“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.”
“Based on an analysis of posting behavior and subsequent suspensions on Twitter, Oxford Internet Institute professor Mohsen Mosleh and four other researchers confirmed that Republicans and conservatives were much more likely to run afoul of moderators than Democrats and progressives were. But they also found that right-leaning social media users were much more likely to share information from “low-quality news sites.” Those findings, the authors say, suggest that “differences in misinformation sharing can lead to politically asymmetric sanctions.”
I know what you’re thinking: Since “misinformation” is a vague, subjective, and highly contested category, it can easily serve as a cover for bias against particular opinions or ideologies. But Mosleh et al. took that possibility into account by judging the quality of news sites based on “trustworthiness ratings” by a nationally representative and “politically balanced” sample of 970 Republicans and Democrats. They also considered how sites ranked when they were rated only by the Republicans.”
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“Mosleh et al. found further evidence that “the tendency to share misinformation” is politically skewed when they analyzed data from seven other sources, including information about “YouGov respondents’ on-platform Facebook sharing in 2016,” “prolific respondents’ on-platform Twitter sharing in 2018,” and “the on-platform sharing of Twitter users sampled in various ways in 2021.” And again, that association was apparent based on the “politically balanced” trustworthiness assessments as well as “fact-checker ratings.”
These results are consistent with previous research, Mosleh et al. say. They cite studies finding that “links to websites that journalists and fact-checkers deemed to be low-quality ‘fake news’ sites were shared much more by conservatives than liberals on Facebook” during the 2016 election and the 2020 election and on Twitter during the 2016 election and during Donald Trump’s first impeachment.
Other studies have found that “conservatives on Twitter were much more likely to follow elites [who] made claims fact-checkers rated as false compared with Democrats” and that “Republican-oriented images on Facebook were much more likely to be rated as misleading than Democratic-oriented images.” Mosleh et al. also note evidence from surveys that “present participants with politically balanced sets of headlines,” which “typically find that conservatives indicate higher sharing intentions for articles deemed to be false by professional fact-checkers than liberals.”
Such associations can be seen in other countries as well as the United States. “A survey experiment conducted in 16 countries found widespread cross-cultural evidence of conservatives sharing more unambiguously false claims about COVID-19 than liberals,” Mosleh et al. note. “An examination of Twitter data found that conservative political elites shared links to lower-quality news sites than liberal political elites in the USA, Germany and the UK.””
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“”differential treatment of those on one versus the other side of the aisle does not on its own constitute evidence of political bias on the part of social media companies.””
“A Gallup and Walton Family Foundation study showed that Gen Z teens are twice as likely to identify as more conservative than their parents in comparison to millennials and their parents 20 years before. This was especially true for male Republican teenagers. Younger people are also more skeptical of major American institutions, including political parties, the government, and the media.
Trump’s campaign directly spoke to this demographic: He echoed that same mistrust in institutions, and did so while stopping at seemingly every podcast, Twitch stream, YouTube channel, and TikTok page whose viewership is dominated by Gen Z men and boys. He joined Adin Ross, a now 24-year-old streamer who once famously looked up and struggled to read the definition of “fascism” on camera, for an interview during which Ross presented Trump with a Rolex and a Cybertruck.
He went on the mulleted comedian Theo Von’s podcast, where they discussed cocaine, golf, and UFC.
He palled around with YouTube millionaires like the Paul brothers and the Nelk Boys, known for their distasteful pranks and crypto scams.
And, of course, he talked to Joe Rogan, the most famous podcaster in the world; the two rambled to each other for three hours. For this, he received Rogan’s much-coveted endorsement.”
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“Nearly half of men between 18 and 29 say there is “some or a lot” of discrimination against men in America, up from a third in 2019, according to the Survey Center on American Life, which is affiliated with the American Enterprise Institute, a right-leaning think tank. They believe the Me Too movement was an overreach and that many women are simply lying about being abused.
It’s not exactly surprising they’re drawn to media that speaks to these grievances — and more often than not, that media comes in the form of individual influencers who are unaffiliated with existing media institutions.”
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“men are even lonelier, more likely to be single, more skeptical, and more afraid than ever. They find solace and community online, in places that older folks still don’t understand, where they see idealized versions of masculinity winning. They cheer on UFC fights and boxing matches, use “edgy” slurs, trade in risky crypto investments, bootlick Silicon Valley billionaires, listen to toxic dating advice, and denigrate women.
They vote for a man who has done everything you’re not supposed to do — steal, lie, rape, idolize Hitler — because his election fulfills their fantasy that men really can get away with whatever they want.”
The algorithm is not free speech. It puts people in contact with misinformation and anger-inducing content. Inciting people to violence is not protected free speech. In England, people were attacked and property was destroyed because people were incensed by what turned out to be false information.
“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?
“So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court — with three justices joining both decisions — holds that the First Amendment still imposes some limits on the government’s ability to control what content appears online.
Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.”
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“That’s such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagan’s opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that “support Nazi ideology” or that “encourage teenage suicide and self-injury.”
In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.
As Kagan writes, the First Amendment does not permit the government to force platforms “to carry and promote user speech that they would rather discard or downplay.” She also cites several previous Supreme Court decisions that support this proposition, including its “seminal” decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over “the choice of material to go into” it.
Nothing in Kagan’s opinion breaks new legal ground — it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Court’s reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.
It’s also worth noting that Kagan’s decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.”
“As Corn-Revere points out, “adopted in 1996, Section 230 was proposed as a way to counter efforts to censor internet speech.” Prior to its passage, online platforms were treated as publishers of material posted on their sites if they made any attempt at moderation. They were incentivized to allow free-for-alls, or else scrutinize all content for legal liability—or not allow third parties to post anything at all.
Included in the Communications Decency Act, Section 230’s important provisions survived the voiding of most of that law on constitutional grounds. It reads, in part: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Those are the 26 words credited as creating the internet by Jeff Kosseff’s 2019 book. They also take the blame for what so many politicians hate about the online world.”
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“”For the biggest players, more carefully policing content would probably mean bolstering the ranks of thousands of hired moderators and facing down far more lawsuits,” added Shields and Brody. “For smaller players, the tech industry argues, it could prove ruinous.””
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“”The law is not a shield for Big Tech,” point out the Electronic Frontier Foundation’s (EFF) Aaron Mackey and Joe Mullin in defending Section 230. “Critically, the law benefits the millions of users who don’t have the resources to build and host their own blogs, email services, or social media sites, and instead rely on services to host that speech.””