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Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

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Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#31

Post by ccvannorman »

If I had children aged 7-17 and felt China was intentionally nudging them via algorithmic suggestions away from STEM and toward vapidness, and if I was unable to control their access to it, I guess I might appreciate that my government had banned it. But, as others have mentioned, it sets a dangerous precedent. If nothing else, this attempted ban has raised national awareness about the negative impacts of TikTok. What could the US Federal Government do instead, assuming it is important to consider such platforms as per their effects on the population?

If China sold candies that contained poison and marketed them to Us children, it would be easy, since the FDA prohibits this. If the FDA didn't exist, perhaps poisoned candy sales would prompt the creation of such a regulatory body.

So I guess I oppose the ban while recognizing the danger, and suggest we consider regulating digital goods in the same manner as consumable foods; if provable harmful effects are evident then that is grounds for a ban of a product on the basis of health protection.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#32

Post by femiagbabiaka »

psunavy03 wrote: post #20
femiagbabiaka wrote: post #17

Earlier quoted context omitted.

I mean there's an irony inherent in the way the Supreme Court works in the modern American era: judicial review is not present anywhere in the Constitution, and yet the Supreme Court uses it to uphold or strike down law according to the Constitution. It's inherently a broken branch of government and it was a mistake for the Democrats to base the last 50-70 years of social progress on leveraging it.

This is patently false. Marbury vs. Madison based the principle of judicial review on English common law inherited at the founding. Just because you say something with enough conviction does not make it true.

> Marbury vs. Madison based the principle of judicial review on English common law inherited at the founding.

I wasn't aware that the Constitution, the document, was English common law. Again, judicial review as a power of the court is not defined within the body of the Constitution. If it is, quote it please, I'll be happy to acquiesce.

Oh wait.. https://www.uscourts.gov/about-federal-courts/educational-re....

> Just because you say something with enough conviction does not make it true.

Indeed.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#33

Post by emmelaich »

kelseyfrog wrote: post #8

The authors Ashley Gorski and Patrick Toomey seem to think that the rule of law and advocating for consistent ruling on constitutionality will have an effect. If I’ve learned anything about how the Supreme Court works, it’s that this is a political calculation, not a legal one. The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.

Can you give a recent (last 20 years) example of a Supreme Court political not legal decision?

FWIW, I think the Supreme Court will not uphold the ban. But TBH I don't know the details of the 'ban'.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#35

Post by bilbo0s »

ranger_danger wrote: post #7

> If the Supreme Court allows the government to shut down an entire platform on such a flimsy evidentiary record, it would set a disturbing precedent for future government restrictions on online speech. Something something PATRIOT Act.

The patriot act was supported by everyone when it became law. In fact, one senator had the unmitigated gall to ask the rest of congress, “but what about Constitutional freedoms?”. So the rest of us promptly removed him from office and replaced him with a more law and order type guy. That was pretty much the only resistance to that law at the time.

All that to say, you get what you vote for. And we’ve been voting very poorly for well over thirty years. In any organization, you hire that poorly for that long and you will naturally have some deleterious consequences.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#36

Post by paxys »

breadwinner wrote: post #9

TikTok is NOT being banned. TikTok can continue unmodified if it transfers ownership to anyone outside China.

That's pointless misdirection.

"I'll burn down your house unless you sell it to me for $1"

See, that's not arson, because you always had a way out.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#37

Post by matthewdgreen »

teqsun wrote: post #12
Jimmc414 wrote: post #2

First, let me preface that I despise TikTok and I think it is mostly garbage content-wise, however this proposal is simply un-American. Concerns about data privacy and foreign influence are legit, but banning an entire communication platform used by 170 million Americans based on hypothetical threats goes against core First Amendment principles especially considering the government's inability to provide concrete evi…

In a strange way, if it was a blanket China ban, it would almost feel less arbitrary than this, which was crafted to target ByteDance. The fact they packaged it inside a funding bill that would have been politically unpopular for Congress to oppose also makes me speculate that they felt it wasn't strong enough to stand up to scrutiny on its own merits

The law technically doesn't limit itself to TikTok. It seems to cover any application or foreign company that meets certain criteria, which include (1) the President identifying it and writing some reports, and (2) some restrictions on the nature of the app, which would cover other social media. It is obviously written to cover TikTok initially (the name even appears in the bill) but the powers it grants are broader. Not sure if this is better or worse.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#38

Post by archagon »

philips wrote: post #19
kelseyfrog wrote: post #8

The authors Ashley Gorski and Patrick Toomey seem to think that the rule of law and advocating for consistent ruling on constitutionality will have an effect. If I’ve learned anything about how the Supreme Court works, it’s that this is a political calculation, not a legal one. The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.

I share your cynicism. Do you see any way out? I feel the same way about the supreme court justices today as I do about Senators for lightly populated states: people operating with little oversight and with little to no accountability to the people who they hold power over. The bigger problem with the Supreme Court is that, largely, the political calculus is mostly cemented for life of the justice. The only way out I…

There needs to be critical mass for protest and disruption. Palpable anger out on the streets. Unfortunately, we don’t have that right now.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#39

Post by ccvannorman »

ccvannorman wrote: post #31

If I had children aged 7-17 and felt China was intentionally nudging them via algorithmic suggestions away from STEM and toward vapidness, and if I was unable to control their access to it, I guess I might appreciate that my government had banned it. But, as others have mentioned, it sets a dangerous precedent. If nothing else, this attempted ban has raised national awareness about the negative impacts of TikTok. Wha…

A very naive and hopeful part of me would wish for Facebook, Twitter, and other vapidness-enhancing platforms be regulated too. But the untrusting, freedom loving red-blooded American in me is also wary of government controls and power consolidation bordering on censorship. No easy answers I suppose; we'll just have to find a way to thrive in spite of platforms that profit from our wasted time.

Re: Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

#40

Post by Hizonner »

paxys wrote: post #15
Hizonner wrote: post #5

Earlier quoted context omitted.

Turns out that US law (and custom) says the US can't do that particular kind of "tit for tat". I wasn't aware that China had a veto over the US Constitution.

Is it? Congress has the authority to regulate international trade. If TikTok was shipping books into the USA no one would be arguing whether it would be constitutional to ban them or not. The constitution hasn't been updated for the internet and smartphones but they absolutely can be governed the same way, as courts have ruled over and over again.

> Is it? Congress has the authority to regulate international trade.

Not as a pretext for speech regulation. And the right to free speech in the US is understood to include the right to listen.

> If TikTok was shipping books into the USA no one would be arguing whether it would be constitutional to ban them or not.

I'd like to think nobody would be arguing, because that would be clearly unconstitutional. But in fact people probably would try to claim it was somehow acceptable. They'd be wrong.

They might get away with a ban on all books from a given country, if they could show it was really, truly intended to affect only the physical process of printing and the market for that service. The instant it's even peripherally intended to affect the content, it's unconstitutional. And the TikTok thing is about content and who controls content.

You could buy obvious Russian propaganda in the US in the middle of the Cold War.

> The constitution hasn't been updated for the internet and smartphones but they absolutely can be governed the same way, as courts have ruled over and over again.

Great. Since banning book imports would be blatantly unconstitutional, so is this bullshit.

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