• New Challenges to the First Amendment from the Biden Administration

    April 3, 2024

    Posted in: Democracy

    The great irony is despite all the fear mongering spewed out about Donald Trump ending democracy, it is mostly the Democrats who are taking shots at its most sacred freedoms, those of the First Amendment.

    The House recently passed a bill, HR 7521, seeking to “ban” the popular app Tik Tok from America’s smartphones. The logic works like this: Tik Tok is owned by a Chinese company. Chinese companies are under the control of the Chinese Communists. Therefore, Tik Tok is brainwashing American youth while at the same time gathering their personal data for some undefined yet assumed nefarious use. Tik Tok thus should be banned.

    No evidence has been presented for any of the assertions listed — no evidence the Chinese government exerts control over Tik Tok, whose contents are 100 percent user-created, no evidence the app has any purpose other than to make money, and no evidence the app collects data and uses it in some way, nefarious or not. It just feels scary bad, like any other Red Scare, and so the House moved to ban it. The Senate votes soon, and Joe Biden says he will sign the bill if it reaches him.

    This is not the first time the government has tried to ban Tik Tok. In 2021, President Donald Trump issued an executive order against Tik Tok that was halted in federal court when a judge found it was “arbitrary and capricious.” Another judge found that the national security threat posted by Tik Tok was “phrased in the hypothetical.” When the state of Montana tried to ban the app in 2023, a federal judge found it “oversteps state power and infringes on the constitutional rights of users,” with a “pervasive undertone of anti-Chinese sentiment.” Candidate Trump now opposes the Tik Tok ban.

    You’d think that was enough for Tik Tok. Yet note the ban is just on some Chinese company owning the app and the bill allows for an American company or ally to buy Tik Tok and go on its merry way. It’s not a ban, it’s a hijacking. And don’t think the Chinese won’t find an American app to retaliate against. Listening Apple and Android?

    But that is not where the true First Amendment challenge lies, though “banning” the app can itself be seen as restricting speech. The real challenge lies in the details of the actual bill, another Patriot Act in hiding.

    Section 2(a)(1) of the bill prohibits “foreign adversary controlled applications” (FACA) from operating in the U.S. The prohibition applies not just to the app itself but to app stores and Internet hosting providers. There’s even a provision for a penalty of $5,000 per user fine; Tik Tok has 170 million users. Effectively, the bill creates a Federal government kill switch preventing distribution of “prohibited” apps or websites at the hosting level, clear top-down central government censorship of speech and absolutely unconstitutional under the First Amendment. Unless of course the weasel excuse is used that the actual killing of the imported app is carried out by Apple and Google as proxies without being touched by the Feds, the same trick currently used to gather American citizen data, in addition to direct hoovering up of material by the NSA on a scale the Chinese could only dream of.

    What is a “foreign adversary controlled application” under Section 2(g)(3) of the new bill? Any social/content-sharing website, desktop app, mobile app, or VR app that has more than a million monthly active users creating content is a FACA when two conditions are met: First, if it is controlled by a foreign adversary” or a subsidiary of or a successor to an entity controlled by a foreign adversary. Second, if the President determines it presents a significant threat to the national security of the United States.” The term “controlled by a foreign adversary” means that the company (a) is domiciled in, headquartered in, or organized under the laws of a foreign adversary country; or (b) has a 20 percent ownership group from one of those countries; or (c) is “subject to the direction or control of a foreign person or entity” from one of those countries (Section 2(g)(1). “Adversary” is currently defined elsewhere in the U.S. Code as Russia, China, North Korea or Iran, but can be changed to someday be, say, France (remember “Freedom Fries“?)

    There in the details lies the real challenge to the First Amendment, a set of vague criteria that allow the president to ban websites and apps based on his own finding of threat. No appeals, no due process. Censorship.

    Americans have a right to speak freely, and to listen/read/watch freely and make up their own minds. The Supreme Court in Lamont v. Postmaster General already ruled in 1964 that this right even extends to foreign propaganda (the case involved Soviet propaganda materials passing through the U.S. Mail.) In addition, the irony of the U.S. government showing concern for what a foreign company might do with user data when in the U.S. such data is openly for sale, including to the government itself, cannot be dismissed. The Tik Tok ban is bad law, likely unconstitutional, and generally unconscionable.

     

    The Tik Tok bill is not the only current challenge to the First Amendment. As exposed by the Twitter Files and elsewhere, for years the Biden administration worked hand-in-glove with the big tech social media companies, @jack’s old Twitter in particular, to censor speech. Various agencies, including those responsible for Covid-19 policy, would contact the media companies to demand wrongthink posts be taken down. Particularly offensive were conservative posts questioning the efficiency and safety of the Covid vaccine, and those dealing with election fraud.

    The question of whether or not the government can do that — demanding specific online speech be killed — reached the Supreme Court, and oral arguments were held earlier this month in the case of Murthy v. Missouri. The Court seemed skeptical of the idea that such action by the government was unconstitutional on its face, as the states claimed. Instead, the justices’ questions seemed to lean toward how the censorship was done. The government was free to persuade social media carriers, cajole them, argue with them but as long as the government did not force them to take something down, it was likely legal. The states contend the looming power of the federal government made each request, however bland and polite, into a threat. Same as when the mafia thug in the movies says “Nice home you have here, hate to see anything happen to it if you’re late paying us.” In one interaction a government watchdog seeking to deep six some posts stated “the White House is considering its options” if the take down effort fails.

    There was room for debate. Justice Alito stated “When I see the White House and Federal officials repeatedly saying that Facebook and the Federal government should be partners… regular meetings, constant pestering… Wow, I cannot imagine Federal officials taking that approach to print media.” Alito also thought the barrage of emails from the White House and others to the social media companies may have met the legal standard for coercion. The states agreed, saying “Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit. That’s just being a bully… We don’t need coercion as a theory. The government ‘cannot induce, encourage or promote’ to get private actors to do what government cannot: censor Americans’ speech.”

    Justice Kentaji Brown Jackson came back with “Whether or not the government can do this… depends on the application of our First Amendment jurisprudence. There may be circumstances in which the government could prohibit certain speech on the internet or otherwise. My biggest concern is that your view has the First Amendment hamstringing the government in significant ways.”

    Justice Barrett seemed uncomfortable with the lower courts’ conclusion that the Biden administration could be banned not only from “coercion,” but also from any action that “significantly encourages” platforms to take down protected speech. “Encouragement would sweep in an awful lot,” she said.

    Interactions between administration officials and news outlets are part of a valuable dialogue that is not prohibited by the First Amendment, said Justices Kavanaugh and Kagan. The Justices suggested instead there is a role for vigorous efforts by the government to combat bad speech, for example discouraging posts harmful to children or conveying anti-Semitic or Islamophobic messages.

    Brown’s, et al, remarks are frightening from a constitutional point of view, basically saying when the government is ineffective in creating dominant content of its own to address public messaging (i.e., “Vaccines are safe”) it justifies proxy censorship to eliminate counter information.

    A Supreme Court decision is expected in June.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

  • Recent Comments

    • Rich Bauer said...

      1

      “The real challenge lies in the details of the actual bill, another Patriot Act in hiding.”

      Very astute. Both the PA and the TikTok proposed ban are the overreactions a blind giant government intelligence system flailing about to deal with problems of its own making. China’s TikTok psyop is merely copying our own global propaganda psyop. The PA was an overreaction to the failure of the CIA to cooperate with the FBI to track the Saudi terrorists, not to mention the incompetence of the State Department to issue visas to the terrorists without an interview. The PA push was aided by the “coincidental” Anthrax letters used to scare reticent politicos to pass it. The FBI was more than happy to bury its investigation along with the body of patsy Bruce Ivins. No one wanted to know who really mailed the letters as it worked out so wonderfully for the PA.

      Frankly, everyone has their own agenda. Even you. You could have titled the article, “Could a TikTok ban be a second Patriot Act” , but you had to tie it to the Biden Admin, when the Repugs were the ones pushing the ban. Trump took a bribe to change his mind about TikTok. Of course, we know money is ALWAYS his agenda. So what is yours, hmmmm?

      04/3/24 9:56 PM | Comment Link

    • Rich Bauer said...

      2

      8It is funny to hear Donnie Diapers Defender of Amerika is against banning China TikTok fearing it will infringe on our Free Speech, given the guy thinks China is the gravest threat to the country. DD was in favor of a US ban on the Chinese owners of TikTok. What changed? Did Putin send China sex tapes of DD. Oh wait, money talks.

      “There are a lot of people on TikTok that love it. There are a lot of young kids on TikTok who will go crazy without it,” Trump fears that without it “you can make Facebook bigger and I consider Facebook to be an enemy of the people”. : “I think Facebook has been very bad for our country, especially when it comes to elections.” Trump said banning TikTok would help “Facebook and Zuckerschmuck double their business”, referring to Meta’s CEO, Mark Zuckerberg.

      Whew, and I thought I had misjudged the orange clown there for a minute.

      04/4/24 11:02 AM | Comment Link

    • Rich Bauer said...

      3

      “Americans have a right to speak freely, and to listen/read/watch freely and make up their own minds.”

      You plagiarized this line from “1984”, right?

      04/8/24 12:23 PM | Comment Link

    • Rich Bauer said...

      4

      “The great irony is despite all the fear mongering spewed out about Donald Trump ending democracy…”

      Fear mongering. I assume you mean the EXAGGERATION OF DANGER. Geez, Orwell ain’t got nuthin on you on rewriting history. I don’t know if you heard about the Great Exaggerator’s January 6 dustup, but it was dangerous for some law enforcement officers at the Capitol that day. Just because the Great Exaggerator couldn’t coup his way out of a paper bag, you have to admit he did the best he could. It was his intention to end democracy. As for the new fear of ending democracy, DD is way ahead of you. If DD wins the election, he can resign at anytime and pardoned by his VP. DD has not reached the limit of his vulgarities. He is right about one thing: if you are rich and famous they let you do it. The irony is he won’t be rich for very long. He will still be famous. But So is Charles Manson.

      04/8/24 8:35 PM | Comment Link

    • Rich Bauer said...

      5

      Donald Trump: ‘I Could … Shoot Somebody on Fifth Avenue And I Wouldn’t Lose Any Voters’

      Donald Trump: I sent a dumbass mob to the Capitol and got law enforcement officers injured and killed, and I won’t lose any voters.

      04/9/24 8:53 AM | Comment Link

    • Rich Bauer said...

      6

      TikTok, the clown is running out the clock

      MAGA blind mice take note: it is apparent even to a blind man Donnie Diapers doesn’t care about your freedom of speech. It’s just business. Hell, he doesn’t even care about Roe v Wade. He just came out as pro choice leaving it for states to choose to decide.

      MAGA mice, MAGA mice,
      See how they run, see how they run,
      They all ran after WOMEN’s ABORTION RIGHTS
      Who will cut MAGA off with THEIR VOTING RIGHTS
      Did you ever see such a thing in your life,
      As MAGA mice?

      04/9/24 1:45 PM | Comment Link

    • Rich Bauer said...

      7

      Freedom is a dangerous thing in the wrong hands.

      Donnie Diapers says he wants a civil war if his freedom is threatened. Diapers started a civil war the day he killed women’s freedom by killing Roe v Wade. Now in a stunning Arizona court ruling reviving a 1864 Civil War-era abortion ban, Diapers has lost the war, as well as his freedom. Diapers spoke mistakenly he had taken the issue of abortion “largely out of play” for the 2024 election, but women have found their voice. They couldn’t vote back in 1864.

      Today Women: hear me roar.

      04/10/24 8:19 AM | Comment Link

    • Rich Bauer said...

      8

      Whether Peter has been brainwashed by China TikTok or paid to say nice things about it, it is comical for him to suggest brainwashing cant influence dumbass American minds. FFS, Faux News has brainwashed over 60 million dumbass Americans to believe Hugo Chavez rigged the 2020 election. Faux learned from the New York Times, MSNBC and the other corrupt media who took money from the MIC to cheerlead war crimes.

      There is no vaccine to prevent brainwashing. There is a defense: critical thinking.

      04/10/24 4:39 PM | Comment Link

    • Rich Bauer said...

      9

      The great irony is China banned TikTok and FB. What does it know?

      04/11/24 11:31 AM | Comment Link

    • Rich Bauer said...

      10

      TikTok, the app got clocked 360-58.

      Haven’t seen such a lopsided vote since Trump lost the 2024 Electoral College. The guy is running out of gas. Oh wait,

      MAGA: Trump making awful gas again.

      04/20/24 7:08 PM | Comment Link

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