Comment by somenameforme
4 days ago
I don't see how people don't see what is their most likely rationale - the ban will be temporary. Trump's already come out against it and is going to work to reverse it once in office. If it can't be done directly, it'll be done like usual - as an addon to some must-pass bill.
I think they would probably refuse to sell in a situation where they had reason to expect the ban to persist (for different reasons), but in this case they probably didn't even consider selling when there's a high probability they'll be back legally operating in the US within a year.
Acts of congress can only be blocked by the supreme court's power of judicial review. The supreme court held a 2.5 hour hearing this past week and the only two justices who voiced skepticism of the law were Gorsuch and Thomas.
Or another act of Congress! But given that the Supreme Court is waiting to the last second to issue their ruling, I don't think it's all quite as clear behind doors as you seem to believe it was in front of them. The nuance of claiming that constitutional rights do not apply to a company legally operating within the country, because of its nationality, has extremely broad implications as a precedent - well beyond corporations alone, even for a judge who might be more than okay with the ban in and of itself.
Beyond this, there's the matter of enforcement and implementation. The former is discretionary and the latter is not specified by the bill. An effective ban would effectively require the creation of a Great Firewall of China type mechanism to effectively implement (which is what I thought this law was always a sort of 'trojan horse' for). Otherwise the "ban" will be trivially sidestepped by using a web app, downloading an APK from their site/mirrors instead of the marketplace, etc. Let alone things like VPNs! As Chinese companies are increasingly banned from the US, we're likely to see more adversarial setups where these companies will make no effort to prevent US customers no matter how much the US government madly gesticulates, though again with the current administration said gesticulation will not even happen in the first place.
>The nuance of claiming that constitutional rights do not apply to a company legally operating within the country, because of its nationality, has extremely broad implications as a precedent
The law (PAFACA) doesn't directly apply to TikTok, but only to TikTok's ownership by ByteDance, due to ByteDance being a corporation located in a foreign adversary nation. Foreign corporations are not protected by the first amendment as domestic corporations are. Case law clarifying separate first amendment protections for domestic vs foreign entities such as Citizens United v FEC (2010) and Bluman v FEC (2011), already established the precedent for this.
>I don't think it's all quite as clear behind doors as you seem to believe it was in front of them
Did you watch the hearing or read the transcript? The opinions of the majority of the justices on both sides, including the chief justice, were not ambiguous. As referenced in the hearing by the justices, the first amendment only applies to communication on the platform, not the ownership of the platform. Given that TikTok's parent company is ByteDance, and as the first amendment does not apply to foreign corporations as it does to domestic corporations, which multiple justices pointed out, the law is not in conflict with the first amendment. The law is referred to as the "TikTok ban law", but it doesn't ban the platform explicitly, it only bans its ownership by a foreign adversary located corporation, which are not protected by the first amendment, which is how the law avoids a conflict with the first amendment while potentially still effectively banning the platform.
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