Comment by TeaBrain

Comment by TeaBrain 3 days ago

>The nuance of claiming that constitutional rights do not apply to a company legally operating within the country, because of its nationality, has extremely broad implications as a precedent

The law (PAFACA) doesn't directly apply to TikTok, but only to TikTok's ownership by ByteDance, due to ByteDance being a corporation located in a foreign adversary nation. Foreign corporations are not protected by the first amendment as domestic corporations are. Case law clarifying separate first amendment protections for domestic vs foreign entities such as Citizens United v FEC (2010) and Bluman v FEC (2011), already established the precedent for this.

>I don't think it's all quite as clear behind doors as you seem to believe it was in front of them

Did you watch the hearing or read the transcript? The opinions of the majority of the justices on both sides, including the chief justice, were not ambiguous. As referenced in the hearing by the justices, the first amendment only applies to communication on the platform, not the ownership of the platform. Given that TikTok's parent company is ByteDance, and as the first amendment does not apply to foreign corporations as it does to domestic corporations, which multiple justices pointed out, the law is not in conflict with the first amendment. The law is referred to as the "TikTok ban law", but it doesn't ban the platform explicitly, it only bans its ownership by a foreign adversary located corporation, which are not protected by the first amendment, which is how the law avoids a conflict with the first amendment while potentially still effectively banning the platform.

somenameforme 2 days ago

The case you cited is not really appropriate here because it's about elections which are one of the few domains where citizenship plays a critical and very well established role. In this case, you're talking about broadly restricting the constitutional rights of an entity legally within the US based on its ties to a nationality, given that ByteDance is legally not even a Chinese company, as it's incorporated in the Cayman Isles. The implications of this seem huge.

Don't trust regular media to give you fair assessments of this case. ScotusBlog generally has excellent and impartial analysis of cases from experienced lawyers, and this is no exception. [1] They described the overall court as skeptical of the claims. Skeptical does not mean fully in bed with one side or the other, but simply that - skeptical. It's also important to bear in mind is that hearings are, by their very nature, off the cuff. And the implications (or factualness) of what the justices believe may change as they consider the implications of a decision, and factualness of their assumptions.

Again the thing I would say is that if this was an obvious case, the justices would not be waiting to the last second. My guess is that we'll probably see an announced delay+injunction on Friday.

[1] - https://www.scotusblog.com/2025/01/supreme-court-skeptical-o...

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TeaBrain 2 days ago

Did you read that blog post? Despite the post being titled as it is, the post contains more examples of justices voicing skepticism to the TikTok lawyers' arguments than it does examples of justices who were voicing skepticism to the law:
"Some justices, however, were unconvinced that the law necessarily raises a First Amendment issue. Justice Clarence Thomas asked Francisco how a restriction on ByteDance’s ownership of TikTok created any limitations on TikTok’s speech.
Justice Elena Kagan echoed Thomas’s skepticism. If the law only targets ByteDance, which does not have any First Amendment rights because it is a foreign corporation, she asked Francisco, how does that implicate TikTok’s First Amendment rights? TikTok can still use whatever algorithm it wants, Kagan observed.
Justice Amy Coney Barrett also appeared to agree at times. The law, she simply requires ByteDance to divest TikTok. A shut-down by TikTok, she suggested, would be the consequence of ByteDance’s choice not to do so.
Other justices appeared persuaded by the government’s invocation of national security concerns. Chief Justice John Roberts observed that, although Francisco contended that TikTok is a U.S. company, Congress had concluded that the “ultimate company that controls” TikTok is subject to Chinese laws, including an obligation to assist the Chinese government with intelligence work. “Are we,” Roberts queried, “supposed to ignore that?”
Justice Brett Kavanaugh noted the government’s contention that China is using TikTok to access information about millions of U.S. citizens, and in particular young people, and could in the future use that information to try to recruit spies or manipulate future U.S. officials. That “seems like a huge concern for the future of” the United States, Kavanaugh observed."

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- somenameforme 2 days ago
  
  In a Supreme Court case the burden of proof is on the petitioner, and it's the duty of the Court to critically question that evidence and proof. See, for instance, comparable coverage on the Roe vs Wade case, where you will see similar grilling. [1] Something quite important is how the judges responded to the claims and the follow ups. For instance in the transcript [2] follow the dialogue from the quotes you gave versus the grilling of Prelogar, representing the government.
  She was, at times, being overtly mocked with quotes from judges like, "That's your best argument is that the average American won't be able to figure out that the cat feed he's getting on TikTok could be manipulated, even though there's a disclosure saying it could be manipulated?" Prelogar in general found herself struggling to defend the claim that the attempted ban was based on data access and not content (which would be unconstitutional), why there were no alternatives if the claims were based solely on data access, and the implications for any other foreign company that has access to user data (which is basically all of them). TikTok was met with some tough questioning but generally responded competently.
  [1] - https://www.scotusblog.com/2021/12/majority-of-court-appears...
  [2] - https://www.techpolicy.press/transcript-us-supreme-court-ora...
  
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  TeaBrain 2 days ago
  
  I read the transcript also, and from what I read, I don't disagree that Francisco answered competently, but he may have been given an impossible task. The law was upheld, as I suggested the justices were leaning towards. I didn't see the decision being unanimous, but that's the way it came down.
  https://www.bloomberg.com/news/articles/2025-01-17/tiktok-ba...
  
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  somenameforme a day ago
  
  Yip, gotta say I'm extremely surprised - not that it passed per se, but by 9-0?! I wish more of the justices wrote opinions. Gorsuch's opinion was pretty enlightening, but simultaneously even more confusing. Apparently the judges deemed the law of a "compelling interest" and "content neutral" which enabled it to sidestep a "strict scrutiny" of Constitutional appropriateness.
  Yet his opinion was almost entirely critical of the arguments that justified such. And it also seemed to include misinformation (unless it happens that I'm misinformed) suggesting that the TikTok app could access "any data" - a term which he himself put in quotes and also italicized - about anybody in a user's contact list. He said it included, but was not limited to photos and personal information. And this leaking of data of non-consenting users was apparently a significant part of the case. I'd be beyond surprised if the Android/Apple APIs bleed any substantial amount of information through contact access alone.
  Interesting times we live in, as always!
  
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