying/taxing the printing press on which others print their words is still a First Amendment violation.

https://firstamendment.mtsu.edu/article/taxation-of-newspapers/

iancd.bsky.social•68 days ago

Thank you, much clearer than any of your recent posts on the subject.

biueskies.bsky.social•65 days ago

Is this, or could this be, an effort in jurisdiction-stripping? And would that be successful?

jayreding.bsky.social•68 days ago

To be fair, the First Amendment ramifications of the law are so dire that they really don't have much choice. If the de facto TikTok ban is a First Amendment question at all it's hard to see how the government wins even if it were just rational basis review.

onbluskysku.bsky.social•65 days ago

They could argue it’s a restriction on commercial speech and try to get and win the Central Hudson test. I don’t necessarily agree but it’s a much better case

mmasnick.bsky.social•68 days ago

DC Circuit said it was a First Amendment concern... and (wrongly, imo) then said it passes strict scrutiny.

jayreding.bsky.social•67 days ago

Read the amicus brief your group filed - very well done! It does a great job of spelling out the issues clearly and concisely.

jayreding.bsky.social•68 days ago

True, but if I had to play oddsmaker I would say either the DC Circuit gets partially reversed on the basis that ByteDance has no 1A rights or fully overturned on the basis that the ban does not survive 1A scrutiny. The DC Circuit's attempt to thread the needle seems awfully contrived.

radlegaltakes.bsky.social•65 days ago

Compelling interest? Probably.
Least restrictive means? Not.

aminal.bsky.social•65 days ago

There's nothing expressive about posting on Tiktok. Like year 40% of Americans use it but let's be real, the consequences are like banning a loud sound truck - USG

tatadude.bsky.social•68 days ago

If corporations hadn’t magically become people this would likely be a no brainer. A platform to express speech is not to be confused with a person’s ability to express their speech as no particular person is prevented from speaking.

mmasnick.bsky.social•68 days ago

If corporations didn't have rights, then it would be easy for the government to shut down any news organization they dislike. Corporations need rights too.

tatadude.bsky.social•68 days ago

1) its foreign 2) it isn’t a news organization 3) it actively promotes disinformation and mind control methods 4) most of what it does isn’t even political speech

mmasnick.bsky.social•68 days ago

1. It's an American company providing services to Americans. 2. If you let the gov't define who is and who is not "a news org" they will define any news org they dislike as not a news org and ban them. 3. Mind control? Lol. Also, disinfo is still protected by the 1A. 4. So fucking what?

tatadude.bsky.social•68 days ago

Recent SCOTUS is a mess on 1A. Inciting violence isn’t free speach. Nothing says there cannot be accountability for lies.

phrly.bsky.social•65 days ago

I think the truth of (1) is really what this boils down to, and why I think the forced divestiture is the part of the law that is most likely to hold up. Because if there's one sort of entity that is the least having of 1st amendment protections, it is foreign governments.

tatadude.bsky.social•65 days ago

At some point we also need to find a legal societal means of distinguishing between freedom of expression and social media brainwashing. Remember when we shut down Joe Camel? Things are now 1000x worse and it’s virtually unchecked.

wanderthedesert.bsky.social•68 days ago

I read the part and it makes no sense to say ByteDance has a US subsidiary yet its foreign so no first amendment rights? What?

tagishsimon.bsky.social•68 days ago

The claim is that it is an offshore algorithm that is being targetted.

wanderthedesert.bsky.social•68 days ago

Still doesn’t make sense to me. The algorithm applied via US subsidiary, no?

tagishsimon.bsky.social•68 days ago

The claim is that the US subsidiary has no power over the offshore algorithm & that it is applied offshore.

blueben.bsky.social•68 days ago

An absolutely hilarious and unproven claim

wanderthedesert.bsky.social•68 days ago

Yeah not sure if that makes sense to me. The algorithm runs on your phone in the US with your consent .

litigaytor.bsky.social•65 days ago

‘Our law against foreign propaganda isn’t content- or viewpoint-based’ is making my brain bleed

digiphile.bsky.social•65 days ago

I bet you’ve read this again, but when US officials talked with Congress about this earlier this year, the First Amendment came up. Repeatedly. https://www.eff.org/deeplinks/2024/09/square-peg-meet-round-hole-previously-classified-tiktok-briefing-shows-error-ban

clayfoot.mastodon.social.ap.brid.gy•68 days ago

@mmasnick.bsky.social Congress can just kind of do that, right? Only instead of "does not trigger", Congress can say "shall not trigger" (or language to that effect) to strip the federal courts of jurisdiction.

harrybjackson.bsky.social•68 days ago

"Verily the Constitution shall not be applied, checks will no longer be balanced, cats and dogs shall live together; Congress shall henceforth be known as the Most Eminent and Handsome Congress Ever to Convene. This shall not trigger the courts, we hereby suspend judicial review."

Ya melon.

lostmydisguise.bsky.social•67 days ago

FB/Meta is sharing more information with foreign entities than TikTok is.

'China' is simply MAGA's new boogeyman.

tntrouble55.bsky.social•30 days ago

Smoke💨 &
Mirrors 🪞🪞 For Muskrat to set up the computer systems to send information to China, Russia, & whoever can pay for it!!

harrybjackson.bsky.social•68 days ago

Kind of the whole game though, right? If the 1A applies, govt hasn't really bothered to make a natl security argument at all, let alone that could stand up to scrutiny.

Lot of tech 1A cases are won or lost at the junction of "is this a 1A case?"

Ludicrous to claim it's not a 1A case, though.

readingcabbage.bsky.social•68 days ago

"If there's any impact to American's speech it's ByteDance's fault for not complying with the law, not the law's fault!"

lizardky.bsky.social•68 days ago

The "stop hitting yourself" school of Constitutional law.

abenomicon.bsky.social•68 days ago

I mean this is the legal technique of reading the outline of the appellant's brief and negating them

hlacey.bsky.social•68 days ago

I do wonder whether foreign-owned entities have First Amendment protection. And whether, if they do, that can stand in the face of a national security rationale for limiting or even banning their efforts to communicate to Americans.

mmasnick.bsky.social•68 days ago

You should read my brief which addresses that point. Yes, foreign entities have First Amendment protections. They may be more limited, but they do still exist. (Also, TikTok argues it is American, not foreign). http://www.supremecourt.gov/DocketPDF/24/24-656/336121/20241227145916540_Nos.%2024-656%2024-657%20Amicus%20Brief.pdf

thatianeliott.bsky.social•68 days ago

It never fails to amaze me how a country founded on a belief in "unalienable rights" manages to have so many people who believe those rights stop at borders.

cyberstormalpha.bsky.social•65 days ago

Plenty of folks in this nation think the rights stop (or should stop) based on skin color, gender, sexuality, and/or religious preference, and have since the founding of said nation.

hlacey.bsky.social•65 days ago

I did not say anything about "beliefs." I pointed out that there may be a question under existing First Amendment legal doctrine about it.

hlacey.bsky.social•68 days ago

I have read it now, after you sent the link. Thanks. I see your comments on impacts to Americans. Not sure I agree that's enough to overcome likely Chinese efforts to negatively impact our society through that app. And wonder whether we should be considering need to block Russian misinformation.

mmasnick.bsky.social•68 days ago

On that, I'd recommend reading this brief: https://www.supremecourt.gov/DocketPDF/24/24-656/336083/20241227132126430_TikTok_SCOTUS_Final.pdf

billstewart.bsky.social•65 days ago

The First Amendment isn't JUST about authorizing government-approved presses to publish to Americans,
or protecting speech that isn't pornographic and doesn't insult Pres.Trump or suggest that the draft is bad,
or protecting the majority religions' desires to mandate their values by law, but ....

shannonvanshoon.bsky.social•68 days ago

Through, y'know, magic and shit!

lizardky.bsky.social•68 days ago

"They had a choice, and they chose stupidity."

antiquequaalude.bsky.social•68 days ago

Do you have any potential solutions to stop foreign control or manipulation of algorithms that are utilized specifically to create societal divide in nations they want to do harm to?

mmasnick.bsky.social•68 days ago

Education. The First Amendment simply does not have an exception for foreign propaganda.

aminal.bsky.social•65 days ago

Lol they have you covered: "the concern is with the PRC’s manipulation of the app to advance China’s interests— not China’s views.” See it's not about views or propaganda but like interests which are totallly different.

antiquequaalude.bsky.social•65 days ago

The propaganda is designed to destroy the US, not to necessarily promote China. That's why you'll see 'This is a New York subway station...now here's a brand new one in China' videos and shit like that where they hide facts like thousands of people were killed in a flooded train tunnel recently

aminal.bsky.social•65 days ago

Non sequitur?

antiquequaalude.bsky.social•65 days ago

Yeah, probably read your reply in the wrong way.

Those under FARA are not given freedom of speech because they're acting on behalf of a foreign government.

antiquequaalude.bsky.social•68 days ago

They also intended for the Constitution to not be a stagnant document that people worship like it were handed down from god because they knew they couldn't predict the future. While I ultimately agree I don't think it's good enough for the moment. That will help 15+ years in the future

antiquequaalude.bsky.social•68 days ago

If your country is destroyed I don't think anyone standing on the ash heap at the end proclaiming they followed all the rules is any kind of winner. I have a hard time deciding where to ultimately stand on this because I agree free speech is important but we have to acknowledge the very real threat

mmasnick.bsky.social•68 days ago

I don't believe in suppressing freedoms because some people are scared of freedoms.

You do you.

antiquequaalude.bsky.social•68 days ago

I'm worried because they openly tell us they're doing this.

I personally don't think squashing a Chinese algorithm is an affront to any American's freedom. As far as I'm aware the Constitution does not apply to the hostile actions of a foreign government

educatethebears.bsky.social•68 days ago

100%

wwahammy.com•68 days ago

I mean, we do have the ability to amend it.

As for reinterpreting, I don't understand why we'd want to reinterpret in a way that gives more authority to the government to infringe on speech instead of less.

antiquequaalude.bsky.social•68 days ago

It's all in the algorithms, ultimately. People can say whatever they want but there's no right to going viral and that's the real problem.

Democracy and social media algorithms in most instances today is simply not compatible with democracy.

https://youtu.be/FyMtL4opCHI

antiquequaalude.bsky.social•68 days ago

And it at least feels like a lot of people just completely disregard the very real attacks we're under in the current paradigm and have very little interest in dealing with it or often even acknowledging it as a real threat

mmasnick.bsky.social•68 days ago

Throwing out our rights based on an unsupported claim that there are "very real attacks" means that we can throw out all sorts of rights so long as the gov't posits (without evidence) that we are under attack.

Supporting that is supporting future censorship and control.

antiquequaalude.bsky.social•68 days ago

I think this is where some of the argument comes from when I bring this up. Mike and those who follow him largely, it seems, appear to be concerned with the future threat of government abusing the curtailing of speech - and I agree completely - whereas I'm worried about a current ongoing attack

timc.bsky.social•68 days ago

Nice loaded statement that could have both barrels aimed directly at Facebook and Twitter. With both having far more proven track records of actual harm by foreign entities to America.

antiquequaalude.bsky.social•68 days ago

The difference is China / Russia has direct influence and control of businesses whereas Facebook is lead by another threat to democracy but who happens to be an American. But he at least has to live by the laws of this country and can have his influence curtailed (ex. taxes) unlike the CCP.

timc.bsky.social•68 days ago

So you have swallowed the TikTok boogeyman story fully.

I wonder why that is? Could it be FB/X and their propagandists have been pushing it? Their problem is that they can't really exert influence on TikTok.

All of it is about speech and the free exercise thereof.

antiquequaalude.bsky.social•68 days ago

I want Facebook to be dealt with, too. The problem is the algorithms and who controls them. You have no right to going viral and the virality is the actual problem, not the speech itself.

Most social media today and democracy are simply incompatible. Please see explanation here https://youtu.be/FyMtL4opCHI

timc.bsky.social•68 days ago

I'm not watching a 3+ year old clip from an MSNBC expert. And on the original video algorithm site YouTube no less.

There's more information/disinformation every second. Sticking your fingers in your ears doesn't stop it.

antiquequaalude.bsky.social•68 days ago

It certainly could.

sthelen.bsky.social•67 days ago

Should Japanese TV shows be allowed to be shown in the United States? Should Australian businesses be allowed to own newspapers in the United States? Or is foreign media only okay if it serves the government’s interests?

greysky209.bsky.social•68 days ago

Yes, sell to Elmo or Robert and let him do all the above.

antiquequaalude.bsky.social•68 days ago

lol.

Who is Robert? I'm blanking.

tagishsimon.bsky.social•68 days ago

Presumably Rupert.

fibonacci.bsky.social•68 days ago

The act does not trigger first amendment scrutiny

redstateliberal.bsky.social•68 days ago

Politico is owned by Germans. Force a sale?

marius78.bsky.social•68 days ago

Politico is an indirect Newsletter, Agenda-Pusher from
https://en.wikipedia.org/wiki/Kohlberg_Kravis_Roberts#Since_2020

uhjustin.bsky.social•68 days ago

I mean yeah but not because they’re owned by Ze Germans

fredlushoi.bsky.social•65 days ago

Yes there is. However this unconstitutional Supreme Court I am afraid will side with the DC Circuit. We needed change with the Supreme Court. We know there anti 1st amendment. It is extremely scary especially with Trump how are country is becoming a dictatorship

keithedwards.bsky.social•68 days ago

Well aren’t they forcing a sale? They’re not just banning it.

mmasnick.bsky.social•68 days ago

It's a ban if there is no sale. Therefore, it's a ban.

tbapple.bsky.social•68 days ago

“We aren’t banning Coke, we’re just ordering them to sell the secret recipe to Pepsi”

viraldonutz.bsky.social•67 days ago

Pepsi already knows the recipe

todd-j-smith.bsky.social•67 days ago

It was allegedly published in the Atlanta newspaper several decades ago before "the secret recipe" became a marketing ploy.

lukechedleh.bsky.social•68 days ago

I have a sinking suspicion that Us courts will concoct a way to allow American interests to acquire Tiktok. So not just a 1A issue, but theft as well.

shoulderdevil.bsky.social•68 days ago

If he goes that route, I'd fully expect him to try arranging it so someone close can get ownership. Ideally (for Trump), one of his kids.

keeferickson.bsky.social•67 days ago

Lol that what they explicitly told bytedance to do and they refused. This has happened before. Murdoch needed to become a us citizen before DOJ allowed him to buy the WSJ. It’s literally how the US media has operated for decades, just because it’s now your fav video platform changes nothing lol

binarybits.bsky.social•68 days ago

By this logic it violates the first amendment to require me to pay taxes since failing to pay will eventually lead to me going to jail and i cant do reporting for my newsletter from prison.

chbarts.bsky.social•65 days ago

Ooh! Ooh! Now insist that Ohio isn't a state! That's a classic!

mmasnick.bsky.social•68 days ago

Um. No, that's not where that logic leads.

binarybits.bsky.social•67 days ago

I’ll go to jail if I don’t pay my taxes. How is that different from the tiktok “ban if no divestiture” law?

mmasnick.bsky.social•67 days ago

Your taxes aren't punishment for your speech choices.

binarybits.bsky.social•68 days ago

The death penalty violates the first amendment because once you kill me I can’t speak any more.

suasponte2023.bsky.social•68 days ago

Let me guess, they're claiming that ByteDance could have sold TikTok and avoided the first amendment issue, so there is no first amendment issue.

keeferickson.bsky.social•67 days ago

And they are correct, you don’t get to box yourself in then claim said box’ing as a legal defense.

suasponte2023.bsky.social•67 days ago

That's not how the first amendment works.

keeferickson.bsky.social•67 days ago

How is the first amendment at issues here genuinely?

enriquebedlam.bsky.social•68 days ago

We didn't ban criticism of the Government, but if you criticize the Government you have to sell your paper/Tv station.

idontunderstandtheinternetdotcom.com•68 days ago

Corporations aren't people though

enriquebedlam.bsky.social•68 days ago

Cool. Who OWNS Corporations though? At the end of the day.

Or do I lose my free speech rights if I share it with too many people? Or the wrong people?

mjiyq2623.bsky.social•68 days ago

I think the argument (disclaimer: I haven’t read the briefs) is probably that the law does not target content, but is “content-neutral” in that it targets operation of the company by a foreign actor which is a manner restriction and requires lesser scrutiny.

enriquebedlam.bsky.social•68 days ago

I mean, this has the shape of a legal argument but the fact that it isn't universally applied sort of seems to fly in favor of that. I mean it's not like Spotify or Telegram are being targeted.

idontunderstandtheinternetdotcom.com•68 days ago

If a human commits murder they get jailed. If a corporation does it then it gets fined. The people who own corporations rarely to go to jail for the results of their actions. Corporations have a lot less legal liabilities so why give them freedoms? Citizens United shows the dangers of that.

enriquebedlam.bsky.social•68 days ago

Ok. So what happens to the humans in the Corporations. If me and 12 of my buddies decide we wanna speak out against Pineapple on Pizza, can we be jailed because one of us is titled CEO?

keithedwards.bsky.social•68 days ago

China owns it. That’s the whole point.

burstaholic.bsky.social•65 days ago

Also not people, right?

rakshan.bsky.social•67 days ago

Like Japan owns Toyota, Korea owns Samsung, and Israel owns the Congress?

enriquebedlam.bsky.social•68 days ago

Not the entirety of it. General Atlantic, Susquehanna and Sequoia Capital all own a rather large chunk of it.

So again, when do you get to take away Freedom of Speech? Surely if we had a "Chinese don't get 1st Amendment" case, it would have been in the 1800 right?

gplusb.bsky.social•68 days ago

Corporations aren’t people, but they still have free speech rights.

idontunderstandtheinternetdotcom.com•68 days ago

They have less liabilities than people and more rights than people. It's insane to say that corporations have free speech rights when corporations aren't people. Also how is where a company is headquartered a free speech issue?

gplusb.bsky.social•68 days ago

The Supreme Court disagrees with you.

dmvbizman.bsky.social•68 days ago

Curious why RT (Russian state media) never experienced such a ban.

They were required to register under FARA, and then their distributors and advertisers abandoned them. But never banned like TikTok.

Guess they just made people critical of America, not Israel, so that's why no ban for them.

keithedwards.bsky.social•67 days ago

TikTok isn’t a publisher. They aren’t creating content. They’re an algorithm driven app with access to data, algorithms, etc. much diff

bncrkr.bsky.social•67 days ago

Does anyone consider the NatSec threats of TikTok? China is hacking telecoms and they have a treasure trove of voiceovers and videos to train for deepfakes

burstaholic.bsky.social•65 days ago

Lol

thebadness.bsky.social•67 days ago

They are a publisher though, same as a hard-copy publishing outfit that prints books by authors. Using a T&S team and algorithms doesn't change that.

marianord.com•65 days ago

I'd say they're not. The users are publishers TikTok is just the platform. You don't become a publisher because you host/distribute content.

The newspaper is the publisher, the distributor (kiosk, mail, child on a bike) doesn't become one for distributing.

thebadness.bsky.social•65 days ago

I don’t think that’s the right comparator though - TikTok is doing more than host, they are transforming and editing content, and then making it available through a distribution network. I think the “distributors” are the ISPs through which users access the product.

pascalswager.bsky.social•67 days ago

Russians are white.

pfaffle.net•68 days ago

The first amendment doesn’t apply here.

elizabethwhite.bsky.social•68 days ago

📌

thatac.bsky.social•68 days ago

Well they are also the people who decided ketchup counted as a vegetable.

dharwin.satan.social•68 days ago

A vegetable was certainly involved in that decision

sunburnt.social•65 days ago

from over here it just looks like the USA doesn't like it when someone plays their game well and so are changing the rules to stifle them. tik tok is no worse than meta

🤷

jameseglynn.bsky.social•65 days ago

Looks the same from inside the house. I think we once were more artful about hiding our hypocrisy beneath explanations about how circumstances differ. Today we don't bother to do that.