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I’m not arguing it’s a restriction on TikTok’s speech or bytedance’s speech. It’s a restriction on my speech. Telling me where I can publish a video? Telling

I’m not arguing it’s a restriction on TikTok’s speech or bytedance’s speech. It’s a restriction on my speech. Telling me where I can publish a video? Telling me what apps I can download? Telling my software vendor what software they’re allowed to let me get? Telling internet providers what servers they’re allowed to let my device access? The law doesn’t fine TikTok. The law fines the people who let me download an application I’ve chosen to use. At $5,000 per instance. It’s not about TikTok’s rights being violated. It’s about mine, and yours.

abigail95 2y ago
There isn't this much fuss about the foreign ownership of physical and broadcast media laws. Is the difference really about whether you can post on the platform or not?
- djcapelis 2y ago
  I think that’s a huge difference, yes. And about what apps my phone is able to download, and what servers it is able to access. Another huge difference is broadcasting is about usage of a shared resource and has always had regulations on who is allowed to do what. They don’t ban RT from setting up their own venue or printing a newspaper. RT and other outlets are able to operate in the US and people are able to chose to watch them.
  - corimaith 2y ago
    Why is it a huge difference? If you want absolute free speech places like 4chan will offer far more freedom than even TikTok ever would.
threeseed 2y ago
> It’s a restriction on my speech. Telling me where I can publish a video? Telling me what apps I can download? Telling my software vendor what software they’re allowed to let me get? Telling internet providers what servers they’re allowed to let my device access? You are being ridiculous now. None of those are forms of speech. And restrictions on your ability to perform certain actions is literally what being in a society is about. If you don't like it then find another society. Just like you can find another ISP, place to publish your video or platform to use apps you want to use.
- djcapelis 2y ago
  Whether you think it’s ridiculous or not, restrictions on distribution of software being a violation of US free speech rights has been an established part of US case law for around three decades now: https://www.eff.org/deeplinks/2015/04/remembering-case-established-code-speech https://www.eff.org/deeplinks/2015/04/remembering-case-estab...
  - patcon 2y ago
    I also feel you are being a bit absurdist fwiw. I am know the be a principled devils advocate sometimes, so I'm reading you as that, otherwise your position as an American makes very little sense to me
    - djcapelis 2y ago
      The justices on the Supreme Court analyzed the constitutionality of this law under a free speech basis. The Per Curiam opinion of the court suggested the correct standard was intermediate scrutiny as an abridgment of free speech. Justice Sotomayor suggested in her concurrence that strict scrutiny (the highest standard) was appropriate. They concluded that these regulations were okay at those levels of scrutiny, but it is not absurd or ridiculous to analyze these as forms of speech, and indeed, our courts do so. That said, just because there is a conflict with freedom of speech doesn’t prevent all government regulation, it just means the laws involved must pass an elevated level of scrutiny. That applies here, for multiple reasons, and with multiple parties.
  - harshreality 2y ago
    I'm skeptical that Bernstein vs DOJ would apply, to a [foreign-controlled] company that is not publishing their algorithm, on the idea that allowing their [trade-secret] code to control how hundreds of millions of people interact with each other is somehow free speech on ByteDance's part. The foreign-controlled part in particular implicates Congress's obvious and explicit power to regulate international trade, and it seems obvious to me that there would be something less than strict scrutiny applied to alleged violations of the 1A when that Congressional power is in play.
marsten 2y ago
No court in the land will agree with your interpretation. The first amendment protects speech, but it doesn't grant you the right to publish that speech wherever you want. If it did then Facebook couldn't ban people from its platform, for example.
- djcapelis 2y ago
  The first amendment enjoins the government from actions. Private companies are welcome to ban or regulate their own venues as they see fit.
moussess 2y ago
The Supreme Court with its unanimous decision made it very very clear it’s not about freedom of speech, but about foreign adversary having access to data profile of 180 million US citizens. And believe in lawmakers argument of foreign adversary propaganda to those citizens. Why do people on hacker news keep drudging up freedom of speech ad nauseum??
- djcapelis 2y ago
  Did you read the opinion? It did its analysis as requiring some level of scrutiny because of the free speech implications under intermediate (and in Sofomayor’s concurrence strict) scrutiny. It held the national security concern outweighed the free speech concern but it absolutely did not say it was relevant in the analysis.
  - moussess 2y ago
    Of course I read it, opinion said “ At the same time, a law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny” And the opinion talks about foreign adversary, those exact words, at least 30 times. It mentioned freedom of speech twice
    - DangitBobby 2y ago
      So it was a free speech issue, wild.
- jmye 2y ago
  Because they read random crap on X they thought sounded smart and are now simply regurgitating it with no further thought or consideration. And “free speech absolutism (for me, not for you or anyone else)” is the current right-wing cause celebre.
- etc-hosts 2y ago
  It's really about how the US gov is concerned that an app installed on half of all US cell phones is controlled by a company that is not 100 percent beholden to the US gov and stock market regulation, by a company that doesn't have to instantly respond to pressure from the Executive branch, could possibly refuse to instantly comply from pressure from US intelligence agencies, could refuse to comply with search requests from US law enforcement, and extensive lobbying from Facebook to cripple a competitor that Facebook ignored until it was too late. It's not a free speech issue. Given that the infra for serving US tiktok customers is in the United States(inside of Oracle Cloud), I am curious if Tiktok/bytedance responds to US law enforcement requests.
JumpCrisscross 2y ago
> Telling me where I can publish a video? This is like arguing graffiti laws are censorship.
- djcapelis 2y ago
  Graffiti laws are also evaluated under heightened scrutiny due to free speech implications. A law having an impact on free speech does not mean it never holds, but it must be analyzed in that context. Here’s an example: https://southerncalifornialawreview.com/wp-content/uploads/2018/01/85_205.pdf https://southerncalifornialawreview.com/wp-content/uploads/2...
  - JumpCrisscross 2y ago
    > Graffiti laws are also evaluated under heightened scrutiny due to free speech implications Graffiti bans are unquestionably constitutional. Graffiti laws that regulate the content are not. Telling people where they can speak is precedented, legal and necessary. Telling people what they can say is against the principles of free speech; the government doing so is illegal.
mckenzba 2y ago
Show me where it is an infringement of your 1st amendment right to a private platform? You’re free to criticize the government however you see fit, but you’re not guaranteed the right to a microphone and stage that isn’t yours. There are plenty of other communication channels you can use to express yourself. Your 1st amendment rights are not being infringed by being denied access to TikTok, just as the far right isn’t having their 1st amendment rights being infringed by being denied to use BlueSky as their platform.
- echoangle 2y ago
  > You’re free to criticize the government however you see fit, but you’re not guaranteed the right to a microphone and stage that isn’t yours. So if I wanted to hold a speech how corrupt the government is and then the government passed a law that a PA supplier isn't allowed to sell me a Microphone or speakers, that wouldn't infringe my first amendment right because I don't have a right to a microphone or a stage? (Im not American so I don't have any first amendment rights anyways but for arguments sake.)
  - anon84873628 2y ago
    Yes, a court could reach that conclusion. It's the PA supplier would be in a better position to argue that their rights are being violated. Especially if a single customer was targeted because of their political views / protected characteristics etc. The problem with the TikTok scenario is that no specific group is being targeted for restraint. And the government does have the right to regulate trade. E.g. there are embargoed countries, export controls, etc. The fact that you can't sell raw milk across state lines is different from a hypothetical restriction on selling raw milk to, say, people named Todd.
  - imgabe 2y ago
    No, it wouldn’t. Congress could pass a law that we’re not going to import microphones and speakers from China. The Constitution explicitly gives them the power to do that. You could then purchase them from any one of a number of other companies and your speech is unaffected.
- 2y ago
YurgenJurgensen 2y ago
The US need not restrict any of your speech. You’re not directly communicating with any of TikTok’s users when you post to it, TikTok is. In the Internet age, even apparent one-way communication is handshakes upon handshakes. Consider this: You’re free to send whatever messages you want to ByteDance. They’re just not allowed to reply (or have anyone reply on their behalf). The app is a useless binary blob if it can’t set up a TLS connection.
kristjansson 2y ago
The government isn’t banning TikTok, the law only requires a change in ownership. The current owners are choosing to performatively shut down in an attempt to bully their way through that requirement
kelnos 2y ago
I get that you believe that's what's happening, but I can't imagine any US court agreeing with you. The law (and the US constitution) does not guarantee any particular platform for your speech. It just guarantees that you can speak, and courts have interpreted that to mean that you need to have some reasonable platform, and that laws can't put an unreasonable burden on your ability to speak on some platform. As an aside: > Telling internet providers what servers they’re allowed to let my device access? The law does not target internet providers at all. They are not required to block traffic to *.tiktok.com or any of their IP addresses.

abigail95 2y ago

There isn't this much fuss about the foreign ownership of physical and broadcast media laws. Is the difference really about whether you can post on the platform or not?

djcapelis 2y ago
I think that’s a huge difference, yes. And about what apps my phone is able to download, and what servers it is able to access. Another huge difference is broadcasting is about usage of a shared resource and has always had regulations on who is allowed to do what. They don’t ban RT from setting up their own venue or printing a newspaper. RT and other outlets are able to operate in the US and people are able to chose to watch them.
- corimaith 2y ago
  Why is it a huge difference? If you want absolute free speech places like 4chan will offer far more freedom than even TikTok ever would.

threeseed 2y ago

> It’s a restriction on my speech. Telling me where I can publish a video? Telling me what apps I can download? Telling my software vendor what software they’re allowed to let me get? Telling internet providers what servers they’re allowed to let my device access? You are being ridiculous now. None of those are forms of speech. And restrictions on your ability to perform certain actions is literally what being in a society is about. If you don't like it then find another society. Just like you can find another ISP, place to publish your video or platform to use apps you want to use.

djcapelis 2y ago
Whether you think it’s ridiculous or not, restrictions on distribution of software being a violation of US free speech rights has been an established part of US case law for around three decades now: https://www.eff.org/deeplinks/2015/04/remembering-case-established-code-speech https://www.eff.org/deeplinks/2015/04/remembering-case-estab...
- patcon 2y ago
  I also feel you are being a bit absurdist fwiw. I am know the be a principled devils advocate sometimes, so I'm reading you as that, otherwise your position as an American makes very little sense to me
  - djcapelis 2y ago
    The justices on the Supreme Court analyzed the constitutionality of this law under a free speech basis. The Per Curiam opinion of the court suggested the correct standard was intermediate scrutiny as an abridgment of free speech. Justice Sotomayor suggested in her concurrence that strict scrutiny (the highest standard) was appropriate. They concluded that these regulations were okay at those levels of scrutiny, but it is not absurd or ridiculous to analyze these as forms of speech, and indeed, our courts do so. That said, just because there is a conflict with freedom of speech doesn’t prevent all government regulation, it just means the laws involved must pass an elevated level of scrutiny. That applies here, for multiple reasons, and with multiple parties.
- harshreality 2y ago
  I'm skeptical that Bernstein vs DOJ would apply, to a [foreign-controlled] company that is not publishing their algorithm, on the idea that allowing their [trade-secret] code to control how hundreds of millions of people interact with each other is somehow free speech on ByteDance's part. The foreign-controlled part in particular implicates Congress's obvious and explicit power to regulate international trade, and it seems obvious to me that there would be something less than strict scrutiny applied to alleged violations of the 1A when that Congressional power is in play.

marsten 2y ago

No court in the land will agree with your interpretation. The first amendment protects speech, but it doesn't grant you the right to publish that speech wherever you want. If it did then Facebook couldn't ban people from its platform, for example.

djcapelis 2y ago
The first amendment enjoins the government from actions. Private companies are welcome to ban or regulate their own venues as they see fit.

moussess 2y ago

The Supreme Court with its unanimous decision made it very very clear it’s not about freedom of speech, but about foreign adversary having access to data profile of 180 million US citizens. And believe in lawmakers argument of foreign adversary propaganda to those citizens. Why do people on hacker news keep drudging up freedom of speech ad nauseum??

djcapelis 2y ago
Did you read the opinion? It did its analysis as requiring some level of scrutiny because of the free speech implications under intermediate (and in Sofomayor’s concurrence strict) scrutiny. It held the national security concern outweighed the free speech concern but it absolutely did not say it was relevant in the analysis.
- moussess 2y ago
  Of course I read it, opinion said “ At the same time, a law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny” And the opinion talks about foreign adversary, those exact words, at least 30 times. It mentioned freedom of speech twice
  - DangitBobby 2y ago
    So it was a free speech issue, wild.
jmye 2y ago
Because they read random crap on X they thought sounded smart and are now simply regurgitating it with no further thought or consideration. And “free speech absolutism (for me, not for you or anyone else)” is the current right-wing cause celebre.
etc-hosts 2y ago
It's really about how the US gov is concerned that an app installed on half of all US cell phones is controlled by a company that is not 100 percent beholden to the US gov and stock market regulation, by a company that doesn't have to instantly respond to pressure from the Executive branch, could possibly refuse to instantly comply from pressure from US intelligence agencies, could refuse to comply with search requests from US law enforcement, and extensive lobbying from Facebook to cripple a competitor that Facebook ignored until it was too late. It's not a free speech issue. Given that the infra for serving US tiktok customers is in the United States(inside of Oracle Cloud), I am curious if Tiktok/bytedance responds to US law enforcement requests.

JumpCrisscross 2y ago

> Telling me where I can publish a video? This is like arguing graffiti laws are censorship.

djcapelis 2y ago
Graffiti laws are also evaluated under heightened scrutiny due to free speech implications. A law having an impact on free speech does not mean it never holds, but it must be analyzed in that context. Here’s an example: https://southerncalifornialawreview.com/wp-content/uploads/2018/01/85_205.pdf https://southerncalifornialawreview.com/wp-content/uploads/2...
- JumpCrisscross 2y ago
  > Graffiti laws are also evaluated under heightened scrutiny due to free speech implications Graffiti bans are unquestionably constitutional. Graffiti laws that regulate the content are not. Telling people where they can speak is precedented, legal and necessary. Telling people what they can say is against the principles of free speech; the government doing so is illegal.

mckenzba 2y ago

Show me where it is an infringement of your 1st amendment right to a private platform? You’re free to criticize the government however you see fit, but you’re not guaranteed the right to a microphone and stage that isn’t yours. There are plenty of other communication channels you can use to express yourself. Your 1st amendment rights are not being infringed by being denied access to TikTok, just as the far right isn’t having their 1st amendment rights being infringed by being denied to use BlueSky as their platform.

echoangle 2y ago
> You’re free to criticize the government however you see fit, but you’re not guaranteed the right to a microphone and stage that isn’t yours. So if I wanted to hold a speech how corrupt the government is and then the government passed a law that a PA supplier isn't allowed to sell me a Microphone or speakers, that wouldn't infringe my first amendment right because I don't have a right to a microphone or a stage? (Im not American so I don't have any first amendment rights anyways but for arguments sake.)
- anon84873628 2y ago
  Yes, a court could reach that conclusion. It's the PA supplier would be in a better position to argue that their rights are being violated. Especially if a single customer was targeted because of their political views / protected characteristics etc. The problem with the TikTok scenario is that no specific group is being targeted for restraint. And the government does have the right to regulate trade. E.g. there are embargoed countries, export controls, etc. The fact that you can't sell raw milk across state lines is different from a hypothetical restriction on selling raw milk to, say, people named Todd.
- imgabe 2y ago
  No, it wouldn’t. Congress could pass a law that we’re not going to import microphones and speakers from China. The Constitution explicitly gives them the power to do that. You could then purchase them from any one of a number of other companies and your speech is unaffected.
2y ago

YurgenJurgensen 2y ago

The US need not restrict any of your speech. You’re not directly communicating with any of TikTok’s users when you post to it, TikTok is. In the Internet age, even apparent one-way communication is handshakes upon handshakes. Consider this: You’re free to send whatever messages you want to ByteDance. They’re just not allowed to reply (or have anyone reply on their behalf). The app is a useless binary blob if it can’t set up a TLS connection.

kristjansson 2y ago

The government isn’t banning TikTok, the law only requires a change in ownership. The current owners are choosing to performatively shut down in an attempt to bully their way through that requirement

kelnos 2y ago

I get that you believe that's what's happening, but I can't imagine any US court agreeing with you. The law (and the US constitution) does not guarantee any particular platform for your speech. It just guarantees that you can speak, and courts have interpreted that to mean that you need to have some reasonable platform, and that laws can't put an unreasonable burden on your ability to speak on some platform. As an aside: > Telling internet providers what servers they’re allowed to let my device access? The law does not target internet providers at all. They are not required to block traffic to *.tiktok.com or any of their IP addresses.