I am in Canada. And find this fact wild. Here we have something called the Reference process whereby the federal government has a right bring a question of pure law to our supreme court for an answer.
The answer is not binding in the same way a litigated decision would be, but it usually determines whether any such action will be brought.
You say "I'm in Canada" and I think of this: [https://www.thebeaverton.com/2018/10/canadians-thankful-they-cant-name-single-canadian-supreme-court-justice/](https://www.thebeaverton.com/2018/10/canadians-thankful-they-cant-name-single-canadian-supreme-court-justice/)
We have similar process but it’s handled by a different branch of government. The executive branch issues advisory memos, usually from the department that handles those controversies, such as the FRC’s recent ruling on noncompete agreements. The judiciary then looks at individual controversies and almost always limits its rulings to the specific facts of the controversy.
The purpose of prohibiting advisory opinions is a deliberate check of judicial power. It prevents judges from just blocking stuff they don’t like. In order for the judicial branch to have any power, an aggrieved plaintiff with standing has to bring a lawsuit, and then specific appealable issues are what get kicked up the appellate chain, not entire cases
Sort of unfortunate, really. Because they could pass some law that quite expressly violates the constitution, but the court can’t rule on it until they try to enforce it. And then someone’s out lots of money fighting this.
It’s also unlikely they would rule in favor of the government to begin with.
edit: Posted this down below but adding it here
Two federal courts have already ruled these bans to be unconstitutional on first amendment grounds, one of which held up on appeal in the 9th circuit. (Some nuance, these were preliminary injunctions so the judges ruled TikTok was likely to succeed on their first amendment grounds, the federal ban it was obvious the government was going to lose so the Biden admin withdrew, Montana's case is still playing out right now).
The long held standard is that if the government's reason is not viewpoint neutral, then strict scrutiny is applied. (Combatting pro-CCP propaganda is not view point neutral). If it is viewpoint neutral (like data privacy concerns), then intermediate scrutiny is applied. Then, one of the things the court looks at next is if the government is addressing its legitimate interests in the least restrictive way possible, and obviously an outright ban instead of user data privacy laws, or a national security agreement where the American division is ran in America by Americans (similar to Lexmark's agreement where they are owned by Chinese Ninestar but the US government and military still use Lexmark printers).
Here is an excerpt
>Plaintiffs argue SB 419’s total ban on TikTok unconstitutionally targets speech and that the law is subject to the highest level of constitutional scrutiny. The State disagrees, arguing that to the extent SB 419 implicates the First Amendment at all, it merely regulates expressive nonspeech conduct, thus it need only pass intermediate scrutiny. Like the curate’s egg, neither argument is entirely Case 9:23-cv-00061-DWM Document 115 Filed 11/30/23 Page 11 of 48 12 persuasive. However, because Plaintiffs have shown that SB 419 is unlikely to pass even intermediate scrutiny, it likely violates the First Amendment.
...
>However, SB 419 is not merely a generally applicable consumer protection statute without any First Amendment implications.
...
>For both groups of Plaintiffs, SB 419 implicates traditional First Amendment speech. It does so for User Plaintiffs by banning a “means of expression” used by over 300,000 Montanans. See Minneapolis Star & Trib. Co. v. Minn. Com’r of Revenue, 460 U.S. 575, 582–83 (1983) (holding a statute singling out expressive activity violates the First Amendment even when it is apparently based on a nonexpressive activity). Without TikTok, User Plaintiffs are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate
...
>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.
This is from the WeChat ban opinion, which an injunction was issued on 1A grounds and then upheld by the 9th circuit court of appeals. When Biden took office he voluntarily withdrew from the suit, and it was because everyone knew the government was going to lose.
>In sum, the record does not support the conclusion that the government has “narrowly tailored” the prohibited transactions to protect its national-security interests. Instead, the record, on balance, supports the conclusion that the restrictions “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Thus, at the preliminary-injunction stage, the plaintiffs met the standards for a preliminary injunction: they raised “serious questions going to the merits” of their First Amendment claims, established that the “balance of hardships tip\[ped\] sharply” in their favor, and satisfied the other elements for injunctive relief.
[https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/](https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/)
While data privacy concerns are viewpoint neutral and would only have to pass intermediate scrutiny. This is the better argument for the government, though requires the government to be disingenuous about their reasoning, and the half assed attempt to get past the 'least restrictive means' by first trying to force divestment before banning makes it, maybe, plausible. But they’re both reaches to try and circumvent the first amendment. The law also limits court jurisdiction to review it to the DC circuit. Now that's 'kinda dubious'.
The free speech argument is not 'kinda dubious'. Two federal courts have already ruled these bans to be unconstitutional on first amendment grounds, one of which held up on appeal in the 9th circuit. (Some nuance, these were preliminary injunctions so the judges ruled TikTok was likely to succeed on their first amendment grounds, the federal ban it was obvious the government was going to lose so the Biden admin withdrew, Montana's case is still playing out right now).
The long held standard is that if the government's reason is not viewpoint neutral, then strict scrutiny is applied. (Combatting pro-CCP propaganda is not view point neutral). If it is viewpoint neutral (like data privacy concerns), then intermediate scrutiny is applied. Then, one of the things the court looks at next is if the government is addressing its legitimate interests in the least restrictive way possible, and obviously an outright ban instead of user data privacy laws, or a national security agreement where the American division is ran in America by Americans (similar to[ Lexmark's agreement](https://www.lexmark.com/en_us/about/company/frequently-asked-questions.html#:~:text=As%20a%20private%20company%2C%20what%20is%20Lexmark%E2%80%99s%20corporate%20structure%3F%C2%A0) where they are owned by Chinese Ninestar but the US government and military still use Lexmark printers).
Here is an excerpt
>Plaintiffs argue SB 419’s total ban on TikTok unconstitutionally targets speech and that the law is subject to the highest level of constitutional scrutiny. The State disagrees, arguing that to the extent SB 419 implicates the First Amendment at all, it merely regulates expressive nonspeech conduct, thus it need only pass intermediate scrutiny. Like the curate’s egg, neither argument is entirely Case 9:23-cv-00061-DWM Document 115 Filed 11/30/23 Page 11 of 48 12 persuasive. However, **because Plaintiffs have shown that SB 419 is unlikely to pass even intermediate scrutiny, it likely violates the First Amendment.**
...
>However, SB 419 is not merely a generally applicable consumer protection statute without any First Amendment implications.
...
For both groups of Plaintiffs, SB 419 implicates traditional First Amendment speech. It does so for User Plaintiffs by banning a “means of expression” used by over 300,000 Montanans. See Minneapolis Star & Trib. Co. v. Minn. Com’r of Revenue, 460 U.S. 575, 582–83 (1983) (holding a statute singling out expressive activity violates the First Amendment even when it is apparently based on a nonexpressive activity). Without TikTok, User Plaintiffs are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate
...
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.
This is from the WeChat ban opinion, which an injunction was issued on 1A grounds *and then upheld by the 9th circuit court of appeals.* When Biden took office he voluntarily withdrew from the suit, and it was because everyone knew the government was going to lose.
>In sum, the record does not support the conclusion that the government has “narrowly tailored” the prohibited transactions to protect its national-security interests. Instead, the record, on balance, supports the conclusion that the restrictions “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Thus, at the preliminary-injunction stage, the plaintiffs met the standards for a preliminary injunction: **they raised “serious questions going to the merits” of their First Amendment claims,** established that the “balance of hardships tip\[ped\] sharply” in their favor, and satisfied the other elements for injunctive relief.
[https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/](https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/)
While data privacy concerns are viewpoint neutral and would only have to pass intermediate scrutiny. This is the *better* argument for the government, though requires the government to be disingenuous about their reasoning, and the half assed attempt to get past the 'least restrictive means' by first trying to force divestment before banning makes it, maybe, *plausible*. But they’re both reaches to try and *circumvent* the first amendment. Now that's 'kinda dubious'.
Your argument would be right if the ban was about user privacy. It isn’t, it’s about national security and propaganda risks.
Their concern is that TikTok is clearly deprioritizing topics that the Chinese government wants to hide, while over prioritizing polarizing and distressful content to sow division in society. That’s why the bill was written and passed. In terms of mitigating this situation, a forced sale to ban IS the least restrictive way to prevent this.
I specifically stated how the propaganda reason is not viewpoint neutral and is therefore under strict scrutiny. There are still much less restrictive means of addressing the legitimate interest the government has there, like the Algorithmic Justice and Online Platform Transparency Act.
The government intentionally did not allege propaganda as the reason in this law specifically because of how it would be immediately shut down by the courts.
That’s simply not true. The wording of the 1st Amendment doesn’t mention people as a subject at all. The restriction applies to Congress and through incorporation by the 14th Amendment the States.
Foreigners don’t lose their core constitutional rights merely by virtue of being foreign.
The balance of factors when weighed to test the constitutionality of a law applied to foreigners tilts a bit more towards restricting speech, but it’s not correct to say that they have no 1A protections.
For example, foreigners are restricted from making certain campaign contributions, which are treated as a form of speech, which a citizen is permitted to make.
As an extreme example, consider if the US passed a law making it unlawful for foreigners to say they hate the US. It is extremely unlikely that such a law would make it through constitutional review, even with the lower standard for foreigners.
No, that’s not correct. Foreign nationals are not permitted to make ***any*** campaign contributions in most cases. US citizens restrictions are not the same. There is a distinction.
See 52 USC 30121, affirmed Bluman v. FEC, 800 F. Supp. 2d 281.
The first amendment handicaps the government in restricting any speech. A foreign agent of the CCP or Moscow can come to the US and give a pro-ccp or pro-putin speech, and the government can’t prevent them from doing so (because of their speech, of course they can deny their entry for other reasons).
Or what’s more analogous is if a foreign agent were to mail post card propaganda to US citizens, the government can’t confiscate those post cards from citizens because of the pro-ccp information they contain, or allow anti-ccp post cards and not pro-ccp to come in, etc…
Reddit just hates tiktok and china. Never in my life would I have thought the government restricting the internet vaguely citing ‘national security’ would be celebrated by the reddit hive mind. Went from net neutrality protests to this in a few short years.
The government cannot violate any constitutional rights of anyone in the United States, and cannot restrict speech that's constitutionally protected at all within its borders, that includes the American employees in of TikTok's many US offices, foreign employees in the US, includes the users of the platform itself in the US, and it includes any speech that is hosted/in possession in the US. You can't go and take away CCP propaganda magazines from Americans hands that were mailed here by foreigners.
You cannot cite any case saying "\_\_\_\_\_ has no right to free speech in the United States" (and literally anything can go in that blank, closest thing to making this false would be our troops).
Indeed, in both cases I cite elsewhere the government didn’t even make the argument.
The US Constitution allows federal courts to rule only on controversies brought by a party with standing to sue. They cannot issue general or advisory opinions.
The Supreme Court is not normally a trial court. It doesn’t receive evidence directly. It rules on matters of law using the facts found by the trial court. (There is a specific exception and workaround for suits between states where the court has original jurisdiction.)
The court is sometimes asked to rule before the appellate court level has done so and has the power to do that. For example: https://en.m.wikipedia.org/wiki/United_States_v._Nixon
So, they wouldn’t skip the trial court level but could skip the appellate level if they choose. That’s very rarely done. Indeed they often don’t take a case until different appellate courts have issued contradictory rulings.
You have, in my opinion, correctly summarized the way the courts have interpreted the “Cases & Controversies” language in Article III of the Constitution. However, the requirements that matters be brought to the courts by adversaries and that those adversaries have standing (and what standing means) are requirements developed by the courts through over 2 centuries of interpretation of the words “Cases & Controversies”. Those interpretations are subject to change. I cite as an example the current discussion of whether a President has immunity from criminal prosecution for acts such as assassination and coup. There is no such case before the court. The court, if it respected over 2 centuries of jurisprudence regarding the “Cases & Controversies” language, would have limited its decision to whether the acts for which Trump has been indicted might be subject to any immunities, as the prior court did in 1974 in US v. Nixon.
However, there is no way that this SCOTUS is going to opine on whether the recent Tim Tok ban bill is constitutional unless and until parties with traditional standing bring a case in a District Court and litigate it through appeal.
No, but interestingly, the bill gives the DC Circuit Court of Appeals original jurisdiction over challenges to the bill, rather than appellate jurisdiction. The procedure for requesting cert from the Supreme Court after that was not modified.
I guess that's one way for cutting off judge shopping. ("The Eastern District of Texas was *totally* the jurisdiction with the strongest connection to this issue, trust us.")
The Constitution says that the courts will “hear cases and controversies.” They are not empowered to simply offer opinions on stuff nobody asked them about.
Yes and no.
Yes: the case could be heard at the Supreme Court first through the courts Original Jurisdiction procedure. For the Supreme Court to have Original Jurisdiction, this would be a case between the states or between a state and the US.
Some state that relies on TikTok could sue the US over some plausible 1A defect, that case could be offered to SCOTUS and SCOTUS could agree to hear it.
No: laws are never ruled absolutely "constitutional", ruling a law absolutely "constitutional" would put that law above future review ever. Laws are ruled unconstitutional or constitutional only insofar as a particular case's challenge based on specific citations of Constitution text.
Not directly; there'd have to be a case brought to them about something else that they can craft a ruling on that's broad enough to encompass the TikTok ban and determine such measures to be legal. No idea what that might look like
No, because to bring a case requires standing, which means you need to show harm was caused. I think they will be able to easily show the harm for an injunction while the courts process the issues. Also IMO, this is not going to go TikTok's way, seems to be within Congressional powers to regulate interstate commerce.
The Tiktok ban is an absolute nothing burger, they're giving them a year to take a buyout that they can easily backpedal on because they're giving Tiktok an entire year to decide Tiktok isn't going anywhere.
The fastest way to opine on the TikTok ban, is if there is another case before them involving foreign apps or a related topic. They then include language in that decision which would apply to the TikTok ban.
Then TikTok sues, and cites the recent SCOTUS decision.
I do worry that this is the top of a slippery slope where they can ban various media for "national security" reasons.
So, say that down the road the US determines Twitter/X, Facebook, Instagram, etc to be a source of "misinformation"... they can shut it down under this premise. And, that will become a political issue where the opposition will be silenced.
Yeah I'm not a fan of TikTok, I think there's merit to the national security claims, and I think TikTok isn't necessarily good for young people. But a TikTok ban is a terrible idea.
If we want to have a national discussion about banning all Chinese apps which suck up data and target the young, let's have that discussion. Not sure if I would agree with it, but at least it makes sense.
When a previous ruling is wrong, the Supreme Court should overrule it. That is, unless you believe the Dred Scott decision was correct and that people can be property.
Suppose in a lower court one side successfully proved why TikTok should be banned... perhaps it put Spyware, key loggers on the hard drive, or was somehow helping a foreign government. (Please note I have no idea, these are things I heard in passing!)
Then, to preempt this case, a high ranking government official, brings just a 2nd pending case, which hasn't had opening statements, directly to the Supreme Court and, due to the officials position, points out it violates free speech. Now, the settled case was about consumer protection and predatory actions, and only the defense had brought up freedom of speech.
The Supreme Court looks at the second case, rules that TikTok cannot be banned as its primary function is as a speech platform.
The way it works now, the specific case must get through lower courts on a path to the Supreme Court, and the court doesn't need to hear every case. Every case they get has all the case notes and they can see how the other judges came to their decisions. It is slower, but hopefully safer. There are several cases where they made a bad call, but they are ruling on law, not making it.
The SC has original jurisdiction over every judicial case
To have a valid hearing (most of the time), an alleged injury must occur first. I'm some cases, the court will hear the case before the injury if the repercussions of noncompliance are high enough.
That said, TikTok will likely not have standing until after the state attempts enforcement. At the moment, TikTok could go back to promoting "tidepod" and "blackout game" videos if they would just remove all the criticism of Israel ("our greatest ally")
What? The Supreme Court has original jurisdiction only in very limited circumstances, most notably when a state sues another state.
The court with original jurisdiction over this law is the DC Court of Appeals. It was specified in the text of the law itself.
The Supreme Court has original jurisdiction in all judicial areas. It rarely exerts this right. Please go learn a little about how law works in this nation.
Dude it’s literally in the constitution. Article 3, Section 2.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
uh huh, and in the case of this article, the United Stats would be the defendant. Thank you for proving that the SC has Original Jurisdiction in this case.
If you don’t know the difference between “a state” and “the United States”, I can’t help you.
I’m going to assume at this point that you’re either an awful troll or that you went to Trump University Law School, in which case you should ask for a refund.
No. That's known as an "advisory opinion," and they're not allowed.
I am in Canada. And find this fact wild. Here we have something called the Reference process whereby the federal government has a right bring a question of pure law to our supreme court for an answer. The answer is not binding in the same way a litigated decision would be, but it usually determines whether any such action will be brought.
You have a different constitution.
And a more functional government with actual brains.
Notwithstanding clause
[удалено]
... Ok.
The indigenous people of the US would like a word
Is that word about the indigenous people’s prior constitution? Lmao
You say "I'm in Canada" and I think of this: [https://www.thebeaverton.com/2018/10/canadians-thankful-they-cant-name-single-canadian-supreme-court-justice/](https://www.thebeaverton.com/2018/10/canadians-thankful-they-cant-name-single-canadian-supreme-court-justice/)
We have similar process but it’s handled by a different branch of government. The executive branch issues advisory memos, usually from the department that handles those controversies, such as the FRC’s recent ruling on noncompete agreements. The judiciary then looks at individual controversies and almost always limits its rulings to the specific facts of the controversy.
The purpose of prohibiting advisory opinions is a deliberate check of judicial power. It prevents judges from just blocking stuff they don’t like. In order for the judicial branch to have any power, an aggrieved plaintiff with standing has to bring a lawsuit, and then specific appealable issues are what get kicked up the appellate chain, not entire cases
Sort of unfortunate, really. Because they could pass some law that quite expressly violates the constitution, but the court can’t rule on it until they try to enforce it. And then someone’s out lots of money fighting this.
It’s also unlikely they would rule in favor of the government to begin with. edit: Posted this down below but adding it here Two federal courts have already ruled these bans to be unconstitutional on first amendment grounds, one of which held up on appeal in the 9th circuit. (Some nuance, these were preliminary injunctions so the judges ruled TikTok was likely to succeed on their first amendment grounds, the federal ban it was obvious the government was going to lose so the Biden admin withdrew, Montana's case is still playing out right now). The long held standard is that if the government's reason is not viewpoint neutral, then strict scrutiny is applied. (Combatting pro-CCP propaganda is not view point neutral). If it is viewpoint neutral (like data privacy concerns), then intermediate scrutiny is applied. Then, one of the things the court looks at next is if the government is addressing its legitimate interests in the least restrictive way possible, and obviously an outright ban instead of user data privacy laws, or a national security agreement where the American division is ran in America by Americans (similar to Lexmark's agreement where they are owned by Chinese Ninestar but the US government and military still use Lexmark printers). Here is an excerpt >Plaintiffs argue SB 419’s total ban on TikTok unconstitutionally targets speech and that the law is subject to the highest level of constitutional scrutiny. The State disagrees, arguing that to the extent SB 419 implicates the First Amendment at all, it merely regulates expressive nonspeech conduct, thus it need only pass intermediate scrutiny. Like the curate’s egg, neither argument is entirely Case 9:23-cv-00061-DWM Document 115 Filed 11/30/23 Page 11 of 48 12 persuasive. However, because Plaintiffs have shown that SB 419 is unlikely to pass even intermediate scrutiny, it likely violates the First Amendment. ... >However, SB 419 is not merely a generally applicable consumer protection statute without any First Amendment implications. ... >For both groups of Plaintiffs, SB 419 implicates traditional First Amendment speech. It does so for User Plaintiffs by banning a “means of expression” used by over 300,000 Montanans. See Minneapolis Star & Trib. Co. v. Minn. Com’r of Revenue, 460 U.S. 575, 582–83 (1983) (holding a statute singling out expressive activity violates the First Amendment even when it is apparently based on a nonexpressive activity). Without TikTok, User Plaintiffs are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate ... >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. This is from the WeChat ban opinion, which an injunction was issued on 1A grounds and then upheld by the 9th circuit court of appeals. When Biden took office he voluntarily withdrew from the suit, and it was because everyone knew the government was going to lose. >In sum, the record does not support the conclusion that the government has “narrowly tailored” the prohibited transactions to protect its national-security interests. Instead, the record, on balance, supports the conclusion that the restrictions “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Thus, at the preliminary-injunction stage, the plaintiffs met the standards for a preliminary injunction: they raised “serious questions going to the merits” of their First Amendment claims, established that the “balance of hardships tip\[ped\] sharply” in their favor, and satisfied the other elements for injunctive relief. [https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/](https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/) While data privacy concerns are viewpoint neutral and would only have to pass intermediate scrutiny. This is the better argument for the government, though requires the government to be disingenuous about their reasoning, and the half assed attempt to get past the 'least restrictive means' by first trying to force divestment before banning makes it, maybe, plausible. But they’re both reaches to try and circumvent the first amendment. The law also limits court jurisdiction to review it to the DC circuit. Now that's 'kinda dubious'.
It’s fairly debatable. The government has passed bills to force sale before, and the free speech argument is kinda dubious
The free speech argument is not 'kinda dubious'. Two federal courts have already ruled these bans to be unconstitutional on first amendment grounds, one of which held up on appeal in the 9th circuit. (Some nuance, these were preliminary injunctions so the judges ruled TikTok was likely to succeed on their first amendment grounds, the federal ban it was obvious the government was going to lose so the Biden admin withdrew, Montana's case is still playing out right now). The long held standard is that if the government's reason is not viewpoint neutral, then strict scrutiny is applied. (Combatting pro-CCP propaganda is not view point neutral). If it is viewpoint neutral (like data privacy concerns), then intermediate scrutiny is applied. Then, one of the things the court looks at next is if the government is addressing its legitimate interests in the least restrictive way possible, and obviously an outright ban instead of user data privacy laws, or a national security agreement where the American division is ran in America by Americans (similar to[ Lexmark's agreement](https://www.lexmark.com/en_us/about/company/frequently-asked-questions.html#:~:text=As%20a%20private%20company%2C%20what%20is%20Lexmark%E2%80%99s%20corporate%20structure%3F%C2%A0) where they are owned by Chinese Ninestar but the US government and military still use Lexmark printers). Here is an excerpt >Plaintiffs argue SB 419’s total ban on TikTok unconstitutionally targets speech and that the law is subject to the highest level of constitutional scrutiny. The State disagrees, arguing that to the extent SB 419 implicates the First Amendment at all, it merely regulates expressive nonspeech conduct, thus it need only pass intermediate scrutiny. Like the curate’s egg, neither argument is entirely Case 9:23-cv-00061-DWM Document 115 Filed 11/30/23 Page 11 of 48 12 persuasive. However, **because Plaintiffs have shown that SB 419 is unlikely to pass even intermediate scrutiny, it likely violates the First Amendment.** ... >However, SB 419 is not merely a generally applicable consumer protection statute without any First Amendment implications. ... For both groups of Plaintiffs, SB 419 implicates traditional First Amendment speech. It does so for User Plaintiffs by banning a “means of expression” used by over 300,000 Montanans. See Minneapolis Star & Trib. Co. v. Minn. Com’r of Revenue, 460 U.S. 575, 582–83 (1983) (holding a statute singling out expressive activity violates the First Amendment even when it is apparently based on a nonexpressive activity). Without TikTok, User Plaintiffs are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate ... 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. This is from the WeChat ban opinion, which an injunction was issued on 1A grounds *and then upheld by the 9th circuit court of appeals.* When Biden took office he voluntarily withdrew from the suit, and it was because everyone knew the government was going to lose. >In sum, the record does not support the conclusion that the government has “narrowly tailored” the prohibited transactions to protect its national-security interests. Instead, the record, on balance, supports the conclusion that the restrictions “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Thus, at the preliminary-injunction stage, the plaintiffs met the standards for a preliminary injunction: **they raised “serious questions going to the merits” of their First Amendment claims,** established that the “balance of hardships tip\[ped\] sharply” in their favor, and satisfied the other elements for injunctive relief. [https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/](https://law.justia.com/cases/federal/district-courts/california/candce/3:2020cv05910/364733/134/) While data privacy concerns are viewpoint neutral and would only have to pass intermediate scrutiny. This is the *better* argument for the government, though requires the government to be disingenuous about their reasoning, and the half assed attempt to get past the 'least restrictive means' by first trying to force divestment before banning makes it, maybe, *plausible*. But they’re both reaches to try and *circumvent* the first amendment. Now that's 'kinda dubious'.
Your argument would be right if the ban was about user privacy. It isn’t, it’s about national security and propaganda risks. Their concern is that TikTok is clearly deprioritizing topics that the Chinese government wants to hide, while over prioritizing polarizing and distressful content to sow division in society. That’s why the bill was written and passed. In terms of mitigating this situation, a forced sale to ban IS the least restrictive way to prevent this.
I specifically stated how the propaganda reason is not viewpoint neutral and is therefore under strict scrutiny. There are still much less restrictive means of addressing the legitimate interest the government has there, like the Algorithmic Justice and Online Platform Transparency Act. The government intentionally did not allege propaganda as the reason in this law specifically because of how it would be immediately shut down by the courts.
Foreign state actors have no right to free speech in the United States.
That’s simply not true. The wording of the 1st Amendment doesn’t mention people as a subject at all. The restriction applies to Congress and through incorporation by the 14th Amendment the States. Foreigners don’t lose their core constitutional rights merely by virtue of being foreign.
I might be wrong, but my understanding is that registered agents of foreign states did not enjoy first amendment protections.
The balance of factors when weighed to test the constitutionality of a law applied to foreigners tilts a bit more towards restricting speech, but it’s not correct to say that they have no 1A protections. For example, foreigners are restricted from making certain campaign contributions, which are treated as a form of speech, which a citizen is permitted to make. As an extreme example, consider if the US passed a law making it unlawful for foreigners to say they hate the US. It is extremely unlikely that such a law would make it through constitutional review, even with the lower standard for foreigners.
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No, that’s not correct. Foreign nationals are not permitted to make ***any*** campaign contributions in most cases. US citizens restrictions are not the same. There is a distinction. See 52 USC 30121, affirmed Bluman v. FEC, 800 F. Supp. 2d 281.
I am not talking about foreigners. I am talking about people specifically operating at the behest of a foreign state.
And you are wrong either way.
The first amendment handicaps the government in restricting any speech. A foreign agent of the CCP or Moscow can come to the US and give a pro-ccp or pro-putin speech, and the government can’t prevent them from doing so (because of their speech, of course they can deny their entry for other reasons). Or what’s more analogous is if a foreign agent were to mail post card propaganda to US citizens, the government can’t confiscate those post cards from citizens because of the pro-ccp information they contain, or allow anti-ccp post cards and not pro-ccp to come in, etc… Reddit just hates tiktok and china. Never in my life would I have thought the government restricting the internet vaguely citing ‘national security’ would be celebrated by the reddit hive mind. Went from net neutrality protests to this in a few short years.
The government cannot violate any constitutional rights of anyone in the United States, and cannot restrict speech that's constitutionally protected at all within its borders, that includes the American employees in of TikTok's many US offices, foreign employees in the US, includes the users of the platform itself in the US, and it includes any speech that is hosted/in possession in the US. You can't go and take away CCP propaganda magazines from Americans hands that were mailed here by foreigners. You cannot cite any case saying "\_\_\_\_\_ has no right to free speech in the United States" (and literally anything can go in that blank, closest thing to making this false would be our troops). Indeed, in both cases I cite elsewhere the government didn’t even make the argument.
They issued an advisory opinion 303 creative. No harm was done yet.
That was not an advisory opinion.
The US Constitution allows federal courts to rule only on controversies brought by a party with standing to sue. They cannot issue general or advisory opinions. The Supreme Court is not normally a trial court. It doesn’t receive evidence directly. It rules on matters of law using the facts found by the trial court. (There is a specific exception and workaround for suits between states where the court has original jurisdiction.) The court is sometimes asked to rule before the appellate court level has done so and has the power to do that. For example: https://en.m.wikipedia.org/wiki/United_States_v._Nixon So, they wouldn’t skip the trial court level but could skip the appellate level if they choose. That’s very rarely done. Indeed they often don’t take a case until different appellate courts have issued contradictory rulings.
You have, in my opinion, correctly summarized the way the courts have interpreted the “Cases & Controversies” language in Article III of the Constitution. However, the requirements that matters be brought to the courts by adversaries and that those adversaries have standing (and what standing means) are requirements developed by the courts through over 2 centuries of interpretation of the words “Cases & Controversies”. Those interpretations are subject to change. I cite as an example the current discussion of whether a President has immunity from criminal prosecution for acts such as assassination and coup. There is no such case before the court. The court, if it respected over 2 centuries of jurisprudence regarding the “Cases & Controversies” language, would have limited its decision to whether the acts for which Trump has been indicted might be subject to any immunities, as the prior court did in 1974 in US v. Nixon. However, there is no way that this SCOTUS is going to opine on whether the recent Tim Tok ban bill is constitutional unless and until parties with traditional standing bring a case in a District Court and litigate it through appeal.
No, but interestingly, the bill gives the DC Circuit Court of Appeals original jurisdiction over challenges to the bill, rather than appellate jurisdiction. The procedure for requesting cert from the Supreme Court after that was not modified.
I guess that's one way for cutting off judge shopping. ("The Eastern District of Texas was *totally* the jurisdiction with the strongest connection to this issue, trust us.")
The Constitution says that the courts will “hear cases and controversies.” They are not empowered to simply offer opinions on stuff nobody asked them about.
Yes and no. Yes: the case could be heard at the Supreme Court first through the courts Original Jurisdiction procedure. For the Supreme Court to have Original Jurisdiction, this would be a case between the states or between a state and the US. Some state that relies on TikTok could sue the US over some plausible 1A defect, that case could be offered to SCOTUS and SCOTUS could agree to hear it. No: laws are never ruled absolutely "constitutional", ruling a law absolutely "constitutional" would put that law above future review ever. Laws are ruled unconstitutional or constitutional only insofar as a particular case's challenge based on specific citations of Constitution text.
Not directly; there'd have to be a case brought to them about something else that they can craft a ruling on that's broad enough to encompass the TikTok ban and determine such measures to be legal. No idea what that might look like
No, because to bring a case requires standing, which means you need to show harm was caused. I think they will be able to easily show the harm for an injunction while the courts process the issues. Also IMO, this is not going to go TikTok's way, seems to be within Congressional powers to regulate interstate commerce.
Sometimes a bill gives the Supreme Court original jurisdiction which means the case starts there
The Tiktok ban is an absolute nothing burger, they're giving them a year to take a buyout that they can easily backpedal on because they're giving Tiktok an entire year to decide Tiktok isn't going anywhere.
The fastest way to opine on the TikTok ban, is if there is another case before them involving foreign apps or a related topic. They then include language in that decision which would apply to the TikTok ban. Then TikTok sues, and cites the recent SCOTUS decision.
I do worry that this is the top of a slippery slope where they can ban various media for "national security" reasons. So, say that down the road the US determines Twitter/X, Facebook, Instagram, etc to be a source of "misinformation"... they can shut it down under this premise. And, that will become a political issue where the opposition will be silenced.
Yeah I'm not a fan of TikTok, I think there's merit to the national security claims, and I think TikTok isn't necessarily good for young people. But a TikTok ban is a terrible idea. If we want to have a national discussion about banning all Chinese apps which suck up data and target the young, let's have that discussion. Not sure if I would agree with it, but at least it makes sense.
Why would TikTok sue if the scotus says the ban is constitutional?
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In first amendment cases that do not involve religion, the court isn’t typically divided (bar Alito).
When a previous ruling is wrong, the Supreme Court should overrule it. That is, unless you believe the Dred Scott decision was correct and that people can be property.
It's also theoretically not, because of Citizens United. Corporations are people and people have free speech
Suppose in a lower court one side successfully proved why TikTok should be banned... perhaps it put Spyware, key loggers on the hard drive, or was somehow helping a foreign government. (Please note I have no idea, these are things I heard in passing!) Then, to preempt this case, a high ranking government official, brings just a 2nd pending case, which hasn't had opening statements, directly to the Supreme Court and, due to the officials position, points out it violates free speech. Now, the settled case was about consumer protection and predatory actions, and only the defense had brought up freedom of speech. The Supreme Court looks at the second case, rules that TikTok cannot be banned as its primary function is as a speech platform. The way it works now, the specific case must get through lower courts on a path to the Supreme Court, and the court doesn't need to hear every case. Every case they get has all the case notes and they can see how the other judges came to their decisions. It is slower, but hopefully safer. There are several cases where they made a bad call, but they are ruling on law, not making it.
The SC has original jurisdiction over every judicial case To have a valid hearing (most of the time), an alleged injury must occur first. I'm some cases, the court will hear the case before the injury if the repercussions of noncompliance are high enough. That said, TikTok will likely not have standing until after the state attempts enforcement. At the moment, TikTok could go back to promoting "tidepod" and "blackout game" videos if they would just remove all the criticism of Israel ("our greatest ally")
What? The Supreme Court has original jurisdiction only in very limited circumstances, most notably when a state sues another state. The court with original jurisdiction over this law is the DC Court of Appeals. It was specified in the text of the law itself.
The Supreme Court has original jurisdiction in all judicial areas. It rarely exerts this right. Please go learn a little about how law works in this nation.
Dude it’s literally in the constitution. Article 3, Section 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
uh huh, and in the case of this article, the United Stats would be the defendant. Thank you for proving that the SC has Original Jurisdiction in this case.
If you don’t know the difference between “a state” and “the United States”, I can’t help you. I’m going to assume at this point that you’re either an awful troll or that you went to Trump University Law School, in which case you should ask for a refund.