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Comment by somenameforme

2 days ago

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...

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somenameforme

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TeaBrain  2 days ago

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."

  • somenameforme  2 days ago

    In a Supreme Court case the burden of proof is on the petitioner, and it's the duty of the Court to critically question that evidence and proof. See, for instance, comparable coverage on the Roe vs Wade case, where you will see similar grilling. [1] Something quite important is how the judges responded to the claims and the follow ups. For instance in the transcript [2] follow the dialogue from the quotes you gave versus the grilling of Prelogar, representing the government.

    She was, at times, being overtly mocked with quotes from judges like, "That's your best argument is that the average American won't be able to figure out that the cat feed he's getting on TikTok could be manipulated, even though there's a disclosure saying it could be manipulated?" Prelogar in general found herself struggling to defend the claim that the attempted ban was based on data access and not content (which would be unconstitutional), why there were no alternatives if the claims were based solely on data access, and the implications for any other foreign company that has access to user data (which is basically all of them). TikTok was met with some tough questioning but generally responded competently.

    [1] - https://www.scotusblog.com/2021/12/majority-of-court-appears...

    [2] - https://www.techpolicy.press/transcript-us-supreme-court-ora...