“The law defined the term “controlled by a foreign adversary” to include not only companies owned wholly by Chinese entities but also one in which a citizen of an adversarial nation “directly or indirectly own[s] at least a 20 percent stake.” In other words, even if the overwhelming majority of a company’s shares were owned by Americans, it could be banned or forced to divest so long as the remaining shares were held by Chinese, Russian, or Iranian citizens.
In order to continue operating within the United States, the only recourse would be to sell TikTok to an American company by January 19, 2025—Joe Biden’s last full day in office.
TikTok and ByteDance sued, asking courts to declare the law unconstitutional. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban,” the lawsuit argued. Lawmakers’ “speculative concerns fall far short of what is required when First Amendment rights are at stake.”
The plaintiffs claimed that the law’s restrictions were subject to strict scrutiny—the highest standard of review that a court can apply to an action, reserved for potential burdens on fundamental constitutional rights. “The Act represents a content- and viewpoint-based restriction on protected speech,” the lawsuit said, and the law’s divest-or-be-banned provision constitutes “an unlawful prior restraint.”
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“a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled against the plaintiffs, finding “the Government’s justifications are compelling” and that it did not violate the First Amendment for the state to single out one company for disfavored treatment.
“We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities, survive constitutional scrutiny,” Senior Judge Douglas Ginsburg wrote for the majority. “We therefore deny the petitions.”
Ginsburg notes that while the law does require “heightened scrutiny,” it satisfies the requirements of strict scrutiny because of how narrowly tailored it was: “The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents. It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the PRC.”
In fact, that “national security threat” was not very “well-substantiated” at all—but the court didn’t seem to mind.
“TikTok contends the Government’s content-manipulation rationale is speculative and based upon factual errors,” Ginsburg wrote, referring to lawmakers’ concerns that Beijing could manipulate content on TikTok to promote Chinese propaganda. “TikTok fails, however, to grapple fully with the Government’s submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States.” But “the Government is aware ‘that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China'” and “‘have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC.'”
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“It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government’s lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok,” Ginsburg shrugs. “In any event, the Government reasonably predicts that TikTok ‘would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes’ in the United States.”
The court’s decision is yet another instance where vague claims of “national security” trump individuals’ First Amendment rights. Claiming that Congress has the authority to force a company to sell one of its holdings—not through an established power like antitrust, but simply because they don’t like how it could be used in the future—is not only a weak justification; it is a plainly unconstitutional one.”
“Floridians this fall will vote on a constitutional “Amendment to Limit Government Interference with Abortion.” So authorities decided to interfere with free speech in an attempt to thwart voters from limiting the government’s right to interfere in reproductive decisions. The state threatened TV stations with criminal penalties for running an ad supporting the abortion initiative (known as Amendment 4).
A federal judge isn’t impressed. “To keep it simple for the State of Florida: it’s the First Amendment, stupid,” wrote U.S. District Judge Mark E. Walker in an October 17 opinion.”
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” The ad in question is “political speech—speech at the core of the First Amendment,” notes Judge Walker. “And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false.'””
“Trump has repeatedly re-upped the idea that broadcast licenses should be contingent on whether they are used to air content that offends him. Last November, for instance, he complained that MSNBC “uses FREE government approved airwaves” to execute “a 24 hour hit job on Donald J. Trump and the Republican Party for purposes of ELECTION INTERFERENCE.” He declared that “our so-called ‘government’ should come down hard on them and make them pay for their illegal political activity.”
That jeremiad was nonsensical in at least two ways. First, there is nothing “illegal” about MSNBC’s anti-Trump content; to the contrary, the criticism to which Trump objects is constitutionally protected speech. Second, MSNBC is a cable channel, so it does not use “government approved airwaves” to transmit its programming and therefore does not need a broadcast license to operate.”
“The law, Assembly Bill 2839 makes it illegal for an individual to produce “knowingly distributing an advertisement or other election communication, as defined, that contains certain materially deceptive content,” within 120 days of an election and up to 60 days after. Affected candidates can file for a civil action enjoining distribution of the media, and seek damages from its creator.”
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“content creator Christopher Kohls filed a lawsuit arguing the law was overbroad, violating his First Amendment rights to make parody content. Kohls has a YouTube channel with more than 300,000 subscribers, and his videos often consist of political parodies featuring political candidates seemingly mocking themselves.”
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“Judge John A. Mendes, a judge on the United States District Court for the Eastern District of California, sided with Kohls, ruling that the law doesn’t pass constitutional muster because it does not use “the least restrictive means available for advancing the State’s interest.”
“Counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them,” Mendez’s opinion reads. “AB 2839 is unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny.”
Mendez’s ruling argues that the law, which is aimed at cracking down on “deepfakes” and other forms of false speech intended at misrepresenting an opponent’s views and actions, ends up making illegal a much wider range of speech than these specific statements.
“While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word ‘defamation’ and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is ‘reasonably likely’ to harm the ‘reputation or electoral prospects of a candidate.'”
While the law did contain a provision exempting parody content that contains a disclosure, the requirement was onerous, mandating that it be “no smaller than the largest font size of other text appearing in the visual media.”
Just one part of the law was found to pass constitutional muster—a requirement audio-only media be disclosed at the beginning at the message, and every two minutes during the duration of the content.
“While the Court gives substantial weight to the fact that the California Legislature has a ‘compelling interest in protecting free and fair elections,’ this interest must be served by narrowly tailored ends.” Mendez writes. “Supreme Court precedent illuminates that while a wellfounded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment.””
“there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.”
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“Although the Supreme Court has never had the occasion to adjudicate an actual dispute involving a person yelling “fire” in a crowded theater, the Court did at least narrow its “clear and present danger test” in 1969, setting a higher standard for imminent incitement of lawless action.””
“You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”
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“the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.
So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day”
“The Biden administration did pressure Meta, as well as its competitors, to crack down on Covid-19 misinformation throughout the pandemic. In 2021, Surgeon General Vivek Murthy called it “an urgent threat,” and Biden himself said that misinformation was “killing people,” a statement he later walked back. This pressure was also at the center of a recent Supreme Court case, in which justices ruled in favor of the Biden administration.
We also knew that Meta, then known simply as Facebook, pushed back at efforts to stop the spread of misinformation on its platforms. Not long after Biden’s “killing people” remark, leaked company documents revealed that Facebook knew that vaccine misinformation on its platforms was undermining its own goal of protecting the vaccine rollout and was causing harm. It even studied the broader problem and produced several internal reports on the spread of misinformation, but despite pressure from Congress, Facebook failed to share that research with lawmakers at the time.
We actually learned about the specific kind of pressure the White House put on Facebook a year ago, thanks to documents the company turned over to, you guessed it, Jim Jordan and the House Judiciary Committee.
The Biden administration issued a statement after Zuckerberg’s latest letter became public. It said, in part, “Our position has been clear and consistent: We believe tech companies and other private actors should take into account the effects their actions have on the American people, while making independent choices about the information they present.”
But the Zuckerberg letter didn’t stop with details of the well-known crackdown on Covid misinformation. It also reminds the public of the time, ahead of the 2020 election, the FBI warned social media companies that a New York Post article about Hunter Biden’s laptop could be part of a Russian disinformation campaign. Without mentioning any direct pressure from the government, Zuckerberg says in the letter that his company demoted the laptop story while it conducted a fact-check. He told podcaster Joe Rogan something similar in a 2022 interview, when he mentioned that an FBI disinformation warning contributed to the decision to suppress the story. Twitter also suppressed the laptop story, and its executives denied that there was pressure from Democrats or law enforcement to do so.
Zuckerberg also addresses some donations he made to voting access efforts in the 2020 election through his family’s philanthropic foundation. “My goal is to be neutral and not play a role one way or another — or to even appear to be playing a role,” the billionaire said. “So I don’t plan on making a similar contribution this cycle.” The House Judiciary Committee responded in a tweet, “Mark Zuckerberg also tells the Judiciary Committee that he won’t spend money this election cycle. That’s right, no more Zuck-bucks.” Neither party mentioned that Zuckerberg also declined to make a contribution in the 2022 cycle for the same reasons.
The right is taking a victory lap over this Zuckerberg letter. Others are simply wondering why on earth, on an otherwise quiet week in August, did Zuckerberg even bother to remind us of all of these familiar facts?
“As part of “Operación Tun Tun” (Operation Knock Knock), the regime is showcasing its crusade against dissent on social media and national television. Videos typically begin with footage of a protester, followed by music from A Nightmare on Elm Street and scenes of heavily armed officers detaining the individual. Reports indicate that detainees have been subjected to torture, cruel treatment, and drugs to extract false confessions.”