Unfortunately for the ByteDance-owned social media app, there’s no law against silly laws, says Stephen L Carter for Bloomberg Opinion.
NEW HAVEN, Connecticut: My great uncle, a brilliant scholar ultimately imprisoned during the McCarthy Era for his politics, first came to the attention of the Federal Bureau of Investigation because agents couldn’t find his printing press.
The complaint argues that the sort of divestment the statute demands is technologically difficult; whether or not that’s true, nobody imagines that the company will sell its algorithms and source code to a US buyer, or that the government of China would allow it to do so. But it’s less obvious that banning an app violates the rights of users. A regulation that is content-neutral will generally be upheld if it leaves alternative means of expression available and burdens no more speech than is necessary to further the government’s interest. Other apps exist, and if TikTok goes, more will spring up.
But according to Alphaeus’s FBI file, there was worse: He was also printing employment applications, “so that ‘pressure’ can be brought upon the Federal government to require the hiring of these negroes”. In short, the FBI’s goals involved putting a stop to speech the government didn’t like. In time of war, I suspect the courts would find such targeting appropriate. In time of peace, the case is shaky. But even were the analogy spot-on, the statute doesn’t rest on the notion that TikTok is delivering user data to China, only that, in theory, it could.
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