Comment by somenameforme
3 days ago
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.
The case you cited is not really appropriate here because it's about elections which are one of the few domains where citizenship plays a critical and very well established role. In this case, you're talking about broadly restricting the constitutional rights of an entity legally within the US based on its ties to a nationality, given that ByteDance is legally not even a Chinese company, as it's incorporated in the Cayman Isles. The implications of this seem huge.
Don't trust regular media to give you fair assessments of this case. ScotusBlog generally has excellent and impartial analysis of cases from experienced lawyers, and this is no exception. [1] They described the overall court as skeptical of the claims. Skeptical does not mean fully in bed with one side or the other, but simply that - skeptical. It's also important to bear in mind is that hearings are, by their very nature, off the cuff. And the implications (or factualness) of what the justices believe may change as they consider the implications of a decision, and factualness of their assumptions.
Again the thing I would say is that if this was an obvious case, the justices would not be waiting to the last second. My guess is that we'll probably see an announced delay+injunction on Friday.
[1] - https://www.scotusblog.com/2025/01/supreme-court-skeptical-o...
Did you read that blog post? Despite the post being titled as it is, the post contains more examples of justices voicing skepticism to the TikTok lawyers' arguments than it does examples of justices who were voicing skepticism to the law:
"Some justices, however, were unconvinced that the law necessarily raises a First Amendment issue. Justice Clarence Thomas asked Francisco how a restriction on ByteDance’s ownership of TikTok created any limitations on TikTok’s speech.
Justice Elena Kagan echoed Thomas’s skepticism. If the law only targets ByteDance, which does not have any First Amendment rights because it is a foreign corporation, she asked Francisco, how does that implicate TikTok’s First Amendment rights? TikTok can still use whatever algorithm it wants, Kagan observed.
Justice Amy Coney Barrett also appeared to agree at times. The law, she simply requires ByteDance to divest TikTok. A shut-down by TikTok, she suggested, would be the consequence of ByteDance’s choice not to do so.
Other justices appeared persuaded by the government’s invocation of national security concerns. Chief Justice John Roberts observed that, although Francisco contended that TikTok is a U.S. company, Congress had concluded that the “ultimate company that controls” TikTok is subject to Chinese laws, including an obligation to assist the Chinese government with intelligence work. “Are we,” Roberts queried, “supposed to ignore that?”
Justice Brett Kavanaugh noted the government’s contention that China is using TikTok to access information about millions of U.S. citizens, and in particular young people, and could in the future use that information to try to recruit spies or manipulate future U.S. officials. That “seems like a huge concern for the future of” the United States, Kavanaugh observed."
3 replies →