Related: DC Circuit Says the TikTok Ban Is Censorship, But Upholds It Anyway–TikTok v. Garland https://blog.ericgoldman.org/archives/2024/12/dc-circuit-says-the

Related: DC Circuit Says the TikTok Ban Is Censorship, But Upholds It Anyway–TikTok v. Garland https://blog.ericgoldman.org/archives/2024/12/dc-circuit-says-the-tiktok-ban-is-censorship-but-upholds-it-anway-tiktok-v-garland.htm https://blog.ericgoldman.org/archives/2024/12/dc-circuit-say... >> the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States > (Note 1: the court then shifts the burden back on TikTok: “TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC.”) ... >> At bottom, the Government lacks confidence that it has sufficient visibility and resources to monitor TikTok’s promised measures, nor does it have “the requisite trust” that “ByteDance and TTUSDS would comply in good faith.” The court can neither fault nor second guess the Government on these crucial points… >> The Government “need not wait for a risk to materialize” before acting; its national security decisions often must be “based on informed judgment.” Here the Government has drawn reasonable inferences based upon the evidence it has > The court can’t second-guess possibly pretextual arguments? The government has “drawn reasonable inferences” about conjectural risks? Those words don’t sound like the rigorous judicial review we expect from strict scrutiny. ... > Third, the majority repeatedly indicates that the ban won’t necessarily change the content available on TikTok, given that the PRC hasn’t yet engaged in its conjectural influence operation. But which way does this cut? As mentioned above, changing the ownership will change the editorial policies and practices, so inevitably the content would change from the forced divestment. More importantly, doesn’t this raise serious questions about the ban’s efficacy if it doesn’t actually change the content? In other words, if the content stays the same, then means-fit analysis seems potentially undermined. > (Yes, I would also argue the contrary position–that if the speech were to change, that would be reason to strike down the ban. From my perspective, legislatively picking and choosing owners of speech venues is always constitutionally problematic, regardless of the effects on editorial content).