5 ms·

Regardless of one’s view on the outcome, this case is a reminder that textualism as a legal philosophy stands on shaky ground. This case is decided not on some

• dralley 2y ago
  What exactly is your issue with this, as a textualist? >[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . . This is foreign commerce. It falls under the explicit jurisdiction of Congress.
  • mrcwinn 2y ago
    Well gosh, that sentence makes it seems like Congress could do anything! However, this case is about something else. The opinion states that there is a first amendment interest, but that interest is secondary to a compelling national security interest that, in the court’s view, is valid. That may or may not be correct - but it is a subjective interpretation.
    • fngjdflmdflg 2y ago
      >that sentence makes it seems like Congress could do anything! Yeah, it's the perhaps most powerful clause in the constitution. A large number of laws are formed like "[actual law ...] in commerce." That is the hook needed for a lot of laws to be constitutional. Technically those laws only apply to interstate or international commerce. There are even supreme court cases discussing this: >Congress uses different modifiers to the word “commerce” in the design and enactment of its statutes. The phrase “affecting commerce” indicates Congress’ intent to regulate to the outer limits of its authority under the Commerce Clause. [...] Considering the usual meaning of the word “involving,” and the pro-arbitration purposes of the FAA, Allied-Bruce held the “word ‘involving,’ like ‘affecting,’ signals an intent to exercise Congress’ commerce power to the full.” Ibid. Unlike those phrases, however, the general words “in commerce” and the specific phrase “engaged in commerce” are understood to have a more limited reach. In Allied-Bruce itself the Court said the words “in commerce” are “oftenfound words of art” [...] The Court’s reluctance to accept contentions that Congress used the words “in commerce” or “engaged in commerce” to regulate to the full extent of its commerce power rests on sound foundation, as it affords objective and consistent significance to the meaning of the words Congress uses when it defines the reach of a statute.[0] [0] Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) https://supreme.justia.com/cases/federal/us/532/105/case.pdf https://supreme.justia.com/cases/federal/us/532/105/case.pdf
      • ceejayoz 2y ago
        > Yeah, it's the perhaps most powerful clause in the constitution. Only because the Court wants it to be, so they can play Calvinball. Marijuana grown, sold, and consumed entirely within one state? Still interstate commerce! https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich
        • JumpCrisscross 2y ago
          The original sin was Wickard, which found a farmer “growing wheat to feed animals on his own farm” was subject to interstate commerce “reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause” [1]. The court even noted that the farmer’s “relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself,” ruling that “the cumulative actions of thousands of other farmers” acting as he did would. [1] https://en.m.wikipedia.org/wiki/Wickard_v._Filburn https://en.m.wikipedia.org/wiki/Wickard_v._Filburn
          • MichaelZuo 2y ago
            This seems true… many many thousands of farmers combined consuming their own self grown wheat, would produce noticeable effects on interstate commerce. Specifically wheat markets, futures, etc…
            • quesera 2y ago
              The problem is that, by extension, the clause can be applied to literally anything, if the Court finds it useful to do so.
              • MichaelZuo 2y ago
                Maybe that is what the original writers intended…? To act as a catch all override clause to allow for federal intervention anywhere really important.
  • johnnyanmac 2y ago
    This is about as much foreign commerce as it is me buying a Xiaomi phone. I know there's court precedent, but corporations aren't people. It's yet another Chinese platform that Americans use to communicate with other western companies.
    • JumpCrisscross 2y ago
      > corporations aren't people Corporate personhood is irrelevant to this case.
      • parineum 2y ago
        > > corporations aren't people > Corporate personhood is irrelevant to this case. Further more, "Corporations are people" implying corporations have rights isn't related to corporate personhood and is based on a (often deliberate by opposing politicians) misinterpretation of the phrase, as spoken by Mitt Romney. What Romney was saying and what is true when he said "Corporations are people" is confusing because people interpret it as "Corporations are persons" which is not what he, or the case law he was referring to implied. The singular of the phrase is much more clear, a corporation is people. The whole case was about a group of people pooling their funds to make a movie about Hilary Clinton being bad and the court found that the people still had free speech rights when acting through a corporation to pool their funds and so political donation limits didn't apply as long as no political campaign was involved. Hence, Super PACs having to say that the campaigns their supporting aren't involved with the campaigns. It's actually an incredibly complicated and nuanced situation and the decision is equally so.
        • LordGronk 2y ago
          Damn and here I was looking forward to the day when I could finally marry Lockheed Martin
          • JumpCrisscross 2y ago
            > I was looking forward to the day when I could finally marry Lockheed Martin You can’t marry a child or your cousin (in most states), that doesn’t mean they aren’t people.
  • Imnimo 2y ago
    Whether Congress has jurisdiction here is not at issue. The court is deciding a different question, which is whether the ban would violate the first amendment. We look at their ruling: >We granted certiorari to decide whether the Act, as applied to petitioners, violates the First Amendment.
    • Aunche 2y ago
      What does this have to do with the First Amendment? How would this be different from an antitrust ruling that requires Alphabet to divest Youtube, but Alphabet decides to shut down Youtube instead?
      • psunavy03 2y ago
        The Supreme Court can only rule on cases brought to it. And in those cases, they are ruling on specific points of law which one party believes that a lower court misapplied. In this case, the parties asked the Court specifically to review whether a TikTok forced divestiture (not a ban, a forced sale) violated the First Amendment.
        • titanomachy 2y ago
          > The Supreme Court can only rule on cases brought to it. That might be technically true, but if (1) you're the lawyer representing a party in an important case, (2) you've already appealed that case up to the highest appelate court and lost, and (3) you think there's any chance that the Supreme Court might change the ruling in your favor, then wouldn't it basically be professional malpractice to not petition for certiorari? Of course, they only accept a tiny percentage of the petitions they receive.
      • nullifidian 2y ago
        >What does this have to do with the First Amendment? Because obviously changing the owner-editor of a media outlet has everything to do with their editorial policy. The SCOTUS just said that censorship is ok (and forcing the change of the editor is censorship, there is no doubt about it), as long as it's against another state's editorial preferences potentially having a significant audience in the country.
• sjsdaiuasgdia 2y ago
  It's opinion regardless of the specific legal philosophy. Each philosophy makes decisions about what kinds of information, sources, context, etc are considered to form the "correct" interpretation. Those decisions are opinions.
• ellisv 2y ago
  I'm no fan of textualism but I don't think it had much to do with this case. SCOTUS didn't have much to work with aside from level of scrutiny. They defer to Congress regarding national security.
  • mrcwinn 2y ago
    That’s actually my point. I don’t think strict textualism really has anything to do with any case. As soon as you say it’s the rule of law that drives every case, you find yourself somehow interpreting an awful lot.
• vehemenz 2y ago
  It's not really speculation, though. Certain aspects of the intelligence relationships between the US and China are highly asymmetrical already. For example, Chinese nationals can enter our country and gather information on our infrastructure, corporations, and people with relative ease because English is prevalent, and foreign nationals have, with the exception of certain military/research areas, the same access that US citizens have. On the other hand, foreign nationals in China are closely monitored and have very few rights, assuming they know Chinese, are physically in China (Great Firewall), and know how to get around in the first place. China has unfettered access to our media ecosystem, research, patents, etc., and they do their best to create an uncompetitive/hostile environment for any other country to attempt the same on their territory. Some of this has to do with trade—to be fair, these are intertwined—but the situation regarding intelligence is bleak.
  • zombiwoof 2y ago
    Yeah it’s funny MAGA still wants to encourage more H1b from China because you know apparently Americans are smart enough and are lazy. (Thanks for your vote though we will get rid of trans migrants!)
• insane_dreamer 2y ago
  > Textualism might give the court some useful definitions, but it is after all still called, quite literally, an opinion. I don't think you understand SCOTUS' decision here. They are not banning TikTok. Congress is doing so (actually forcing a sale of TikTok or be banned). They are simply ruling whether Congress acted unconstitutionally by doing so. In other words, if they overrule Congress, they would have to show how Congress' ruling contravenes the Constitution, when the Constitution grants Congress the authority to regulate commerce and decide matters of national security.
  • WillPostForFood 2y ago
    Congress isn't banning TikTok either. The law says US businesses can't work with TikTok. TokTok is choosing to shut down to try and force the issue politically. TikTok can choose stay running, the app will still be on your phone, no IP addresses are being blocked. The laws impact comes from choking off revenue and marketing (access to app stores).
    • insane_dreamer 2y ago
      You're right, though it's effectively a ban on the iPhone because the only way to get apps is through the Apple Store; but yes, it's not like the app itself will stop working, or there will be some IP block, by order of Congress.
      • massysett 2y ago
        Could TikTok work through a browser? I can get to Facebook and YouTube through my iPhone Safari browser. Indeed I buy Kindle ebooks through the iPhone Safari because the Kindle and Amazon apps won't let me make purchases.
        • rounce 2y ago
          Yes, it has a web version.
    • souptim 2y ago
• rayiner 2y ago
  You misapprehend what textualism is. It does not say that every legal case can be decided by interpreting written law. It is merely a philosophy of how to interpret written law when its meaning is what's at issue. What American lawyers call "textualism" is how most continental european courts interpret written laws. It would hardly merit a label, if it wasn't for a long history in the 20th century of jurists departing from written law in making decisions. In this case, there is no dispute about what the written law means. It's about applying a pre-existing legal concept, the freedom of speech, to particular facts. Another example that highlights the distinction: Justice Gorsuch, one of the Supreme Court's preeminent textualists, is also one of the biggest proponents of criminal rights. Those cases similarly involve defining the contours of pre-existing legal concepts, such as "unreasonable search or seizure." Nobody denies that such questions are subjective--in referring to what's "unreasonable," the text itself calls for a subjective analysis.
  • souptim 2y ago
    [flagged]
  • intermerda 2y ago
    > Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. Textualism in modern context is a tool used by conservative justices used to uphold laws that serve business interests and conservative causes.
    • deleted 2y ago
      [deleted]
  • ceejayoz 2y ago
    > Another example that highlights the distinction... No, that just highlights the hypocritical picking-and-choosing they do to justify it. Gorsuch is a textualist when he wants to be, just like the others.
• mplanchard 2y ago
  This was a unanimous decision. The only points where Sotomayor and Gorusch disagreed with the majority decision was whether TikTok's operation qualified under strict scrutiny for first amendment considerations, but both agreed that even under strict scrutiny, the law would have survived the challenge. Much of the decision is indeed based around an analysis of the words written by the legislature.
  • Andrex 2y ago
    It was an extremely curt law (like two sentences), the authors definitely chose the words carefully.
• 1980phipsi 2y ago
  What are you talking about? The decision was unanimous.
• throwaway199956 2y ago
  But why didn't Supreme Court find the first ammendment arguments compelling? As per first ammendment it is legal and protected to print/distribute/disseminate even enemy propaganda in the USA. Even at the height of cold war for example Soviet Publication s were legal to publish, print and distribute in the USA. What changed now? Even a judge, Sotomayer said during this case that yes, the Government can say to someone that their speech is not allowed. Looks like a major erosion of first amendment protections.
  • ls612 2y ago
    Individuals can bring Pravda into the USA that is protected speech. But Congress could ban Pravda from doing business in the US same as it can ban or sanction any other foreign business.
  • psunavy03 2y ago
    What Sotomayor said is irrelevant; she's one of nine Justices. What is in the opinion is what is controlling.
  • int0x29 2y ago
    People have rights to speak within reason. Governments don't. The Chinese government shaping content is not protected. The law notably does not ban individual content.
    • throwaway199956 2y ago
      Are they banning any TV channels from hostile countries? RT, for example can be watched by Americans without restriction.
      • samr71 2y ago
        They will soon! Lmao these people are rubes. It's like every other bs "national security" argument. Expect Yandex, VK, RT, Sputnik, SCMP, etc. to be banned as well under similar pretenses. "Comrades! We can not let these Western dogs infect our proud Soviet minds with this 'Radio Free Europe'!"
• kube-system 2y ago
  > a compelling national interest (which in turn seems based on speculation about the future, rather than a factual analysis of events). I keep seeing this claimed, but these aren't hypothetical risks. China has managerial control over ByteDance. China has laws that require prominent companies to cooperate in their national security operations, and they've recently strengthened them even more. China has already exercised those powers to target political dissidents. This is the normal state of affairs in Chinese business; this is how things work there. It isn't like the west where companies have power to push back, or enjoy managerial independence.
  • 9cb14c1ec0 2y ago
    Let's not forget that the US government has forced US companies to secretly hand over user data for "national security" purposes. Anyone who denies that China does similar things either doesn't know how the world works or is consciously denying reality.
    • kube-system 2y ago
      As do countries on every continent. But China is a bit different in that they don't simply have the authority to request data, they have the authority to direct management of the company.
      • dttze 2y ago
        Guess how many US intelligence operatives work within corporations to do the exact same thing.
        • kube-system 2y ago
          I can make guesses about a lot of things, but I know for a fact that what Chinese law requires is materially different than what US law requires. Regardless, "someone associated with the government got a job at your company" is entirely different in consequence than "the government requires you to have government interests on your board"
• corimaith 2y ago
  Rather I think this a good example of how people go through the steps of delegimitizing institutions if it dosen't agree with their opinion. If the Supreme Court's opinion is "shaky" then I guess the Pro-TikTokers would teetering on pole in the middle on the ocean.
  • Andrex 2y ago
    You know someone is being intellectually dishonest when they call a unanimous decision by the one of the most divided Courts in US history "shaky."
• ruilov 2y ago
  I'd use the term 'originalism' rather 'textualism', but you have a point. For 1st amendment cases, the court hasn't (yet) tried to use their new fangled originalist methodologies. In fact justice Gorsuch wrote separately in the Tiktok case to dig on the levels of scrutiny. I think it's understandable, in a Chesterton's Fence sort of way - they better make sure that if they're going to start using a new methodology, it works better than what they use now, (these weird judge-created levels of scrutiny), but there's so much 1A precedent that is hard to be confident. For 2nd amendment, they have used 'originalism' already. There isn't nearly as much precedent in that area, and so they were able to start more or less from scratch.
• skobes 2y ago
  "Shaky" compared to what? Isn't the inquiry made MORE subjective by incorporating extratextual considerations? Or do you just mean that textualism is oversold, and delivers less than it advertises?
• andrewmg 2y ago
  Since I'm a reasonably well-known textualist, I'll bite: First, the court was not asked to reconsider the meaning of the First Amendment. In the US, we generally hew to the rule of "party presentation," which generally provides that courts will consider the parties' arguments, not make up new ones on their own. TikTok's claim was that application of the statute in question to it violated the First Amendment's clause that "Congress shall make no law...abridging the freedom of speech." The Supreme Court has considered the interpretation and application of that clause in...well, a whole lot of cases. TikTok asked the court to apply the logic of certain of those precedents to rule in its favor and enjoin the statute. It did not, however, ask the court to reconsider those precedents or interpret the First Amendment anew. Since the court was not asked to do so, it's no surprise that it didn't. Second, as noted, the court has literally decades' worth of cases fleshing out the meaning of this clause and applying it in particular circumstances. Every textualist, so far as I'm aware, generally supports following the court's existing precedents interpreting the Constitution unless and until they are overruled. Third, even if one is of the view that the Court ought to consider the text anew in every case, without deferring to its prior rulings interpreting the text, this would have been a particularly inappropriate case for it to do so. A party seeking an injunction, as TikTok was, has to show a strong likelihood of success on the merits. That generally entails showing that you win under existing precedent. A court's expedited consideration of a request for preliminary relief is not an appropriate time to broach a new theory of what the law requires. The court doesn't have the time to give it the consideration required, and asking the court to abrogate its precedents is inconsistent with the standard for a preliminary injunction, which contemplates only a preview of the ultimate legal question, not a full-blown resolution of it. Fourth, what exactly was the court supposed to do with the text in question, which is "abridging the freedom of speech"? The question here is whether the statute here, as applied to TikTok, violates that text. Well, it depends on what "the freedom of speech" means and perhaps what "abridging" means. It's only natural that a court would look to precedent in answering the question. Precedent develops over time, fleshing out (or "liquidating," to use Madison's term) the meaning and application of ambiguous or general language. Absent some compelling argument that precedent got the meaning wrong, that sort of case-by-case development of the law is how our courts have always functioned--and may be, according to some scholars, itself a requirement of originalism.