I'm no lawyer, but the connection to the Radio Act seems somewhat tenuous. In that situation, foreign governments would have to argue they have a free speech right to broadcast their message. In the TikTok ban case, it's not about TikTok's right to speech, it's about American's right to both receive speech and to speak. Americans can use TikTok as a platform of speech, which is different then the Radio Act.
There also already exists speech on TikTok that Americans have the right to hear, so the ban is more akin to the Lamont case mentioned in the article, IMO.
From what I've read of it, the Citizens United case was decided correctly. If you believe that how you spend money should be exempted from the First Amendment then it should be revised with that specific carve-out, but its definition of free speech was kept extremely broad for a reason.
Wealthy propagandists wielding mass media was in fact a key part of the American Revolution. The likes of Benjamin Franklin held no punches, and certainly would not have abided by sort of regulations overturned by Citizens United. Imagine telling the man that he's not allowed to publish a newspaper supporting his position because an election is imminent. He'd laugh in your face and do it anyway. His influence is a large part of the reason we have the First Amendment.
If the internet existed at the time the power to censor it would have belonged to the British crown, much as they had the power to read/censor mail (one of the original motivations for the first amendment).
Exactly. The problem is not that corporations have free speech. Rather, it’s that we have effectively no bounds on their growth, allowing their voices to drown out the citizenry.
The First Amendment is about free speech. Money is not speech, and should not require a specific carve-out. If you equate money to speech then elected officials become beholden to those with money, which kills democracy.
Is a boycott not an act of free expression? What about giving to charity? I'm sure the US Government would love to shut down all donations to the Palestinian Children's Relief Fund, but thanks to the First Amendment those activities are protected by the constitution.
Money is not speech. But if you use money to print newspapers, buy ads on radio or TV, put up signs, etc., those newspapers, ads, signs, etc., are speech.
If you can ban people from spending money on those things you are de facto banning speech.
If you allow corporations to pump hundreds of millions of dollars to buy ads on radio or TV, newspapers etc. you are allowing them to drown out the voice of citizens, and at that point you are de facto banning speech of the citizens.
The premise that Citizens United publishing a documentary about Hillary Clinton in some way "drowned out" anybody's speech, let alone "defacto banned speech of the citizens" is farcical. Nobody had ever even heard of that movie, if not for the legal battle over whether they had a right to publish it.
Particularly in the modern era when the ability of individuals to make themselves heard is greater than anytime in the past. When this country was founded, only people wealthy enough to own printing presses could hope to reach large numbers od people. Today, the means to reach lots of people exists in your pocket and people are mostly just limited by their ability, or inability, to think of anything worth saying.
Does that mean foreign countries (Russia, China etc.) can pour billions into political Facebook ads, and the only thing US citizens can do is to purchase ads to counter the foreign ads? I am sure Zuckerberg would love that!
Shareholders (whom many people believe have primacy in corporate decisions) are frequently international/foreign.
If you can be laid off to appease foreign interests, what’s the difference in letting foreign interests buy unlimited ads?
America has already decided (Citizens United) that unlimited money can be used by citizens to drown out the speech of their compatriots. The Supreme Court justices can take bribes, gifts and vacations paid for by billionaires, and you can be laid off to appease the foreign shareholders.
Why not let them have infinite ad spend? We can just say that the marketplace of ideas is a literal marketplace. Foreign companies can buy land and use up all the ground water; parch the land dry.
We’ll just tell people it’s a “free market” and they’ll eat it up. Hell, we allow tens of thousand of Americans to die every year to prop up insurance profits; kickbacks for private prisons. The next DLC will be “war for profit”!
Why not stop pretending and just put a “For Sale” sign on everything? At least then we could stop pretending.
TikTok is not being banned or blocked. You will still have the right and ability to access it. What it does is block American companies from doing business with TikTok; the main effect is to cut of revenue to TikTok.
It's effectively a ban, that's why everyone calls it one. Most Americans use iPhones and the app store has a monopoly, there won't be any other way to install it on an iPhone.
As you seem to be well aware, that's only true on iOS, not Android. It's Apple's fault that their users can't install apps from companies that don't have a business relationship with Apple, not the government's. (Except perhaps to the extent that the government has allowed Apple to get away with having such user-freedom-destroying restrictions in the first place, but that's an entirely different discussion.)
It's a bit like saying Google didn't "ban" Fortnite from Android because you can still access the app thru sideloading. Ultimately if it walks like a duck, quacks like a duck and talks like a duck, it's a duck.
It's definitely banned from the App Store, and any other US business. Just not from the country, because I agree that would be a violation of US citizens' rights (Not TikTok's. They're a foreign company, not a US citizen.) and therefore unconstitutional.
Technically correct and legally correct are two distinct things. Just because something is technically true doesn't mean we ignore the harsh reality in the court of law. It's a TikTok ban, and trying to "Um Actually" your way around it is ignorance at how the legal system works.
Do feed and ranking algorithms have "sub-rational" influence over people's thoughts and opinions? If feeds are mind control, shouldn't courts and lawmakers just ban mind control? I'm glad we're taking it out of the hands of a foreign government, but why put it in the hands of domestic tech companies?
Of course that's the reasonable approach, but in reality the US gov't finds mind control useful, and wants to be able to exert influence over it, rather than allow a foreign gov't exert influence over it.
I like this article’s reasoning that websites and radio stations are the same thing and therefore the government rightfully has the existing power to ban any website that it deems sufficiently Chinese.
Following this reasoning it would make sense to create a sort of digital “jumbo country-scale safety net” that makes sure Americans can only see and interact with American stuff. Doing that effectively would take a lot of technical expertise though, I wonder where we would find a talent pool for such an undertaking.
The bill mentions ByteDance and TikTok specifically -- doesn't that make this a bill of attainder, and thus de facto unconstitutional?
The terms of the ban are incredibly broad too -- if you can post reviews on AliExpress that other users can see it seems like that too would be a covered application.
My take is reciprocally. Since China bans many US Owned Social Media Companies, the US should do the same. Once the US Companies get the same access in China the US allows TikTok to have, TikTok should be banned.
This is not a meaningful argument. China does not have any freedom of speech encoded in its foundational documents. The US does. This is like saying that we're going to get rid of trial by jury until China adds it in.
That's remarkable! So much of the PRC Constitution [1] seems very consistent with what liberal democracies expect in terms of rights. I guess there's a whole area of discussion as to whether the way that rights are expressed are a function of law vs. a function of culture.
That said, many of the articles contain exceptions for "order" and "public security". Two examples I found striking because they sound good until you get to the end where it basically says "you have this right, unless, you know, we don't want you to have it":
> Article 40: The freedom and privacy of correspondence of citizens of the People's Republic of China are protected by law. No organization or individual may, on any ground, infringe upon the freedom and privacy of citizens' correspondence except in cases where, to meet the needs of state security or of investigation into criminal offenses, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law.
> Article 51: The exercise by citizens of the People's Republic of China of their freedoms and rights may not infringe upon the interests of the state, of society and of the collective, or upon the lawful freedoms and rights of other citizens.
I'm surprised that reciprocity wasn't the main argument used to justify the ban because it's way more defensible than the "foreign influence" argument.
Bear in mind, that all these constitutionality arguments are, ultimately, just completely made up, judges like to maintain this veneer of credibility. SCOTUS in particular is a political institution so you will find judges routinely tying themselves into pretzels to rationalize some political position.
Here's an example that relates to commerce vs free speech: 35+ states have what are called anti-BDS laws. To be a teacher in Texas, for example, you have to sign a contract saying you will never criticize the state of Israel [1].
"How can such a thing be unconstitutional?" I hear you ask. It should not be. This is clear restraint on speech by government authority. Why isn't it? Because the courts invented the logic that this is commerce not speech and you can't prove that commerce is speech so it can be regulated in a way speech cannot.
But reciprocity is a completely defensible position, legally and politically. China doesn't allow a bunch of US tech companies to compete in China and, when they do, the deck is stacked against them such that the Chinese local equivalent always wins.
I get why China does this and take no position on it but the US would be entirely justified in doing exactly the same thing.
US companies does have comparable access - just follow PRC laws. What proponents of reciprocity argument wants is US to have ADVANTAGED access - they want US social media to not follow PRC censorship laws that PRC companies follow at great expense. It's like wanting to sell cars in PRC without airbags. Both facebook and Google had internal programs for PRC compliance, but was axed due to internal dissent. It's not lack of PRC reciprocity but US culture wars incompetency.
On the flip side, TikTok is operating in US while following US laws that US companies do not i.e. essentially a JV with Oracle handling data and extreme level of national security oversight. That JV arrangement IS reciprocity relative to US platforms operating in PRC. Issue is TikTok still doing well while submitting any reasonable oversight short of divestment - hubris tier non-starter.
TikTok currently operating in US is tantamount to if Google still operated in PRC... because PRC gov didn't have to hack them for info, because Google cooperated with PRC law enforcement and conducted lawful interception duties, and handed over dissident info (for whoever PRC determine are dissidents). That's actual reciprocity - wholely succumbing to national security considerations.
Except PRC didn't require US to divest their companies, they're simply confident they had a onerous enough filtering regime that applies to all platforms (especially domestic) to fit their national security needs. On paper US could do the same for privacy legislation. But IMO this isn't about US privacy, this is about killing TikTok globally (not just in US), because US national security interests is not about "protecting" just Americans from TikTok, but removing TikTok as global platform with global influence outside of US reach.
I don’t think anyone is really concerned with privacy, tho it is piled on as a reason to ban. The real issue is our adversary controlling the content the masses in the US see can sway opinions via propaganda
The "our" in "our adversary" is doing a lot of heavy lifting. Adversary to who? The 0.01% who are CEOs, IP holders, and State Department goons for sure, but I don't think the average American has any reason to fear China over their own government.
Not sure the American government is really a problem compared to American megacorporations, but I suppose at this point that's kind of splitting hairs since the government's been at the beck and call of said megacorps more and more so since like 1980
If the Chinese want to control our media they're going to have to get one of their citizens to get US citizenship first. Only then can that token citizen build a media empire and engage in a massive, decades-long propaganda campaign against us.
They'd also need to bribe lawmakers to add an exception to the foreign agents law that allows the Chinese to donate to people running for US office without needing to register as foreign agents.
There are other ways to donate to nonpolitician social media owners who then donate to politicians or support through their algorithm Like allow an individual who owns a big media platform to have the first fully foreign owned auto factory in China. In Musk's case it was before the Twitter purchase so not saying that's what happened there, just that that kind of thing is an avenue.
To paraphrase, one man's freedom of speech is another man's propaganda. There is a reason TikTok was embraced by the younger generations. I don't use it, but I think the whole move only proves that US has no freedom of speech unless it is carefully curated.
edit: To all the negative reactions, argue with me you dullards instead of reactively pressing a button when you see something you disagree with. Use that wit and freedom!
Democrats didn’t ban tiktok because of china, it is also piled on as a reason. They banned it because some donors got mad that their grandkids were hearing anti-israel stuff. Remember, Trump tried to ban it several years ago and then everyone forgot about it until the images started coming out of Gaza last year. When considered this way it is a grotesque 1st amendment violation, but they'll probably get away with.
A republican majority house voted for the ban, so I'm guessing their granddaughters were also hearing dangerous anti-israel stuff (there is no difference between Democrat and Republican on Israel).
Of course the data collection, i.e., the "privacy violation", arguably informs any such propaganda and allows it to be targeted and more effective as a result.
The government has yet not laid out a strong, unclassified case for that issue to the citizens. If it exists, should it be laid out as such, so these discussions become more meaningful?
> The real issue is our adversary controlling the content the masses in the US see can sway opinions via propaganda
... but during the 2016 election we saw that Russian-funded interference efforts using FB and Twitter were pretty effective despite those being public, US-based companies. If you're concerned about propaganda, then policies should be concerned with stuff like "is this poster a real human", "does this post make factually untrue assertions", "is this poster paid to say this without it being marked as an ad", along with "is the platform doing view-point-based amplification or suppression".
Further, in Citizens United, the court effectively invited companies, including subsidiaries of foreign companies, to contribute to political campaigns as part of their free-speech rights. And there was press about foreign companies exercising those rights. So it seems inane to me to say that foreign companies have a first amendment right to pay for political ads and statements, but not to operate a service that lets users create and view posts.
https://www.opensecrets.org/news/2019/03/citizens-united-for...
Let’s be honest, Trump supporters were going to support Trump even if he “shot someone in the middle of Times Square”.
Even when places like Fox News called the election fairly in 2020, they were roundly criticized by Trump supporters and places like Redstate kicked out life long anti-Trump conservatives.
The Wall Street Journal of all things was being called part of the “liberal media” of all things.
But in 2024, the Democrats lost fair and square. They lied and covered up Biden’s mental decline until it became more than apparent and lost any credibility with the public. They have given up on the “50 state strategy”.
I agree with you that Trump-supporters are both loyal and ruthless. And I think that's mostly a US-internal matter.
I agree with you that in 2024 the Democrats lost fair and square in the sense of not convincing people they were worth voting for.
However, Russia has continued to interfere in US elections including 2020 and 2024.
I'm not pretending foreign interference only happened in 2016, or only happened when Trump won -- foreign and especially Russian interference has been non-stop because we haven't done anything systematically to stop it. The claimed threat about TikTok is always some vague opportunity for "propaganda". But we can point to many specific cases of Russian interference and misinformation on US-based platforms. The TikTok ban is just not a serious attempt at addressing the "foreign propaganda" problem, and people that make non-specific allegations about propaganda on it without mentioning the very real issues on US-based platforms are being disingenuous.
I don’t disagree with you. But as far as disinformation, why does it matter especially on the national level? How many people’s minds were changed?
We both agree that the Democrats didn’t give the non rabid Trump supporters a reason to vote for them and the rabid Trump voters were going to vote for him no matter what came out for or against him.
We have no idea how many minds were changed. But everything public says that the foreign interference operations that are actually known to be happening are using FB, twitter, reddit, youtube and everything else, are mostly Russian, and we're shutting down TikTok b/c its Chinese owners pose some vague propaganda-related threat, which no lawmaker has described in detail.
Russian disinformation on US-based social media networks is clearly happening, is aggressive and persistent, and perhaps did swing things in 2016. If you think that's doesn't "matter ... on the national level", then surely the TikTok propaganda threat isn't worth shutting down a popular service for?
No TikTok isn’t worth shutting down. As for as Twitter, do you really need foreign interfere and propaganda when it’s American owner is putting its thumb on the scale?
China, and no one else, refused ICJ arbitration over the South China Sea. China, and no one else, is responsible for Chinese vessels harassing boats on the high seas. China, and no one else, refuses to rebalance domestic consumption vs investment. China, and no one else, imprisoned Jimmy Li. I do have to say their propaganda makes us look so good, so thanks for that.
There will be war because China starts it by deciding to invade Taiwan. They are very much preparing for it.
I'm not aware of this insidious Chinese propaganda supposedly controlling the minds of the American masses... Tik Tok just seems to be memes and nonsense as far as I can tell.
I am aware that every other social media platform in the US is being weaponized by the same 'adversaries' as well as the American government and corporations. There's a much better argument for banning Twitter and Facebook than Tiktok on those grounds, yet people go to the mat to defend every troll, nazi and spook on those platforms because "free speech."
TikTok is indeed laden with pro-China propaganda. It also censors, outright or algorithmic demotion, content critical of the CCP. It also censors tons of other stuff unrelated to the CCP.
It doesn’t even need to be ideologically aligned; simple pursuit of engagement is sufficient motive for the observed behavior.
So are youtube shorts and facebook reels (mainly because tiktok content is copied to these platforms). Falun Dafa is also on tiktok, which is very very very Anti CCP, I'm sure the CCP is playing a long game here by allowing them to put their short videos on the platform (see https://www.tiktok.com/discover/the-persecution-of-falun-gon...).
And Twitter is laden with pro-Trump propaganda. It also censors and at least promotes what its CEO and owner wants to be seen and demotes what it doesn’t want to be seen.
It’s CEO is going to have a lot more influence on policy and be a large part of the Trump administration and have an appointed position without divesting his ownership of Twitter.
You should be much more concerned about Twitter than TikTok. I wouldn’t even care about Twitter if Musk wasn’t going to become an official member of government post 1/20.
Truth Social and Gab are quite similar, but smaller still. The intent here is clearly to punish foreign influence, not domestic and that's the first amendment carve out being used to push this through.
X, Truth Social and Gab are all malign (and arguably little better than 4chan or 8chan as homes for civil discussion) but are domestic in origin.
I'd rather wade into the ocean than join any of the above, but they aren't subject to the same legal carve out.
it's interesting you bring that up as it turns out the incumbent party was actually the one behind that tiktok campaign, not russia. the campaign they used as evidence of "russian interference" that they cancelled the election because of
It's irrelevant to my point who did what. The elections were still influenced (though it saddens me that people are so easily influenced, but that's orthogonal too).
Is the content on the TV generated for you by some black box algorithm? Is it hard to determine who finances the political ads you see on TV? No and no, so no.
and how is a black box algorithm any worse than a system where only large corporate gatekeepers control what you see? if anything, i'd argue tiktok is more fair and democratic.
This tiktok ban has nothing to do with generic concerns about social media, such as privacy (which I emphatically agree with, FWIW.) It's entirely to do with Tiktok being controlled by a foreign adversary. Facebook has gross privacy issues (and should be regulated) but it's owned and controlled by an American so whatever other concerns we have about it, this tiktok ban isn't remotely intended to cover a company like Facebook.
Trump previously tried and failed to ban Tiktok, but the ban this article is about isn't that ban. This ban is a bipartisan effort by Congress, and Trump has suggested that he doesn't think it should go through, despite previously supporting a ban of tiktok, because he's a petulant child.
>It’s another thing altogether for a foreign adversary to potentially be able to control a massive communications platform with 170 million American users, nearly all of whom will be completely oblivious to whether the Chinese government is collecting their data or manipulating which content they see.
This seems very weak. Can anyone believe that "nearly all" TikTok users are "completely oblivious" to the well-publicized data collection and feed algorithm issues associated with social media use? I believe that a simple warning label should be more than enough.
Meta's Reels is much less engaging than TikTok (as measured by user numbers and anecdotal user experience), and if competition from TikTok is removed they'll have even less reason to improve it.
Yeah I've noticed that and have always been so surprised by it. Given Meta's resources and AI strength, I would have thought they would have made their Reels so much better but TikTok, who has FAR FAR less data on me (I beta tested Facebook that's how old my account is), can show me much more engaging content within about 15 to 30 minutes of me signing up and using it.
Maybe ByteDance has expertise on a wholly different sort of AIs that Meta isn't great at? I've always been very perplexed by this.
>National security has always beaten First Amendment (and many other rights.)
This is absolutely not the case, as evidenced by the fact we all have access to encryption, which the security establishment tried to ban in the '90s. The First Amendment is the reason why secure encryption isn't restricted to government and military usage only.
It was export restricted for ages. If you were an American company as late as the late 2000's (at least) you had to get permission to export strong encryption.
The right to communicate math ended at the US border. It's entirely feasible given the laws for that kind of walling off of content to be legal.
There's also the chilling effect of the government doing it anyways, even if they will eventually lose that legal battle in court.
I would dare to say that National Security should beat the First Amendment.
But the argument that TikTok bears any relationship to "national security" is ludicrous on the face of it. They're not posting nuclear secrets, they're posting short videos.
National Security Through Obscurity?
When has the freedom of religion, speech, press, or assembly ever been bad for the United States?
The government can make agreements with its agents to limit those, and can control its own information, but not other peoples'.
Not only that, but the US subsidiary (TikTok, Inc) also has a 1A right to receive the feeds that power the app and relay them out to the rest of the country. The algorithmic choices of what content to show, to who, and when, are by themselves speech.
Because the government cannot ban the "receiving" part, it obviously also cannot ban the "relaying".
I don't know how the Court will rule, but if TikTok is poised to lose I'm very curious about how the Justices will deal with the conundrum I explained above.
I think it's pretty pointless to discuss the pretextual judicial justification for something that is just raw politics. Trump will decide if Tiktok is banned, it's as simple as that. You don't need to analyze the supreme court case, it doesn't matter. If Trump is motivated to get rid of it, he'll find a way. If he doesn't want it sold, he'll find a way. What exactly is the supreme court planning to do if Trump just ignores the ruling? What exactly is Tiktok planning to do if Trump chooses to attack it? Trump has all 3 branches of government and is constrained by no norms. He can simply do as he likes and focusing on the legal arguments just looks a bit silly.
Purely from a realpolitik perspective I can't see a Tiktok ban happening.
It has been a wildly successful propaganda machine for the ruling class, and ByteDance's extreme right-wing major shareholder Jeff Yaas[1] has enough money to buy the supreme court many times over with change from his couch cushions. The fact that the SC is already putting a pause on the shutdown should've made it clear that Tiktok won't be harmed.
This is the correct way to think about it. The new America operates in a much simpler manner - you debase yourself and praise the ruler by repeating one of his favourite lies, you give him a lot of money and if he likes you he'll give you what you want. Trump has ordered the court to rule a certain way and they'll do exactly as he told them to.
Arguing the merits of a case, equal branches, judicial independence, etc is just silly.
A reminder that in a recent interview with [1] NBC News, Trump spoke very positively of Tiktok, saying it played a role in his campaign reaching a younger demographic and saying he would fight to keep it around. He takes office on the day after the ban supposedly goes into action.
In my estimation, Israel-Palestine (and, in particular, the college protests) was the straw that broke the camel's back. Remember the bill to ban Tiktok was introduced 5-6 months after October 7 at the height of college protests.
The real problem with Tiktok, from the perspective of the US establishment and government, is that it doesn't move in lockstep the US State Department, as opposed to Meta [1], for example.
An earlier prominent example was the East Palestine, Ohio train derailment [2] that was all over Tiktok for over a week before it got any mainstream media coverage.
Mainstream media has to straddle a line between paroting the State Department and maintaining the veneer of legitimacy.
Just compare the reaction to Brad Spafford, caught with the largest explosives cache ever seized, out on $25k bond [3] to a woman having set a $100k bail for saying "deny, defend, depose" over the phone to a health insurance company and, should she make that bond, she'll be kept on home confinement [4].
Or the resources dedicated to arresting Luigi Mangioni. Or even a man just recently killed by the police in under a minute in a raid for... a judge-exeuctive's weed eater in Kentucky [5].
Police in fact killed over 3 people a day in 2024 [6], including many egregious examples such as Sonya Massey [7].
My point here is that I agree this isn't solely a Israel-Palestine issue with Tiktok. But the media are complicit in not holding those in power accountable when they are quite clearly acting as thugs at the behest of the wealthy and powerful. Tiktok doesn't seem to play along with that narrative and that's why it got a ban.
If we really cared about user privacy, we would've passed an expansive data protection bill. If we cared about foreign influence, why do we single out China and not, say, Israel?
Then why did the recent move to ban it come just weeks after AIPAC publicly complained that footage of the Gaza genocide broadcast there was turning young people against Israel?
There also already exists speech on TikTok that Americans have the right to hear, so the ban is more akin to the Lamont case mentioned in the article, IMO.
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