I don't know if it's a free speech issue but legally speaking it's definitely not a first amendment issue because the law targets foreign corporations and the Constitution doesn't apply to foreign entities

But wouldn't you be infringing the rights of the US users if you ban the platform they want to message other US users over? Isn't that indirectly infringing their free speech? Or does the first amendment not protect stuff like this?

That indirectness is exactly why it's not. The first amendment ensures you can express what you want, but you're not owed a platform.

But can the government actively interfere with my communication by banning the platform? If the government notices that a lot of critics are organizing over Discord, can they ban Discord, because they're not banning speech specifically, only a platform used to spread the speech?

Given how laws and American rights have been established to work. Yes, absolutely. They just need a legally acceptable reason to do so separate from the speech. Banning a platform because of speech they don't want isn't allowed, but banning a platform for other reasons is, even if that platform also happens to facilitate speech.

Like with tik tok, the ban itself isn't a speech issue because there's nothing bytedance can change about it's communication to not be banned, it's an ownership problem.

They could filter Palestine content, then although some people still want to ban it, it won't be easy

I think what you raise is something the courts should consider if the government were trying to shut down a platform because of what it's users were doing on it. But it's not a live issue in this case. There is no allegation that the US seeks to suppress TikTok because of what Americans are posting on it. TikTok isn't saying the government is doing that and I don't believe the government is seeking to control the speech of TikTok users. The consern seems to be more about who controls the algorithm and data collection (a foreign state with adversarial interests) and it seems to me that it has nothing to do with anything Americans are posting on TikTok. I mean the content on TikTok isn't all that political or revolutionary

> There is no allegation that the US seeks to suppress TikTok because of what Americans are posting on it.

Of course there is. It’s obvious that a huge chunk of the momentum behind the TikTok ban stems from a desire to suppress anti-Israel content.

If that were the case, then why was ByteDance given the option to divest?

How is that incompatible? Who would control it

Because the drafters knew they wouldn't/couldn't/aren't allowed to/would only be able to do so to someone more under the thumb of the US government?

The actual purpose of a law or system is the actual outcome of it and not what it's dressed up to say its purpose is. A law that says "we don't allow mosques unless they're owned by people not descended from countries on a terrorism watch list" is still an infringement of the freedom of religion. We don't have to pretend there's good faith here.

> Because the drafters knew they wouldn't/couldn't/aren't allowed to/would only be able to do so to someone more under the thumb of the US government?

This is at best vacuously true. Since China is the most powerful adversary of the US, you'd say that literally anyone else is more under the thumb of the US government than they are.

Because if they were owned by an American company it’s much less likely they’d allow that content to go viral.

The law didn't require the new owner to be in America. Anywhere other than Iran, North Korea, China, or Russia would have been allowed.

> can the government actively interfere with my communication by banning the platform?

Yes. Foreign-ownership rules have been a thing in America for almost a century [1].

[1] https://www.fcc.gov/general/foreign-ownership-rules-and-poli...

By your very broad definition of infringement if a newspaper refuses to pay it's taxes, and then the government shuts down the newspaper down for that, this would be infringement.

Clearly it's not.

Yes, the government can make laws that effect speech platforms just like we can make them pay taxes.

Welcome to the religious fallacy of strict textualism, currently worshipped by the Supreme Court majority

But there are American users making and viewing content on that platform.

The physical equivalent would be if China was hosting a TED-talk-like conference where anyone can come and hold a presentation, and after certain kinds of talks became popular congress would tell them that they are no longer allowed to let Americans in, neither to hold presentations nor to listen to them.

Technically that doesn't violate the constitution, but it's not difficult to argue that it does violate the spirit of the constitution

> But there are American users making and viewing content on that platform.

Those Americans can host the exact same content on youtube or any of the many other video hosting sites.

This is not a free speech issue, it is a megaphone issue.

Making things harder is not separable from making things impossible.

That's true and that's actually something the courts consider. The standard is unreasonable burden. So it's not necessarily anything that makes speech harder, but if it does make speech unreasonably burdensome then it would run afoul of the first amendment.

So if the alternative places where such speech could be hosted were extremely limited, expensive or very difficult to use then the law banning a platform could create an unreasonable burden.

Suggesting that a shuttering of TikTok represents any impediment to your First Amendment rights — even if no comparable alternative existed — is to misunderstand what was promised by the Constitution.

Of course, plenty of comparable alternatives do exist.

It would be harder for me to learn piano if my teacher was convicted of murder.

For the sake of the one downvote, please allow me to complete the implied dialogue tree:

>>>> It would be harder for me to learn piano if my teacher was convicted of murder.

>>> Nonsense. You can easily find another piano teacher.

>> Right, just like people who use TikTok can easily find another short form video platform.

> That's a terrible analogy.

Nonsense. If TikTok was convicted and shut down because of rampant financial fraud, your First Amendment rights would be similarly unaffected.

TikTok was told to close because they refused to bring their corporate ownership in line with requirements set out in US Code passed by Congress. The content of any video was never at issue.

This make no sense, at all, in any context. Law enforcement, security, philosophy, competition, politics. None of it.

Correct, but requiring American content creators and consumers to move to a different platform (when those platforms are already large, have huge reach, and have low switching costs) would likely not meet the bar for an unreasonable burden. I don't think the courts would strike down this law on first amendment grounds.

Just as a thought experiment, take your reasoning and try to ban as much speech with as much specificity as you can. You can't ban the content of the speech but you can ban venues where speech takes place and and means of transmitting speech so long as at least one venue and means remains.

> after certain kinds of talks became popular congress would tell them that they are no longer allowed to let Americans in,

I think if that were the situation then yes the first amendment would be in issue. But I don't think anyone is saying that this is happening here. As I understand it this has nothing to do with what anyone is saying on TikTok and there are no social or protest movements gaining ground on TikTok that the government is trying to suppress. The only issue here is the foreign ownership and how that ownership is used. I don't think anyone is saying the government is doing this to silence any TikTok users

The physical equivalent would be if the Chinese intelligence apparatus opened an auditorium where they said "come sit here and let us read your mind and we will feed you what advances our national interest".

An issue arises when popularity is manipulated through artificial boosting by an adversarial government.

At some point, it becomes State Propaganda masquerading as grassroots activists.

Control over content can influence and distort public discourse and understanding. This is also against the spirit of free expression envisioned in the constitution and instead injecting an intentionally divisive voice.

So if a particular book were published by a French company, the government could ban it from being sold in the US? I’m sure that’s not true.

No. But they could ban American companies from providing services directly to that French publisher (e.g., a US company couldn't print books for or sell paper to that French publisher). However, a US law could not stop me from legally reading a copy I owned, or from selling or giving that copy to someone else within the US...

The First Amendment case would be much clearer if this was actually about banning access to TikTok (it's not: TikTok self-blocked US users, Amazon/Oracle shut off servers, and app stores stopped distributing to US users). TikTok could choose to operate their service (like many other Chinese companies) using only non-US infra and without relying on American companies to distribute their app; indeed, the Chinese version of TikTok, Douyin, hosted entirely from Chinese servers, continued to work just fine.

This case is also a reminder of why the iOS App Store is so bad for rights: at least on Android, you could sideload a 'banned' app; Google can comply with the law and US users can still download TikTok. On iOS, you don't have that option.

Using such restraints on foreign trade to censor publications is a very transparent end run around 1A.

It is a big sign that we live in a police state that the courts are willing to be politicized to the point that they are willing to ignore this obvious trampling upon the human rights of both the app publisher and the app’s users.

Also, iOS users can go buy a tablet or phone that can sideload. Also, tiktok.com is a thing that works on everything.

This isn't an "end run around 1A" - the law doesn't target any speech or content at all. TikTok can keep operating with all the same content, they just need to separate from Chinese ownership first. If this was about censorship, why include that option?

This isn't about censoring content, it's about preventing ByteDance from collecting personal data from 170M Americans that Chinese law requires them to hand over to their government.

If this law is a trampling of human rights, then so would basically any anti-trust enforcement on media corporations

Oh please. TikTok isn't a publication. The individual creators on TikTok have not been censored; they've merely been told that TikTok is not permitted to operate in the US, and that they will have to post their creations -- unedited, unaltered -- on other services. And those other services exist, and have wide reach, so it's not like saying "sure, you can continue to create, but your audience is now 5% the size it was before".

> Also, tiktok.com is a thing that works on everything.

Sounds like you're arguing against yourself. TikTok hasn't actually been banned.

yes, tiktok is publication of an application program.

It's not end run around 1A. 1A is a law protecting the people (and their various forms of organization) of the United States. Congress has every right to regulate or ban foreign entities of any kind for any reason from operating in the United States.

The rights enumerated by the constitution are human rights (“endowed by their creator”) and are not specific to americans.

Furthermore, the 1A is a restriction on the government and isn’t related to whether or not someone is a citizen.

There are lots of things congress is prohibited from doing under the constitution, including against foreign entities. Congress can’t ban a foreign religion operating in the US, for example.

> rights enumerated by the constitution are human rights (“endowed by their creator”)

You’re quoting the Declaration of Independence.

Correct.

So not "rights enumerated by the constitution." Which is why the degree to which the First Amendment provides protection does turn on legal status with America [1].

[1] https://constitution.congress.gov/browse/essay/artI-S8-C18-8...

No, they couldn't ban just one book printed by a French company. They'd have to ban the company entirely. And that's what happened here too. It's not just TikTok that got banned, but all of ByteDance's other apps too, e.g., Marvel Snap and CapCut.

And it's also important that divesting was an option instead. In your analogy, they couldn't ban the books outright, but could demand they be published somewhere else.

And we have a long history of restricting foreign media ownership

The constitution applies to American users and to non-Americans on American soil. It's not like the cops can execute you for being here on a tourist visa.

I do not think that the constitution necessarily applies to corporations. Corporations, for example, do not have a vote.

Forced corporate divestiture is a thing, for example Merck.

Corporations have First Amendment rights as ruled by Citizens United v. FEC. Even though corporations don’t have a vote (which is its own can of worms because of their economic power, money = vote), they still enjoy some of the same constitutional protections as individuals do.

Thats only because those corporations are owned by Americans. Foreign corporations do not have first amendment rights.

No, there's no such reasoning in that decision, which confirmed that speech itself is protected by the first amendment, regardless of who originates it.

And this ruling had little to do with any of that -- the first amendment challenge was that the ban imposed content-based burdens on the speech of the users of TikTok, and the court ruled that it did not. So the ban therefore survived the challenge under intermediate scrutiny.

The domestic vs. foreign ownership element of the ruling only pertained to the evaluation of whether there was a compelling government interest in enacting the ban, not whether the government was exempt from first amendment scrutiny at all.

i mean that's old law. theres a new law in town and it was a 9-0 ruling too.

Something being a free speech violation does not imply it being illegal, free speech exist as a independent concept from the US constitution

The constitution applies to the government. It establishes the government and defines -- and therefor limits -- what the government is allowed to do.

Corporations are considered "legal persons" for the purpose of applying the law to them in a convenient and organized way, but in real life, corporations are just organizational models employed by human beings for the purpose of coordinating their activities.

The restrictions applicable to what the government is allowed to do to "people" as defined in the constitution apply regardless of what organizational models those people are using to coordinate their activities. Ultimately, everything in society reduces to people, and the government is not entitled to use reified abstractions to escape the constraints on its authority.

The constitution applies to the people of the United States. It's in the first line: "We the people of the United States..."

That Constitution also includes numerous clauses granting Congress the authority to regulate international commerce (Article 1, Section 8, Clause 3). TikTok is a foreign commercial enterprise. We have restricted foreign products and services since the Boston Tea Party.

> the Constitution doesn't apply to foreign entities

Sort of true. Sometimes the constitution just says "persons", which has generally been interpreted to anyone.

But it's not material, because the 1st amendment is a restriction on congress. That's why it starts with "Congress shall make no law...". The argument isn't about if TikTok has rights, it's about if congress is authorized to take this action. They're inter-mixed a bit because if TikTok does have the rights they claim, then congress automatically isn't authorized, but they are separate.

you're right, my statement is an extreme oversimplification and there are situations where the constitution does apply to noncitizens (like due process during deportation) or places where things are unclear (if speech of foreign nationals were being regulated). But this case where we are talking about a foreign media platform's right to operate in the US without any reference to the content they are broadcasting... this seems to be one of those rare clear cut cases. I mean no one saw any issue with America effectively banning RT.

There were some people on here saying that national security is just a pretense and the government is actually doing this because they dislike some of the content being posted on TikTok. I don't know if that's the case but if it were then I would concede there is a first amendment issue. But absent that I think it's safe to say that this case doesn't raise the first amendment.

> But absent that I think it's safe to say that this case doesn't raise the first amendment.

I still think it does, but it's Apple and Google's right to propagate the app, not TikTok's right to be on the app store. And since neither Apple nor Google are party to the lawsuit, nobody really has standing to take that particular line of argument.

Yes, of course Congress has the authority to restrict foreign companies purely from the Commerce Clause alone. Their power over restricting foreign entities in the U.S. is nearly total. The U.S. is under no obligation to host speech or operations from any foreign business, entity, or application for any reason whatsoever.

You may wish to read FIRE and other organizations amicus brief where they lay out exactly why they think the ban is a free speech issue, legally speaking: https://www.thefire.org/sites/default/files/2024/12/Amici-Ti...

The ACLU hasn't been a credible defender of free speech in some time. (FIRE and EFF still credible.)

I started having issues when they supported Citizens United

But the ACLU was arguing in defense of free speech there.

Had citizens united gone the other way, imagine what Trump could’ve done with Facebook and Google to ensure reelection in 2020.

He wouldn't have had to resort to complex modes of influence, that's for sure. It's very scary that we've gotten to the point where people are claiming to "protect democracy" by proposing to allow institutions controlled by incumbent politicians to regulate who is allowed to say what in the lead-up to elections.

> Laws that does not explicitly curtail free speech but effectively still does just that can certainly be created.

You can say the same thing about an antitrust law that forces Alphabet to sell Youtube.

If antitrust laws did not exist then making them would need a constitutional amendment

This issue is not about freedom of speech to any of the players. Its geopolitics. The ACLU and the EFF care about the precedent it sets.

Shocking news: different players have different motivations.

ACLU is a biased organization and only supports the bill of rights when it suits their political alignment.

And what is their political alignment in this case (and in general)? Considering that banning tiktok got voted with bipartisan support.

As I understand things, they tend to leave gun rights stuff to the enormous and well-funded NRA.

In cases from "Roe vs Wade" to "Masterpiece Cakeshop" and "Hobby Lobby" the ACLU came out against things supported by the religious right. And although the ACLU regularly supports the free speech rights of swastika-tattoed nazis - Republicans don't see that as supporting their side, because no reasonable person wants to think people with swastika tattoos are on their side.

For those unaware of ACLU's change over the last 10 or so years, here is an example:

In September 2021, the ACLU wrote a New York Times op-ed defending vaccine requirements, arguing they actually advance civil liberties by protecting the most vulnerable and allowing more people to safely participate in public life. David Cole and Daniel Mach, the authors, wrote that individual liberty isn't absolute when it puts others at risk.

Surely, one can be pro vaccine mandates. But I would not expect a civil liberties organization to hold this position.

[0] https://www.nytimes.com/2021/09/02/opinion/covid-vaccine-man...

> I would not expect a civil liberties organization to hold this position

Or feel the need to comment on it. (I say this as someone who believes in vaccine requirements.)

You wouldn't expect a civil liberties organization to have an opinion on containing a dangerous pandemic? In addition to working at the ACLU the people doing their work are also humans.

When "containing a dangerous pandemic" means a restriction on civil liberties, I would expect the ACLU to comment on that matter.

I am personally happy with vaccine requirements, but IMO the ACLU should have been defending the people who weren't.

Advocacy organizations shouldn't aspire to extremes. The ACLU should offer reasonable and practical help and commentary on civil liberties. Otherwise, you get the modern NRA that fights every law about firearms.

Should the ACLU defend the rights of someone to blow up nuclear bombs in their backyard?

That’s a clear curtailment of their civil liberties. And assuming they’re in a rural area may not harm anyone else either.

This is an obviously extreme example but the point still stands. Any civil liberties organization cannot focus absolutely narrowly on that question in every situation but has to apply a broader approach.

Surely you see the difference between someone having Strategic weapons in their garage, and the government forcing someone to take a medicine that they don't want to take, right?

>but the point still stands

On what, exactly?

You, actually, do not have the right to spread viruses around.

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

All individual rights are balanced with the rights of other individuals/society. You can be given the choice to vaccinate or be forcefully quarantined. This has occurred many times in the US and the right of the state to do this has been upheld.

While corona was weak we will eventually seem some dangerous bullshit spread and the anti-vax dipshits are going figure out exactly what their rights entail as they are being drug from their house at gunpoint with the express will of the majority of the population.

There's a big difference between quarantining people who you know have a dangerous disease for a few weeks until they're better, and quarantining the entire country for years because you're not sure who has a dangerous disease.

To be clear, they probably did have the legal power to quarantine the whole country, but after a week or so there might have been an armed revolt.

Edit: Maybe they didn't.

Unlikely, freedom of domestic travel is subject to the strict scrutiny Constitutional standard (international travel is a more open question). Banning freedom of travel for the entire country would be equivalent to banning freedom of speech for the entire country, from a Constitutional perspective.

Interestingly, the myriad freedom of travel cases happened so long ago and were so decisively settled as a strong right that everyone has kind of forgotten about them because there is little interesting left to decide. Not as controversial as questions around the meaning of speech. But I think the last significant questions were addressed around the Second World War.

Yes, the government has quarantine powers, which have been broadly established. They did not necessarily have the right to go about it how they did in 2020, which was through OSHA rules and other "soft power" rather than through their power to quarantine people. Almost nobody was actually quarantined in relation to COVID.

A broad, sweeping quarantine in relation to COVID would have been so unpopular that you can see why they went about it in a "softer" way, but sometimes the government can't have its cake and eat it too.

Those vaccine mandates were broadly ruled illegal, even in light of the quarantine power. These sorts of civil liberties are complicated, and the ACLU found themselves on the wrong side of this one.

Quarantine powers are subject to the “strict scrutiny” standard. Freedom of domestic travel is as fundamental as freedom of speech in Constitutional law. This has been thoroughly adjudicated many times and in many contexts by the US Supreme Court, including many attempts by the government to exploit regulatory and taxation loopholes to indirectly effect that outcome.

It is unambiguously unconstitutional to prevent everyone from traveling, even for quarantine purposes. It must be evaluated on an individual basis subject to judicial review to establish that the individual presents a clear and present danger, and only for a very limited duration. No different than restrictions on speech.

This is the reason no State anywhere, regardless of who was in power, instituted hard lockdowns during COVID. This is known to be settled law to such an extent that attempting to prevent the population from traveling without clearing the strict scrutiny standard would be met with an instant Federal court injunction, likely coupled with a withering public statement questioning the competence of the State’s Attorney General. There was no upside in taking that risk.

The idea that you can forcibly quarantine someone solely because you don’t like their choices is wishcasting, not based on credible Constitutional foundations.

> Should the ACLU defend the rights of someone to blow up nuclear bombs in their backyard?

If someone actually went to court over this, I would hope/expect that the NRA would send some lawyers. The ACLU isn't that into the second amendment and has never been. However, nobody has gone to court over this. They did go to court over vaccine mandates.

By the way, the only grounds the government would have to stand on here are radiation-related. It is broadly legal to use explosives on your own property unless you're too close to someone else's property. It is also broadly legal to build your own weapons.

Well, whose rights are we talking about.

There is "freedom to" and "Freedom from" lots of people not getting vaccinated affects people's freedom from getting infected.

If the vax worked then people could protect themselves by getting vaccinated.

This neglects that some people can't be vaccinated or they would still be vulnerable even after an effective vaccination. You're not just vaccinated to protect yourself, it also reduces risk for the people around you.

Those people can choose to self-quarantine.

Not always, there's always a risk to the vaccine which is why it shouldn't be mandated.

Pretty much every measure taken against COVID had been taken many times before during the numerous epidemics of cholera, typhus, yellow fever, bubonic plague, smallpox, and influenza that plagued (no pun intended!) the US since its founding.

Requiring inoculation/vaccination, shut downs, masks, and quarantines was generally considered a legitimate use of state power to prevent the spread of deadly diseases and not an infringement of civil liberties.

Actually this goes back to even before the US was founded. George Washington imposed mandatory smallpox inoculation on his army during the revolution. This probably contributed significantly to his victory because both the British army and native tribes that had sided with the British were heavily weakened by smallpox but Washington's was not due to that inoculation requirement.

Please share any pre-Covid example of the government shutting down all public gatherings including weddings and funerals and closing the vast majority of businesses for a substantial period of time.

There may have been isolated examples in the past, but the degree was not the same.

Unfortunately so. It didn't use to be that way - the ACLU used to be so principled that they would defend literal Nazis' rights. But they've fallen a long way since then.

Agree, but (and yes, whataboutism ahoy!) one can make observations about a similar lack or principle on the right.

It always seemed to me that the US was fuzzy when the very clear text of the Constitution rubbed up against the realities of a complex State. For example,

- the 1st Amendment doesnt say the speech can be overridden by a compelling national security interest, which is the argument here. But the US has security services, and legitimately there are cases where to allow speech does harm. But if you are going to be honest, shouldnt there be an amendment giving the State an override of 1A?

- 2A is infamous, of course, and for the love of $deity lets not discuss it here, but why does "not abridged" get overriden by bans in, say, machine guns, which have been on the books since the Chicago gangster era? Either you abridge or not. Or at least be honest about it .

- Some speakers in the covid era made a very strong appeal to personal bodily autonomy when it came to vaccine mandates. Ok, let's follow that. Does it not then also follow that a woman cannot be forced to carry a baby to term? That would seem logical, but the connection is not made. Conversely there is no "commonweal" override written into the Constitution and we are left with random SCOTUS decisions over the last 240 years.

"for the love of $deity lets not discuss it here" - good idea, and why not take your own advice.

> the 1st Amendment doesnt say the speech can be overridden by a compelling national security interest, which is the argument here.

No it isn't. The argument here is that it isn't a restriction on speech at all.

The government can fine American companies for carrying certain content but it's not a 1st Amendment issue? Why are people buying this lame argument?

Because it's not the content but rather the company behind it. The exact same .apk would be allowed if ByteDance divested.

Because the people 250 years ago could not have imagined the problems that we'd have invented for ourselves in these days. It was always meant to be a living document with a process of adding and changing amendments. And in between that time the the way people interact has grown more complex. If you took those same intelligent men and dropped them into today, the Amendments would look different.

If only they made a process to change it…

Good luck amending the constitution these days. We can't even pass an amendment that says that women have the same rights as men.

An amendment process that in practice is impossible to exercise is just as good as having no amendment process at all.

That’s not an excuse for circumventing it, obviously.

> The government can fine American companies for carrying certain content

No, and no one is saying they can. The law says American companies can't do business with a certain foreign-owned company.

It is beyond settled in law that this is something that the US government can do.

It’s not a certain company, it’s a whole class of them (partially defined by POTUS’ whims)

Sure, the government can do that, and when doing so infringes on Americans’ speech or access to information, it introduces First Amendment questions that must be addressed.

“The government says CNN can’t post stories from BBC” isn’t immediately resolved by “it’s a foreign company.”

> when doing so infringes on Americans’ speech or access to information

But this doesn't do that. Everything that Americans could post or watch on TikTok, they're still allowed to post or watch anywhere else.

Just like everything that a reader might find in NYTimes, they could also find on Fox News!

It sounds like you're saying that there's some content on TikTok that Instagram Reels/YouTube Shorts/etc. won't allow on their platforms. Is that correct? If so, can you give an example?

Since when is that the test?

Is the government allowed to shut down Harvard because the same classes can be taken at ASU?

Both of these I suspect are handled sorta explicitly by giving the state the power to do whatever it wants if it is important and essential enough.

The courts have various categories for how important something needs to be to allow certain levels of unconstitutionality, eg suppose I have "legally" built the nuclear device featured in a recent kurgesatz video with enough kiloton to start by itself a nuclear winter kill every person on the planet... I seriously suspect SCOTUS will be ok with the state taking the ignition keys away from me

Uh. They still defend the civil rights of neo-Nazis (aren't any actual nazis left), white supremacists, etc.

> neo-Nazis (aren't any actual nazis left)

Neo-Nazis are a subset of Nazis though, no?

In the sense of an adherent to Nazism, yes, neo-Nazis are Nazis.

In the context of "literal Nazis" the ACLU had argued for the rights of - like the German American Bund, which contained actual members of the National Socialist German Workers' Party, not exactly.

There is no paradox. Tolerance is a social contract. If you break the contract you are no longer covered by it.

Tolerance for behavior, as long as we don't disagree with it

Assuming that behaviour is intolerance: Yup. It's a peace treaty. Break the peace treaty, and you no longer benefit from the peace treaty.

This goes both ways. Call your (relatively moderate) opponents nazis enough and they'll just end up not caring about your viewpoints at all.

I disagree with that analysis.

Well but that's not how a lot of people interpret it

I would very much agree this is the case. But it's not how a lot of people think

I can tolerate everything, except the outgroup of course

This applies to TikTok. We can’t be tolerant of any social media that disallows specific words or groups.

No that would contradict freedom of association. People are free to form closed, self-censoring groups if they choose to. What we want to avoid is the government forcing it on people.

The paradox of tolerance specifically states that one must not be tolerant of intolerance. Hence, a paradox.

Tolerance is a social contract of leaving alone others whose ways differ from your own so long as they do the same for you.

One must not tolerate those that call for violence and subjugation of differing groups, which is almost the exact opposite meaning your comment seems to be implying in my reading of it, instead calling for wholly unfiltered speech by whosoever should deem to speak.

Racists and similar hatemongers calling for others to tolerate them while they are screaming for those they disparage to be caste down and out cannot be tolerated in any reasonable forum.

As such, any reasonable forum must ban some facets of free speech.

That we disallow this power for governments is a reasonable limit on the powers of the elected to rule, lest those powers be abused.

This is probably the best summary / example I have read on how to explain the paradox of tolerance.

Thank you!

The problem with this interpretation is of course that it lets you be as intolerant as you want to anyone you decree intolerant. Which is why it is so popular.

They would defend the Nazi right to free speech.

You seem to be confused between principally defending everyone having the same rights vs defending everything anyone can do.

The ACLU defends Nazi’s rights because they believe Nazis should have the same rights as everyone else irrespective of who they are.

That doesn’t mean they defend every possible action that can be considered a civil liberty.

Especially when individual liberty is in contention with collective liberty. This is the "hard problem" for organizing a free society.

Eliminating traffic laws would make individuals more free in a literal sense, but those rules also make it so people can get from place to place quickly and safely. The liberty interpretation is that what people actually want is to travel, not to drive however they like. So you trade a freedom most people don't miss to enable another.

Vaccine mandates are a great example of this contention where under normal circumstances nobody cares about having to get vaccinated but they do care about not getting polio. Covid was strange in that the number of people opposed was significantly larger than I think anyone expected.

Honestly these "civil liberties" orgs have lost the plot a long time ago, or are just at "useful idiot" mode

>> Many American civil liberties organizations think that the the ban is a free speech issue:

> Honestly these "civil liberties" orgs have lost the plot a long time ago, or are just at "useful idiot" mode

Exactly. When I read "many American civil liberties organizations think," my first thought was "they think a lot of things, that doesn't mean what they think is true or a good idea."

Additionally: they're all essentially lawyers arguing one side of the case. Just listening to them is not going to lead to the correct outcomes (e.g. if courts only listened to prosecutors only, tons of innocent people would go to jail; if they only listened to defense attorneys, tons of guilty people would go free).

This is silly. The EFF and ACLU do amazing and important work every day.

And yet here they are, trying to pretend that a foreign government’s ability to run psyops is protected speech.

Why do you think they are pretending? Many of us agree with them.

I think “trying to pretend” is just one of those thought terminating cliches to pretend that you have a winning argument.

The use of the “useful idiot” trope tells you all you need to know about their opinions on any kind of entity dedicated to social issues.

Well they’re clearly wrong.

Go read the SC unanimous judgment. It’s very clear and lays out exactly why they’re wrong.

In fact they do a lot more than that because they state off the bat that there isn’t even a first amendment question (a Chinese corporation doesn’t have first amendment rights in the U.S.), but they go beyond, assume the first amendment does apply, and still explain why that isn’t valid.

SCOTUS, as they've done in many recent cases, is artfully skirting the substance of the issue.

How is this ban actually enforced? By fining American companies for serving specific content. That is the First Amendment issue. SCOTUS simply asserting that it's not in order to make their ruling convenient does not actually make it so.

There's all kinds of content that you can get fined for hosting. Pirated movies for instance.

Is that also free speech? Again, it's just the law and how it is enforced.

Copyright (in the US) was literally created by the same people who wrote the 1st Amendment. Copyright is in the Constitution itself. It was very obviously an exception from the start.

"Foreign governments saying things" also existed at the same time the 1st Amendment was written, and there were no carveouts from 1st Amendment in light of that.

In any case: If SCOTUS during its early cases on copyright law (or copyright on the Internet) simply asserted "this has nothing to do with the 1st Amendment," they'd also be wrong. That would be a clear avoidance tactic not to wrangle with the substantive issue. In reality, the big cases on copyright are riddled with 1st Amendment questions, considerations, and constraints.

They ban American companies from distributing or maintaining the application, not specific content. More of a "criminal conspiracy" type of behavior rather than something that would relate to wikileaks or whoever. Can as well argue what is being banned is the data-collection side of the operation since it's the part that depends on using the app. Those companies still have the freedom to publicly state whatever the CCP has to say.

The law indeed needed to be carefully written to "skirt" any first amendment violations, and SCOTUS unanimously agreed it had done so successfully.

The application itself is content from the POV of the Constitution.

Universal City Studios v Corley

"Content" is narrower than "speech". In that case the restriction was described as "content-neutral". Hence it didn't require strict scrutiny, only intermediate scrutiny. Which seems like the blueprint for how they wrote the TikTok law.

> How is this ban actually enforced? By fining American companies for serving specific content.

No, it fines American companies for providing services to a certain foreign-owned company.

If this isn't permissible, then sanctions can't be a thing and OFAC can't do its job. (Whether or not that would be a good thing is a separate issue.)

Funny that you mention that: sanction laws are also riddled with First Amendment questions, considerations, and constraints.

A SCOTUS that simply asserted these questions do not exist would also be laughable.

One very recent entry on this discourse:

https://knightcolumbia.org/content/knight-institute-and-foun...

Yeah, I can't believe all these people are talking "Congress shall make no law abridging the freedom of speech, or of the press" so literally.

Haven't these people heard of Wickard v. Filburn?

Tiktok definitely isn't press and algorithm-powered social media feeds can hardly be considered free speech. It's not even speech - it's broadcast! We've regulated broadcast since its' inception.

While Tiktok doesn't have literal printing presses, neither do TV networks.

How can the first amendment be interpreted so broadly that large multinational corporations financially supporting politicians is considered free speech, yet so narrowly that social media isn't part of the media?

> large multinational corporations financially supporting politicians

You do realize that Rupert Murdoch was forced to become a US citizen because of the same laws that are in question about US media ownership.

Social media is 100% the media. Social media has freedom of speech. Businesses don't have freedom of ownership, including media business. Kinda fucky, but this is very long standing law.

Oh I agree. Citizen United was wrongly decided, and the only people who agree with it are those who benefit from the corruption it has enabled. It's far from settled law, though obviously it's not changing in the next 4 years.

As for social media - it's an advertising platform. The algorithm is deciding what you see based on what sells ads. Who is exercising free speech there? Tiktok and Meta are exercising corporate speech in the name of profit making. They have no right to host such a platform, and the government certainly has the right to regulate it if they do have one.

The government can't compel Meta, Tiktok or individual users to say X, Y, or Z, they can declare the ads-based algorithmic-content business model illegal or subject it to strict regulation - especially when its in the furtherance of free speech, like preventing Facebook from deplatforming people for having the wrong opinions that advertisers don't like.

We only regulated broadcast using the public airwaves. That's why cable TV is generally exempt.

I don't think that is clear at all. Refer to their amicus brief where they explain their reasoning in detail: https://www.thefire.org/research-learn/brief-amici-curiae-wr... The gist of it, which you missed, is that they think the ban violates Americans first amendment rights.

The 1st Amendment doesn't apply to Chinese companies operating in the US.