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SCOTUS, as they've done in many recent cases, is artfully skirting the substance of the issue. How is this ban actually enforced? By fining American companies

SCOTUS, as they've done in many recent cases, is artfully skirting the substance of the issue. How is this ban actually enforced? By fining American companies for serving specific content. That is the First Amendment issue. SCOTUS simply asserting that it's not in order to make their ruling convenient does not actually make it so.

gsibble 2y ago
There's all kinds of content that you can get fined for hosting. Pirated movies for instance. Is that also free speech? Again, it's just the law and how it is enforced.
- llamaimperative 2y ago
  Copyright (in the US) was literally created by the same people who wrote the 1st Amendment. Copyright is in the Constitution itself. It was very obviously an exception from the start. "Foreign governments saying things" also existed at the same time the 1st Amendment was written, and there were no carveouts from 1st Amendment in light of that. In any case: If SCOTUS during its early cases on copyright law (or copyright on the Internet) simply asserted "this has nothing to do with the 1st Amendment," they'd also be wrong. That would be a clear avoidance tactic not to wrangle with the substantive issue. In reality, the big cases on copyright are riddled with 1st Amendment questions, considerations, and constraints.
absolutelastone 2y ago
They ban American companies from distributing or maintaining the application, not specific content. More of a "criminal conspiracy" type of behavior rather than something that would relate to wikileaks or whoever. Can as well argue what is being banned is the data-collection side of the operation since it's the part that depends on using the app. Those companies still have the freedom to publicly state whatever the CCP has to say. The law indeed needed to be carefully written to "skirt" any first amendment violations, and SCOTUS unanimously agreed it had done so successfully.
- llamaimperative 2y ago
  The application itself is content from the POV of the Constitution. Universal City Studios v Corley
  - absolutelastone 2y ago
    "Content" is narrower than "speech". In that case the restriction was described as "content-neutral". Hence it didn't require strict scrutiny, only intermediate scrutiny. Which seems like the blueprint for how they wrote the TikTok law.
kelnos 2y ago
> How is this ban actually enforced? By fining American companies for serving specific content. No, it fines American companies for providing services to a certain foreign-owned company. If this isn't permissible, then sanctions can't be a thing and OFAC can't do its job. (Whether or not that would be a good thing is a separate issue.)
- llamaimperative 2y ago
  Funny that you mention that: sanction laws are also riddled with First Amendment questions, considerations, and constraints. A SCOTUS that simply asserted these questions do not exist would also be laughable. One very recent entry on this discourse: https://knightcolumbia.org/content/knight-institute-and-foundation-for-global-political-exchange-settle-case-challenging-us-treasury-departments-unlawful-suppression-of-political-speech?t https://knightcolumbia.org/content/knight-institute-and-foun...

gsibble 2y ago

There's all kinds of content that you can get fined for hosting. Pirated movies for instance. Is that also free speech? Again, it's just the law and how it is enforced.

llamaimperative 2y ago
Copyright (in the US) was literally created by the same people who wrote the 1st Amendment. Copyright is in the Constitution itself. It was very obviously an exception from the start. "Foreign governments saying things" also existed at the same time the 1st Amendment was written, and there were no carveouts from 1st Amendment in light of that. In any case: If SCOTUS during its early cases on copyright law (or copyright on the Internet) simply asserted "this has nothing to do with the 1st Amendment," they'd also be wrong. That would be a clear avoidance tactic not to wrangle with the substantive issue. In reality, the big cases on copyright are riddled with 1st Amendment questions, considerations, and constraints.

absolutelastone 2y ago

They ban American companies from distributing or maintaining the application, not specific content. More of a "criminal conspiracy" type of behavior rather than something that would relate to wikileaks or whoever. Can as well argue what is being banned is the data-collection side of the operation since it's the part that depends on using the app. Those companies still have the freedom to publicly state whatever the CCP has to say. The law indeed needed to be carefully written to "skirt" any first amendment violations, and SCOTUS unanimously agreed it had done so successfully.

llamaimperative 2y ago
The application itself is content from the POV of the Constitution. Universal City Studios v Corley
- absolutelastone 2y ago
  "Content" is narrower than "speech". In that case the restriction was described as "content-neutral". Hence it didn't require strict scrutiny, only intermediate scrutiny. Which seems like the blueprint for how they wrote the TikTok law.

kelnos 2y ago

> How is this ban actually enforced? By fining American companies for serving specific content. No, it fines American companies for providing services to a certain foreign-owned company. If this isn't permissible, then sanctions can't be a thing and OFAC can't do its job. (Whether or not that would be a good thing is a separate issue.)

llamaimperative 2y ago
Funny that you mention that: sanction laws are also riddled with First Amendment questions, considerations, and constraints. A SCOTUS that simply asserted these questions do not exist would also be laughable. One very recent entry on this discourse: https://knightcolumbia.org/content/knight-institute-and-foundation-for-global-political-exchange-settle-case-challenging-us-treasury-departments-unlawful-suppression-of-political-speech?t https://knightcolumbia.org/content/knight-institute-and-foun...