[djcapelis]

I’m not arguing it’s a restriction on TikTok’s speech or bytedance’s speech.

It’s a restriction on my speech. Telling me where I can publish a video? Telling me what apps I can download? Telling my software vendor what software they’re allowed to let me get? Telling internet providers what servers they’re allowed to let my device access?

The law doesn’t fine TikTok. The law fines the people who let me download an application I’ve chosen to use. At $5,000 per instance.

It’s not about TikTok’s rights being violated. It’s about mine, and yours.

[marsten]

No court in the land will agree with your interpretation. The first amendment protects speech, but it doesn't grant you the right to publish that speech wherever you want. If it did then Facebook couldn't ban people from its platform, for example.

[djcapelis]

The first amendment enjoins the government from actions. Private companies are welcome to ban or regulate their own venues as they see fit.

[moussess]

The Supreme Court with its unanimous decision made it very very clear it’s not about freedom of speech, but about foreign adversary having access to data profile of 180 million US citizens. And believe in lawmakers argument of foreign adversary propaganda to those citizens.

Why do people on hacker news keep drudging up freedom of speech ad nauseum??

[dutchbookmaker]

I wouldn't be surprised if the freedom of speech nonsense is an influence campaign by the PLA.

It is just such a ridiculous argument but if you repeat nonsense enough times, people start repeating it back as if it is real.

We never had to deal with this before because the WW2 generation was obviously not stupid enough to let the KGB publish children's books and Saturday morning cartoons inside the US and have a KGB influence campaign that says to ban the books/cartoons would be a free speech issue.

Obviously a non-starter. What you see with Tiktok is how completely infiltrated and corrupted things are in the US in 2025.

The unrestricted war from China started a long time ago and the IMO the US has already lost.

"The supreme art of war is to subdue the enemy without fighting." ― Sun Tzu

[lupusreal]

> I wouldn't be surprised if the freedom of speech nonsense is an influence campaign by the PLA.

As is "everybody is installing Red Note." The people who think this is true are the people who use tiktok.

[etc-hosts]

It's really about how the US gov is concerned that an app installed on half of all US cell phones is controlled by a company that is not 100 percent beholden to the US gov and stock market regulation, by a company that doesn't have to instantly respond to pressure from the Executive branch, could possibly refuse to instantly comply from pressure from US intelligence agencies, could refuse to comply with search requests from US law enforcement, and extensive lobbying from Facebook to cripple a competitor that Facebook ignored until it was too late.

It's not a free speech issue.

Given that the infra for serving US tiktok customers is in the United States(inside of Oracle Cloud), I am curious if Tiktok/bytedance responds to US law enforcement requests.

[josephcsible]

> the US gov is concerned that an app installed on half of all US cell phones is controlled by a company that is not 100 percent beholden to the US gov

You have it backwards. The US gov is concerned that an app installed on half of all US cell phones is controlled by a company that is 100 percent beholden to the Chinese gov.

[djcapelis]

Did you read the opinion? It did its analysis as requiring some level of scrutiny because of the free speech implications under intermediate (and in Sofomayor’s concurrence strict) scrutiny. It held the national security concern outweighed the free speech concern but it absolutely did not say it was relevant in the analysis.

[moussess]

Of course I read it, opinion said

“ At the same time, a law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny”

And the opinion talks about foreign adversary, those exact words, at least 30 times. It mentioned freedom of speech twice

[DangitBobby]

So it was a free speech issue, wild.

[jmye]

Because they read random crap on X they thought sounded smart and are now simply regurgitating it with no further thought or consideration.

And “free speech absolutism (for me, not for you or anyone else)” is the current right-wing cause celebre.

[mckenzba]

Show me where it is an infringement of your 1st amendment right to a private platform? You’re free to criticize the government however you see fit, but you’re not guaranteed the right to a microphone and stage that isn’t yours. There are plenty of other communication channels you can use to express yourself. Your 1st amendment rights are not being infringed by being denied access to TikTok, just as the far right isn’t having their 1st amendment rights being infringed by being denied to use BlueSky as their platform.

[echoangle]

> You’re free to criticize the government however you see fit, but you’re not guaranteed the right to a microphone and stage that isn’t yours.

So if I wanted to hold a speech how corrupt the government is and then the government passed a law that a PA supplier isn't allowed to sell me a Microphone or speakers, that wouldn't infringe my first amendment right because I don't have a right to a microphone or a stage? (Im not American so I don't have any first amendment rights anyways but for arguments sake.)

[anon84873628]

Yes, a court could reach that conclusion.

It's the PA supplier would be in a better position to argue that their rights are being violated. Especially if a single customer was targeted because of their political views / protected characteristics etc.

The problem with the TikTok scenario is that no specific group is being targeted for restraint. And the government does have the right to regulate trade. E.g. there are embargoed countries, export controls, etc. The fact that you can't sell raw milk across state lines is different from a hypothetical restriction on selling raw milk to, say, people named Todd.

[imgabe]

No, it wouldn’t. Congress could pass a law that we’re not going to import microphones and speakers from China. The Constitution explicitly gives them the power to do that. You could then purchase them from any one of a number of other companies and your speech is unaffected.

[djcapelis]

Look, my point is that the first amendment is in play here and it’s not ridiculous to suggest a free speech analysis is required to hold the law as constitutional or not, which is what the court did and what reasonable people can agree or disagree around to what extent that speech should or shouldn’t be protected. (I personally think, as I stated that the free speech harm is a stronger case from the users who have now been restrained in their ability to use the platform and software distributors who are now restrained from distributing specific software than it is as applied to TikTok where the legislation is content neutral and so the free speech analysis is less relevant.) I’m not even claiming that this law should be found unconstitutional, just that there are free speech issues to adjudicate and the less obvious ones are probably more relevant than the one people are citing where the restraint is content neutral.

Your comment however draws a weird parallel later on though but first let’s take a moment here:

> Your 1st amendment rights are not being infringed by being denied access to TikTok

That is what the court found but it opens some interesting questions that really do have impacts.

I would bet that you would find a law that says op-eds can only be published in an approved list of venues to be clearly wrong, yet it is equally just determining venue and not content.

As would a law which banned foreign ownership of venues while also introducing a regulatory scheme for domestic ownership stakes of sensitive industries and defined news and commentary as a nationally security sensitive industry. (Which this law essentially does for certain types of apps.)

So at some point a law can be “content neutral” and about access to venue not content but I bet almost any reasonable person would agree it’s an unreasonable restraint.

Now for a situation you draw the above as a parallel with but is very different:

> just as the far right isn’t having their 1st amendment rights being infringed by being denied to use BlueSky as their platform.

Bluesky can do whatever they want but if the government were to get involved in defining regulations around which users could use BlueSky… yes absolutely I would expect it to be thrown out on first amendment grounds and expect it’s a significantly stronger case than any of the examples above.

It’s a much weaker and almost irrelevant case when directed at a non-governmental organization in which some folks are using “free speech” as an argument over what entities which are not enjoined from almost any actions may do with their own venues. But yeah, if it was the government telling BlueSky who to ban? You bet that’s got first amendment implications and I’d expect a court to review it under strict scrutiny. (And I wouldn’t expect it to survive.)

[kelnos]

> I would bet that you would find a law that says op-eds can only be published in an approved list of venues to be clearly wrong, yet it is equally just determining venue and not content.

That's a poor analogy, because allowlists and blocklists are not the same thing and do not have the same effects. The government only allowing a list of certain approved media outlets would be an obvious 1A infringement. The government blocking certain media outlets is not.

[djcapelis]

It’s not meant to say they’re the same thing, it’s meant to demonstrate clearly that venue restrictions even when content neutral can impose restrictions on speech and those restrictions must be balanced and scrutinized appropriately under our system.

[abigail95]

There isn't this much fuss about the foreign ownership of physical and broadcast media laws.

Is the difference really about whether you can post on the platform or not?

[djcapelis]

I think that’s a huge difference, yes. And about what apps my phone is able to download, and what servers it is able to access.

Another huge difference is broadcasting is about usage of a shared resource and has always had regulations on who is allowed to do what. They don’t ban RT from setting up their own venue or printing a newspaper. RT and other outlets are able to operate in the US and people are able to chose to watch them.

[corimaith]

Why is it a huge difference? If you want absolute free speech places like 4chan will offer far more freedom than even TikTok ever would.

[JumpCrisscross]

> Telling me where I can publish a video?

This is like arguing graffiti laws are censorship.

[djcapelis]

Graffiti laws are also evaluated under heightened scrutiny due to free speech implications. A law having an impact on free speech does not mean it never holds, but it must be analyzed in that context. Here’s an example: https://southerncalifornialawreview.com/wp-content/uploads/2...

[JumpCrisscross]

> Graffiti laws are also evaluated under heightened scrutiny due to free speech implications

Graffiti bans are unquestionably constitutional. Graffiti laws that regulate the content are not.

Telling people where they can speak is precedented, legal and necessary. Telling people what they can say is against the principles of free speech; the government doing so is illegal.

[kelnos]

I get that you believe that's what's happening, but I can't imagine any US court agreeing with you.

The law (and the US constitution) does not guarantee any particular platform for your speech. It just guarantees that you can speak, and courts have interpreted that to mean that you need to have some reasonable platform, and that laws can't put an unreasonable burden on your ability to speak on some platform.

As an aside:

> Telling internet providers what servers they’re allowed to let my device access?

The law does not target internet providers at all. They are not required to block traffic to *.tiktok.com or any of their IP addresses.

[threeseed]

> It’s a restriction on my speech. Telling me where I can publish a video? Telling me what apps I can download? Telling my software vendor what software they’re allowed to let me get? Telling internet providers what servers they’re allowed to let my device access?

You are being ridiculous now. None of those are forms of speech.

And restrictions on your ability to perform certain actions is literally what being in a society is about. If you don't like it then find another society. Just like you can find another ISP, place to publish your video or platform to use apps you want to use.

[djcapelis]

Whether you think it’s ridiculous or not, restrictions on distribution of software being a violation of US free speech rights has been an established part of US case law for around three decades now: https://www.eff.org/deeplinks/2015/04/remembering-case-estab...

[harshreality]

I'm skeptical that Bernstein vs DOJ would apply, to a [foreign-controlled] company that is not publishing their algorithm, on the idea that allowing their [trade-secret] code to control how hundreds of millions of people interact with each other is somehow free speech on ByteDance's part.

The foreign-controlled part in particular implicates Congress's obvious and explicit power to regulate international trade, and it seems obvious to me that there would be something less than strict scrutiny applied to alleged violations of the 1A when that Congressional power is in play.

[djcapelis]

Yes, most of the court felt intermediate scrutiny was the appropriate standard in part because of the reasons you outlined.

(I also agree that this is a different case, I only point to Bernstein because it is a clear part of case law which states that software distribution is and can be a free speech issue and restraints on it would be expected to be evaluated with some level of scrutiny.)

[patcon]

I also feel you are being a bit absurdist fwiw. I am know the be a principled devils advocate sometimes, so I'm reading you as that, otherwise your position as an American makes very little sense to me

[djcapelis]

The justices on the Supreme Court analyzed the constitutionality of this law under a free speech basis. The Per Curiam opinion of the court suggested the correct standard was intermediate scrutiny as an abridgment of free speech. Justice Sotomayor suggested in her concurrence that strict scrutiny (the highest standard) was appropriate.

They concluded that these regulations were okay at those levels of scrutiny, but it is not absurd or ridiculous to analyze these as forms of speech, and indeed, our courts do so.

That said, just because there is a conflict with freedom of speech doesn’t prevent all government regulation, it just means the laws involved must pass an elevated level of scrutiny. That applies here, for multiple reasons, and with multiple parties.

[threeseed]

Source code you can argue is a form of speech versus a packaged product.

Not that the case is relevant because restrictions on the availability of products is well established under the law. I can’t just buy nuclear weapons for example.

[FpUser]

>"If you don't like it then find another society. "

Isn't use of any non-violent means to advocate one's belief to change the society is the whole point of the democracy? Your point is rather very totalitarian.

[threeseed]

They are arguing that any infringement on any action they don't like is unacceptable.

This is incompatible with living in a society.

[djcapelis]

I’m not, for what it’s worth. I’m arguing that I think the free speech case is stronger for the users and software distributors who are enjoined from the platform or distributing certain software applications than it is for the platform whose ownership but not content or speech is being directly regulated. (The law doesn’t fine TikTok it fines the people providing services to TikTok. Their speech rights may be more relevant in this case.)

I also see why people are interpreting my comment to mean that because it’s a restriction on my speech it’s not constitutional because that’s how people usually act on the Internet. But I don’t and didn’t. What I said was it was a restriction on my speech and I believe that’s more of interesting case than the restriction on TikTok’s speech. The ramification of that is that the courts would adjudicate the free speech restriction at an appropriate scrutiny level and determine whether that restriction is allowable. As we all know, some restrictions are allowable and constitutional. Others aren’t.

It’s not unreasonable, wild, or strange to point out that there’s a restriction on speech here, and to point out that conflict needed to be resolved to determine constitutionality.

Most are handled at the district level, if the court felt there was no legal issue at play, they would have denied cert. Their opinion did end up being per curiam which suggests the court feels clearly about the case, but does not suggest they never felt there was an issue worth arguing.

[kelnos]

> What I said was it was a restriction on my speech

I don't agree that it is, though. The restriction is on where you cannot put your speech[0], not on the speech itself. If there was nowhere that you could put your speech (or if the available avenues became much much much smaller in reach), then I would say that your speech is being restricted.

But that's not the case here. You can publish that same speech on YouTube, Facebook, Threads, Instagram, Twitter, and a host of others where you can reach more or less the same audience you can reach on TikTok.

You also mention elsewhere about not being permitted to download a particular app onto your phone (and/or that a service provider isn't allowed to provide it to you). That just isn't a free-speech issue at all. And besides, if you have an Android phone, you absolutely still can install the TikTok app on the phone, because Android allows sideloading. If you have an iPhone and can't sideload, then your beef is with Apple, not with the US government. Beyond that, www.tiktok.com still works just fine, and will still work fine even if/when it ends up hosted on infra owned by non-US companies.

[0] Note that I did not say it is a restriction on where you can put your speech; it is a specific restriction on where you cannot, which I think is an important distinction.

[djcapelis]

It’s a restriction either way. Whether it’s a reasonable one or one that meets elevated scrutiny is a separate second question. Your points are arguing that question and are reasonable context for that debate.

[kristjansson]

The government isn’t banning TikTok, the law only requires a change in ownership. The current owners are choosing to performatively shut down in an attempt to bully their way through that requirement

[YurgenJurgensen]

The US need not restrict any of your speech. You’re not directly communicating with any of TikTok’s users when you post to it, TikTok is. In the Internet age, even apparent one-way communication is handshakes upon handshakes. Consider this: You’re free to send whatever messages you want to ByteDance. They’re just not allowed to reply (or have anyone reply on their behalf). The app is a useless binary blob if it can’t set up a TLS connection.