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Surprisingly, the court (2/3) thinks the law both requires strict scrutiny and satisfies it. Strict Scrutiny has two tests: 1. Compelling Government Interest 2

by Leary 2y ago

Surprisingly, the court (2/3) thinks the law both requires strict scrutiny and satisfies it. Strict Scrutiny has two tests: 1. Compelling Government Interest 2. Narrowly Tailored (least restrictive means) Note the court does not say foreign actors don't have First Amendment rights.

granzymes 2y ago
The Court did not say that the law is subject to strict scrutiny. The majority holds that they need not decide whether strict or intermediate scrutiny applies because the law satisfies the more stringent test. The concurrence by Judge Srinivasan would instead hold that the law is subject to only intermediate scrutiny and uphold the law on that basis. Why do it this way? It takes away a potential avenue of appeal for TikTok. They can’t ask the Supreme Court to hold that the law is subject to strict scrutiny, because that issue wouldn’t help them overturn this ruling. If you had forced the rest of the panel to choose, I think they would have landed on intermediate scrutiny.
- gpm 2y ago
  I'd guess that at least one of the panel members thought strict scrutiny applies. Otherwise I think they would have ruled both that intermediate scrutiny applies, and that even if it doesn't the law passes strict scrutiny.
  - granzymes 2y ago
    The only thing the Court says on the matter is: >There are reasonable bases to conclude that intermediate scrutiny is appropriate even under these circumstances. We need not, however, definitively decide that question because we conclude the Act “passes muster even under the more demanding standard.” It's possible that either Judge Ginsburg or Judge Rao think the strict scrutiny should apply, but if forced to put money on it I would say they both land on intermediate scrutiny.
    - gpm 2y ago
      Eh, all of pages 28, 29, 30, and 31 are dedicated to the question, they just choose not to come to a definite answer. It's not like they didn't think about it. Not to say that you couldn't be right, them both landing on intermediate scrutiny is just not how I read the tea leaves.
mportela 2y ago
> Note the court does not say foreign actors don't have First Amendment rights. Is there a precedence on foreign actors (either inside or outside the US) having First Amendment rights?
- p_j_w 2y ago
  The first amendment doesn't carve out an exception for non-citizens, so you should be asking if there's precedence on foreigners inside the US NOT having First Amendment rights. Outside of the US your question is moot, as the US constitution is only binding in the US.

by Leary 2y ago

granzymes 2y ago

The Court did not say that the law is subject to strict scrutiny. The majority holds that they need not decide whether strict or intermediate scrutiny applies because the law satisfies the more stringent test. The concurrence by Judge Srinivasan would instead hold that the law is subject to only intermediate scrutiny and uphold the law on that basis. Why do it this way? It takes away a potential avenue of appeal for TikTok. They can’t ask the Supreme Court to hold that the law is subject to strict scrutiny, because that issue wouldn’t help them overturn this ruling. If you had forced the rest of the panel to choose, I think they would have landed on intermediate scrutiny.

gpm 2y ago
I'd guess that at least one of the panel members thought strict scrutiny applies. Otherwise I think they would have ruled both that intermediate scrutiny applies, and that even if it doesn't the law passes strict scrutiny.
- granzymes 2y ago
  The only thing the Court says on the matter is: >There are reasonable bases to conclude that intermediate scrutiny is appropriate even under these circumstances. We need not, however, definitively decide that question because we conclude the Act “passes muster even under the more demanding standard.” It's possible that either Judge Ginsburg or Judge Rao think the strict scrutiny should apply, but if forced to put money on it I would say they both land on intermediate scrutiny.
  - gpm 2y ago
    Eh, all of pages 28, 29, 30, and 31 are dedicated to the question, they just choose not to come to a definite answer. It's not like they didn't think about it. Not to say that you couldn't be right, them both landing on intermediate scrutiny is just not how I read the tea leaves.

mportela 2y ago

> Note the court does not say foreign actors don't have First Amendment rights. Is there a precedence on foreign actors (either inside or outside the US) having First Amendment rights?

p_j_w 2y ago
The first amendment doesn't carve out an exception for non-citizens, so you should be asking if there's precedence on foreigners inside the US NOT having First Amendment rights. Outside of the US your question is moot, as the US constitution is only binding in the US.