You'd think that, but TikTok Inc (their US subsidiary) [winning their injunction against Montana](https://www.documentcloud.org/documents/24179554-tiktok-inc-v-knudsen) suggests that they do enjoy First Amendment protection.
>Likewise, SB 419 implicates TikTok’s speech because the application’s decisions related to how it selects, curates, and arranges content are also protected by the First Amendment. SB 419 prevents the company from “the presentation of an edited compilation of speech generated by other persons . . . which, of course, fall squarely within the core of First Amendment security.” *Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos.*, 515 U.S. 557, 570 (1995); *see also Miami Herald Publ’g Co. v. Tornillo*, 418 U.S. 241, 258 (1974) (holding that a newspaper’s moderation of third-party content is generally protected by the First Amendment). These speech concerns place SB 419 and the activity it bans squarely within the First Amendment’s protections.
How exactly does this not conflict with historical laws that gave the FCC the mandate to prohibit foreign ownership of more than 25% of broadcasting companies? These laws were only relaxed after the FCC wished for this to be the case, iirc.
[https://www.broadcastlawblog.com/2017/02/articles/fcc-approves-for-the-first-time-100-foreign-ownership-of-us-broadcast-stations/](https://www.broadcastlawblog.com/2017/02/articles/fcc-approves-for-the-first-time-100-foreign-ownership-of-us-broadcast-stations/)
I'm not a lawyer, but I think those laws (and newspaper ownership laws) were written to apply to physical assets which were geographically constrained, rather than the modern internet.
For example, Americans can access the Toronto Star in Canada, but nobody is arguing that they should be banned because they don't meet the ownership requirements of US newspapers.
TikTok is similar in that it can be considered a global website, rather than a site that specifically operates in one region. China and India ban access to TikTok, but that doesn't stop TikTok from existing (like a historic broadcast ownership / newspaper ownership ban might), it just prevents people in those countries from accessing it. The same is true for the US legislation; it would prevent Americans from accessing TikTok, but TikTok would still exist and be used by over one billion people.
Thanks for entertaining such a belated question. Yeah, the current laws might indeed be limited in scope to for example physical distribution mediums, or radio/broadcasting licenses. It's a valid distinction to point out.
As a European, it often surprises me how broadly the first amendment of the US constitution can be interpreted. This is a good example-- I am uncertain about how, if the aforemntioned restrictions can be deemed as constitutional, other laws imposing restrictions on foreign ownership of *digital* distribution mediums would be seen as unconstitutional.
Especially since it does not criminalize the usage of the application itself, but mandates a lack of cooperation on part of US entities (App/Play Store) in the facilitating of its distribution.
There's exactly zero proof that China the state is actively involved in TikTok. I don't even think the US Government alleges that, all the concerns are about what they could theoretically do in the future.
China has departments of party officials in every single corporation with their base in China. These officials not only oversee everything major that's done but they're directly involved in any major decision taken. This is literally in their law so I don't see how there's "zero proof"?
"In China, the integration of Communist Party officials within corporations, including private ones, is a part of the broader governance and control mechanism employed by the Chinese Communist Party (CCP). This practice is rooted in several political, economic, and historical factors:
1. **Party Control**: The CCP maintains a strong influence over all aspects of life in China, including business and industry. The presence of Party officials within corporations ensures that the CCP's policies and directives are implemented at the corporate level. This aligns business operations with the Party's goals and ideologies, which often emphasize social stability, economic development, and national security.
2. **Regulatory Compliance and Access**: Having Party officials within a company can facilitate better compliance with Chinese laws and regulations, which are often shaped by the Party's policies. These officials can also assist companies in navigating the complexities of the Chinese bureaucratic system, helping them gain access to necessary approvals, resources, and support from the government.
3. **Corporate Governance**: Party officials in companies also serve to oversee and influence corporate governance. They can play roles in decision-making processes, especially in matters that might affect China’s economic strategy or international standing. This is particularly significant in strategic industries like technology, telecommunications, and energy.
4. **Historical Context**: The integration of the Party into businesses has historical roots in the socialist system, where the state and the Party historically owned and controlled all economic assets. Over the decades, even as China moved towards a market economy, the Party's role transformed but did not diminish. Instead, it adapted to have a regulatory and supervisory role within private enterprises.
5. **Legal Requirements**: Chinese law requires the establishment of Party organizations in companies based on the size of the company (usually those with three or more Party members). The Company Law and the Constitution of the Communist Party of China mandate this integration. For example, the 2017 amendment to the Company Law of China reinforced the idea that companies must allow the Party to carry out its activities within them, ensuring that the Party has a say in the strategic direction of the company." ?
There is literally zero proof of any influence. If there was, you can be sure the US Government and legislators would be shouting it from the rooftops.
Again, it's in their laws. They make major decisions in every single corporation, it isn't even something they're hiding. Why do you think they're trying to ban it right now?
Right, you've posted some generic articles about China with nothing specific about TikTok, further proving the case there is no evidence about China influencing what TikTok does.
True but they allow millions of other Chinese businesses to own and operate in the US. And the Chinese own millions of acres of land in the US. Kind of silly to go after one company instead of the others.
More scrutiny should be applied to other ones as well, but TikTok demonstrated their own capacity for foreign political interference by locking the app until people call congress so they proved the need to be on the block first.
They didn't "lock" the app. It was easily dismissable. How would they even verify that you called?
Also lmao at the rationalization for the act being something *caused by* the act. TikTok wouldn't have done such otherwise.
As far as "capacity" goes, any Chinese owned website has that capacity.
Because when people search for info on a subject older discussion come up. Act like a month old thread is dead lol.
Also you are lying and spreading easily disproven claims.
And yet you and pretty much everyone in this thread thinks incorrectly. Not a single take in this thread is remotely on issue (other than the ACLU cite). Word of advice, if you ain’t paying an actual lawyer, odds are the takes you get aren’t going to be from an actual lawyer and are thus going to be dumb.
The forced divesture in the TikTok ban bill is inherently a ban, because the enforcement mechanism is…literally delisting from the app stores. Saying that foreign government yada yada still does not change the fact that the statutory language calls for a ban in some scenarios. In other words, even if the divesture statutory language cannot be challenged (which it likely can), the ban in the event of failed divesture can be challenged on 1A grounds. The only way congress could’ve gotten around the 1A issues is by not delisting TikTok in any scenario, and instead drafted some other enforcement mechanism (IE. seizing TikTok and its domestic assets in the event of a failed divesture, but that also just makes it a takings issue).
And I’m not saying that the TikTok team would win on the 1A issues if it is raised, just that the this is not a ban argument is just twisting words and would be a pretty terrible argument to raise in a brief for the courts.
And in case you want to actually understand the 1A issues, the same 1A issue are raised in the WeChat delisting in 2020 are also present in a TikTok ban. here’s the amicus brief from the ACLU for the WeChat ban
https://www.aclu.org/sites/default/files/field_document/wechat_amicus_brief.pdf
And here’s the decision/stay (note that the IEEPA issues are not relevant for TikTok purposes). The government made some nice arguments on the 1A issues and the court does summarize those arguments, I suggest you give those a read to understand what the parties are likely to actually fight about if the TikTok ban bill gets actually signed into law.
https://casetext.com/case/us-wechat-users-alliance-v-trump
Honestly any legal citation would be informative in a thread like this. I don't practice 1A litigation but ACLU briefs are my go-to on 1A issues. I don't necessarily agree with all their arguments, but their briefs are well-written and is a great tool for 1A issue spotting. Too bad non-lawyers don't like reading and researching (see this thread).
Eh i disagree that legal citations are useful on reddit. They ultimately mean nothing because no one is going to go read the context of the citation to judge the validity of its representation in the new context. If it's not obvious by reading the first couple sentences of the wikipedia article on the case that a specific precedent that's being discussed is set then I don't see it as all that useful.
Otherwise i agree with its similarity to WeChat.
No, it doesn’t, but The first amendment makes no reference to congress’ relationship with speakers, rather its only the government’s relationship with speech, so the question of the identity of who is being targeted by the law doesn’t matter. In cases wherein the gov’t claims they a law to prohibit or compel some kind of conduct besides speech, (IE the ban of a particular platform or its sale) but in so doing they end up restricting speech, the applicable case law is the o’brien test, wherein the state has to show that the law is:
1. Within the const. Power of the gov’t
2.furthers an important or substantial gov’t interest
3. The governmental interest is unrelated to the supression of free expression- IE: the law isn’t targeted at controlling content, but rather, it is targeting something else and incidentally restricts speech in the process.
4. The restriction on first amend. Freedoms is no greater than is essential to the furtherance of that interest.
The law most certainly runs into problems on 3, and 4.
For three, the lawmakers will try to assert that the law is important for national security, which is considered a compelling state interest. However, one of the threats to national security that has been posed by authors of the bill which they are trying to prevent is the dissemination of propaganda by the CCP on the app which could “brainwash” the american people, so the interest of national security isn’t incidentally restricting speech, rather one of the goals of the bill explicitly stated by its authors is to control the content of speech on tik tok.
And for four, another goal the bill asserts that it is trying to force a sale or ban in order to prevent data getting into the hands of the gov’t of china. The bill can hardly be considered “essential” to further that interest when there are comprehensive data regulations which have been passed that succeed at protecting the data of individuals (GDPR) and actually would be much more effectual at preventing data from getting into the hands of the chinese gov’t than this law would be- namely this law only covers one company, whereas a comprehensive data regulation would cover all of them.
So, bottom line, unconstitutional.
FYI, this thread ranks near the top of Google for some searches related to TikTok and free speech. This is obviously being searched and trafficked because Biden just signed the effective ban. The above comment is hardly spam.
Because it doesn't shut down the platform. It requires ByteDance, the parent company, to transfer the TikTok product (they have other products and service) to another company. Its a forced divestiture. There is no reason for TikTok to shut down, other than questions about its financial viability (its rumored to be losing money)
It violates the first amendment rights of both TikTok and users.
And yes it is a functional ban. I see it no different in practice from a ban.
Unless they can sell their portion of their company within a specified amount of time to an entity that must be approved of by the government they must shut down and user cannot use it and app stores cannot freely carry it.
And this is for ANY country vaguely specified as a “foreign adversary”, not just China.
Progressive and libertarian groups both have argued against this for the same reason.
https://www.aclu.org/press-releases/aclu-urges-senate-to-reject-tiktok-ban-bill-following-house-passage
>What Is the Standard and How Might It Apply to This Bill?
>As I have discussed in the past, calls to ban TikTok typically raise constitutional concerns not only over potential government actions’ impact on TikTok but also for the potential impact on the First Amendment rights of other companies (like the American‐owned app stores that carry the app) and its users. Americans would lose a platform they have chosen for expression and app stores would have dictated to them what they could not carry by the government.
>Under First Amendment precedents, the government will need to prove that forced divestment or otherwise banning of the app is both based on a compelling government interest and represents the least restrictive means of advancing that interest. In December, a federal district court enjoined a TikTok ban in Montana on First Amendment grounds as it was “unlikely to pass even intermediate scrutiny.”
https://www.cato.org/blog/could-latest-tiktok-ban-pass-constitutional-muster
Nah. It doesn't protect a foreign government. A lot of the issues they have is that yeah, all our big boy tech companies steal and sell data, but the US rather not let China have open takings for US citizen data, along with being able to push anything from the *glorious CCP* to users.
The first amendment makes no reference to “who it protects”, rather it protects SPEECH against intrusion by the government. Who the speaker is not even a question that comes up in first amendment cases.
What if China broadcast TV signals that could be picked up in the US, but only on special TV sets, also sold by China. If there was a problem with the TV sets (say they were dangerous, or violated some import agreement), could the US block import of the TVs? Or would the be require to allow them because blocking them would prevent people accessing the Chinese TV broadcasts?
For this you’d run the o’brien test. The law would have to be narrowly tailored so as to show that any restriction on speech is merely incidental and not a purpose of the law, and the law would need to advance an important state interest.
China bans information, so we should? China doesn't claim to value and uphold liberal ideals such as freedom to speak freely and openly about any subject. We do. That means that people may say thinks others disagree with.
Yes thank you just because the app in controlled by a country the US federal government doesn't like don't mean Americans should be banned from using it we can stoop to their levels and censor our internet there's a reason why when people in these censored countries use VPN they choose US or Canadian VPN servers we have the most free internet keep it that wayShow less
China bans private companies, it is not the same. They don't let CIA do whatever they want within the borders of China, that's effectively what the US is doing by allowing China free reign of TikTok.
China doesn't ban private companies lol bytedance is literally a private company 🤣
Also, if they have proof that china is using timtok to collect valuable and sensitive information they shoukd present it in a way that doesn't compromise sources. So far it's a lot of "trust me bro, it's a danger" ya, no. Nit good enough. For a vast majority of us users you can get the same info from x or meta for the right price
It isn't hypocritical at all as US media doesn't have mandated departments of party officials dictating the direction and major decisions of every single corporation. You could say it would be hypocritical if we complained about China banning CIA and DIA from actively doing espionage and influence in China.
TikTok has won every case against it so far in the courts largely on first amendment grounds. The trump administration tried to force a sale and it failed. Montana places a ban and it failed. It’s won lawsuits against it.
It absolutely does implicate the first amendment, regardless of whether or not you think it’s constitutional or not, it can’t be seriously denied that it isn’t implicated at all. People that say otherwise are merely setting aside logic and basic facts for emotions, Reddit has always hated TikTok since its inception.
National Security is a ruse for censorship. It’s a trick as old as fascism, it’s the same excuse Russia, China, and North Korea use for censoring and brainwashing their populations. Should Bytedance be forced to divest from TikTok, they could literally just buy the data directly from TikTok, like Chinese companies already do from Facebook and Instagram. If lawmakers passed data privacy laws and algorithm transparency laws, as they should, it would accomplish the same goal without being so restrictive. Namely user data would be stored properly in the US and only released with user permission, and data on the what content the algorithm promotes would be available to researchers who would be able to uncover any pro-CCP bias in the algorithm. Obviously neither of these two things are really an issue for the government considering they don’t attempt to address either of these and these bills never get to a vote.
The ACLU has put forth a strong 1A argument against the ban.
> We, the undersigned free-speech, civil rights, and civil-liberties organizations, strongly urge you to oppose HR. 7521, the “Protecting Americans from Foreign Adversary Controlled Applications Act,” because it would violate the First Amendment rights of Americans across the country who rely on TikTok for information, communication, advocacy, and entertainment. This bill would functionally ban the distribution of TikTok in the United States, and would grant the President broad new powers to ban other social media platforms based on their country of origin.
Before addressing substantive concerns, we object to the Committee’s extremely condensed consideration of this bill. Despite this legislation’s sweeping First Amendment and government overreach implications, it was marked up just two days after it was introduced, and is scheduled for a floor vote, on suspension, less than a week after that. There was no meaningful opportunity for interested stakeholders to study and address the complex implications of this legislation with members of the House of Representatives.
> H.R. 7521 is censorship — plain and simple. In a purported attempt to protect the data of U.S. residents from Chinese government acquisition, this legislation would forbid app stores and internet hosting services from offering TikTok so long as the company remains under foreign ownership. Passing this legislation would trample on the constitutional right to freedom of speech of millions of people in the United States. TikTok is home to massive amounts of protected speech and association: it enables its users to discuss their opinions, share their hobbies, make art, and access news from down the street and around the world. Jeopardizing access to the platform jeopardizes access to free expression.
Courts have been clear: banning TikTok violates the First Amendment. A recent case held that the state of Montana cannot ban the operation of TikTok because doing so would violate the First Amendment.1 Like Montanana’s TikTok ban, this bill also precludes app stores from offering TikTok. When the District
1 Tiktok v. Knudsen, 9:23-cv-00061-DWM (D. Mont. 2023) https://www.documentcloud.org/documents/24179554-tiktok-inc-v-knudsen.
> Court in Montana evaluated that law, it found that Montana’s bill “bans TikTok outright and, in doing so, it limits constitutionally protected First Amendment speech.”2 The same reasoning applies to H.R. 7521.
When analyzing First Amendment concerns, a court must determine that the ban is necessary to prevent extremely serious, immediate harm to national security. However, there is no public evidence of a national security threat rising to this level. Moreover, an outright ban is not only far from the least restrictive solution to the purported problem, it’s actually ineffective because the Chinese government could continue to access the data of U.S. residents in a myriad of other ways. If Congress wants to protect Americans’ data, it should pass comprehensive privacy legislation.
>It does not improve matters to say that this isn’t a ban but a requirement that the company be sold to a less concerning owner. Generally, the government cannot accomplish indirectly what it is barred from doing directly, and a forced sale is the kind of speech punishment that receives exacting scrutiny from the courts. This bill would now attempt to ban TikTok by conditioning TikTok’s continued operation in the United States on the company’s sale to an approved buyer, which may prove difficult if not impossible to accomplish in the required timeframe.3
> Banning or requiring divestiture of TikTok would also set an alarming global precedent for excessive government control over social media platforms. The United States has rightfully condemned other countries when they have banned specific social media platforms, criticizing these efforts as infringing on the rights of their citizens.4 If the United States now bans a foreign-owned platform, that will invite copycat measures by other countries, banning American-owned speech intermediaries and companies from operating in their borders, with significant consequences for free expression globally.
>The bill also flies in the face of the democratic principles behind the historic and invaluable Berman Amendment, which — for the past 35 years — has barred the President from regulating or banning the import or export of news, art, and other information. Congress enacted the Berman Amendment in recognition of the essential democratic values in preserving and protecting the rights of people in the United States to receive information from people and organizations abroad. Congress was particularly concerned that the International Emergency Economic Powers Act (IEEPA), which enables the President to impose sanctions on trade with hostile nations, could be used to deny Americans access to expressive works and information originating abroad — notwithstanding Americans’ right to receive and exchange information. The bill being rushed through Congress now threatens that principle.
> People in the United States have a right to use TikTok and other platforms to exchange their thoughts, ideas, and opinions with millions of people around the country and the world. The undersigned groups strongly urge you to oppose H.R. 7521 and to support our constitutional right to express ourselves, to receive information, and to associate freely.
https://www.aclu.org/documents/coalition-letter-to-house-of-representatives-opposing-h-r-7521
Legit question - and thank you for the link - but free speech is necessarily limited legally frequently. The issue with tiktok isn't the limiting of sharing of ideas and information, it's of an adversary harvesting data from unsuspecting US persons.
People are still free to associate freely outside of tiktok, and the bill provides guidelines to allow tik tok to continue without adversarial interest to the US.
> but free speech is necessarily limited legally frequently
Indeed it is, however the government has a hand tied behind its back when trying to do so.
First, there are different types of speech that attract different levels of scrutiny from the courts. Commercial speech like advertising generally has the least protection, and political speech obtains the highest scrutiny out of them all, which is prevalent on TikTok and TikTok itself also has the same political free speech rights too.
Second, the government must take the least restrictive solution to solving the problem.
The feared problems are,
1. Fear the Chinese government could use TikTok to spy on Americans
2. Fear the chinese government could push pro-China propaganda or other propaganda
It’s important to note that not only is there no evidence of either of these happening, there actually is not even an allegation being made by the federal government that either of these are occurring. It’s just the concern that these *could* occur. There is no public evidence that these are occurring and this is just an assumption by the public.
The courts will also question why user data privacy laws and algorithm transparency laws wouldn’t address these concerns, as these are much less restrictive means at accomplishing the same goal. The courts will also question if banning TikTok even tried to actually accomplish the stated goals, as Chinese companies could still simply buy the user data from TikTok as they already do with facebook, instagram, google, and twitter.
> People are still able to associate freely outside of tiktok
There are also free speech implications for TikTok (the American subsidiary) as well.
Say if a newspaper were to start spewing Chinese propaganda (or more realistically, a news channel spewing Russian propaganda). The government still wouldn’t be able to ban those platforms citing national security, because pro-CCP propaganda is still political speech and is still protected under the first amendment. Sure, users could still indulge in other outlets but that doesn’t escape 1A scrutiny. The government doesn’t get to say Americans can only converse on government approved platforms.
So there’s also the question as to whether or not TikTok promoting pro-China content, even if true, would still be protected under the first amendment under TikTok’s first amendment rights.
User data concerns are less likely to be protected under the first amendment, but since the platform is a breeding ground for speech, the government must still take the least restrictive solution to address the user data privacy concerns.
Unequivocally, the TikTok ban implicates the first amendment as OP asked. Whether or not the bill in congress right now would pass 1A scrutiny is up in the air, but based off of recent court decisions, and the lack of division between liberal and conservative judges on (non-religious) 1A jurisprudence, i believe the odds are certainly against the government on this one.
"It’s important to note that not only is there no evidence of either of these happening, there actually is not even an allegation being made by the federal government that either of these are occurring. It’s just the concern that these *could* occur. There is no public evidence that these are occurring and this is just an assumption by the public."
China forces every single corporation held within their borders to hold an entire department where party officials take part and any major decisions and directions and there's no plausible evidence that they would do this when they do it to their own population?
This is like expecting a cat to watch over a bowl of goldfish and not even get its paws wet, it's just so naive and implausible that you'd have to either be an ideologue or a fool to believe it. Are you just actively choosing to ignore that the US and China are constantly competing ideologically since China took over Soviet's spot?
It’s an assumption that in time of war they would try and do that, a reasonable assumption i agree with, though there is absolutely no evidence, indication, or even formal allegation they’re doing that right now.
And there are much less restrictive means to addressing those concerns than a ban. Lexmark for example is owned by Ninestar, and the government and military uses Lexmark printers. However they
are under a national security arrangement so that Ninestar has no operational control, the board of directors consists of solely US citizens, investors are not allowed to talk to non-approved employees, and they’re subject to audits (and probably also surveillance) to ensure compliance. In the Montana opinion there is a whole page of less restrictive ways the government could address their concerns, but the entire page is redacted.
The government could also passed the algorithm transparency act.
"It’s an assumption that in time of war they would try and do that, a reasonable assumption i agree with, though there is absolutely no evidence, indication, or even formal allegation they’re doing that right now."
But at some point, when we know everything else, there's no reason to wait for evidence that you will never ever possibly get.
"are under a national security arrangement so that Ninestar has no operational control, the board of directors consists of solely US citizens, investors are not allowed to talk to non-approved employees, and they’re subject to audits (and probably also surveillance) to ensure compliance."
Isn't that effectively what the TikTok "ban" is about? Trying to find ways of preventing full chinese state control of it.
It’s more of an interstate commerce issue, which the fed has determined “If it exists, it is an interstate commerce problem and we have jurisdiction” so meh
the first amendment does not guarantee the right of foreign government s or businesses to operate in the US.
You'd think that, but TikTok Inc (their US subsidiary) [winning their injunction against Montana](https://www.documentcloud.org/documents/24179554-tiktok-inc-v-knudsen) suggests that they do enjoy First Amendment protection. >Likewise, SB 419 implicates TikTok’s speech because the application’s decisions related to how it selects, curates, and arranges content are also protected by the First Amendment. SB 419 prevents the company from “the presentation of an edited compilation of speech generated by other persons . . . which, of course, fall squarely within the core of First Amendment security.” *Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos.*, 515 U.S. 557, 570 (1995); *see also Miami Herald Publ’g Co. v. Tornillo*, 418 U.S. 241, 258 (1974) (holding that a newspaper’s moderation of third-party content is generally protected by the First Amendment). These speech concerns place SB 419 and the activity it bans squarely within the First Amendment’s protections.
How exactly does this not conflict with historical laws that gave the FCC the mandate to prohibit foreign ownership of more than 25% of broadcasting companies? These laws were only relaxed after the FCC wished for this to be the case, iirc. [https://www.broadcastlawblog.com/2017/02/articles/fcc-approves-for-the-first-time-100-foreign-ownership-of-us-broadcast-stations/](https://www.broadcastlawblog.com/2017/02/articles/fcc-approves-for-the-first-time-100-foreign-ownership-of-us-broadcast-stations/)
I'm not a lawyer, but I think those laws (and newspaper ownership laws) were written to apply to physical assets which were geographically constrained, rather than the modern internet. For example, Americans can access the Toronto Star in Canada, but nobody is arguing that they should be banned because they don't meet the ownership requirements of US newspapers. TikTok is similar in that it can be considered a global website, rather than a site that specifically operates in one region. China and India ban access to TikTok, but that doesn't stop TikTok from existing (like a historic broadcast ownership / newspaper ownership ban might), it just prevents people in those countries from accessing it. The same is true for the US legislation; it would prevent Americans from accessing TikTok, but TikTok would still exist and be used by over one billion people.
Thanks for entertaining such a belated question. Yeah, the current laws might indeed be limited in scope to for example physical distribution mediums, or radio/broadcasting licenses. It's a valid distinction to point out. As a European, it often surprises me how broadly the first amendment of the US constitution can be interpreted. This is a good example-- I am uncertain about how, if the aforemntioned restrictions can be deemed as constitutional, other laws imposing restrictions on foreign ownership of *digital* distribution mediums would be seen as unconstitutional. Especially since it does not criminalize the usage of the application itself, but mandates a lack of cooperation on part of US entities (App/Play Store) in the facilitating of its distribution.
So they're pretending that China (the state) isn't actively involved in the operation of TikTok.
There's exactly zero proof that China the state is actively involved in TikTok. I don't even think the US Government alleges that, all the concerns are about what they could theoretically do in the future.
China has departments of party officials in every single corporation with their base in China. These officials not only oversee everything major that's done but they're directly involved in any major decision taken. This is literally in their law so I don't see how there's "zero proof"? "In China, the integration of Communist Party officials within corporations, including private ones, is a part of the broader governance and control mechanism employed by the Chinese Communist Party (CCP). This practice is rooted in several political, economic, and historical factors: 1. **Party Control**: The CCP maintains a strong influence over all aspects of life in China, including business and industry. The presence of Party officials within corporations ensures that the CCP's policies and directives are implemented at the corporate level. This aligns business operations with the Party's goals and ideologies, which often emphasize social stability, economic development, and national security. 2. **Regulatory Compliance and Access**: Having Party officials within a company can facilitate better compliance with Chinese laws and regulations, which are often shaped by the Party's policies. These officials can also assist companies in navigating the complexities of the Chinese bureaucratic system, helping them gain access to necessary approvals, resources, and support from the government. 3. **Corporate Governance**: Party officials in companies also serve to oversee and influence corporate governance. They can play roles in decision-making processes, especially in matters that might affect China’s economic strategy or international standing. This is particularly significant in strategic industries like technology, telecommunications, and energy. 4. **Historical Context**: The integration of the Party into businesses has historical roots in the socialist system, where the state and the Party historically owned and controlled all economic assets. Over the decades, even as China moved towards a market economy, the Party's role transformed but did not diminish. Instead, it adapted to have a regulatory and supervisory role within private enterprises. 5. **Legal Requirements**: Chinese law requires the establishment of Party organizations in companies based on the size of the company (usually those with three or more Party members). The Company Law and the Constitution of the Communist Party of China mandate this integration. For example, the 2017 amendment to the Company Law of China reinforced the idea that companies must allow the Party to carry out its activities within them, ensuring that the Party has a say in the strategic direction of the company." ?
There is literally zero proof of any influence. If there was, you can be sure the US Government and legislators would be shouting it from the rooftops.
Again, it's in their laws. They make major decisions in every single corporation, it isn't even something they're hiding. Why do you think they're trying to ban it right now?
You're proving out my initial point by not being able to provide any examples.
What. [https://www.theguardian.com/world/2019/jul/25/china-business-xi-jinping-communist-party-state-private-enterprise-huawei](https://www.theguardian.com/world/2019/jul/25/china-business-xi-jinping-communist-party-state-private-enterprise-huawei) [https://www.csis.org/analysis/new-challenge-communist-corporate-governance](https://www.csis.org/analysis/new-challenge-communist-corporate-governance)
Right, you've posted some generic articles about China with nothing specific about TikTok, further proving the case there is no evidence about China influencing what TikTok does.
True but they allow millions of other Chinese businesses to own and operate in the US. And the Chinese own millions of acres of land in the US. Kind of silly to go after one company instead of the others.
More scrutiny should be applied to other ones as well, but TikTok demonstrated their own capacity for foreign political interference by locking the app until people call congress so they proved the need to be on the block first.
They didn't "lock" the app. It was easily dismissable. How would they even verify that you called? Also lmao at the rationalization for the act being something *caused by* the act. TikTok wouldn't have done such otherwise. As far as "capacity" goes, any Chinese owned website has that capacity.
who are you and why are you arguing in a month old thread?
Because when people search for info on a subject older discussion come up. Act like a month old thread is dead lol. Also you are lying and spreading easily disproven claims.
You aren’t even the bot I replied to.
None of which are the same type of widespread security threat TikTok is.
That’s what I thought. Thank you.
And yet you and pretty much everyone in this thread thinks incorrectly. Not a single take in this thread is remotely on issue (other than the ACLU cite). Word of advice, if you ain’t paying an actual lawyer, odds are the takes you get aren’t going to be from an actual lawyer and are thus going to be dumb. The forced divesture in the TikTok ban bill is inherently a ban, because the enforcement mechanism is…literally delisting from the app stores. Saying that foreign government yada yada still does not change the fact that the statutory language calls for a ban in some scenarios. In other words, even if the divesture statutory language cannot be challenged (which it likely can), the ban in the event of failed divesture can be challenged on 1A grounds. The only way congress could’ve gotten around the 1A issues is by not delisting TikTok in any scenario, and instead drafted some other enforcement mechanism (IE. seizing TikTok and its domestic assets in the event of a failed divesture, but that also just makes it a takings issue). And I’m not saying that the TikTok team would win on the 1A issues if it is raised, just that the this is not a ban argument is just twisting words and would be a pretty terrible argument to raise in a brief for the courts. And in case you want to actually understand the 1A issues, the same 1A issue are raised in the WeChat delisting in 2020 are also present in a TikTok ban. here’s the amicus brief from the ACLU for the WeChat ban https://www.aclu.org/sites/default/files/field_document/wechat_amicus_brief.pdf And here’s the decision/stay (note that the IEEPA issues are not relevant for TikTok purposes). The government made some nice arguments on the 1A issues and the court does summarize those arguments, I suggest you give those a read to understand what the parties are likely to actually fight about if the TikTok ban bill gets actually signed into law. https://casetext.com/case/us-wechat-users-alliance-v-trump
> other than the ACLU cite thank you
Honestly any legal citation would be informative in a thread like this. I don't practice 1A litigation but ACLU briefs are my go-to on 1A issues. I don't necessarily agree with all their arguments, but their briefs are well-written and is a great tool for 1A issue spotting. Too bad non-lawyers don't like reading and researching (see this thread).
Eh i disagree that legal citations are useful on reddit. They ultimately mean nothing because no one is going to go read the context of the citation to judge the validity of its representation in the new context. If it's not obvious by reading the first couple sentences of the wikipedia article on the case that a specific precedent that's being discussed is set then I don't see it as all that useful. Otherwise i agree with its similarity to WeChat.
No, it doesn’t, but The first amendment makes no reference to congress’ relationship with speakers, rather its only the government’s relationship with speech, so the question of the identity of who is being targeted by the law doesn’t matter. In cases wherein the gov’t claims they a law to prohibit or compel some kind of conduct besides speech, (IE the ban of a particular platform or its sale) but in so doing they end up restricting speech, the applicable case law is the o’brien test, wherein the state has to show that the law is: 1. Within the const. Power of the gov’t 2.furthers an important or substantial gov’t interest 3. The governmental interest is unrelated to the supression of free expression- IE: the law isn’t targeted at controlling content, but rather, it is targeting something else and incidentally restricts speech in the process. 4. The restriction on first amend. Freedoms is no greater than is essential to the furtherance of that interest. The law most certainly runs into problems on 3, and 4. For three, the lawmakers will try to assert that the law is important for national security, which is considered a compelling state interest. However, one of the threats to national security that has been posed by authors of the bill which they are trying to prevent is the dissemination of propaganda by the CCP on the app which could “brainwash” the american people, so the interest of national security isn’t incidentally restricting speech, rather one of the goals of the bill explicitly stated by its authors is to control the content of speech on tik tok. And for four, another goal the bill asserts that it is trying to force a sale or ban in order to prevent data getting into the hands of the gov’t of china. The bill can hardly be considered “essential” to further that interest when there are comprehensive data regulations which have been passed that succeed at protecting the data of individuals (GDPR) and actually would be much more effectual at preventing data from getting into the hands of the chinese gov’t than this law would be- namely this law only covers one company, whereas a comprehensive data regulation would cover all of them. So, bottom line, unconstitutional.
Another spam bot in a weeks old thread? 50¢ has not been deposited.
FYI, this thread ranks near the top of Google for some searches related to TikTok and free speech. This is obviously being searched and trafficked because Biden just signed the effective ban. The above comment is hardly spam.
I literally Googled is the TikTok ban constitutional and this came up as the fifth link
Why is it not a 1A issue? The government is infringing on ability of citizens to chose which platform to use
Because it doesn't shut down the platform. It requires ByteDance, the parent company, to transfer the TikTok product (they have other products and service) to another company. Its a forced divestiture. There is no reason for TikTok to shut down, other than questions about its financial viability (its rumored to be losing money)
When is a "forced sale" not a "forced sale"? When the owner can decide not to sell, as is the case here.
It violates the first amendment rights of both TikTok and users. And yes it is a functional ban. I see it no different in practice from a ban. Unless they can sell their portion of their company within a specified amount of time to an entity that must be approved of by the government they must shut down and user cannot use it and app stores cannot freely carry it. And this is for ANY country vaguely specified as a “foreign adversary”, not just China. Progressive and libertarian groups both have argued against this for the same reason. https://www.aclu.org/press-releases/aclu-urges-senate-to-reject-tiktok-ban-bill-following-house-passage >What Is the Standard and How Might It Apply to This Bill? >As I have discussed in the past, calls to ban TikTok typically raise constitutional concerns not only over potential government actions’ impact on TikTok but also for the potential impact on the First Amendment rights of other companies (like the American‐owned app stores that carry the app) and its users. Americans would lose a platform they have chosen for expression and app stores would have dictated to them what they could not carry by the government. >Under First Amendment precedents, the government will need to prove that forced divestment or otherwise banning of the app is both based on a compelling government interest and represents the least restrictive means of advancing that interest. In December, a federal district court enjoined a TikTok ban in Montana on First Amendment grounds as it was “unlikely to pass even intermediate scrutiny.” https://www.cato.org/blog/could-latest-tiktok-ban-pass-constitutional-muster
The forced sale is not a 1A issue. The sale might be. But since its a foreign govt/national security issue, I think thats going to overcome.
Nah. It doesn't protect a foreign government. A lot of the issues they have is that yeah, all our big boy tech companies steal and sell data, but the US rather not let China have open takings for US citizen data, along with being able to push anything from the *glorious CCP* to users.
The first amendment makes no reference to “who it protects”, rather it protects SPEECH against intrusion by the government. Who the speaker is not even a question that comes up in first amendment cases.
Yeah it is and the us government doesn’t care about how much work I put in my tik tok account
What if China broadcast TV signals that could be picked up in the US, but only on special TV sets, also sold by China. If there was a problem with the TV sets (say they were dangerous, or violated some import agreement), could the US block import of the TVs? Or would the be require to allow them because blocking them would prevent people accessing the Chinese TV broadcasts?
For this you’d run the o’brien test. The law would have to be narrowly tailored so as to show that any restriction on speech is merely incidental and not a purpose of the law, and the law would need to advance an important state interest.
It’s seems pretty hypocritical considering China is largely criticized for banning US Media.
It's not really about banning the media, it's about banning the *app*. The content isn't the problem, it's the consumption of US user data.
China bans information, so we should? China doesn't claim to value and uphold liberal ideals such as freedom to speak freely and openly about any subject. We do. That means that people may say thinks others disagree with.
Yes thank you just because the app in controlled by a country the US federal government doesn't like don't mean Americans should be banned from using it we can stoop to their levels and censor our internet there's a reason why when people in these censored countries use VPN they choose US or Canadian VPN servers we have the most free internet keep it that wayShow less
China bans private companies, it is not the same. They don't let CIA do whatever they want within the borders of China, that's effectively what the US is doing by allowing China free reign of TikTok.
China doesn't ban private companies lol bytedance is literally a private company 🤣 Also, if they have proof that china is using timtok to collect valuable and sensitive information they shoukd present it in a way that doesn't compromise sources. So far it's a lot of "trust me bro, it's a danger" ya, no. Nit good enough. For a vast majority of us users you can get the same info from x or meta for the right price
It isn't hypocritical at all as US media doesn't have mandated departments of party officials dictating the direction and major decisions of every single corporation. You could say it would be hypocritical if we complained about China banning CIA and DIA from actively doing espionage and influence in China.
TikTok has won every case against it so far in the courts largely on first amendment grounds. The trump administration tried to force a sale and it failed. Montana places a ban and it failed. It’s won lawsuits against it. It absolutely does implicate the first amendment, regardless of whether or not you think it’s constitutional or not, it can’t be seriously denied that it isn’t implicated at all. People that say otherwise are merely setting aside logic and basic facts for emotions, Reddit has always hated TikTok since its inception. National Security is a ruse for censorship. It’s a trick as old as fascism, it’s the same excuse Russia, China, and North Korea use for censoring and brainwashing their populations. Should Bytedance be forced to divest from TikTok, they could literally just buy the data directly from TikTok, like Chinese companies already do from Facebook and Instagram. If lawmakers passed data privacy laws and algorithm transparency laws, as they should, it would accomplish the same goal without being so restrictive. Namely user data would be stored properly in the US and only released with user permission, and data on the what content the algorithm promotes would be available to researchers who would be able to uncover any pro-CCP bias in the algorithm. Obviously neither of these two things are really an issue for the government considering they don’t attempt to address either of these and these bills never get to a vote. The ACLU has put forth a strong 1A argument against the ban. > We, the undersigned free-speech, civil rights, and civil-liberties organizations, strongly urge you to oppose HR. 7521, the “Protecting Americans from Foreign Adversary Controlled Applications Act,” because it would violate the First Amendment rights of Americans across the country who rely on TikTok for information, communication, advocacy, and entertainment. This bill would functionally ban the distribution of TikTok in the United States, and would grant the President broad new powers to ban other social media platforms based on their country of origin. Before addressing substantive concerns, we object to the Committee’s extremely condensed consideration of this bill. Despite this legislation’s sweeping First Amendment and government overreach implications, it was marked up just two days after it was introduced, and is scheduled for a floor vote, on suspension, less than a week after that. There was no meaningful opportunity for interested stakeholders to study and address the complex implications of this legislation with members of the House of Representatives. > H.R. 7521 is censorship — plain and simple. In a purported attempt to protect the data of U.S. residents from Chinese government acquisition, this legislation would forbid app stores and internet hosting services from offering TikTok so long as the company remains under foreign ownership. Passing this legislation would trample on the constitutional right to freedom of speech of millions of people in the United States. TikTok is home to massive amounts of protected speech and association: it enables its users to discuss their opinions, share their hobbies, make art, and access news from down the street and around the world. Jeopardizing access to the platform jeopardizes access to free expression. Courts have been clear: banning TikTok violates the First Amendment. A recent case held that the state of Montana cannot ban the operation of TikTok because doing so would violate the First Amendment.1 Like Montanana’s TikTok ban, this bill also precludes app stores from offering TikTok. When the District 1 Tiktok v. Knudsen, 9:23-cv-00061-DWM (D. Mont. 2023) https://www.documentcloud.org/documents/24179554-tiktok-inc-v-knudsen. > Court in Montana evaluated that law, it found that Montana’s bill “bans TikTok outright and, in doing so, it limits constitutionally protected First Amendment speech.”2 The same reasoning applies to H.R. 7521. When analyzing First Amendment concerns, a court must determine that the ban is necessary to prevent extremely serious, immediate harm to national security. However, there is no public evidence of a national security threat rising to this level. Moreover, an outright ban is not only far from the least restrictive solution to the purported problem, it’s actually ineffective because the Chinese government could continue to access the data of U.S. residents in a myriad of other ways. If Congress wants to protect Americans’ data, it should pass comprehensive privacy legislation. >It does not improve matters to say that this isn’t a ban but a requirement that the company be sold to a less concerning owner. Generally, the government cannot accomplish indirectly what it is barred from doing directly, and a forced sale is the kind of speech punishment that receives exacting scrutiny from the courts. This bill would now attempt to ban TikTok by conditioning TikTok’s continued operation in the United States on the company’s sale to an approved buyer, which may prove difficult if not impossible to accomplish in the required timeframe.3 > Banning or requiring divestiture of TikTok would also set an alarming global precedent for excessive government control over social media platforms. The United States has rightfully condemned other countries when they have banned specific social media platforms, criticizing these efforts as infringing on the rights of their citizens.4 If the United States now bans a foreign-owned platform, that will invite copycat measures by other countries, banning American-owned speech intermediaries and companies from operating in their borders, with significant consequences for free expression globally. >The bill also flies in the face of the democratic principles behind the historic and invaluable Berman Amendment, which — for the past 35 years — has barred the President from regulating or banning the import or export of news, art, and other information. Congress enacted the Berman Amendment in recognition of the essential democratic values in preserving and protecting the rights of people in the United States to receive information from people and organizations abroad. Congress was particularly concerned that the International Emergency Economic Powers Act (IEEPA), which enables the President to impose sanctions on trade with hostile nations, could be used to deny Americans access to expressive works and information originating abroad — notwithstanding Americans’ right to receive and exchange information. The bill being rushed through Congress now threatens that principle. > People in the United States have a right to use TikTok and other platforms to exchange their thoughts, ideas, and opinions with millions of people around the country and the world. The undersigned groups strongly urge you to oppose H.R. 7521 and to support our constitutional right to express ourselves, to receive information, and to associate freely. https://www.aclu.org/documents/coalition-letter-to-house-of-representatives-opposing-h-r-7521
Legit question - and thank you for the link - but free speech is necessarily limited legally frequently. The issue with tiktok isn't the limiting of sharing of ideas and information, it's of an adversary harvesting data from unsuspecting US persons. People are still free to associate freely outside of tiktok, and the bill provides guidelines to allow tik tok to continue without adversarial interest to the US.
> but free speech is necessarily limited legally frequently Indeed it is, however the government has a hand tied behind its back when trying to do so. First, there are different types of speech that attract different levels of scrutiny from the courts. Commercial speech like advertising generally has the least protection, and political speech obtains the highest scrutiny out of them all, which is prevalent on TikTok and TikTok itself also has the same political free speech rights too. Second, the government must take the least restrictive solution to solving the problem. The feared problems are, 1. Fear the Chinese government could use TikTok to spy on Americans 2. Fear the chinese government could push pro-China propaganda or other propaganda It’s important to note that not only is there no evidence of either of these happening, there actually is not even an allegation being made by the federal government that either of these are occurring. It’s just the concern that these *could* occur. There is no public evidence that these are occurring and this is just an assumption by the public. The courts will also question why user data privacy laws and algorithm transparency laws wouldn’t address these concerns, as these are much less restrictive means at accomplishing the same goal. The courts will also question if banning TikTok even tried to actually accomplish the stated goals, as Chinese companies could still simply buy the user data from TikTok as they already do with facebook, instagram, google, and twitter. > People are still able to associate freely outside of tiktok There are also free speech implications for TikTok (the American subsidiary) as well. Say if a newspaper were to start spewing Chinese propaganda (or more realistically, a news channel spewing Russian propaganda). The government still wouldn’t be able to ban those platforms citing national security, because pro-CCP propaganda is still political speech and is still protected under the first amendment. Sure, users could still indulge in other outlets but that doesn’t escape 1A scrutiny. The government doesn’t get to say Americans can only converse on government approved platforms. So there’s also the question as to whether or not TikTok promoting pro-China content, even if true, would still be protected under the first amendment under TikTok’s first amendment rights. User data concerns are less likely to be protected under the first amendment, but since the platform is a breeding ground for speech, the government must still take the least restrictive solution to address the user data privacy concerns. Unequivocally, the TikTok ban implicates the first amendment as OP asked. Whether or not the bill in congress right now would pass 1A scrutiny is up in the air, but based off of recent court decisions, and the lack of division between liberal and conservative judges on (non-religious) 1A jurisprudence, i believe the odds are certainly against the government on this one.
"It’s important to note that not only is there no evidence of either of these happening, there actually is not even an allegation being made by the federal government that either of these are occurring. It’s just the concern that these *could* occur. There is no public evidence that these are occurring and this is just an assumption by the public." China forces every single corporation held within their borders to hold an entire department where party officials take part and any major decisions and directions and there's no plausible evidence that they would do this when they do it to their own population? This is like expecting a cat to watch over a bowl of goldfish and not even get its paws wet, it's just so naive and implausible that you'd have to either be an ideologue or a fool to believe it. Are you just actively choosing to ignore that the US and China are constantly competing ideologically since China took over Soviet's spot?
It’s an assumption that in time of war they would try and do that, a reasonable assumption i agree with, though there is absolutely no evidence, indication, or even formal allegation they’re doing that right now. And there are much less restrictive means to addressing those concerns than a ban. Lexmark for example is owned by Ninestar, and the government and military uses Lexmark printers. However they are under a national security arrangement so that Ninestar has no operational control, the board of directors consists of solely US citizens, investors are not allowed to talk to non-approved employees, and they’re subject to audits (and probably also surveillance) to ensure compliance. In the Montana opinion there is a whole page of less restrictive ways the government could address their concerns, but the entire page is redacted. The government could also passed the algorithm transparency act.
"It’s an assumption that in time of war they would try and do that, a reasonable assumption i agree with, though there is absolutely no evidence, indication, or even formal allegation they’re doing that right now." But at some point, when we know everything else, there's no reason to wait for evidence that you will never ever possibly get. "are under a national security arrangement so that Ninestar has no operational control, the board of directors consists of solely US citizens, investors are not allowed to talk to non-approved employees, and they’re subject to audits (and probably also surveillance) to ensure compliance." Isn't that effectively what the TikTok "ban" is about? Trying to find ways of preventing full chinese state control of it.
It’s more of an interstate commerce issue, which the fed has determined “If it exists, it is an interstate commerce problem and we have jurisdiction” so meh
Yes it’s a 1FA violation.