[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.