Comment by patmcc
12 hours ago
What if Congress passed a law that said "The New York Times must shut down unless all foreign owners divest"? That's effectively impossible for a publicly traded corporation. Is that just a ban, in practice?
12 hours ago
What if Congress passed a law that said "The New York Times must shut down unless all foreign owners divest"? That's effectively impossible for a publicly traded corporation. Is that just a ban, in practice?
That's what the question of strict scrutiny vs. intermediate scrutiny vs. rational basis is about. The courts would have to decide the appropriate level of scrutiny given the legal context and then apply that to the law as written.
Your hypothetical clearly implicates the Times' speech, so intermediate scrutiny at least would be applied, requiring that the law serve an important governmental purpose. I think that would be a difficult argument for the government to make, especially if the law was selective about which kinds of media institutions could and could not have any foreign ownership in general. The TikTok law is much more specific.
For those interested, https://crsreports.congress.gov/product/pdf/R/R47986 is a relatively approachable overview of these guidelines.
It's interesting to read the full TikTok opinion https://www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf and search for "scrutiny" and "tailored" while referencing some of the diagrams from the overview above. It's a good case study of how different levels of scrutiny are evaluated!
(Not a lawyer, this is not legal advice.)
IANAL, but my lay opinion is that thanks to the foreign commerce clause this would be a matter of rational basis.
So quite likely Congress could craft such a law and have it hold up, if it could show that foreign control of the NYT (which is incidentally the case) posed a national security concern.
IANALE, but any time the exercise of fundamental rights is being constrained, I understand intermediate scrutiny is the floor.
1 reply →
Except this isn't a law against any foreign owner, just specifically a foreign owner that is essentially the #1 geopolitical adversary of the US.
A large part of the US-China relationship is zero-sum. If America loses, china wins, and vice versa. That relationship is not the same for, say, the US-France relationship.
That’s what the China hawks want you to believe, it’s not just a lie but a shameful, war mongering lie. And they will increasingly use that lie to shut people up, shut apps down, until we have no choice but to believe that the Chinese want us dead and we them. It’s textbook propaganda and you’re spreading it.
China and the US have been in a massively successful, mutually beneficial global economic partnership for decades. Zero sum my ass. Take a peace pipe, make friends not war.
> China and the US have been in a massively successful, mutually beneficial global economic partnership for decades
Past performance is not indicative of future results. China is now grappling with sluggish GDP growth, declining fertility, youth unemployment, re-shoring/friend-shoring, a property crisis, popular discontent with authoritarian overreach (e.g. zero COVID and HK), and increasingly concentrated power under chairman-for-life Xi. Their military spending has hockey-sticked in the past two decades and they're churning out ships and weapons like nobody's business. He realizes that the demographic and economic windows of opportunity are finite for military action against Taiwan (and by extension its allies like the US and Japan). The Chinese military's shenanigans in the South China Sea with artificial islands, EEZ violations, and so forth in combination with Xi's rhetorical sabre-rattling in domestic speeches don't paint a pretty picture.
Before somebody like this poster calls me a "war-mongering [liar]" or something similar let me point out that this is the opinion of academics [1], not US DoD officials or politicians. I have nothing but reverence for China's people and culture. I'd love to visit but unfortunately it's my understanding that I'd have to install tracking software on my phone and check in with police every step of the way. This type of asymmetry between our governments is why this ban has legs.
With the gift of hindsight I think it's safe to say that neoliberal policy (in the literal sense of the term, not the hacky partisan one) is a double-edged sword that got us to where we are today. To say that the US-China relationship is sunshine and puppies is ignorant of the facts.
[1] https://foreignpolicy.com/2024/02/04/china-war-military-taiw...
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I want to believe you, but arguments like this are so simplistic that it's profoundly disappointing. It is simultaneously the case that they are extensive trade partners and that there's ongoing harassment in the South China Sea, the horrifying takeover of Hong Kong and the increasingly chilling situation in Taiwan, or the harassment of expat dissidents who have fled to the West.
To say nothing of extremely adversarial cases of increasingly aggressive hacking, corporate espionage, "wolf warrior" diplomacy, development of military capabilities that seem specifically designed with countering the U.S. in mind, as well as the more ordinary diplomatic and economic pushback on everything from diplomatic influence, pushing an alternative reserve currency, and an internal political doctrine that emphasizes doubling down on all these fronts.
I don't even feel like I've ventured an opinion yet, I've simply surveyed facts and I am yet to meet a variation of the Officer Barbrady "nothing to see here" argument that has proved to be fully up to speed on the adversarial picture in front of us.
I think what I want, to feel reassured, is to be pleasantly surprised by someone who is command of these facts, capable of showing that I'm wrong about any of the above, and/or that I'm overlooking important swaths of the factual landscape in such a way that points to a safe equilibrium rather than an adversarial position.
But instead it's light-on-facts tirades that attempt to paint these concerns as neocon warmongering, attempting to indulge in a combination of colorful imagery and ridicule, which for me is kind of a non-starter.
Edit in response to reply below: I'm just going to underscore that none of the facts here are in dispute. The whataboutism, insinuations of racism, and "were you there!?" style challenges (reminiscent of creation science apologetics) are just not things I'm interested in engaging with.
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Do you dispute the persecution of Uyghurs in China? The UN, US Dept. of State, House of Commons in the UK and Canada, Dutch Parliament, French National Assembly, New Zealand, Belgium, and the Czech Republic?
This is not a government to be friends with. It's time we go our separate ways from the CCP.
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That was the us policy for 20 years under the assumption that political liberalism with follow economic liberalism. It has not. This is also no one sided. China is preparing for conflict with the US so we must also. Yes hawks can push a country into war but so can doves.
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Have you gone to Zhihu or Weibo and read what the Chinese are saying there about you guys? Here's a top thread on there with 12,000 likes - https://www.zhihu.com/question/460310859/answer/2046776391
>I might as well make this clear.
>Now, regarding the international situation, The biggest wish of most of us Chinese is that the United States disappears completely and permanently from this beautiful earth.
>Because the United States uses its financial, military and other hegemony to exploit the world, destroy the peace and tranquility of the earth, and bring countless troubles to the people of other countries, we sincerely hope that the United States will disappear.
>We usually laugh at the large number of infections caused by the new coronavirus pandemic in the United States, not because we have no sympathy, but because we really hope that the United States will disappear.
>We usually laugh at the daily gun wars in the United States, not because we don’t sympathize with the families that have been broken up by shootings, but because we really hope that the United States will disappear.
>We usually laugh at Americans for legalizing drugs, not because we support drugs, but because we really hope that the United States will disappear.When we scold American Olympic athletes, it's not because we lack sportsmanship, but because we really hope that America will disappear.
>We make fun of Trump and Sleepy Joe, not because we look down on these two old men, but because we really hope that the United States will disappear.
>We Chinese are hardworking, kind, reasonable, peace-loving and not extreme. But we really don't like America. Really, if the Americans had not fought with us in Korea in the early days of our country, prevented us from liberating Taiwan, provoked a trade war, challenged our sovereignty in the South China Sea, and bullied our Huawei, would we Chinese hate them?
And that's what Chinese netziens agree without controversy on one of their biggest social media sites. What about the CCP here? Well if we look at Wang Huning, Chief Ideologue of the CCP, he is explicitly an postliberal who draws from the Schmittian rejection of liberal heterogenity, which he sees as inherently unstable, in favour of a strong, homogenous and centralized state based on traditional values in order to guarantee stability. And if it that's just internally, how do you think a fundamental rejection of heterogenity translates to foreign policy? So yes, whether you think China is a problem, China certainly thinks you are a problem.
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Ok, replace my sentence with "The New York Times must shut down unless all Chinese foreign owners divest"; does that change the analysis?
The ban is not rooted in the concept ByteDance has a minority of investors who are Chinese citizens so any comparisons framed around that concept will not change the analysis. The reason for the ban, agree with it or not, is the perceived control and data sharing with the Chinese government made possible by many things (mainly that they are HQ'd in that government's jurisdiction and then have all of these other potentially concerning details, not that they just have one of these other details).
If the NYT were seen as being under significant control of and risking sharing too much user data with the Chinese government then it would indeed make sense to apply the same ban.
Personally, I'm still on the fence about the ban. On one hand having asymmetry in one side banning such things and the other not is going to be problematic. On the other the inherent problems of banning companies by law. Such things work out in other areas... but will it work out in this specific type of example? Dunno, not 100% convinced either way.
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Yes, because the NYT is a publicly traded company. And it is majority-controlled by a single American family - the Sulzbergers. I'm not sure you could argue that a Chinese national owning a single share of NYT stock could have any kind of sway on the operation of the company. Could the same be said for the relationship China has with TikTok?
This is the reason right here. If TikTok was owned by North Korea, this wouldn't be controversial.
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draft published by mistake
Well, yes. Just like you're allowed to say who your biggest enemy or your best friend is, even if your biggest enemy or best friend don't feel the same way about you.
Anyways, who do you think China would say their #1 geopolitical adversary is?
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They absolutely could if the NYT was fully owned by a foreign entity, and that entity was a government that adversarial to the US.
The issue is not that a company has foreign shareholders -- it's the fact that is under the control of the CCP.
This was also an issue when Rupert Murdoch wanted to buy Fox; he was only able to do so once he became a US citizen, for the same reasons.
The 1A arguments by ByteDance was a diversionary tactic to shift the conversation away from the real issue (control) -- and judging by all the comments on HN by people who don't understand it's about control, I'd say they were pretty successful.
I think the equivalent would be if New York Times is somehow owned by Tencent and given that the Chinese government uses golden shares to control private companies. In that case, I think it's fair game to force NYT to divest or force them to shutdown.
https://en.wikipedia.org/wiki/Golden_share
What if Congress passed a law that said "The New York Times must shut down unless all foreign owners divest"?
This already exists in some ways. Foreign companies are not allowed to own American broadcasters. That's why Rupert Murdoch had to become a (dual?) American citizen when he wanted to own Fox television stations in the United States.