Montana Passes Laughably Unconstitutional Law Banning TikTok
from the spot-the-constitutional-problems dept
On Friday, Montana’s very silly legislature passed the first law in the nation banning Tiktok. The bill’s title is not subtle: SB 419: Ban tik-tok in Montana (they couldn’t even get the name right).
The way the bill works is that it prohibits mobile app stores from offering TikTok to Montana residents and also just flat out says “TikTok can’t operate here.”
Tiktok may not operate within the territorial jurisdiction of Montana
It then bans the ability to download TikTok, saying it violates the law if anyone provides:
the option to download the tiktok mobile application by a mobile application store
The wording of the bill makes you wonder if the people who drafted it learned how to create laws by watching TikTok videos, rather than in learning how to draft laws. It’s also just chock full of moral panic nonsense:
WHEREAS, TikTok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities, including but not limited to throwing objects at moving automobiles, taking excessive amounts of medication, lighting a mirror on fire and then attempting to extinguish it using only one’s body parts, inducing unconsciousness through oxygen deprivation, cooking chicken in NyQuil, pouring hot wax on a user’s face, attempting to break an unsuspecting passerby’s skull by tripping him or her into landing face first into a hard surface, placing metal objects in electrical outlets, swerving cars at high rates of speed, smearing human feces on toddlers, licking doorknobs and toilet seats to place oneself at risk of contracting coronavirus, attempting to climb stacks of milkcrates, shooting passersby with air rifles, loosening lug nuts on vehicles, and stealing utilities from public places
This is literally a list of moral panicky nonsense based on often false reports about TikTok challenges (frequently spread by adults, not kids, or when done by kids set up as jokes to freak out parents). And while it claims TikTok “fails to remove” these, TikTok actually has a strong record of removing the few that do actually exist.
This bill is so ridiculously unconstitutional that everyone who voted for it should be kicked out of the legislature and sent back to remedial “Constitution 101.”
First off, it’s a clear bill of attainder, which is explicitly barred by the Constitution.
Second, it violates the 1st Amendment rights of TikTok, in that it’s no different than the government banning a magazine from printing in the state, or seizing their printing press.
Third, it violates the 1st Amendment rights of app store operators, who have the right to determine what they do and don’t distribute.
Fourth, it violates the 1st Amendment rights of users of TikTok who want to use the app to communicate with others.
Fifth, it violates the the Dormant Commerce Clause in regulating interstate commerce.
Montana’s Attorney General, Austin Knudsen (who is said to have written the bill), defended the bill in the NY Times, and in doing so hilariously only gave more ammunition to the bill’s (correct) critics.
Mr. Knudsen, a Republican, said his team had received scores of complaints from parents about TikTok content referring to drugs, suicide or pornography. As the state’s legislative session approached this year, his office began looking at the idea of fully banning the app.
In other words, Mr. Knudsen, who will now have to defend this law in court, just flat out admitted that he wrote this bill to shut down 1st Amendment protected communication. Talking about drugs, suicide, and pornography are all protected 1st Amendment activity, dude. Admitting that you’re silencing this app because you don’t like the content on it gives up the entire ball game.
Also, as Rianna Pfefferkorn notes in Wired, all this does is have the US mimic China, the very country we keep being told is the reason we need to ban TikTok, in order to not be influenced by it and become like it.
“It’s a maddening irony that American legislators’ idea for countering China is to act more like China, home of the Great Firewall that censors its citizens’ free access to the flow of information,” Stanford’s Pfefferkorn says. “Banning a popular social media app, especially on the basis of speculative concerns, is directly contrary to the vision of a free and open internet that the US has long promulgated abroad as part of our commitment to democracy.”
This law is going to get tossed out. This is literally Montana’s AG and legislature choosing to waste taxpayer money in pursuit of some moral panic.
Montana residents deserve elected leaders who don’t shit on the Constitution.
Filed Under: 1st amendment, austin knudsen, bill of attainder, free speech, montana, tiktok ban
Companies: tiktok
Comments on “Montana Passes Laughably Unconstitutional Law Banning TikTok”
I think I’ve spotted one BIG problem.
“Tiktok may not operate within the territorial jurisdiction of Montana”
I am interested in how they planned for the enforcement of the above, my guess is they did none.
Re:
They didn’t. Not only did they not take into account that VPNs exist, but ISPs and a trade group representing Apple and Google informed the legislature that it was not possible for them to implement geographical restrictions on websites/apps because Internet connections aren’t structured in such a way to allow such measures. The resulting lawsuit, hopefully, will take the wind out of the sails of federal legislation aiming to ban TikTok by proving that the bar to allow one to pass Constitutional muster may be too high.
The data collection and propaganda claims likely would fall short of a compelling state interest anyhow, since the government hasn’t provided quantitative evidence that the Chinese government has collected any user data from American TikTok users (even some cybersecurity experts have acknowledged this in a recent ABCNews.com report) and past cases like Lamont v. Postmaster General (a 1965 case that invalidated a statute permitting the Postmaster General to restrict the flow of “communist political propaganda” through the mail) suggest limiting access to foreign propaganda (which also hasn’t been documented to have been disseminated through TikTok, whereas it has through U.S.-based social media sites like Facebook and Twitter) makes it difficult to suggest limiting Chinese propaganda is a compelling enough interest to justify a ban.
Re: Re:
And there is currently no law that makes it illegal to circumvent filters
When I go to Mickey D’s and want to watch the ball game when I am in there and I use a VPN to bypass their blocking of the streaming service I use I am not breaking any laws.
There is no law that makes it illegal to bypass firewalls to get blocked sites. So I am not breaking any laws using my VPN to get the ball game
Re: Re: Re:
Why do I get the feeling you’ve made this speech to people with a yellow M on their hat on multiple occasions?
Re: Re: Re:
While it isn’t something you’d be asked to leave for, and yes, while it’s still legal…
If someone wanted to track you, they will.
And if they couldn’t, well, as the internet says, skill issue.
After all, everyone leaves little bits if identifying information about themselves unknowingly…
Re: Re: Re:
I’m curious why comments proclaiming that it’s legal to use a VPN in the US are so common. Is there anyone claiming that it is not?
Re: Re: Tik tok
My assertion is Tik Tok is getting a dose of their on medicine ” Shadow Banning ” seems they think like the dictator run country they are Banning people for simple words like “stupid” i can’t wait when they take the whole platform down for being so orwellian run serves them right
WTF is wrong with this picture?
The Seattle Metro area has triple the population of the entire state of Montana, and yet the WA state AG doesn’t get a mere “scores of complaints” and then immediately start wasting taxpayer money. Instead, the AG needs a credible evidentiary belief that would stand up in court before starting an investigation into an alleged criminal act, or a civil act in consumer protection (fraud, etc.).
This is just another example of the all-too-incorrectly-named Moral Right accusing the “libs” of being snow-flakes that are hot to dictate how everyone must kowtow to the Left’s wishes. Or worse, another example of RWNJs wishing to redefine the word ‘morality’. I say again, WTF is wrong with this picture?
Re:
The part you are missing is where the Seattle Public School District took up the mantle that the state AG was unwilling to, and sued social media companies for silly reasons.
Re: Re:
My projection was not so much missing the Seattle Public Schools, it was aimed at the raw population difference, the density difference, and the fact that Democrat-leaning AGs don’t fly off the handle for spurious reasons. (Or possibly, they don’t fly off the handle for personal reasons, but that’s conjecture on my part, I admit.)
I loathe having to admit that I was born in Seattle, but that was more than 75 years ago, when Seattle was lucky to have a quarter-million in population, and the biggest public argument was which hydroplane got to race in Heat 1A for the Gold Cup on Lake Washington during Seafair. I still drive through it once in a great while, and in fact, not only is the home where I was born still standing, but the home where my father was born (during WW1) is also still standing. But I couldn’t go back, it’s not the same by any stretch of the imagination.
But I digress….
Yeah, the School District is laden with problems, and has been for decades. They just can’t find and hire a superintendent that has the staying power to last more than two or three years, before someone gets irate and blames said superintendent for all manner of ills. And that gets parents in general all riled up with torches and pitchforks at midnight, or the modern-day equivalent thereof. Not like it was in my day, but that’s yet again another digression. 😉
Bill of attainders
This is even more hilarious when you consider that Montanna’s own constitution explicitly bars bills of attainder:
I would expect Mr. Knudsen to be aware of the rights guaranteed under his state’s constitution. And the previous generation says that my generations education is going downhill!
This comment has been flagged by the community. Click here to show it.
Re: reading comprehension?
I don’t see “bill of attainder” anywhere in your cited text of the state constitution.
Re: Re:
Because it’s a legal concept describing the removal of existing civil or other rights through legislation. It’s explicitly forbidden in the constitution, see federal law Article I, Section 9 and state law Article I, Section 10.
That you feel the need to make a comment on something that you don’t understand is entirely on you.
Re: Re: Re:
To clarify: You are referring separately to…
Federal Constitution Article 1, Section 10, clause 1:
Federal constitution Article 1, Section 9, clause 3:
Neither of which is in the Montana constitution, but which rights are incorporated by Amendment 14 section 1 (abridging of (federal) rights).
Alas, the GP’s reference to Ex Post Facto law (punishing someone for behavior before the law was made) is not on point, even though it gets referenced by both federal clauses.
Re: Re: Re:2 Bills and rights
So let’s get our definitions right, shall we?
Ex post facto means that no law can be written so as to make any act that was performed before the enactment of said law an offense that can then be tried in court. That’s an important distinction – you can be cannot be held accountable for past acts that were not proscribed at the time you committed them.
Bill of Attainder is where a writ cannot be executed so as to strip an accused person of due process. He must be tried in the customary manner for allegedly committing a crime, period. This has nothing to do with when any particular law was passed, nor the content of that law.
From that, we can see that the two concepts are both being ignored to the fullest by the State’s AG, and by extension, the Legislature and Governor. As a body filled with lawyers, this smacks of either grift, incompetance of the highest order, or just plain personal malice aforethought. Or all three, take your pick.
Re: Re: Re: bill of attainder
Bill of attainder is when you pass a law that says someone is guilty. Look it up.
Re: Re:
There’s a lot of things you refuse to see.
Re: Re: Re:
It’s a fair comment. The GGP didn’t refer to Attainder in the quote from the Montana constitution because it wasn’t there.
The earlier comment showing that it was in the federal constitution … and specifically enjoining the states (FROM THE OUTSET, rather than as I mis-stated through the 14th amendment, though both COULD hold…).
Ex Post Facto is a different thing, and I wouldn’t call a Tiktok ban a privilege or immunity…
Re: Re: Re:
To be fair, when even the Internet’s worst couldn’t force the revenge pornographer to see that revenge porn was bad…
This comment has been flagged by the community. Click here to show it.
Mike Masnick doesn't mention Elon?
Mike felt a great disturbance in the Force, as if millions of voices suddenly cried out in terror and were suddenly silenced by republicans.
.
Re:
This story is about TikTok, not Twitter. Why would it mention Elon Musk? Man, you asskissers really do want to make everything about him…
Re:
This is not the flex you were looking for.
Re:
Nope, you’ll have to find another article to make a fool out of yourself on.
Re: Re:
True, though Benjamin Jay Barber has decided to make a fool of their self on this article too!
Re: Re: Re:
Anyone else noticed that Matthew Bennett and Benjamin Jay Barber have never been seen in the same room together?
Re: Re: Re:2
While it would not surprise me that Matthew approves of revenge porn, revenge porn man elucidates his Dunning-Kruger with what could be considered purple legal prose.
And lots of it.
Bill of attainders
And yes, I know, it just mentions “ex post facto” laws, but considering that article I indicates that the national constitution applies, “bills of attainder” is implied. Absolutely hilarious. Maybe Mr. Knudsen should return to American Government class.
Re:
If he didn’t pass it the first time, why would you think that he’ll pass it a second time? Or should he get the “special kids” version, where all he has to answer is “Do you have a name, and if so, what is it?”
Ummm, golly, gee, Montana. Tik-tok can be accessed just fine on the web. Banning app downloads makes you look like idiots. Oh, nevermind, you are idiots. I suspect that the intelligent people were smart enough not to run for the legislature…
I don’t understand the constitutional arguments being made here.
Ironically the one theory I could actually see having some legs– an Equal Protection challenge based on the bill being pure animus against a single disfavored corporation– isn’t even mentioned here. And such a challenge wouldn’t do much; the legislature might have to go back and rewrite the law to apply generally to apps that have certain kinds of security weaknesses that are exploitable by foreign governments, rather than the slapdash nonsense they just passed, but it wouldn’t take long to gussy the bill up in such a way that it passes rational basis scrutiny.
Re:
The law says that TikTok “fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities”. That seems like the law is saying TikTok is encouraging acts of harm, done either to one’s self or to others, that might constitute an actual crime.
Again: The law says that TikTok “fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities”. The law then lists out a bunch of stuff you can find on TikTok. The lawmakers likely intended to censor that content by banning the app, which would subject the law to strict scrutiny.
Consumer protection laws notwithstanding? Yes, retailers do have a right to sell—or not sell!—whatever products they want. If you think that isn’t the case, you can show me the law that says the government can force Amazon to sell (or not sell) certain books that would be legal to sell anywhere else.
Re: Re:
“That seems like the law is saying TikTok is encouraging acts of harm, done either to one’s self or to others, that might constitute an actual crime.”
Section 230 might apply here, though, since such videos are posted by individual users, and social media platforms cannot be held responsible under that statute for what users post, even if the content may be harmful.
Re: Re: Re:
This is a law prohibiting all speech by a particular speaker (Tiktok) within their domain.
Section 230 will help them dig out faster, maybe, but it’s still a strict scrutiny issue, the way I see it.
Re: Re: Re:2
Selling an app in interstate commerce is not speech. A ban on such sales is bog-standard economic regulation.
Re: Re: Re:3
Except it’s still a communications platform. Being a social media platform, TikTok hosts people’s speech. The government cannot curtail speech in an overbroad manner, so regulating a communications platform requires doing so in a way that limits broad implications on the speech it hosts.
One of the rulings in Trump’s failed order to ban TikTok as well as a separate case involving a proposed ban on WeChat from the same EO stated that the company would likely prevail on First Amendment grounds as such bans would likely restrict too much speech hosted on those platforms.
Re: Re: Re:3
Which is the domain of the federal government
Re: Re: Re:2
You’re right. However, that the law references content that TikTok cannot be held legally liable for hosting under the Section 230 shield is an element of the strict scrutiny that needs to be applied in review.
Although Section 230 is materially less relevant to the case (maybe not entirely irrelevant), the mere reference to certain types of content structures the law as imposing an effective and violative content-based restriction that compounds upon an already broad content-neutral restriction on the speech hosted by TikTok. It seems like a First Amendment mess, no matter how you slice it.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:
section 230 has nothing to do with a law, that doesn’t treat tiktok as the publisher of others speech.
Re: Re:
Tiktok is not a book. Books have speech content; they make arguments. Apps are a gussied-up form of machine. This is like saying that someone has a First Amendment right to market a malfunctioning dryer.
Re: Re: Re:
A printing press is not a book, but ownership is protected in the constitution, ‘or abridge the freedom of the press’. TikTok is a printing press.
Re: Re: Re:
Why would anyone market malfunction as a feature?
Second, the First Amendment doesn’t protect consumers from malfunctioning dryers but state and federal laws, and federal agencies, can protect consumers or issue a recall to the manufacturer. It’s not a speech matter, but a matter of tort, contract and public safety law.
This comment has been flagged by the community. Click here to show it.
Re: Re:
Preambles are not a part of the law itself, only the legislative intent of the law.
This comment has been flagged by the community. Click here to show it.
Re: Re: examples
1) books by former government employees who formerly had clearance.
2) books containing “obscenity”, which is a community standard.
3) books containing “speech integral to crime” i.e. anarchist cookbook.
4) sales of lewd and lavacious content to minors under the age of 18.
Re:
1.) This bill makes it illegal for TikTok to operate in the state, it doesn’t say something like “a platform giving information to the CCP by residents of Montana illegal in the state, and violation of this may result in such a platform being banned from the state”. That is why it would be a bill of attainder, the law is rendering a punishment solely on TikTok (and giving a couple reasons for doing so, between the CCP and people doing stupid things on the platform).
2.) The law justifies itself with the CCP potentially getting user data, and speech related content on the platform. The latter, being justified on the content of the speech itself, would almost certainly be under a strict scrutiny standard. As to banning the platform because of CCP ties, that may be under a lesser degree of scrutiny, but still likely fails in court unless the state can produce evidence of such practices actually happening.
3.) Consumer protection laws don’t work on the premise of “this product is unilaterally banned by statue”, but rather “products that violate X, Y, or Z can be restricted or banned”.
Re: Re:
The fact that it targets TikTok specifically, even by referencing it in the TITLE OF THE LAW also makes it clear that it’s a bill of attainder. Republicans in the Montana legislature rejected amendments that would have extended restrictions on data collection by foreign governments to all social media platforms, choosing to turn it into one.
Making matters worse, ISPs and a tech trade association that represents Google and Apple informed them that it it’s not feasible to geoblock a website/app within state lines. Yet, they only removed ISPs from compliance in the bill, rather than scrapping it outright. AG Austin Knudsen tried to refute the claims from the ISPs and trade group by equating blocking of betting features on sports betting websites in states where sports betting isn’t legal to suggest one could geoblock an entire website, even though a website blocking specific features isn’t the same.
Re: Re:
That’s still not a bill of attainder! A bill of attainder is a form of PUNISHMENT, i.e. stripping someone of life, liberty or property– “X person shall be imprisoned for five years” or “X company shall be fined $500,000.”
“X Company prospectively can’t do Y anymore” is not a bill of attainder because as long as X Company complies with that law, it does not lose life, liberty or property. I reiterate that the bill might fail equal protection, which is the lens used when there are allegations that a bill’s prohibitions are targeted at a person or group out of bare animus, but that is a different legal test.
Re: Re: Re:
X company shall stop doing business looks like a bill of attainder to me.
Re: Re: Re:2
“X Company prospectively can’t do Y anymore” where Y is a practice or activity harmful to employees, customers, other companies, etc.
Re: Re: Re:3
TikTok’s relationship to harmful activities is the same as gun manufacturers relationship to mass shootings, that is you are blaming them for that the users of their product do.
Re: Re: Re:
This law is equal to New York passing a law that simply states “The Ed Sullivan Theater must shut down because it is no longer allowed in the state of New York”, which would absolutely be a bill of attainder. The state of New York could pass regulations that could shut down The Ed Sullivan Theater and other theaters if they do not comply (assuming they are constitutional), but not simply declare that the company can no longer operate the theater within the state.
This law here operates the same way, as it explicitly forbids TikTok from operating within the state, which is very much a punishment, rather than more broadly giving companies a set of regulations with expulsion from the state being a possible consequence for failing to follow such regulations and having that proven through due process.
Re: Re: Re:2
“This law here operates the same way, as it explicitly forbids TikTok from operating within the state, which is very much a punishment, rather than more broadly giving companies a set of regulations with expulsion from the state being a possible consequence for failing to follow such regulations and having that proven through due process.”
That’s kinda how the amendments proposed (and rejected) were supposed to function in practice. Possible consequences for all companies, not just one.
Even still, since TikTok is an Internet platform, expulsion from operating within a state would be difficult to carry out in the first place (as tech companies noted to the Montana legislature), since Internet networks aren’t really structured to be limited by state boundaries, and individual states don’t have the methodology to geoblock websites and apps that countries – mainly autocratic regimes (China, Russia, Afghanistan) and backsliding democracies (India, Bangladesh) – do. That seems like a potentially costly task for a state to implement that would increase a state budget above its average ceiling.
Re: Re: Re:
Let me rephrase it slightly. “X Company no longer has the liberty to do activity Y”. Now does it seem more like a loss of liberty?
Re:
@Paul Thomas:
Speaking of consumer protections, you should sue Frito-Lay for selling you the Cracker Jacks box your law degree came in.
Re: Re:
Contentless insults– a compelling argument if ever I heard one.
Re: Re: Re:
Hitchens’s razor is valid against you.
Re: it does though
The law says tiktok is guilty of various unproven allegations. Thats bill of attainder.
Re: Re: Bill of attainder.
Diogenes wrote:
Maybe you should point it out to Mike Masnick… as all he said about it was this:
“First off, it’s a clear bill of attainder, which is explicitly barred by the Constitution…”
This comment has been flagged by the community. Click here to show it.
Re:
Too add to this, the dormant commerce clause only applies, when the state law is pre-empted by federal law. I dont pretend to know all of the federal laws and regulations, but my sense is that this is not the case.
Also you forgot that there might be a stronger case to be made about the takings clause, or the equal protection clause.
Re:
PT,
For an absolute certainty, you have espoused a rational set of arguments. I wish to skip over 1, 3 and 4, but 2 deserves some more cogitation.
In the event of loudspeakers mounted on trucks (think Ice Cream Trucks here, playing Pied Piper to kids and frustrating adults to nearly no end), that’s a matter of the government maintaining the Public Peace as best as it can. (And don’t let me digress on how no government ever clamped down on boom boxes….)
Contrast that to a totally private interaction between two consenting entities (the site and the user), each of them perfectly legal in all respects. There’s no immediate threat to the public that would cause a large-scale harm in a public space such as a street, a theater, a library, or even a cop shop, is there. Lacking that potential large-scale harm, the Legislature is bound by the Constitution, and by extension each State’s Constitution, to not undertake these kinds of actions. You and I know them for what they are, a performance for a limited audience. (Said audience being limited in both size and brain power.)
And as Mike would say, that’s not how any of this is supposed to work.
I daresay that even before I can finish and hit Post Comment on this piece, either the ACLU or the EFF will have filed suit, beating the Tik Tok lawyers to the punch. And they’ll win, easily. (If my timing all screwed up, well, there’s a good reason why they don’t call me Nostradamus!)
It seems pretty dumb for the politicians trying to ban TikTok to create the weakest test case possible for the courts to knock down and give TikTok a huge legal boost while the federal government is wracking their brains to find a way to ban TikTok that would survive in court.
Re:
The same legislature also is trying to pass an anti-drag ordinance structured similarly to a Tennessee law that was blocked in court. Both were amended to apply the Miller Test to define such performances under obscenity laws, but both bills (much like part of the Montana TikTok law) constitute overbroad content-based restrictions on speech that would fail scrutiny with the First Amendment. The Tennessee law failed scrutiny for just this reason.
The Constitutional issues aside, wouldn’t any proposed ban of TikTok run into the same problems with the superseding federal Berman amendments that were brought up when Trump attempted to ban TikTok?
Re:
Yes, that’s why some bills in Congress dealing with the app (the DATA Act, in particular) aim to create exceptions to the Berman Amendment. Lawmakers in both parties (Democrats moreso) aren’t keen on making such exceptions, because of vesting so much power in regulating certain First Amendment-protected materials to the President (especially considering the next president could easily abuse the authority, especially if it ends up being Trump or DeSantis).
The material problem overall is First Amendment scrutiny. Laws that are content-neutral with regard to speech must be tailored to be a least restrictive to protected and non-protected speech as possible (TikTok’s own Project Texas plan or data privacy laws like the American Data Privacy and Protection Act that passed the House last year would be unrestrictive in nature, and are perfectly legal options).
A Politico article published this past weekend noted some Congress members are recognizing the possible pitfalls of an outright ban, and at least one lawmaker that was interviewed (Sen. John Thune of South Dakota, the co-author of the RESTRICT Act) even reluctantly admitted that there would be difficulties for any legislation doing just that passing First Amendment muster, with some acknowledging mitigation measures (like laws limiting data collection) might be more feasible. Some of the same issues mentioned with the Montana law would apply to federal legislation as well.
Johnny Knoxville sez "Hold my beer"
How are TikTok’s alleged transgressions substantially different than a typical episode of “Jackass” or “Ridiculousness”?
Re:
“Jyna.” — Former president and currently indicted suspect Donald Trump
Re:
Or eleventy billion videos on YouTube. I notice they aren’t going after Google. I wonder why?
Scotusbait
Back when Twitter was a thing, I read some attorney commentators who describe these really constitutionally sus laws as bait, often promulgated by Republican attorneys general and legislatures, in the hopes of getting a hearing and favorable ruling by the U.S. Supreme Court.
There are enough of these that Scotusbait is a kind of legal genre. These are genuinely awful laws, both from a trial perspective and dangerous to civil liberties, but there is an insidious internal logic to them.
This is all intentional.
Re:
Problem is, the Montana Supreme Court’s judges don’t seem to be political hacks (a few were nominated by governors preceding Greg Gianforte, most of those being nominated by his Democratic predecessor Steve Bullock, while the rest were elected without gubernatorial nomination) and most of the Ninth Circuit judges predated Trump, with the odds being reasonably high that the case gets appealed to a judge or panel of judges who were nominated by Biden or one of Trump’s predecessors (Obama, W. Bush,, Clinton, H.W. Bush and Reagan).
Finally, even THIS Supreme Court tends to side with the First Amendment on a lot of cases where it plays an important role… even when the case clashes with other parts of the First Amendment. All but two of the conservative judges on the Court today were around when Packingham v. North Carolina (the 2017 case that struck down a state ordinance that prohibited sex offenders from accessing social media sites) and ruled in favor of overturning the ordinance. (Samuel Alito, who largely agreed with Anthony Kennedy’s opinion on the case, did suggest that some restrictions on sex offenders’ social media use could reasonably apply in pertinence to certain sites, like those aimed at teens.)
You dont want to be copying china,s laws or russia laws,the whole point of the usa is the right to free speech,banning tiktok silences the voices of millions of american users ,and theres 1000s of american users that make their living from making short video
An app that has a billion users must be providing a service that people want, they might as well ban youtube, or ban Rap music because it features violent content or has content that may be sexually explicit
its like every 5 years theres an app or trend that young people like but is annoying to conservative republican politicans
Of course tiktok is an easy target as it is owned by a chinese company.
"The Truth About TikTok and China"
Adam “Ruins Everything” Conover on his “Factually” podcast discussed TikTok and its relationship with the Chinese government on a recent episode.
https://open.spotify.com/episode/0xRn6aEopid7rnABeRlxpr?si=356948ac0b084626
The expert is Abbie Richards, a researcher and TikTok user. She does outline some of the privacy and other problems of the platform, but also clarifies the distance between the Chinese government and ByteDance, the TikTok parent.
Accountability
Bobson Dugnut wrote:
… if lawmakers would have to answer to voters, they would be ousted.
First, please stop giving them that honorrific that the media has bestowed They are sleazy lying thieves that perform theater. They are not “lawmakers” other than in –as in this case– performative passing of stupid incendiary laws.
Second, these heinous politicians have worked tirelessly to be beyond the reach of any censure or accountability. Judges sell their soul for a private jet flight to a yacht or an Adirondack vacation home. Congressmen sell their souls for millions of dollars “to pay for speaking” engagements. Sometimes they don’t even show up to speak.
The solution would be to have accountability:
1. Candidate platform published with filing for candidacy, subject to amendment in public and with notice.
2. Candidates who violate their platform are removed and new ones elected. In the process all pension, healthcare, etc. is restored to pre-candidate status (you know, the rest-of-us kind of financial world.)
3. Those members of the government (any branch) who aid, abbet, conspire, or support these bad actors in their bad actions shall also suffer similar castration.
Let me know when that’s all tee’d up because until then we’re just blowing smoke up a dress of a very very ugly horse.
Re:
A sleazy, lying thief that performs theater who won an election or was appointed to the post in accordance with the laws and procedures of the state is still duly authorized to write and codify laws on the government’s behalf.
I mean, the undistinguished representative from Georgia Ms. Gazpacho Space Laser is the last person anyone should entrust to give government powers to. But she has won elections and is entrusted by Congress to wield powers by sheer virtue of her winning elections.
She’s demonstrated she is temperamentally unfit to be a lawmaker, but she is a lawmaker by the legal code of what constitutes a person who can hold the office.
In that vein, performative and stupid laws are being written and passed … but they’re performative and stupid like a fox. We expend energy on the performance and stupidity, thinking that stupidity alone will frustrate these laws.
But lawmakers are stupid like a fox. Republicans know the odds are in their favor that cruel, unusual and stupid laws are more likely to survive a legal challenge because Republican judges favor textualism.
Imagine if you’re assigned an essay or book report in school. The assignment will be based on turning it on time, and judged by the legibility of handwriting, writing within the lines and margins, and correct spelling and punctuation. You can write utter bullshit and pass just by meeting the satisfactory mechanical aspects of the assignment.
If the person giving you the assignment is a teacher by virtue of having a license and being employed by the school, it is unfair but perfectly legal.
That’s how textualism works. Only it has higher stakes involving dudes with guns, sharply dressed law-talkin’ guys and a person on a pedestal with a black robe and a little wooden hammer telling everyone what to do.
If you have a law that the public deeply hates, never asked for in the first place, and you know they’ll never obey it and would have you fired in the next chance you get, you would:
A: Use common sense and leave everything alone.
or
B: Press ahead with the law because it fulfills a political or ideological goal and your friends in high places will make the courts enforce the law because they have to.
There is a method behind all this madness.
Re:
That’s what campaign ads and press appearances do. And depending on where you vote, it might be included in the voter information pamphlet. It is in California, not only for candidates, but also for tax votes, initiatives and referenda, and even judges as well.
This is practically impossible to enforce in any representative body. There are rules and procedures in place that prevent this from occurring.
A freshman representative or backbencher would not be in any place to deliver upon a platform. Party leadership, seniority and rules often preclude the possibility. What if the platform makes it to a formal vote and fails?
A system like this would lead to high failure, and would encourage not delivering on platforms due to loss aversion.
Might as well scrap elections and make your legislative body jury duty.
Like literal castration? 🙂
Government rules already do this, however, the flaw is that much of the violations are enforced internally. There’s no external authority to subject politicians to punishment, unless it’s a law enforcement matter and the exchange of money or influence peddling constitutes a crime.
Yeah, well it should be on the legislature personally to, ehhhh, patrol the borders of Montana to make sure the tiktoks don’t get in. Have fun.
Montana would have to somehow wall itself off from outside Internet access. Especially since the bill no longer requires ISPs to enforce the ban. This creates an unworkable situation in which ISPs need not accurately determine the user’s location, but app markets are required to act based on the user’s location, which they do not have.
This creates a situation where there are a few possible options for app markets.
Cellphone compatibility would be a nightmare problem to solve. The radio production industry for a deliberately incompatible cell network doesn’t exist in the US. This also isn’t clean slate development like the French Minitel web competitor, the Soviet Internet competitor, or North Korea’s national intranet. There are already millions of devices in Montana which can access over the border towers and all of the existing infrastructure is compatible in nature. Even China and Russia use foreign-compatible infrastructure for cellphones.
Minitel and the Soviet systems were not cellphone systems and are horribly outdated. They do not belong to the worldwide web age. As far as I can tell the only pre-existing system that would be able to fulfill this role of preventing access to over the border towers is the North Korean system, which uses a completely different radio from every other system on Earth and is therefore incompatible, but is reasonably modern. Obtaining such tech from the source would be… politically difficult, and deactivating all of the existing cellular infrastructure in Montana and enforcing that phones may not be sold there with dual radio systems compatible with both networks seems extreme, expensive, and unpopular. There is also nothing preventing someone from importing a dual radio device.