S. Ct. Will Hear First Amendment Challenge to TikTok Divestment on Jan. 10

The question presented is:

Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

The parties' briefs are due the same day, Dec. 27, as are friend-of-the-court briefs. Both parties appear to be entitled to file reply briefs by Jan. 3. Two hours are allotted for oral argument. For more on the D.C. Circuit panel majority opinion, see this post; for the concurring opinion's alternate path to reaching that result, see this post.

Comments

[TheAmazingEmu]

I wish they had picked the Takings Clause issue. The First Amendment one is jucier because it involves foreign first amendment rights, etc., but the Takings Clause one felt like it was harder to justify and a backwards rationalization.

It also has a cleaner remedy. Congress could still effectuate its purpose, they just have to buy TikTok directly.

[John F. Carr]

Congress might end up buying TikTok. An un- or undercompensated taking can be remedied by a money judgment. In the case of land takings it is common for the taking to be recorded first and the dollar value determined later.

[Mr. Bumble]

If Congress has to buy it, I recommend Judge Ergoron be used to evaluate its value.

[David Nieporent]

It also has a cleaner remedy. Congress could still effectuate its purpose, they just have to buy TikTok directly.

I don't know whether the intersection of the 1st and 5th amendments has ever been litigated. (Maybe Prof. V does?) Can the government seize a media outlet (paying full compensation, of course) because it doesn't like the content on that outlet?

[TheAmazingEmu]

Sorry, to be clear, if there's a First Amendment violation, there's still a First Amendment violation. But if there isn't a First Amendment violation but is a Fifth Amendment violation, Congress could still get what they want, they just have to pay for it.

[David Nieporent]

Fair enough, but I wasn't arguing with you so much as riffing off what you said, wondering if there is a 1A violation if the 5A is used to shut down speech on a content-based motivation.

[MaddogEngineer]

This isn't about "free speech". It's about foreign control of a (social) media company.

Those wanting the Chinese to remain in control of Tik Tok are trying to make it a First Amendment case. It's not.

[David Nieporent]

Those wanting the Chinese to remain in control of Tik Tok are trying to make it a First Amendment case. It's not.

There were two reasons that supposedly justify this law:

1) Whether the Chinese government gets access to user data.
2) Whether TikTok is spreading propaganda in ways favorable to the Chinese government.

The first is not a 1A issue; the second is.

[Rossami]

Maybe I missed it but I don't see anywhere that the appellants even raised the takings clause in their cert petition. If the people most involved don't want to raise the issue, why should the court insert it?

That said, I don't think it would pass muster. What is the economic value of the "taking" in this case? The best I can come up with is the differential between the value of the US operations to the current owners and the value of the same operations to the prospective buyers. And that calculation seems at best speculative.

I think the appellants had a stronger argument with their Bill of Attainder part of the petition but SCOTUS appears to disagree.

[John F. Carr]

I'm glad to see an important case being given prompt attention. The lawsuit might be resolved within a year.

[David Nieporent]

It should be noted that while they're hearing it on an expedited basis, they did not grant a stay.

[Longtobefree]

If there is a true and serious national security threat in TikTok, just arrest anyone using it as a traitor.

[Dr. Ed 2]

Well that is my point about China having First Amendment rights.

[David Nieporent]

What is it with right wingers too dumb to understand the definition of treason?

[Stupid Government Tricks]

You think left wingers never do that?

[MaddogEngineer]

That malady is not unique to right wingers. Plenty of Resistance™ types hyperventilated about Trump and MAGA people committing "treason" too.

[Sarcastr0]

We have one of those lefty yellers here, but don't pretend this is a symmetrical thing.

The SuperPatriot branding of Real America vs. the Traitors is a right wing creature, and pretty widely used.

[Dr. Ed 2]

Does the People's Republic of China have First Amendment rights?
Is there a National Security exception to it?

The Constitution is not a suicide pact...

[David Nieporent]

Does the People's Republic of China have First Amendment rights?

No. This has been yet another episode of Simple Answers to Stupid Questions. Does the private (American) company that owns TikTok have 1A rights, and do the users of TikTok have 1A rights? Those are the relevant questions.

EDIT: I mean, to be pedantic, yes, of course they do. The question is whether those rights are being violated here.

[MaddogEngineer]

No, it's not about whether domestic TikTok users have 1A rights. That's indisputably the case. What's problematic is who controls the algorithm which promotes particular (free) speech content created by TikTok users. I put "free" in parentheses because not all of the content the TikTok algorithm presents was created by people covered by the First Amendment. I don't mean it's unprotected/not free speech, but the laws of other countries could also apply, and will apply if viewed in other countries.

[Dr. Ed 2]

The other question here is does the US have the right to a secure border? Can it regulate the ability of a foreign state to transfer data in and out of the country?

The US clearly can regulate the transfer of property into the country, data is intellectual property, so why can't it regulate the transfer of that into the country?

Domestic TT users have no more right to receive data from Chima than I have the right to receive AK-47s from China.

[hobie]

The AP and other outlets have documented that a large number of rightwing news sites, influencers and bloggers are collaborating with or have received money from Russian influence operations and RT. So don't be too harsh on Tik Tok, Ed. Where you get your talking points could be next

[David Nieporent]

Domestic TT users have no more right to receive data from Chima than I have the right to receive AK-47s from China.

Is that as wrong as everything else Dr. Ed says? Why yes, it is. As noted in one of the other TikTok related threads here, Lamont v. Postmaster General, 381 U.S. 301.

Calling something "data" doesn’t change the fact that it's information, and that communicating it is speech. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).