My hot take on the TikTok opinion: the Court tried but failed to make no new law here. The very worst part of the opinion (I think right now) is that it gives govts space to whitewash bad content-based motivations by tacking on plausible-sounding content-neutral ones - ThreadSky

genevievelakier.bsky.social • 45 days ago

My hot take on the TikTok opinion: the Court tried but failed to make no new law here. The very worst part of the opinion (I think right now) is that it gives govts space to whitewash bad content-based motivations by tacking on plausible-sounding content-neutral ones

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genevievelakier.bsky.social•45 days ago

But maybe this too will be a one-ride-only doctrinal principle. So hard to tell right now. But it's worrying! The "woulda done it anyway" rationale is terrible for vindicating con'l values both when applied in equal protection and as applied here

davidgreene.bsky.social•45 days ago

One of those magical times Genevieve when we are in full agreement. Sorry it had to be under these circumstances.

genevievelakier.bsky.social•45 days ago

haha, is it so rare? maybe! what has been remarkable tho about this whole sage is how united the free speech community has been about this law.... and how little weight our views apparently carry with/connect to those of SCOTUS

gshans.bsky.social•45 days ago

Just writing our little articles and trying to fix the mess they make, I suppose!

daphnek.bsky.social•45 days ago

I agree. Alas, over in Article I, Section 8, Clause 8, this has been our world since Eldred.

Plus we get the extra layer of denial that copyright restrictions affect speech in any way that can't be redressed with (c)-specific doctrines like fair use.

crizmoz.bsky.social•45 days ago

I’m not a law professor but hasn’t the government been doing that pretty much since the beginning?

turing.bsky.social•45 days ago

It seems like this is a bit like Google in 2010 but in reverse. Only this time TikTok wants to weaponize 1A against us - “Give the Chinese government its propaganda back door or else.”

elliottlusztig.bsky.social•45 days ago

I understand that lawyers and legal educators are deeply invested in conferring legitimacy on the power the Supreme Court wields, but 99% of what the Court does is just usurped authority and arbitrary nonsense.

Most democracies in the world do not need or want a Court doing this.

elliottlusztig.bsky.social•45 days ago

This is one of about a million disputes that the Supreme Court has no business trying to adjudicate.

correctquestion.bsky.social•45 days ago

“Plausible sounding content neutral” reasons?

If there IS a content-neutral reason, and it IS plausible (ie, real/not-insubstantial/passes the straight-face test)

Then shouldn’t that prevail? Doesn’t that by definition mean the content-effect is legally (if not factually) incidental?

Otherwise …

correctquestion.bsky.social•45 days ago

The exception will quickly swallow the rule, because I can ALWAYS articulate SOME way in which content-neutral laws could have SOME effect on content.

/end

lazeeye.bsky.social•45 days ago

Except, the decision expressly states that it is limited to the specific circumstances of this case, and the analysis bears that out.

heidi8.bsky.social•45 days ago

Yes but also their reliance on the Congressional Record gives me some concern re future rulings; with Repubs controlling both houses, they can limit what makes it into the Congressional Record. If that's their process, would they consider statements from Reps & Sens that aren't in the CongRecord?

lazeeye.bsky.social•45 days ago

That’s a question for another day.

Also, reports of TikTok’s demise are greatly exaggerated. T___p will use the SCOTUS decision, & his ability (through his lickspittle Congress) to get the ban repealed, to extort a personal benefit from Bytedance. Once T___p’s price is met, TikTok will soon return.

heidi8.bsky.social•45 days ago

Tom Cotton and others are still preventing the Senate from acting on any suspension, delay or revocation. What pressure will they put on him to change his mind, given his tweet from earlier today?

lazeeye.bsky.social•45 days ago

T___p has a track record of (1) exploiting presidential power for personal benefit & (2) bending his lickspittles in Congress to his will. So I expect that is what will happen here.

ferdizebua.bsky.social•45 days ago

👓📝📌

pedropavon.bsky.social•44 days ago

Since 1919, SCOTUS has allowed limits on free speech when the government demonstrates—using varying levels of scrutiny depending on the circumstances—a compelling enough interest to restrict it. This isn’t new.

See Schenck v. US for those that need a reminder about longstanding limits on speech.

420attychicago.bsky.social•45 days ago

My concern with TikTok from the jump is that there has always been a backdoor directly to the Chinese government (which is why so many other countries have banned it on government devices). Congress likely had access to sensitive information that also can't be divulged for security reasons.

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