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TikTok Divestiture Mandate Doesn't Violate the First Amendment
So the D.C. Circuit just held in TikTok v. Garland, written by Judge Douglas Ginsburg, and joined by Judge Neomi Rao. Some key excerpts from the panel majority:
To summarize our First Amendment analysis: The Government has provided two national security justifications for the Act. We assumed without deciding the Act is subject to strict scrutiny and we now uphold the TikTok-specific portions of the Act under each justification. This conclusion is supported by ample evidence that the Act is the least restrictive means of advancing the Government's compelling national security interests….
[T]he Government offers two national security justifications for the Act: to counter (1) the PRC's efforts to collect data of and about persons in the United States, and (2) the risk of the PRC covertly manipulating content on TikTok. Each constitutes an independently compelling national security interest.
In reaching that conclusion, we follow the Supreme Court in affording great weight to the Government's "evaluation of the facts" because the Act "implicates sensitive and weighty interests of national security and foreign affairs." At the same time, of course, we "do not defer to the Government's reading of the First Amendment." We simply recognize the comparatively limited competence of courts at "collecting evidence and drawing factual inferences in this area." With regard to national security issues, the political branches may — and often must — base their actions on their "informed judgment," which "affects what we may reasonably insist on from the Government." …
We … reject TikTok's argument that the Government's data-related concerns are speculative. The Government "need not wait for a risk to materialize" before acting; its national security decisions often must be "based on informed judgment." Here the Government has drawn reasonable inferences based upon the evidence it has. That evidence includes attempts by the PRC to collect data on U.S. persons by leveraging Chinese-company investments and partnerships with U.S. organizations. It also includes the recent disclosure by former TikTok employees that TikTok employees "share U.S. user data on PRC-based internal communications systems that China-based ByteDance employees can access," and that the ByteDance subsidiary responsible for operating the platform in the United States "approved sending U.S. data to China several times." In short, the Government's concerns are well founded, not speculative….
Preventing covert content manipulation by an adversary nation also serves a compelling governmental interest. The petitioners object for two reasons, neither of which persuades. First, TikTok incorrectly frames the Government's justification as suppressing propaganda and misinformation. The Government's justification in fact concerns the risk of the PRC covertly manipulating content on the platform. For that
reason, again, the Act is directed only at control of TikTok by a foreign adversary nation.
At points, TikTok also suggests the Government does not have a legitimate interest in countering covert content manipulation by the PRC. To the extent that is TikTok's argument, it is profoundly mistaken. "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal." When a government — domestic or foreign — "stifles speech on account of its message … [it] contravenes this essential right" and may "manipulate the public debate through coercion rather than persuasion."
In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC's ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. Here the Congress, as the Executive proposed, acted to end the PRC's ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment….
Rather than attempting itself to influence the content that appears on a substantial medium of communication, the Government has acted solely to prevent a foreign adversary from doing so. As our concurring colleague explains, this approach follows the Government's well-established practice of placing restrictions on foreign ownership or control where it could have national security implications….
TikTok contends the Government's content-manipulation rationale is speculative and based upon factual errors. TikTok fails, however, to grapple fully with the Government's submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States. On the other hand, the Government is aware "that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China." The Government concludes that ByteDance and its TikTok entities "have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC." Notably, TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC. Its silence on this point is striking given that "the Intelligence Community's concern is grounded in the actions ByteDance and TikTok have already taken overseas." It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government's lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok.
In any event, the Government reasonably predicts that TikTok "would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes" in the United States. That conclusion rests on more than mere speculation. It is the Government's "informed judgment" to which we give great weight in this context, even in the absence of "concrete evidence" on the likelihood of PRC-directed censorship of TikTok in the United States….
TikTok does not present any truly material dispute of fact [relevant to the analysis]. Consider, for example, TikTok's claim that data anonymization under TikTok's proposed [alternative to the statutory divestiture mandate, called the NSA (National Security Agreement)] would effectively mitigate the Government's concerns. The Government does not dispute that TikTok's proposal provides for data anonymization; rather, it deems this protection vulnerable to circumvention and therefore insufficient to resolve the Government's data-related concerns. That is a dispute of judgment not of fact.
A similar point applies to the parties' disagreement regarding the feasibility of Oracle reviewing TikTok's source code for the Government. TikTok's declarant says Oracle could apply methods consistent with industry standards to streamline that review and points out that TikTok's proposed NSA would require Oracle to conduct its initial review in 180 days. The Government does not disagree; rather, it doubts the adequacy of Oracle's review of the source code — notwithstanding "Oracle's considerable resources" — based upon extensive technical conversations with Oracle. Moreover, even after "assuming every line of Source Code could be monitored and verified," the Government still concluded that "the PRC could exert malign influence" through commercial features of the platform that would not be identified through a review of the code. TikTok's disagreement with the Government boils down to a dispute about the sufficiency of Oracle's review to mitigate threats posed by the PRC, which is a matter of judgment, not of fact….
To qualify as a less restrictive alternative [that would render the divestiture mandate unconstitutional], the proposed NSA must "accomplish the Government's goals equally or almost equally effectively." As already stated, the Government has offered considerable evidence that the NSA would not resolve its national security concerns. Divestiture, by contrast, clearly accomplishes both goals more effectively than would the proposed NSA.
It has the added virtue of doing so with greater sensitivity to First Amendment concerns by narrowly mandating an end to foreign adversary control. The proposed NSA, by contrast, contemplates an oversight role for the U.S. Government that includes what TikTok calls a "kill switch remedy" and the Government characterizes as "temporary stop" authority over the platform. Entangling the U.S. government in the daily operations of a major communications platform would raise its own set of First Amendment questions. Indeed, it could be characterized as placing U.S. government "officials astride the flow of [communications]," the very arrangement excoriated in Lamont v. Postmaster General (1965). Divestiture poses no such difficulty….
The petitioners suggest a variety of other options that the Government also found inadequate. These include disclosure or reporting requirements, the Government using speech of its own to counter any alleged foreign propaganda, limiting TikTok's collection of location and contact data, and extending the ban of TikTok on government devices to government employees' personal devices. None would "accomplish the Government's goals equally or almost equally effectively."
The first two suggestions obviously fall short. As the Government points out, covert manipulation of content is not a type of harm that can be remedied by disclosure. The idea that the Government can simply use speech of its own to counter the risk of content manipulation by the PRC is likewise naïve. Moreover, the petitioners' attempt to frame the use of Government speech as a means of countering "alleged foreign propaganda" is beside the point. It is the "secret manipulation of the content" on TikTok — not foreign propaganda — that "poses a grave threat to national security." No amount of Government speech can mitigate that threat nearly as effectively as divestiture.
The petitioners' other proposals are similarly flawed. Creators' contention that the Government "could simply ban TikTok from collecting … location and contact data" fundamentally misapprehends the Government's datacollection concerns, which are not limited to two types of data….
The majority closes with:
We recognize that this decision has significant implications for TikTok and its users. Unless TikTok executes a qualified divestiture by January 19, 2025 — or the President grants a 90-day extension based upon progress towards a qualified divestiture, § 2(a)(3) — its platform will effectively be unavailable in the United States, at least for a time. Consequently, TikTok's millions of users will need to find alternative media of communication. That burden is attributable to the PRC's hybrid commercial threat to U.S. national security, not to the U.S. Government, which engaged with TikTok through a multi-year process in an effort to find an alternative solution.
The First Amendment exists to protect free speech in the United States. Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States.
Chief Judge Srinivasan concurs in part and in the judgment, with a separate opinion:
I fully join all aspects of the court's opinion today other than Part II.B, which rejects TikTok's First Amendment challenge. As to that challenge, I agree with my colleagues that the Act does not violate the First Amendment. But I reach that conclusion via an alternate path. My colleagues do not decide whether the Act should be subjected to the strictest First Amendment scrutiny or instead the lesser standard of intermediate scrutiny because, in their view, the Act satisfies strict scrutiny regardless. I see no need to decide whether the Act can survive strict scrutiny, because, in my view, the Act need only satisfy intermediate scrutiny, which it does. I would thus answer the question my colleagues leave open while leaving open the question they answer.
Two features of the Act support applying intermediate rather than strict scrutiny to resolve TikTok's First Amendment challenge. First, in step with longstanding restrictions on foreign control of mass communications channels, the activity centrally addressed by the Act's divestment mandate is that of a foreign nation rather than a domestic speaker—indeed, not just a foreign nation but a designated foreign adversary.
Second, the Act mandates divestment of that foreign adversary's control over TikTok for reasons lying outside the First Amendment's heartland: one reason that is wholly unrelated to speech, and another that, while connected to speech, does not target communication of any specific message, viewpoint, or content.
In those circumstances, the Act's divestment mandate need not be the least restrictive means of achieving its national-security objectives, as strict scrutiny would require. Rather, it is enough if, per intermediate scrutiny, the divestment mandate is not substantially broader than necessary to meet those goals. The Act meets that standard.
[Note that I originally posted just the link to the opinion and a few short excerpts; I then added more excerpts as I read through the opinion.]
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1. Yes, that well-known root password which unlocks the Top Sekrit invisible ink portions of the Constitution: "national security".
2. Government always backs itself when push comes to shove.
3. One of the worst failures of the Constitution is letting government define its own limits.
Using "national security" to justify blatantly unconstitutional laws has a long and sordid history.
1. Doesn't that argument implicitly assume the conclusion that the law is "blatantly unconstitutional"?
2. Failure to adequately protect national security also has a long and sordid history.
None of this resolves whether the panel decision is correct; my point is simply that skepticism about national security justifications will only take one so far in analyzing the matter.
1. Yes, I think prohibiting a company from operating purely based on its owner is blatantly unconstitutional.
2. The problem with this is that the people proffering national security never are required to justify in particularity why there is a threat.
Which provision of the constitution do you think it violates? Is that an emanation or a penumbra?
"or abridging the freedom of speech."
What does that have to do with your 1.? Or are you arguing that the US is retaliating against China because of its speech?
No, I'm arguing that the U.S. is retaliating against a legally incorporated company because of its owners.
Would you be okay for a company to be banned because it's owned in part by a felon?
Would you be okay for a company to be banned because it's owned in part by a felon?
I may well not, but it's not obvious to me why that would implicate the first amendment.
Economic liberty, conveniently swept into the trash by the Supreme Court.
Which provision of the Constitution is that? (Given that it seems like you were trying to answer DN's question.)
https://constitution.congress.gov/browse/essay/amdt14-S1-6-2-1/ALDE_00013703/
That brings us back to whether Bytedance is a "person" in the sense of the 14th amendment. (I would have cited the 5th, since we're talking about the Federal government, but that's just me.)
The question of whether foreign governments, and foreign (legal) persons more generally, have rights under the US constitution is discussed in greater detail below.
Same provision which allows marriage and having sex and going to birthday parties.
Does Bytedance have a constitutional right to marry, have sex, or go to birthday parties?
It seems to me that the focus on the divestiture portion deflects from the constitutionality of the penalty. Can the government pass a law requiring that NewsCorp sell the WSJ to MSNBC (because "foreign"), on penalty of banning the WSJ from being printed or distributed in the United States? Assume NewsCorp refuses. Then a ban on WSJ issues. Is it constitutional?
The whole "why" question focusing on the divestiture ignores the textual First Amendment problem with the ban. There are many contexts in which the predicate government action is unquestionable; e.g., tax enforcement, or labor enforcement. Suppose the government issues a tax penalty against Dow Jones that says "because you didn't file your foreign source income tax correctly, we're going to bar you from publishing the WSJ in the US." Or "because we find that your anti-union activity in the newsroom violates the NLRA, we're going to bar you from publishing the WSJ in the US." No question that the predicate enforcement power exists; the issue is whether the penalty/remedy is constitutional.
That is most likely true, but do either you or SGT think that this law is unconstitutional?
Unconstitutional as per the Constitution, yes.
Unconstitutional as per the government employees who interpret the Constitution in the government's favor, of course not! Don't be silly.
Bingo. Allowing the government to seize private property to build a shopping mall, allowing the government to impose all sorts of gun laws, and allowing the police to destroy a house and not pay the homeowner are all blatantly unconstitutional too, but the government courts let them get away with it.
"Unconstitutional as per the Constitution, yes."
What specific constitutional language protects foreign countries?
If I had to argue the case, I'd say that the Constitution protects foreign sovereign immunity as part of the law of nations.
https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2018/10/The-Constitution-and-the-Law-of-Nations.pdf
And if I had to get more creative, I'd say that foreign states are legal persons, and therefore covered under the due process clause just like all other persons.
Congress can override the "law of nations" and define how much "sovereign immunity" we will honor.
True
Do foreign companies have a Constitutional right to own property or do business in the US?
I don't know what the case law says about that, but I would think that foreign companies have the same rights as domestic companies unless there is some good reason to treat them differently. Same as with natural persons. Due process isn't a get out of jail free card. (Literally or figuratively.)
Let's say it redomiciles in Delaware. Does that change your analysis?
Edited to say that this was supposed to be a reply to Mr. Bumble.
Seems to me that all countries have a right to treat foreigners (whether individuals or companies) differently. You are not free to enter or remain in the US (or any country I know of) without the permission of that country.
No, but once you're in the US the government can't take your house just because you're foreign either.
I don't want to get into the hypothetical weeds here, but if they had grounds to deport you what would be the status of your property? Would that constitute a taking?
Unless US law is particularly weird, being deported changes nothing about the ownership of anything. It might have practical consequences for the owner's ability to sell the property, and it will certainly affect their "peaceful enjoyment" (to borrow a phrase from the ECHR), but I would think they'd still own it.
Even if a foreign country were considered a "person" for due process clause purposes, I don't think it can be considered a person "within its jurisdiction" or "subject to the jurisdiction thereof".
It's creative - probably too creative.
That phrase appears in the 14th amendment but not the 5th, which is the one you want here because it's the federal government we're talking about.
Except foreign persons don't have full rights under the constitution, such as illegal aliens don't have gun rights.
At the risk of being pedantic, the First Amendment says "Congress shall pass no law," not "Congress shall pass no law directed at US citizens." See Bridges v. Wixon, 326 U.S. 135, 136 (1945) (“Freedom of speech and of the press is accorded aliens residing in this country.”).
Unconstitutional how? The Commerce clause clearly gives congress the right to regulate foreign ownership of corporations that do business in the United States:
"to regulate commerce with foreign nations, among states, and with the Indian tribes"
Now if it were a US corporation it may have more rights, and at least could not be discriminated against vis a vis other domestic corporations. But a foreign corporation under the effective control of a foreign government, there really isn't a serious case that Congress can not require it to be domestically owned or at least owned or controlled by a friendly power.
Surprised Judge Ginsburg joined the majority because he's generally a fairly staunch libertarian.
When it comes to national security cases, I always wonder whether judges get a private phone call from someone high up in the government explaining, without providing details, about what they really know but can't prove in court.
In the UK they tried to make that possibility more transparent, by creating Special Immigration Appeals Commissions for certain terrorism cases. The idea is that you can't lawfully prosecute someone criminally based on evidence they aren't given access to, but you might be able to come up with a procedure for kicking terrorists out of the country that doesn't offend against due process too much, but that still allows you to bring in some classified evidence.
The way they do that is by having the alleged terrorist represented by a special advocate, who first takes instructions from their client, and is then given access to the classified evidence. Once they've seen the classified stuff they're not allowed to talk to their client anymore, but have to defend his interests based on the initial instructions and their general sense of what would be in the client's best interest. The court then gives two judgments: a public one and a classified one.
Suffice it to say that the reviews have been mixed...
https://ukhumanrightsblog.com/2021/12/14/secret-justice-review-the-special-advocates-respond-to-the-governments-submission/
The First Amendment exists to protect free speech in the United States. Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States.
This seems to be the money shot of the majority opinion.
What are we (The People) being protected from, aside from an adversary acquiring our personal data?
There are roughly 110MM Tik Tok users in the United States. What are the other 240MM Americans being protected from (assuming 350MM tot US pop)?
Why doesn’t Agency for International Development v. Alliance for Open Society, which held that foreigners and foreign corporations have no First Amendment rights, control this case?
https://www.supremecourt.gov/opinions/19pdf/19-177_b97c.pdf