Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

Meta was selling data to Chinese groups and buried a report stating this until recently. This has nothing to do with national defence and everything to do with ensuring American companies control the narrative without competition.

>The forced divestment is for national security reasons.

Would you like to buy a bridge?

Meta & co are required by US law to do the same for people in the rest of the world. Didn't see a huge US outcry about that, in fact I saw a lot of hate for things like GDPR

While this is a fair take, it's not what the law has in mind.

China is classified as a foreign adversary, so this goes beyond trade policy. Foreign adversaries show a pattern of conduct that threaten national security. People are not comfortable with foreign adversaries having a direct line to our youth's attention and having their finger on the dial.

It’s overly simplistic. It doesn’t take into account the ideals the USA was founded on (including free speech as an inalienable right), nor does it take into account the large shift in US government policy.

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> Would HN be OK with European governments banning Meta, X, Discord etc?

I'm a bit surprised it hasn't happened yet, although those companies are also willing to adjust policies in foreign nations—for instance, Meta saying it won't eliminate fact checking outside of the US.

Hey, one platform is Chinese, the others are American. That's the difference you're looking for

I fundamentally see this as a consequence of the original sin of Senate. Article I, Section 3, Clause 1 and Article II, Section 2, Clause 2 work together to make the Supreme Court a reflection of state values rather than popular values. Any time the two drift apart - due to changing popular opinion, migration, etc, the difference is reflected in political tension. There's no viable escape hatch for popular grievances against the supreme court (impeachment is non-viable again, because the Senate structure) which puts us in a precarious situation.

I don't see a viable way forward since amendments also follow a state structure given Article Five.

> The only way out I see for the Supreme Court is a Congress and President who are focused on fixing the issue.

This is absolutely true. Not so much about the President, who has no legislative authority, but Congress, to be sure.

Congress seems to have abdicated its duty to ensure legislation is clear and consistent and evolves with the times. Many of the SCOTUS opinions I've read--perhaps a majority--get mired in trying to read the tea leaves about Congressional intent, or are frustrated because the parties are using the Court to solve problems that Congress could and should have solved.

There needs to be critical mass for protest and disruption. Palpable anger out on the streets. Unfortunately, we don’t have that right now.

This is just not true. If you examine recent terms, many cases are decided unanimously and others have judges voting across the aisle. Roberts has been incredibly cautious to avoid this happening and has managed the docket specifically to avoid it. The majority on Bostock, where Gorsuch wrote the opinion, is a pretty good example of this. A ton of rulings have been very narrowly tailored specifically to avoid setting precedent, favoring standing or juridsiction more than a tough interpretation of con law.

You might appreciate Roberts' '24 year-end report on the federal judiciary: https://www.supremecourt.gov/publicinfo/year-end/2024year-en...

The decision to ban Colorado from making its own decisions for its own election with regard to what "engaged in insurrection" means and therefore disqualifies someone from their own state's ballots.

Purely political. The law says clearly that states run their own elections and it says clearly that insurrection is disqualifying. Would've been politically inconvenient though (for either side of the spectrum, and especially inconvenient for one side).

It highly depends on the design of the judicial system. As individual people obviously everyone has political opinions, but you can shield the judicial system from being politized. Systems like in Israel where judges or judicial committees have a major say in appointment of judges removes a lot of politics from the equation.

That's how the Prussian/German bureaucracy was designed too. Lifetime civil service and merit based selection basically means the bureaucracy manages itself removed from the political process. The US system is extremely personalized with elections and appointments so it's uniquely nepotistic in a lot of ways.

This is patently false. Marbury vs. Madison based the principle of judicial review on English common law inherited at the founding.

Just because you say something with enough conviction does not make it true.

I'm not so sure the ACLU is staffed with competent First Amendment attorneys any more. I've read a few articles citing Ira Glasser as being disappointed in the direction the modern ACLU is moving.

ACLU has dropped in quality significantly in the past 10 years IMO and this seems par for course for them since 2016.

How so? Generally speaking, foreign entities do not have the same constitutional guarantees as domestic with regard to laws concerning national security. Mind you, if this was a domestically owned platform, they would have a very strong case.

This is a terrible analogy:

1/Selling something doesn't destroy it

2/You don't want to destroy it because you want to fetch a high price for it

3/Nobody's offering $1 for TikTok, and nobody expects ByteDance to accept $1 for it

4/A fair market price would make ByteDance whole

Sounds like they are preparing to shut down in the US.

I don't think there's any reason they can't continue as a web app. I think American companies are barred from doing business with them.

https://gizmodo.com/tiktok-will-reportedly-shut-down-its-app...

Regulation that dictate how a company may operate will naturally inhibit the consumers if the regulations is so heavy that the company will no longer exist. That doesn't mean such regulation is impossible.

The ban does not say that US citizens are not allowed to use the application (or apply speech). The method of the ban is similar to those blocking torrent sites, as in blocking them on an ISP level.

ISP already operating a fairly large block lists, both in the US and EU, blocking everything from pirate sites, scam sites, and more serious criminal ventures. The legal frame work generally do not talk about users (outside of deep packet inspection territory). They simply get applied more like industry regulation. It should be noted that the 1965 case has not prevented ISP block lists, and I would assume that the long list of pirate cases where ISP has objected to block lists in the last 30+ years has thoroughly tested the 1965 case. We can also look at the very recent net neutrality situation, where ISP has very much been defined as something very different from the postal service.

As a minor aspect being said in articles describing the ban, the ban would not prevent users from accessing the app if its already installed. As an ISP block it would break the functionality of the app, and new users would only get a spinning bar when trying to download it, but citizens would not be legally bound by the ban. That is mostly semantics but there is a legal distinction.