from the now-that's-influence dept
Remember Trump’s ridiculous executive order to ban TikTok if it wasn’t sold to an American company? Then there was a grifty non-deal in which Oracle agreed to host TikTok’s new American subsidiary, though nothing about that deal appears to have been finalized, and the executive order was still somewhat in place. The first stage of the ban on the app was blocked by a judge in a lawsuit from TikTok itself. But that ruling did not (yet) block the second stage of the executive order which was set to go into effect this month.
So some good news: that too has been blocked thanks to a lawsuit from three TikTok influencers: Douglas Marland, Cosette Rinab, and Alec Chambers. The three of them filed their lawsuit in September, right after the details of the executive order came out. I don’t know much about these influencers, but I will note they had some high-powered, big time lawyers working the case for them (including the firm the judge in this very case worked at prior to being put on the bench…).
The lawsuit noted that the three influencers were a comedian, a fashion creator and a musician “each of whom has developed a significant following by creating and posting content on TikTok.” They argued that the executive order violated their 1st Amendment rights, creating prior restraint of their speech. As they correctly note, even on the flimsy “national security” basis that Trump, Wilbur Ross, and Mike Pompeo made in pushing through this executive order, you can’t just ban speech broadly like that.
The Executive Order and implementing regulations violate the First Amendment because they are unconstitutionally overbroad and an impermissible prior restraint of speech. Purportedly issued to address national security concerns, the Executive Order approaches this alleged problem with a sledgehammer, not a scalpel, as the First Amendment requires. If in fact TikTok poses national security risks, the government must identify those risks and tailor the solution narrowly to address the risks, without unnecessarily trampling on Plaintiffs? constitutional rights. The Executive Order and regulations fail to do so.
The DOJ insisted that this was all normal national security stuff (it’s not) and that the 1st Amendment claims were “meritless.” Honestly, I hope the DOJ lawyers who had to write this feel bad. It’s such a weak argument that they have to know is utter bullshit. They claim that because they’re only banning business transactions (that will make it impossible to use TikTok) that’s not the same as actually banning TikTok. They also claim — again, laughably — that the ban is narrowly tailored to the national security interests of the government. They must have been laughing (or drinking heavily) when they wrote that.
Here, the Executive Order and Commerce Identification prohibit business-to-business economic transactions with a foreign entity and its subsidiaries based on the President?s national security determinations. The fact that those prohibitions may have adverse, downstream effects on a purported forum for Plaintiffs? speech is legally irrelevant:
Let’s just say the judge was not impressed. The opinion cuts through the DOJ’s argument pretty thoroughly. Though Judge Wendy Beetlestone doesn’t issue a full ruling on all of the arguments brought by the influencers, she notes that they have established a likelihood of success that the Commerce Department’s planned implementation of the executive orders is beyond its legal authority (in legal talk: “ultra vires”).
The judge essentially laughs at the DOJ for arguing that courts are not allowed to review decisions made by the Executive Branch under the IEEPA (the national security law that Trump tried to stretch to justify this executive order). The court points out that, contrary to the DOJ’s beliefs, there are plenty of aspects of the IEEPA that courts absolutely can review — including in this case. And, in reviewing it, it seems that the one who has exceeded their authority here is not the court, but the Commerce Department. Specifically, as was noted in the case brought by TikTok that barred the first part of the Commerce Department plan, the IEEPA has a very clear exemption: it can’t be used to block “information or informational materials.” And thus, the implementation here would do that, which is not allowed under the IEEPA.
The next question, then, is whether or not these influencers have shown that they will face irreparable harm if the block goes into effect. And the judge decides that the answer is yes:
Plaintiffs have established themselves as significant influencers based on their ability to engage large audiences on the TikTok platform. If the Commerce Identification goes into effect, Plaintiffs will lose the ability to engage with their millions of followers on TikTok, and the related brand sponsorships. According to Plaintiffs, each has tried and failed to establish a following and work as an influencer on competitive platforms. Shuttering TikTok would in fact shut down Plaintiffs? influencing activities. This harm is not merely possible, but certain to occur after November 12.
Finally, the court notes that an injunction makes sense from a public interest standpoint:
The Government contends that the national security interests identified in the TikTok Executive Order and the Commerce Identification outweigh the harm Plaintiffs will suffer absent injunctive relief. But Congress has already performed a balancing act, and has determined that the President?s ability to exercise his IEEPA authority to respond to a national emergency does not extend to actions that directly or indirectly regulate the importation or exportation of informational materials…. Granting an injunction to prevent a violation of IEEPA?s informational materials exception would be consistent with this congressional determination.
Moreover, the Government?s own descriptions of the national security threat posed by the TikTok app are phrased in the hypothetical. The Government notes that TikTok?s parent company ?ByteDance has significant and close ties to the CCP which could potentially be leveraged to further [the CCP?s] agenda.? It states that one of the risks posed by TikTok ?is the possibility that the PRC government could . . . compel TikTok to provide systemic access to U.S. user?s sensitive personal information.? The Court cannot say the risk presented by the Government outweighs the public interest in enjoining the Commerce Identification, when Plaintiffs have established a clear likelihood that the Identification?s prohibitions contravene IEEPA.
And thus, the Commerce Department is blocked from implementing its planned rules to block TikTok.
There had been some chatter a few weeks back that since Trump got all the headlines he wanted out of his TikTok ban and the Oracle deal, he no longer much cares about it. The assumption was that the administration would likely just let the issue fade away, and now the court is helping that process move along. Of course, this also demonstrates what a preposterous, vindictive, unconstitutional, garbage move this whole thing was in the first place.