The ACLU is staffed with extremely competent First Amendment attorneys and yet they seem to be intentionally muddying the water about this. As a 1A scholar (and ACLU supporter) myself, I find it extremely frustrating.
I'm not so sure the ACLU is staffed with competent First Amendment attorneys any more. I've read a few articles citing Ira Glasser as being disappointed in the direction the modern ACLU is moving.
How so? Generally speaking, foreign entities do not have the same constitutional guarantees as domestic with regard to laws concerning national security. Mind you, if this was a domestically owned platform, they would have a very strong case.
Even for domestic companies, we've used consent decrees to force them to divest businesses (Standard Oil, AT&T, etc.) after they've been held in violation of antitrust law.
Eminent domain is a thing. You can absolutely be forced to sell your house to make way for a public project. Hell, after the Kelo decision, you can even be forced to sell it for private benefit.
So going by your own example, if the government tells you "sell your house or we are going to seize it via eminent domain", are you not allowed to say "the government is using eminent domain to take my house from me"? Now replace "eminent domain" with "ban" and "house" with "TikTok".
No, because they're not banning TikTok, nor is eminent domain anything like arson.
The only similarity between condemnation and arson is that you don't get to live in the house anymore. If your house is condemned and you get fair market value for it, you can buy a new house with it. If your house is burned to the ground, you have nothing.
Similarly, if ByteDance sells TikTok to someone else, TikTok can be to its users exactly how it has been all along. They've simply chosen not to, at least not yet. And it's in their best interest to characterize it as a ban to win hearts and minds, even though that characterization of "banning" is something they're choosing to do to themselves by shutting it down instead of selling.
ByteDance has been aware that this was likely to happen for years, and legislation was signed in April 2024, giving them over six months to sell. There's nothing rushed about this at all. ByteDance is playing chicken, and they're looking ever likelier to lose this game.
The US is currently 1/5th of their revenue I believe. It’s very US centric to call not being extorted out of your company by a foreign power a loss. I do believe the legislation passed is legally binding and will hold up to scrutiny by this Supreme Court. I am a person who consumes fun videos on TikTok while also recognizing the potential for a adversary to abuse. I found TikTok to be a way more joyful place than the meta properties too. I hope Meta doesn’t get to reap the benefits of this ban and I’ve seen a lot of genz who seem to be extremely anti zuck. It’s an unfortunate outcome, but I don’t see a strong 1A argument on this.
But they're not asking ByteDance to just divest a portion for US operations, are they? It's successful in many countries, so it seems kind of radical to force them to sell everything just to continue operating in one country.
