Comment by llamaimperative

Comment by llamaimperative 2 months ago

Forcing American companies not to put an app on their marketplace is impinging their speech. And yes, they do have First Amendment protections.

No, the First Amendment doesn’t just prevent the government from imprisoning you for speech… that is a ridiculously narrow perspective and really discredits you on the matter.

The First Amendment, as a trivial example, prevents the government from fining you for speech. It prevents the government from threatening to imprison you for speech. It prevents the government from seizing your assets for speech.

FWIW, I’m not arguing that TikTok shouldn’t be banned. I think it’s a propaganda weapon. However it is far from clear that it can be banned under our Constitution. Especially since the mechanics of that ban require coercing American companies and individuals to limit their freedom of expression.

ipython 2 months ago

Ok so I quickly typed up a response- there is a lot of nuance that’s not going to be captured in a few sentences.

The government has absolutely imprisoned people for speech it doesn’t like. In the Parma case, a citizen put up a parody page satirizing the local police department, he was jailed for several days awaiting trial. And the Supreme Court ruled that the victim was unable to sue the police department for doing so because of qualified immunity: https://www.nbcnews.com/politics/supreme-court/supreme-court.... Parody publications The Onion and The Babylon Bee both filed amicus briefs to the Supreme Court, which are hilarious reads btw. https://www.supremecourt.gov/DocketPDF/22/22-293/242292/2022...

Recently there was also the case of Michael Cohen, where it was found that he was remanded to solitary confinement as retaliation for him refusing to give up his rights to publish a book critical of the sitting us president: https://www.aclu.org/press-releases/aclu-files-first-amendme... and https://scholar.google.com/scholar_case?case=122506763932389.... This brings up an interesting issue as the administration pointed to an undisclosed nda (assumed to be agreed to as private citizens) was used as an argument for the federal government to intervene as a criminal matter not civil.

I find your argument about forcing the app store providers to remove the TikTok app compelling. I was curious how the Supreme Court handled that issue in its recent opinion on the matter and a quick skim didn’t find any references to app stores. See https://www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf.

My first thought is that if TikTok is barred from operating in the United States, it may simply be a condition of the store policies to have a legally recognized operating company in the country before your app can be approved for the store. So in this case the government is not directly demanding the store to remove the app, but rather the store itself simply enforcing its own t’s and c’s

Finally, there is plenty of precedent for regulating foreign speech - for example FARA which is very wide reaching. https://www.justice.gov/nsd-fara/frequently-asked-questions

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llamaimperative 2 months ago

You are very confused and I really don't have the time to unwind all of this. A few scattered bullets:
* The Parma ruling was not that the government was allowed to detain him, it is that the police could not be punished for their mistake. The entire thing is predicated on the police having made a mistake, i.e. this case shows they cannot jail you for speech.
* Cohen vs Barr: the courts ruled that the government overstepped, i.e. the First Amendment offered the protection I am claiming it does, and you are wrong
* TikTok ban mechanics: The government will fine app stores and web hosts that serve TikTok. This is a clear violation of First Amendment rights. It is not a condition of the app store ToS's by any weird mechanism like the one you describe.
* We're not talking about preventing foreign speech. We're talking about preventing American companies from serving the websites, applications, and content they wish to serve.

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- ipython 2 months ago
  
  You’re very quick to accuse someone of being “confused” and that their arguments can be discarded out of hand but show no credentials yourself.
  Ultimately, Novak was jailed for his speech no? And cohen was remanded to solitary confinement for his refusal to waive his first amendment rights? If a police department or the federal government decides to overstep in the future what exactly keeps them from doing so? It’s established from these cases that through 1/ qualified immunity and potentially (granted this happened after the case, and rank and file would not qualify…) 2/ presidential immunity for official acts, that any citizen could be detained for speech the reigning administration or local officials do not like, without consequence.
  If TikTok is denied its ability to operate in the United States, how can an App Store who operates within the bounds of the law allow it on its platform? I admit this is an interesting issue to consider - unlike the radio spectrum the government doesn’t “own” the internet.
  It wouldn’t be too crazy to consider that an App Store would require apps to register using a legal entity in the country that it operates within - you need a way to bill the entity, resolve disputes within that country etc.
  I think the more interesting question is denying access to the web site inside the US. There’s no single gatekeeper in that case.
  
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  llamaimperative 2 months ago
  
  > It’s established from these cases that through 1/ qualified immunity and potentially (granted this happened after the case, and rank and file would not qualify…) 2/ presidential immunity for official acts, that any citizen could be detained for speech the reigning administration or local officials do not like, without consequence.
  No, it’s really not established. I agree the consequences should have been more severe for both instances, but no, this does not mean the government is allowed to imprison people for their speech.
  
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