Comment by throwaway199956

The evidence and reasoning by Congress was all "non-justiciable" by the courts.

Congress looked at some evidence and made a decision. That is their purview and our checks-and-balances do not allow the courts to second-guess Congress like that. They can look at the "how" of the law, but not the "why".

Specifically the court looked at "what is congress' goal and is there any other way to achieve that goal that doesn't stop as much speech" and there isn't, but they can't question the validity of Congress' goals.

So there's no point in Bytedance arguing any of it, at least not in court.

It would have been great for ByteDance to IPO TikTok in the USA, it has had plenty of time to do so, it would have made lots of people boatloads of money, Chinese and Americans alike. Even Snapchat, which had similar levels of pervasive arrogance, IPO'd.

>And what puzzles me is that the evidences offered by the Congress was quite speculative, whether it's about data collection, content manipulation, influence of Chinese laws, or the potential future threat.

I think in a national security paradigm, you model threats and threat capabilities rather than reacting to threats only after they are realized. This of course can and has been abused to rationalize foreign policy misadventures and there's a real issue of our institutions failing to arrest momentum in that direction.

But I don't think the upshot of those problems is that we stop attempting to model and respond to national security threats altogether, which appears to be the implication of some arguments that dispute the reality of national security concerns.

> Yet ByteDance chose not to argue about the evidence, but to argument about 1A.

I think this is a great point, but perhaps their hands were tied, because it's a policy decision by congress in the aforementioned national security paradigm and not the kind of thing where it's incumbent on our govt to prove a specific injury in order to have authority to make policy judgments on national security.

If you look at the people defending TikTok, if you ask similar questions they won't try to defend it either, it's an immediate switch to whataboutism with regards to native US tech companies or arguing that the US Gov is more dangerous than the CCP.

But all that only just confirms the priors of the people who are pro-Ban. And unfortunately it's about justifying why we shouldn't ban TikTok, not why we should ban TikTok. They can't provide a good justification for that, the best they can is just poison the well and try to attack those same institutions. But turns out effectively saying "fuck you" to Congress isn't going to work when Congress has all the power here.

As a European I have to ask is this really the way you want to go?

Because we could make nearly the same argument for banning Facebook.

This is just hypocrisy baiting, this isn't a real analysis at any level. They didn't bring ANY evidence for them to argue against, it was purely an opinion by the state that there could exist a threat, which again is not supported by evidence, true or not. America has a lot to gain by controlling tiktok and one American billionaire will become a lot richer, that's all there is to it. I mean both candidates used tiktok to campaign while wanting to ban it. It's just a ridiculous notion and even they know that.

"Oh you love hamburgers? Then why did you eat chicken last night? Hmmm, curious... You are obviously guilty"

That's what the question of strict scrutiny vs. intermediate scrutiny vs. rational basis is about. The courts would have to decide the appropriate level of scrutiny given the legal context and then apply that to the law as written.

Your hypothetical clearly implicates the Times' speech, so intermediate scrutiny at least would be applied, requiring that the law serve an important governmental purpose. I think that would be a difficult argument for the government to make, especially if the law was selective about which kinds of media institutions could and could not have any foreign ownership in general. The TikTok law is much more specific.

Except this isn't a law against any foreign owner, just specifically a foreign owner that is essentially the #1 geopolitical adversary of the US.

A large part of the US-China relationship is zero-sum. If America loses, china wins, and vice versa. That relationship is not the same for, say, the US-France relationship.

They absolutely could if the NYT was fully owned by a foreign entity, and that entity was a government that adversarial to the US.

The issue is not that a company has foreign shareholders -- it's the fact that is under the control of the CCP.

This was also an issue when Rupert Murdoch wanted to buy Fox; he was only able to do so once he became a US citizen, for the same reasons.

The 1A arguments by ByteDance was a diversionary tactic to shift the conversation away from the real issue (control) -- and judging by all the comments on HN by people who don't understand it's about control, I'd say they were pretty successful.

I think the equivalent would be if New York Times is somehow owned by Tencent and given that the Chinese government uses golden shares to control private companies. In that case, I think it's fair game to force NYT to divest or force them to shutdown.

https://en.wikipedia.org/wiki/Golden_share

What if Congress passed a law that said "The New York Times must shut down unless all foreign owners divest"?

This already exists in some ways. Foreign companies are not allowed to own American broadcasters. That's why Rupert Murdoch had to become a (dual?) American citizen when he wanted to own Fox television stations in the United States.

To fix your analogy, it would be like EU passing a law that Facebook in the EU would have to be divested so they are not owned by Facebook in the US

No. The relationship between the US government and large US companies is nothing at all like the relationship between the Chinese government and large Chinese companies; the latter exist at the will of the CCP, and if you step out of line you will be shut down. Recently Jack Ma, who would be like Zuckerberg or Musk or Bezos in the US, got slapped down big time -- with significant repercussions for his companies -- recently because he made a comment critical of the government -- and what he said wasn't even bad (so probably it was some other reason that they came after him, but come after him they did).

Vaguely like that.

Ostensibly, the US government honors the 1st and 4th amendments, and only restricts speech on the platform in rare instances where that speech is likely to incite or produce imminent lawless action, and only issues warrants for private data which are of limited scope for evidence where the government has probable cause that a crime has occurred.

The accusation is that the CCP and Bytedance have a much more intimate relationship than that, censoring (or compelling) speech and producing data for mere political favors. Whether or not this is true of Facebook's relationship with US political entities is up for debate.

This is completely incorrect. Divestment in this context means the selling of an asset by an organization. You cannot "divest" in this sense from a government. That's nonsensical.

The equivalent in Facebook (Meta) terms would be China requiring Facebook, if it wished to continue operations in China, to sell the Chinese Facebook product to a Chinese or other, as to be defined by China, non-American entity. In some sense this is already the case.

Not really. There is no analogous concept in the US of the CCP's relationship with large companies.

1) TikTok was already theoretically a US company, but the strings were being pulled by the parent org in China.

2) US and China regulatory burdens and rule of law aren't equivalent, and I'm not going to grant that equivalency.

All large companies in China are ultimately controlled by the CCP. It's not a secret, but the de facto modus operandi.

No one is asking them to sell the entire company. Just the US arm.

Not sure that changes much but you seem to be talking about non US users, which wouldn't fall under this ruling.

The West told plenty of its companies, through public pressure or laws, that they have to divest from Russia, and they did. Rationally they recognized that selling their assets is financially more lucrative than just closing their operations and making 0$. Now why would an corporation which alleges to not be controlled by a government refuse to sell and forego billions in income, even though it is against the interest of their shareholders?

from what I know the bids that have been put in place are just for the US operations and there are some bids that dont include the algo as a part of the deal.

Bytedance is HQ'd in Beijing and required by law to comply without exception with national security requests.

The Chinese government directly owns shares of ByteDance. It has representatives of the government working in the company ensuring it takes the "correct political direction": https://en.wikipedia.org/wiki/ByteDance#Management

https://www.fdd.org/analysis/2024/03/12/5-things-to-know-abo...

I found the first three alone quite compelling:

> ByteDance is Closely Connected to China’s Military-Industrial Complex

> ByteDance is Bound by Chinese State Surveillance Laws

> ByteDance’s Board is Beholden to Beijing

As evidenced that TikTok would rather shut down than continue to print money in the US

It's common knowledge that the CCP has a lot of control over various companies registered there: https://sccei.fsi.stanford.edu/china-briefs/reassessing-role...

The above is based on a linked research paper but the numbers may actually be much higher as it can't really account for proxy ownership, various CCP committees influencing these companies, state banks providing loans only for companies that play ball, etc.

https://www.cnn.com/2024/03/18/tech/tiktok-bytedance-china-o...

> However, like most other Chinese companies, ByteDance is legally compelled to establish an in-house Communist Party committee composed of employees who are party members.

> In 2018, China amended its National Intelligence Law, which requires any organization or citizen to support, assist and cooperate with national intelligence work. > That means ByteDance is legally bound to help with gathering intelligence.

I would say yes.

Where is the evidence for this?

"Another way the Chinese government could assert leverage over a deal involving TikTok would be by exercising its “golden share” in a unit of ByteDance. In such an arrangement, the Chinese government buys a small portion of a company’s equity in exchange for a seat on its board and veto power over certain company decisions.

In 2021, an investment fund controlled by a state-owned entity established by a Chinese internet regulator took a 1 percent stake in a ByteDance subsidiary and appointed a director to its board."

https://www.nytimes.com/live/2025/01/17/us/tiktok-ban-suprem...

Committees representing the interests of the Chinese Communist Party exist inside of most major corporations in China. It would not be possible to operate a company like ByteDance without acquiescing to government interference

https://www.seafarerfunds.com/prevailing-winds/party-committ...

You can read about it here: https://thediplomat.com/2020/09/are-private-chinese-companie...

You can read the full "Opinion on Strengthening the United Front Work of the Private Economy in the New Era" here[1] in English, though I suspect you don't need the translation.

Excerpts from what the Party says openly:

> Strengthening united front work in the private economy is an important means by which the Party’s leadership over the private economy is manifested.

> This will help continuously strengthen the Party’s leadership over the private economy, bring the majority of private economy practitioners closer to the Party

> Strengthening united front work in the private economy is an important part of the development and improvement of the socialist system with Chinese characteristics.

> Educate and guide private economy practitioners to arm their minds and guide their practice with Xi Jinping’s Thoughts on Socialism with Chinese Characteristics for a New Era; maintain a high degree of consistency with the Party Central Committee on political positions, political directions, political principles, and political roads; and always be politically sensible. Further strengthen the Party building work of private enterprises and sincerely give full play to the role of Party organizations (党组织) as battle fortresses and to the vanguard and exemplary role of Party members.

> Enhance ideological guidance: Guide private economy practitioners to increase their awareness of self-discipline; build a strong line of ideological and moral defense; strictly regulate their own words and actions

[1]: https://csis-website-prod.s3.amazonaws.com/s3fs-public/publi...

China's economic reform didn't quite embrace capitalism the same way many other places did. Their businesses still inherently do not have the same managerial independence that many have come to expect as normal in the rest of the world. While Chinese businesses are allowed to have some private control, the government still exercises control over "private" businesses when they decide they are important or large enough.

Imagine if all Fortune 500 companies were required to have Trump appointees on their boards. That would sound crazy here, but that's how things still work in China.

As I understand, a print publication can't have a business entity in the US if it's owned by a foreign adversary. Given that, an American could still travel to the foreign country themselves and bring an issue back. That would be similar to side loading apps.

In order to comply with the law, Apple and Google cannot distribute the app because it is deemed to be unlawfully owned by a foreign adversary; that's the ban. But anyone who wants to get it through other means can still do so. Presuming that's how it works, it doesn't seem to be logically different from radio/print media.

> Like such cannot be enforced for example against foreign radio stations or print publications.

If the law and acts calling for their divestiture were deemed "content neutral" then they could. But an app, with algorithmic profiling, delivery, and data capture, for the purposes of modeling and influence, is not the same as a radio station or a publication, so it would probably not be easy or even possible to the SC's standards to write a content neutral law in that way. But they have deemed that with apps like TikTok, when done so carefully, it is possible and divestiture can be enforced neutral of content.

We don't need to stick our head in the sand and act like TikTok is the same as a print publication.

The SC's decision, and Gorsuch's opinion in particular, is carefully written to not fundamentally rewrite the First Amendment, I'd urge you to read it.

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"

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

agreed

> It absolutely does. (It’s in the opinion.)

The opinion actually assumes without deciding that First Amendment scrutiny applies, so I don't think it "absolutely" does. (But yes, it probably does and Sotomayor and Gorsuch would decide as much)

Speech and immigration are completely different areas of the law, there's no useful legal point of comparison in this context.

The motivation is largely irrelevant to the analysis of this case. What matters is what effects the law has and what services it provides the government.

So for example, the law technically doesn't ban TikTok at all, but rather mandates divestiture. However, the timeline wasn't realistic to manage such a divestiture, so the court recognized that the law is effectively a ban. The effect is what matters.

Similarly, the law provides a mechanism for the President to designate any application meeting a set of criteria a "foreign adversary controlled application". The court recognizes that the government has a compelling interest in restricting foreign adversaries from unregulated access to the data of US citizens, and the law services that interest.

The law represents a restriction on freedom of expression, TikTok is banned, but the law also represents a compelling government interest. To determine the winner of these two motivations, the court has established various thresholds a law must overcome. The relevant threshold in this case was determined to be Intermediate Scrutiny, and a compelling government interest is sufficient to overcome intermediate scrutiny.

Actually, they kind of do.

> US bans sale of Huawei, ZTE tech amid security fears

https://www.bbc.com/news/world-us-canada-63764450

This was an FCC rule

A better analogy are TV stations, which cannot be owned by a foreign entity, and why Murdoch became a US citizen (or he would not have been able to own Fox).

Privacy

Well, yes, because that is the only hope TikTok had - to claim it was targeted because of the speech on TikTok, and not because this is a very boring case of regulating commerce, which as said is well established and has lots of precedent. And their expensive lawyers made it happen, when they should have been looking for buyers. And then SCOTUS unanimously said nah.

>the act of organizing and strategically disseminating the speech is not speech

It is, and the court acknowledged that editorial control is protected speech.

The ruling was made based on data privacy ground, not First Amendment Speech ground.

an technofeudal oligarch

Like the CCP?

Newspaper is probably a bad example because the first ammendment specifically calls out protecting the press

> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

No, because "the press" isn't just "the editors and columnists".

Yes there are. The First Amendment is limited by compelling government interest, which (in practice) means it can be fairly arbitrarily by SCOTUS.

https://firstamendment.mtsu.edu/post/what-the-first-amendmen...

The SCOTUS opinion does not rely on a national security interest to justify itself, merely that the ban is content neutral and thus is subject to intermediate scrutiny.

This is an especially superficial take, sure the Constitution says nothing about national security but reality sure does...

Any person that has ever gotten a security clearance has given up some of their first amendment rights to do it and if they talk about the wrong thing to the wrong person they will absolutely go to jail.

And as always the classic example of free speech being limited still stands. Go yell FIRE in a crowded movie and see how your dumbass 1st amendment argument keeps you out of jail.

That is completely false. There are many exceptions to the first amendment which the court has decided don't abridge the freedom of speech.

A classic example of this: https://en.wikipedia.org/wiki/Threatening_the_president_of_t...