"... and the recent, well-documented history of federal officials' extensive involvement in social-media censorship efforts directed at the speech of tens of millions Americans. This recent history sheds new light on the [TikTok] Act's stark restriction — a restriction which impacts the free-speech interests of over 170 million Americans.... [T]here are compelling reasons to stay the Act's deadline and allow President Trump to seek a negotiated resolution once in office...."
From Donald Trump's amicus brief in TikTok v. Garland. The brief, filed with the Supreme Court yesterday, supports neither party.
The deadline imposed by the act is one day before inauguration day, and that fits into an argument that the Congress has encroached on executive power.
Here's the NYT article on the subject, by Adam Liptak: "Trump Urges Supreme Court to Pause TikTok Ban/The president-elect took no position on the app’s First Amendment challenge to the law, which sets a Jan. 19 deadline to sell or close the popular platform." Excerpt:
Adopting a distinctive tone at odds with the sober and measured arguments more typical in Supreme Court advocacy, the brief instead touted Mr. Trump’s expertise.
“President Trump alone possesses the consummate deal-making expertise, the electoral mandate and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government — concerns which President Trump himself has acknowledged,” the brief said.
The brief doesn't merely tout Trump's expertise, it stresses the constitutional role of the President — all Presidents — in matters of foreign affairs.
ADDED: This is a helpful summary by Adam Feldman: "The Universe of TikTok v. Garland in a Nutshell/Everything you want to know about the case boiled down into a few pages" (Substack).
More briefs here, including TikTok's brief, here. I'm especially interested in "Legislators Repeatedly Expressed Disagreement With The Content On TikTok."
Posts
90 comments:
The United States Constitution does not protect foreign government apps designed to undermine our country.
Trump is 100% WRONG on this issue. Tik-Tok should be confiscated by the United States government, and then shut down so that investors the world over will understand the cost of investing in companies designed solely to undermine the United States.
And it should be noted that the President of the United States has ALREADY weighed in on this law. The President of the United States signed this law, passed by the Congress. The President of the United States - who has a constitutional role in ALL MATTERS of foreign policy ... has decided this matter already.
Donald Trump is NOT the President of the United States and he has absolutely zero standing to ask the Supreme Court do do ANYTHING.
Media has always wielded power and influence on politics and voters. The rise of social media has multiplied this by X. Trump clearly wants Tik Tok on his side for his benefit.
We are what we consume. Mind as well as body.
💯 There already was a political solution. Congress passed a law. The president signed it. That's the political solution.
@Dixcus It's an amicus brief, and it contains the required statement of Trump's interests.
"There already was a political solution. Congress passed a law. The president signed it. That's the political solution."
I think the Supreme Court is a bit more interested in freedom of speech than you are. Try steel-manning the argument you're so sure is wrong. You can read TikTok's brief as well as Trump's.
The court should reject Trumps brief, on standing grounds. The President of the United States has already decided this issue. There is nothing in dispute.
Still butthurt over losing X, I see.
It's been fun watching your ilk turn Bluesky into, well, kaka is a good word as happens with most things you touch.
If the Supreme Court was interested in Free Speech it would enjoin the United States government's attempts to regulate speech and has been presented several cases by the states in which it could have done precisely that. And yet it has not. I'd like to see some evidence of your false claim that this court is "interested" in free speech.
See Murthy v. Missour if you want to see a court uninterested in freedom of speech.
“We are what we consume. Mind as well as body.”
Ridiculous. We are also defined by by our lifestyle, environment and genetics.
I'm seeing 11 comments, 5 of which are by Dixcus, who's repeatedly saying he won't read the briefs or even understand what the arguments are. Don't keep commenting like that. It's spammy. Read the briefs and bring something new to the discussion or keep quiet for at least an hour.
So some foreign assets can be banned but other foreign assets (illegals) have US "rights". Hypocritical much!!
"Trump Urges Stay of S. Ct. Proceedings in TikTok Case, Delay of Statutory Effective Date"
https://reason.com/volokh/2024/12/27/trump-urges-stay-of-s-ct-proceedings-in-tiktok-case-delay-of-statutory-effective-date/
“ The court should reject Trumps brief, on standing grounds.”
Parties have Standing. Amici have interests. It’s considered bad form, at a minimum, for Amici to hide their interests. If significant undisclosed interests or biases are later discovered, courts can sanction the offending Amici, including striking their briefs, and maybe even referring their attorneys for bar discipline.
I would think that multiple avenues for speech make suppression less effective. So, I view this move with reserved optimism.
I've read the brief. Trump is arguing that the President of the United States has a unique interest in deciding this issue.
The brief is meritless, as the President of the United States has already decided the issues Trump is arguing, and Trump lacks standing because he doesn't represent the United States of America. The President does.
And Trump isn't the President.
The irony is that when the Trump admistration issued its pair of executive orders in August 2020 directed at TikTok and WeChat, a question was whether he was encroaching on Congress's power.
WeChat gets less attention since there is obviously non-Chinese equivalent. Without TikTok, how soon before it is replaced?
ed
And, yet, the Free Speech concerns of a majority of the Supreme Court may be, and likely are, different from yours. For Cert, it takes 4 votes. There are probably a fairly strong 3 votes on either side, with the necessity of picking off one of the other votes, of one of the other, relatively conservative, Justices. Of course, for that 4th Justice, (probably a) he needs to look at garnering a fifth, decisive vote.
In any case, the majority, by their political leanings, are unlikely to agree with you when it comes to prioritizing these issues.
I'll give a layman's opinion: good. Trump looks heroic, like he's fighting for the regular Americans who enjoy and make a living from TikTok.
How much does Biden's mental decline work in Trump's favor? Implied is that a competent POTUS could've avoided this whole court case by negotiating with the relevant parties.
Senator McConnell submitted an amicus brief against letting to statute be stayed past inauguration day. He pointed out that this litigation tactic is routinely rejected by the USSC in the cases of capital crime prisoners seeking stay of execution near the end of a presidential term.
His point covered lifestyle and the environment and you added genetics, bravo. That's the underlying theory that we have no free will. According to some modern neuroscientists we are merely meat puppets based on our genetics and environmental factors that we experience. Does the name Pavlov ring a bell?
No, President Trump isn't President yet. But he has managed to get your panties in a twist, so there's that. As well, as for joey bidet's signature on anything during his term. All of them should be questioned in light of his cognitive challenges even preceding his installation.
Making the deadline the day before inauguration is discussed as evidence of the real purpose of taking power from the office of the presidency. It was enacted when it was known that the current President was inert and susceptible to allowing his power to be diminished.
"Senator McConnell submitted an amicus brief against letting to statute be stayed past inauguration day. He pointed out that this litigation tactic is routinely rejected by the USSC in the cases of capital crime prisoners seeking stay of execution near the end of a presidential term."
Oh, he's sharp as a tack.
Professor?
This is the sort of thing that keeps me coming to your blog..
There is a legal issue.. Some person loudly spouts off about it..
You show that that person has little to NO understanding of Law..
gilbar learns (a little) about Law, and is once again impressed with Professor Althouse..
Thanx Prof!
Dixcus? please Try to remember the FIRST RULE of hole digging.
You've convinced us ALL, that you're over your head.. Take a rest
Does the law apply solely to TikTok? Or could it be used later against other media companies, either directly or as a matter of precedent?
Can they use this law to force China to sell assets like Biden and McConnell to an American suborner?
I believe that this ban is a massive over reaction. There must have been better ways to handle the problems with TikTok. It seems to me that this law was intended to be struck down by SCOTUS. Perhaps that was the point.
Of course, Biden was deemed too senile to stand trial in February, 2024, before the March 13, 2024 passage of the Tik Tok law that he signed - maybe one argument should be that Biden lacked capacity to approve.
As I've been saying, wouldn't a content neutral ban on spyware apps placed on consumer smart phones be an approach that would pass constitutional muster?
Moreover, even with a ban on its app, Tik-Tok would still be able to publish its content on the web without the spyware app.
The brief reads like Trump speaks - a lot of hyperbole about how great Trump is and how he, and he alone, can fix everything by negotiating a deal.
This is the correct answer, but our congress critters won't take steps against their Silicon Valley overlords' desire to mine all of our personal data.
I remember thinking, as a callow youth, that letting the KKK march in Skokie was an abomination. My mother, by most appearances an "average housewife", but was brilliant, explained the value of the first amendment*. It started me on a path to more speech is better. That's where I stand to this day. So my default is to say, lay off of TicTok and deal with any Chinese issues as needed.
*I also remember her reaction when I said something like, "If it wasn't true it wouldn't be in the [news] paper". All she said was, "Oh Billy." From her it was a jarring and clear refutation.
Regardless of the arguments or the outcome of the case on the merits, Trump is now on the side of 170,000,000 Tik-Tok users without any cost. Politically smart.
The briefing said: “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government — concerns which president Trump himself has acknowledged.”
1. Jeff Yass acquires a $40 billion stake in ByteDance.
2. Jeff Yass donates $46 million to Trump.
3. Trump ensures the court order disappears.
Althouse should have mentioned that Trump made his U Turn days after meeting Jeff Yass.
The day's winner.
"Legislators Repeatedly Expressed Disagreement With The Content On TikTok."
Literally, LOL!
If there is anything deserving a 'Go F yourself!' response, it is that.
Its good Trump took a somewhat neutral postion, if he'd been stronger in opposing the act then Roberts and ACB would've voted against. Those 2 always want to show they aren't "Trump puppets".
“The topsy-turvy idea that TikTok has an expressive right to facilitate the CCP censorship regime is absurd,” McConnell’s counsel, Michael A. Fragoso, wrote.
This is one bizarre sentence. No wonder so many of McConnell's positions are similar to those of chuck Schumer. He and his team even use the bizzare double-think of the Left. Its the USA Congress doing the "Censorship", not Tik Tok.
And scoring political points (or trying to). I want him gone, and will vote for a democrat to make that happen. His useful idiocy has overstayed its welcome.
Does the law apply solely to TikTok?
I have wondered whether there was a bill of attainder argument to be made, but apparently not.
Althouse should have mentioned that Trump made his U Turn days after meeting Jeff Yass.
Eh, both parties have flipped on this issue. That's why I can't get too excited about it; it's fundamentally just politics.
What legal authority is Trump claiming?
Worth considering that this was not an executive order issued by the current administration. This was a law passed by Congress and signed by the sitting President. Trump should not get a defacto veto through the Supreme Court; he should instruct the incoming Congress to pause or rescind the ban. The Supreme Court cannot nor should not be an expedited means to circumvent policies incoming administrations oppose.
Isn't that basically an admission that the act is about suppression of disfavor speech?
Trump was against TikTok before he was for TikTok, kinda like how firefighters sometimes moonlight as arsonists.
China does ban a considerable amount of Tik Tok content (they actually ban Tik Tok entirely and use a different platform called Douyin) within China that it allows elsewhere. Specifically criticism of China, China's Hong.Kong policies, anything re Tiennamin Square, etc. I believe they also censor things critical of China elsewhere in the world. They also reportedly ban anything pro-trans or pro-LGBTQ on Douyin.
Where are the internationalist "Free Traders"? What about "Muh Free Enterprise"? Tarriffs are bad, but somehow driving a popular social media platform out of the country and harming 100 million americans who use it, is OK. Mitt "I love free trade" Romney voted to ban tik tok. But that sort of flip floppery from Mittens is to be expected.
Is the problem that TikTok has spyware that does different kinds of tracking and information scraping than all of the other apps out there or is the problem that they make the data available to the Chinese government?
Yep- Bob Boyd for the win.
The measure was passed by a 360-58 vote and will now go to the Senate.
=================
58 nays split 25 R and 33D
Full List of House Members Who Voted Against TikTok Ban
how many amici does it take to screw in a SC case without any standees?
Some people be like...
- When Trump holds to a position, it's "Trump is inflexible and incapable of change."
- When Trump modifies his position, it's "Trump flip-flops."
"Heads I win, tails you lose."
law = TikTok divested [to retain economic benefits] or banned [for national security]
what to do with FJB and CocaineMitch? economic benefits or national security?
Unless Congress adjourned, bill becomes law whether or not president signs, assuming no veto.
If the government under Biden was truly interested in first amendment freedoms- they wouldn't have encouraged social media- and the MSM- to censor the truth about mRNA during the covidiocy. Not to mention threatening them with sanctions if they didn't comply with polite "requests".
Tik-Tok will likely die on it's own within a few years as the Next Big Thing comes along and replaces it. Instagram was the last big thing closest to Tik-Tok. User base is dwindling.
Meantime European and other areas without actual free speech and first amendment type protections are threatening X and Facebook and other US based platforms if they don't comply with all their regulation. F--- them. The USA doesn't and shouldn't regulate free speech. As has been said- the solution to free speech abuse is more free speech. What the government should do is treat all social media that purports to be a universal speech platform available to everyone as a common carrier- forbidden to enact any speech controls, required to inform the government of any suspected unlawful activity. Unlawful in the USA. I don't care that Germany and other supposedly free countries forbid criticizing public officials. That's a problem for German based social media companies to worry about.
What? There aren't any German based companies? They rely upon Facebook and X.com? Gee, I wonder why that is...
Oh- I don't use Tik-Tok. Or Instagram. X.com and Facebook. X-com only recently though I've had an account for years. Facebook is the ultimate user friendly platform, and great for keeping in touch with others you actually know who are on it. Like extended family, in my case, along with belonging to a writer's group and an ancestry group, and a few ship's groups. X.com get's me up to the minute news and politics.
What, exactly, do you think Tik-Tok is? A legal entity chartered in some jurisdiction? A collection of intellectual property, stored in binary form on one or more digital storage media? A server program, hosted on one or more web servers? Maybe you can't define it, but you know it when you see it? Is it here in the comment section with us, now?
Trump has no more interest in this than me. He is a private citizen until Jan 20 at noon or so. I wonder if I have time to get an amicus brief in.
You should be ashamed of yourself. Under what possible reading of the constitution does Trump have an interest in this case?
Trump has no more interest in this than me. He is a private citizen until Jan 20 at noon or so. I wonder if I have time to get an amicus brief in.
You should be ashamed of yourself. Under what possible reading of the constitution does Trump have an interest in this case?
Just using "President Trump" repeatedly should get the brief sent to the shredder immediately. Trump is not President, no matter much he Musk and Ramaswamy pretend to be.
It appears that the law in question targets "Tik-Tok" as a legal entity. Or, more precisely, targets the current owners of that legal entity, even though they are accused of no crime. As such, it is a Bill of Attainder, and unconstitutional.
One of the problems, as noted by the "near-plenary deference" quote and the Cato brief cited in the Substack column, is that the only evidence that TikTok is "designed to undermine our country" is an assertion by the Intelligence Community that it is.
They have no credibility left! Prove it before we start stepping on the First..
Freder, I don't think the Constitution addresses questions of "standing", let alone of "interest". My impression is that courts are empowered to take cognizance of whatever they find relevant. For example, it has been suggested that judges sometimes read the election returns.
You were fortunate in your maternity.
As was I.
Are you suggesting that Trump is a Yass man?
Whatever the nature of the Court's concern -- and I would hope it would extend well beyond the First Amendment -- the suggestion that the Congress passing a law, and the President signing it, places it outside the proper concerns of the Court evidences, at best, a profound ignorance of American legal history.
" Under what possible reading of the constitution does Trump have an interest in this case?"
He's a US citizen and he has a TikTok account. That ought to do it.
Precisely. It is as if the Congress passed a law against a cathouse in Texas being owned by a particular corporation chartered in Belgium. Either it is illegal to run a cathouse in Texas, or else cathouses in Texas are perfectly legal, and anyone with the necessary assets can operate one. Meddling with questions of who owns the Texas cathouse makes sense only if you imagine that there cannot be more than one cathouse in Texas. I would think that even the US Congress is not capable of that degree of stupidity, but they seem eager to prove me wrong, and their resources exceed my own.
Yes, but which tack?
Dixcus, you are SO full of shit. @ Kaka: SCOTUS routinely rules on the constitutionality of legislation regarding foreign affairs. Trump, just like everyone else, has the legal right to file an Amicus Brief asking the Court:
"President Trump takes no position on the
underlying merits of this dispute. Instead, he
respectfully requests that the Court consider staying
the Act’s deadline for divestment of January 19, 2025,
while it considers the merits of this case, thus
permitting President Trump’s incoming
Administration the opportunity to pursue a political
resolution of the questions at issue in the case."
Perhaps Dixcus would like to explain why these other parties can file Amicus briefs, but Trump can't. NOTE these are only three of the roughly 20 different parties who have filed amicus briefs.
"Brief amici curiae of Asian Americans Advancing Justice | AAJC and the Fred T. Korematsu Center for Law and Equality in support of neither party filed. "
Brief amici curiae of American Civil Liberties Union, et al. in support of petitioners filed.
Brief amicus curiae of Cato Institute in support of petitioners filed.
It is commonly accepted to use the title 'President' when referring to ex-US Presidents.
A valid point, I suppose. Of course, politicians routinely meet with various persons, wealthy and otherwise, and it is to be supposed that those interactions might alter the views of one or both parties, else why would they bother? In fact, I think it is generally agreed that a politician does well to inform himself about a matter before taking action related to it, and consulting with interested parties is an effective means of becoming informed.
Dixcus , I suspect you received your JD from the Hollywood Upstairs Legal Emporium and Tanning Salon. Amirite?
Was the Nordstream Pipeline designed "solely to undermine the United States"? Certainly, it proved a costly investment. Is that how this is supposed to work?
You would think a 90 day pause is quite reasonable, especially given the major shift in administrations. Of course, the NPC Democrats and the bed wetting wifebeater "nationalists" are just screaming China in the hope that no one will notice, because urgency is required for this law to survive. President Trump is quite correct in linking the global authoritarian attack on networks like X to this poorly-conceived law, and stands to have major political advantage from a DoJ which doesn't act for the benefit of Facebook and Google.
I'm not terribly bothered, though. One outlet for revenge would be ByteDance selling to President Trump, or the DoJ applying the law to certain foreign interests at Google. In short, the NPCs are setting their own homes on fire in yet another attack on the President.
Not sure of how this figures in but if the forced sale of TikTok US goes through, somebody is going to buy a gold mine.
170 million users!
Look who head up a list of more than a dozen former National Security Officials submitting an amici brief in support of the Biden DOJ:
The Hon. Michael B. Mukasey
Former Attorney General of the United States
Former Judge, United States District Court for the
Southern District of New York
The Hon. Jeff Sessions
Former Attorney General of the United States
Former United States Senator
Pence has also filed a brief for respondent through his advocacy group, Advancing American Freedom. We live in interesting times.
I foresee that at the January 10 hearing the Court will stay enforcement of the statute to give itself time to issue a considered merits opinion. The new Congress, now with GOP majorities in both Houses, could take legislative action to overturn or defer the statute. Trump studiously took no position on the merits in his brief. Hard to believe that he has a diplomatic solution. The Chinese government has been intransigent on this matter for years going back to his prior term.
Readering stumbled upon a correct assessment,
They are hearing this on Jan 10. It's the SC. There are several novel questions of law involved. They almost have to issue the requested injunction to give them time to reach a decision.
Trump doesn't have the kind of money needed to buy it.
Bob Boyd, if they are "Foreign Adversary Controlled" then yes.
"3. Trump ensures the court order disappears."
Explain that. HOW does Trump "ensure" that the Supreme Court will do his bidding. Show your work.
I haven't followed this dispute closely, but I assume that the opponents of the legislation have raised at least colorable arguments that it is invalid -- otherwise, the Supremes wouldn't be considering the case. Obviously, this case involves policy issues, and it is not the role of the judiciary to decide matters of policy. As it happens (and as the legislation implicitly acknowledged might happen by setting the key date as the day BEFORE a new President is inaugurated), an election may have affected National policy. What kind of idiot would claim that it was improper to ask the Court to consider that possibility.
^^ Trump asks SCOTUS to delay the effective date of the TikTok ban because he's "one of the most powerful, prolific, and influential users of social media in history" and also he "possesses the consummate dealmaking expertise...& political will to negotiate a resolution to save the platform"
That’s not written in typical legal language. It sounds conversational, unprofessional and frankly delusional.
It's all transactional. He went from issuing orders while president to ban it to supporting TikTok once he found out one of his mega-donors held a significant stake in it. It's no mystery. It's always grifting.
The only question in my mind is what it will be called when X, Truth Social, and TikTok become one.
As long as it's for a fair price.
“ Trump has no more interest in this than me. He is a private citizen until Jan 20 at noon or so. I wonder if I have time to get an amicus brief in.”
You really don’t want to do that. You can, of course, file pro se. But that’s going to get your grief bounced immediately. They have strict requirements as to form and content. And, if you are trying to represent more than yourself, you will need to engage an attorney licensed to practice before the court. Last I looked, that required recommendations from two current admitted, plus admission to a Court of Appeals (which requires an admission to a District bar, which requires admission to the state’s bar…). Then, you sometimes require permission of one or both parties to file. On top of that, SCOTUS briefs are required to be printed and bound in a certain format. If I remember correctly, Petitioners have one color cover, Respondents another, and Neutral another. If you do this a lot (a decade ago, we were filing one or two a year), you know who to go to, to get the work done. It’s not cheap - figure maybe $1k or so.
“You should be ashamed of yourself. Under what possible reading of the constitution does Trump have an interest in this case?”
Read his brief. To start with, he represents the people of this country, or at least will in 3 weeks. If the law isn’t enjoined, almost half of them (~150 million) will have their access to TikTok cut off when it goes into effect. Moreover, the purpose behind the law is to attack China, and that involves foreign relations, where a President’s power is paramount, absent confirmation of a treaty by the Senate. This isn’t a treaty, which means that you have Congress interfering in the conduct of foreign policy. Of course, FJB doesn’t care - he’s senile and only really worries about his ice cream and his naps. What if China takes the shutdown as an act of war, and reciprocates? Etc. In three weeks, their response will be Trump’s problem. Some very messy Balance of Power issues involved. So why not put, and give him three months to figure things out?
“ Kakistocracy
“What legal authority is Trump claiming”
He doesn’t need any. Freder was talking about filing an Amicus Brief himself. An Amicus is a friend of the Court, and doesn’t represent a party. Amicus briefs are a way for third parties to have their voices heard, when a court is deciding an issue that affects them. For example, I was the chair of the IP committee of the US part of the largest, and most prominent engineering society in the country. We would file Amicus Briefs on subjects that affected our members, and esp if we could help a court understand the technology involved. We had some successes, including a couple where the court cited our help. But not always - the Alice software patentability case was a bitter disappointment.
Narayanan
The measure was passed by a 360-58 vote and will now go to the Senate.
=================
58 nays split 25 R and 33D
Full List of House Members Who Voted Against TikTok Ban
12/28/24, 11:22 AM
Identifying who the enemy of the people really are.
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