4 ms·

The replies here seem slightly off base. The Court acknowledges that 1s amm. free speech issues are at play. A law can regulate non-expressive activity (corpora

by ruilov 2y ago

The replies here seem slightly off base. The Court acknowledges that 1s amm. free speech issues are at play. A law can regulate non-expressive activity (corporate ownership) while still burdening expressive activity, which is the case here. In such instances, the Court grants Congress more leeway compared to laws explicitly targeting speech. It checks that (1) the govt has an important interest unrelated to speech (it does), and (2) the law burdens no more speech than necessary (arguable, but not obviously wrong)

DangitBobby 2y ago
My reading of it is they didn't bother to take the motivation of the law into account (suppression of speech), and only took the law "as written" to decide. > We need not decide whether that exclusion is content based. The question be- fore the Court is whether the Act violates the First Amend- ment as applied to petitioners. To answer that question, we look to the provisions of the Act that give rise to the effective TikTok ban that petitioners argue burdens their First Amendment rights...
- kopecs 2y ago
  The quote you posted is about if the exclusion of platforms "whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews" means the law is content-based, but the Court is saying that provision is irrelevant because TikTok brought an "as-applied" challenge (and not a facial one) [0] and that provision doesn't change how it applies to them. So they are looking at the parts of the law (and the congressional record supporting them) which actually cause TikTok to be subject to the qualified divestiture. [0]: https://en.wikipedia.org/wiki/Facial_challenge https://en.wikipedia.org/wiki/Facial_challenge
  - DangitBobby 2y ago
    Right, I'm saying they based it on on the "text" of the law, instead of the motivation. At what point in the ruling did they wonder what motivated the effective ban? "5 why's" it, so to speak. Did they ever say, "because X, Y, and Z, it is clear the intent of the law is not to prevent speech of certain parties"?
    - kopecs 2y ago
      > Right, I'm saying they based it on on the "text" of the law, instead of the motivation. Sure, although they do discuss TikTok's challenge to the motivation ("Petitioners further argue that the Act is underinclusive as to the Government’s data protection concern, raising doubts as to whether the Government is actually pursuing that interest"). I just don't think the quote you had stands for what you were saying. > At what point in the ruling did they wonder what motivated the effective ban? Above is at page 15. Also, I think you're probably looking for the paragraph starting with "For the reasons we have explained, requiring divestiture for the purpose of preventing a foreign adversary from accessing the sensitive data of 170 million U.S. TikTok users is not 'a subtle means of exercising a content preference.' Turner I, 512 U. S., at 645." (at 12). I saw elsewhere you likened this to the Trump muslim ban. I don't think that comparison is apt. The First Amendment issues there were not decided by the 9th circuit in the first one (“we reserve consideration of [First Amendment religious discrimination] claims until the merits of this appeal have been fully briefed.” State v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017)) the stay there was issued due to likelihood of success on the merits wrt due process issues; I don't know offhand about the second one; and the third attempt was upheld.
      - DangitBobby 2y ago
        I appreciate the thorough response. So they speak to the motivation in part being "preventing a foreign adversary from accessing the sensitive data of 170 million U.S. TikTok users", but not at all the portion of the motivation to "prevent the CCP from having a megaphone into 170 million attentive US TikTok users" (my words). Did they omit that this was likely a motivation, or contend that it wasn't. Edit: see https://news.ycombinator.com/item?id=42742762 https://news.ycombinator.com/item?id=42742762 for this same thread
        kopecs 2y ago
        I think this is discussed at length in part II.D (starts at the bottom of 17). I would write more but I have spent too long already on this thread :) I would be a bit careful about trying to liken motivation for something like an EO to a law though; many members of congress voted to pass the exact language in the final bill, and they might not all have agreed with _why_. So I would put to you that the text itself is the primary thing one should consider, especially more in the legislative case than the executive one.
- ruilov 2y ago
  they talk more about the motivations of the law in part D. The "exclusion" referred to in this quote is not the exclusion of tiktok. The court is responding to one of the arguments that tiktok made. Certain types of websites are excluded from the law, and (tiktok says) if you have to look at what kind of website it is, then obviously you're discriminating based on content. the court is saying that this would be an argument that this law is unconstitutional, period. That's a very hard thing to prove because you need to show that the law is bad in all contexts, and to whoever it applies to, very hard. So tiktok is not trying to prove that, that's not how they challenged the law - instead tiktok is trying to prove something much more limited, ie that the law is bad when applied to tiktok. It's an "as-applied" challenge. In which case, the argument about looking at other websites is irrelevant, we already know we're looking at tiktok. As the opinion says "the exclusion is not within the scope of [Tiktok's] as-applied challenge"
  - DangitBobby 2y ago
    I'll copy what I said in another comment: > At what point in the ruling did they wonder what motivated the effective ban? "5 why's" it, so to speak. Did they ever say, "because X, Y, and Z, it is clear the intent of the law is not to prevent speech of certain parties"?
    - ruilov 2y ago
      part D. "The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone"
      - DangitBobby 2y ago
        This is belied by the lack of laws (and lack of provisions in this law) preventing American companies from collecting data and selling to the highest bidder, including China.
        ruilov 2y ago
cataphract 2y ago
You mean Sottomayor and likely Gorsuch acknowledge the 1st amendment issues at play. The rest just assume it without deciding.
- ruilov 2y ago
  agreed
deleted 2y ago
[deleted]

by ruilov 2y ago

DangitBobby 2y ago

My reading of it is they didn't bother to take the motivation of the law into account (suppression of speech), and only took the law "as written" to decide. > We need not decide whether that exclusion is content based. The question be- fore the Court is whether the Act violates the First Amend- ment as applied to petitioners. To answer that question, we look to the provisions of the Act that give rise to the effective TikTok ban that petitioners argue burdens their First Amendment rights...

kopecs 2y ago
The quote you posted is about if the exclusion of platforms "whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews" means the law is content-based, but the Court is saying that provision is irrelevant because TikTok brought an "as-applied" challenge (and not a facial one) [0] and that provision doesn't change how it applies to them. So they are looking at the parts of the law (and the congressional record supporting them) which actually cause TikTok to be subject to the qualified divestiture. [0]: https://en.wikipedia.org/wiki/Facial_challenge https://en.wikipedia.org/wiki/Facial_challenge
- DangitBobby 2y ago
  Right, I'm saying they based it on on the "text" of the law, instead of the motivation. At what point in the ruling did they wonder what motivated the effective ban? "5 why's" it, so to speak. Did they ever say, "because X, Y, and Z, it is clear the intent of the law is not to prevent speech of certain parties"?
  - kopecs 2y ago
    > Right, I'm saying they based it on on the "text" of the law, instead of the motivation. Sure, although they do discuss TikTok's challenge to the motivation ("Petitioners further argue that the Act is underinclusive as to the Government’s data protection concern, raising doubts as to whether the Government is actually pursuing that interest"). I just don't think the quote you had stands for what you were saying. > At what point in the ruling did they wonder what motivated the effective ban? Above is at page 15. Also, I think you're probably looking for the paragraph starting with "For the reasons we have explained, requiring divestiture for the purpose of preventing a foreign adversary from accessing the sensitive data of 170 million U.S. TikTok users is not 'a subtle means of exercising a content preference.' Turner I, 512 U. S., at 645." (at 12). I saw elsewhere you likened this to the Trump muslim ban. I don't think that comparison is apt. The First Amendment issues there were not decided by the 9th circuit in the first one (“we reserve consideration of [First Amendment religious discrimination] claims until the merits of this appeal have been fully briefed.” State v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017)) the stay there was issued due to likelihood of success on the merits wrt due process issues; I don't know offhand about the second one; and the third attempt was upheld.
    - DangitBobby 2y ago
      I appreciate the thorough response. So they speak to the motivation in part being "preventing a foreign adversary from accessing the sensitive data of 170 million U.S. TikTok users", but not at all the portion of the motivation to "prevent the CCP from having a megaphone into 170 million attentive US TikTok users" (my words). Did they omit that this was likely a motivation, or contend that it wasn't. Edit: see https://news.ycombinator.com/item?id=42742762 https://news.ycombinator.com/item?id=42742762 for this same thread
      - kopecs 2y ago
        I think this is discussed at length in part II.D (starts at the bottom of 17). I would write more but I have spent too long already on this thread :) I would be a bit careful about trying to liken motivation for something like an EO to a law though; many members of congress voted to pass the exact language in the final bill, and they might not all have agreed with _why_. So I would put to you that the text itself is the primary thing one should consider, especially more in the legislative case than the executive one.
ruilov 2y ago
they talk more about the motivations of the law in part D. The "exclusion" referred to in this quote is not the exclusion of tiktok. The court is responding to one of the arguments that tiktok made. Certain types of websites are excluded from the law, and (tiktok says) if you have to look at what kind of website it is, then obviously you're discriminating based on content. the court is saying that this would be an argument that this law is unconstitutional, period. That's a very hard thing to prove because you need to show that the law is bad in all contexts, and to whoever it applies to, very hard. So tiktok is not trying to prove that, that's not how they challenged the law - instead tiktok is trying to prove something much more limited, ie that the law is bad when applied to tiktok. It's an "as-applied" challenge. In which case, the argument about looking at other websites is irrelevant, we already know we're looking at tiktok. As the opinion says "the exclusion is not within the scope of [Tiktok's] as-applied challenge"
- DangitBobby 2y ago
  I'll copy what I said in another comment: > At what point in the ruling did they wonder what motivated the effective ban? "5 why's" it, so to speak. Did they ever say, "because X, Y, and Z, it is clear the intent of the law is not to prevent speech of certain parties"?
  - ruilov 2y ago
    part D. "The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone"
    - DangitBobby 2y ago
      This is belied by the lack of laws (and lack of provisions in this law) preventing American companies from collecting data and selling to the highest bidder, including China.
      - ruilov 2y ago

cataphract 2y ago

You mean Sottomayor and likely Gorsuch acknowledge the 1st amendment issues at play. The rest just assume it without deciding.

ruilov 2y ago
agreed

deleted 2y ago

[deleted]