TikTok Ban Survives But No One Is Going to Enforce It
The court says Congress can do it, but suddenly, no one wants to.
The Big news today for Court watchers and 170 million TikTok users is that the US Congress has the authority to ban the platform based on the lawsuit brought against the ban.
Without wading into all the legalese stuff, I’ll likely misquote, misunderstand, or just misrepresent SCOTUS handed down a very narrow decision in which it observed many things and - as Josh Blackmon notes at REASON.com - things it did not.
Today, the Court affirmed the D.C. Circuit in TikTok v. Garland. In a fairly short period, the Justices mustered a twenty-page per curiam decision. Justice Sotomayor wrote a brief concurrence in which she disagreed with the Court on burdened protected speech. Justice Gorsuch concurred in judgment, disagreeing with the Court on whether the law was content-neutral. My prediction of the "administrative injunction" did not come to pass. The opinion is fairly tight. It reads like Roberts and/or Kagan wrote it. I suspect they started on this before briefing concluded.
What struck me about the decision was how much the Court did not decide.
It is a fascinating trip into the judicial weeds if you’re not worried about the various species of ticks or snakes common to such locales. Not nearly as interesting - in my mind - as the complete lack of interest in enforcing the ban. Joe Biden said he’s not going to do that in the waning days of his rule, and Donald Trump plans to sign an Executive Order “On Day One,” saying he won’t either.
Congress asked for a delay, and the High Court has said little more than that Congress can do it and that the suit brought against the ban has the wrong vector for them to throw it out.
No Mas
H. R. 7521, the “Protecting Americans from Foreign Adversary Controlled Applications Act,” (eye roll) suggests a national security interest given that the App originated in China. It had 54 very bipartisan co-sponsors, which means that way too many Republicans followed Rep. Gallagher, Mike [R-WI-8] down this hole.
It, “This bill prohibits distributing, maintaining, or providing internet hosting services for a foreign adversary controlled application (e.g., TikTok). However, the prohibition does not apply to a covered application that executes a qualified divestiture as determined by the President.” and “authorizes the Department of Justice to investigate violations of the bill and enforce the bill's provisions. Entities that violate the bill are subject to civil penalties based on the number of users.”
But no one wants to do that, and there are good reasons not to enforce it.
According to Sen Rand Paul, who appears to have actually looked, only 20% of TikTok is owned by the two Chinese guys who created it. Another 20% is employee-owned (including at least 7,000 US employees), while international investors comprise 60%. The CEO isn’t Chinese, and you’d be right to wonder where all the communism is hiding, given we’ve got more communists on the average School Board than TikTok has in ownership.
Without anyone getting all that uppity about it, the Constitution’s separation of powers has appeared, and everyone seems okay with that. The new Congress will likely modify or scrap the existing ban, which no one wants to talk about or enforce in the first place.
President’s prerogative. Congress could then decide if it cared; here it appears it does not.
I have to admit, this is unexpected, but if Trump was never going to enforce it, it would not make much sense for Biden to shut TikTok down the day before he steps away. A little peaceful resistance goes a long way (not to be confused with the mostly peaceful kind).
His “legacy” is already in rougher shape than he is, and whoever it was among whoever was running the Biden administration (that convinced him it was a good idea last year) must have already left the building.
It's still censorship. Parents need to protect and PARENT their own children! Not hard people! Just say NO!