The law states that it cannot be owned by a Chinese company. So they could be sold to owners in almost any other country (the law explicitly lists China, North Korea, Iran, and Russia as being banned.
It’s interesting that they didn’t press the constitutionality of this. They fought over “free speech” where it’s more clear that this might be a bill of attainder or violation of the 14th amendment.
The court of appeals thought about it and decided it wasn't. Start on page 59 of their ruling [0].
They tried to appeal this to the supreme court, the supreme court declined to hear that part of the case. See bottom of page 34 on their petition for a writ of certiorari [1].
Ah, interesting! I just read the arguments from the supreme court case and not the whole history of the thing.
Reading the appeals court case, it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it?
> it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it?
Not how I would phrase it.
A bill of attainder is two things, it targets a specific person, and it punishes them.
They decide the bill definitely targets TikTok, which is possibly close enough to a "specific person", but it doesn't punish them. Thus it doesn't satisfy the second prong and they don't have to even finish deciding the first prong and left the "possibly" in there.
National security really comes in when trying to decide it was a punishment. It's not a traditional punishment, but one of the other ways they could decide it was a punishment would be if it didn't further any purposes but punishment, and in this case the purpose it happens to further was national security. As far as I can tell this analysis would be the exact same if congress passed the bill instead because they decided TikTok was harming schools ability to keep order. It just has to be any non-punitive purpose.
As a layman who has held to deal with the law on more than one occasion in the US, I would say forcing you to divest or shutdown is a punishment; ie, something a court usually tells you to do when you commit fraud, not a congressman. I'm 99% sure it wouldn't be hard to find at least one congressman on TV saying this law specifically exists to target TikTok and shut it down.
Yeah, so I'm just paraphrasing the appeals court ruling above.
There's no dispute that this bill exists specifically to target TikTok, and that it will likely result in at least a temporary shut down, permanent if they choose not to divest.
Apparently there are a bunch of prior rulings on the meaning of "bill of attainder" though which say that that isn't within the typical meaning of punishment as used to define it. To quote just a bit of the courts recitation of previous cases
> See BellSouth I, 144 F.3d at 65
(explaining that although “structural separation is hardly
costless, neither does it remotely approach the disabilities that
have traditionally marked forbidden attainders”); see also
Kaspersky Lab, Inc., 909 F.3d at 462–63 (comparing a law
requiring the Government to remove from its systems a Russia-based company’s software to the business regulations in the
BellSouth cases)
I'm not really knowledgeable about bills of attainder, but I think it might be useful to understand the distinction they're making to be one between "punishing" (the bill is, it hurts) and "punishment" (it's not because that's not the purpose, it's a side effect). There also appears to be a higher standard to qualify as punishing a corporate entity than an individual, which strikes me as a bit strange, but if I'm reading this right is settled law.
Of course if the app have done anything seriously illegal, it would not have been necessary to bring this law to ban it, because existing laws would have sufficed to do it.
Perhaps because US government wanted to do it despite TikTok not breaking any serious provisions of law this law has been made.
It feels like a sleight of hand from government to ban something that has broke no (serious) law (yet).
Did the SCOTUS go into the necessity of having this law to achieve what government wanted, if existing laws would have sufficed, provided that government met the standards of evidence/proof that those laws demanded.
If not, it is as if government wanted a 'short-cut' to a TikTok ban and SCOTUS approved it, rather than asking government to go the long way to it.
What this line argued in the Supreme Court in the oral arguments or in the opinion or in the lower court?
Obviously TT could not have brought this up, but the court could have brought it up while examining the government.
Both the Supreme Court and the appeals court went into quite a bit of detail as to the necessity of achieving what the government wanted, because it was relevant to justifying the impact on speech with regards to the first amendment.
Only the appeals court (and presumably the district court below them) heard arguments about it being a bill of attainder. The supreme court chose not to. With regards to being a bill of attainder the appeals court appears to be of the opinion that it is enough that it isn't a traditional punishment, and that the justification for it was something other than punishment, without analyzing whether the government had a legitimate interest in achieving their non-punishment purpose. Of course they had already found that they did have a legitimate interest because of the first amendment analysis, but I don't believe their opinion with regards to it not being a bill of attainder relied on that.
Did the supreme court examine government as to, if this was the only path available to achieve what it wanted?
Was it established that existing provisions of law is not sufficient to deal with the issue(perhaps not so easily as by fiat as in the new law, but requiring stricter standards of trial and evidence), necessitating this new law?
I don’t think it’s even close to a bill of attainder.
For one, it targets a class of companies operating from a collection of countries, not an individual person (and SCOTUS has never ruled on corporate personhood for the purposes of being a bill of attainder).
Secondly, the law in question does not declare a corporation guilty of any crime, it just offers restrictions on foreign control of certain businesses.
Third, the law targets non-American holdings, making it less likely that it could be considered a bill of attainder, since laws directly targeting foreign countries and agents thereof have been accepted in American law.
The whole idea of "corporate personhood" is a bit of a tortured way to describe Citizens United. It was introduced by the people (media and democrat lobbyists - the case was about a group that made a very negative documentary on Hillary Clinton) who had the most to lose from Citizens United and somehow stuck. There was never a ruling that corporations are people. The ruling in that case was more along the lines of "people don't lose fundamental rights by virtue of creating a corporation to exercise those rights." Calling that "corporate personhood" is a borderline misrepresentation, and leads to a lot of confusion when you think of other laws.
> people don't lose fundamental rights by virtue of creating a corporation to exercise those rights
No. That is even more manipulative way to put it. No one was "loosing fundamental rights", that part is a lie. What ruling did was to make corruption legal, if you create a corporation by virtue of corporate personhood.
Freedom of speech is a fundamental right. The people involved in Citizens United could have done exactly what they did as individuals with some contractual money sharing agreements, and both sides of the case acknowledged that. Signing one little extra piece of paper makes the whole thing illegal corruption?
The actual case of Citizens United had exceptionally bad facts for the camp that thinks it's a bad ruling. The DNC should never have pushed it as far as they did, because it came right back at them like a ton of bricks.
In contrast, bringing it back to this case, communication over the internet involves many different business agreements to get internet service, rent computing, etc. Those relationships are within the US's power to regulate and legislate, especially when they cross its borders.
While your words make sense to me, I cannot wrap my head around viewing it that way. It clearly makes them post facto guilty of the crime of owning the company (which is also not constitutional) and their punishment is either divestiture or shutdown -- which is an actual punishment given out by courts, not congressmen.
First, you could say something similar about many restrictions.
If there is one steel monopoly and you ban being a monopoly then we can apply the same logic you have there.
To be completely fair, the “illegal part” of being a monopoly is not generally in the existence of the monopoly itself, but in the monopolistic actions the company may take. However, those actions may be a fundamental part of the function of the company, and I’d argue that country of ownership is another property that should be eligible for restriction.
Second, and _far_ more importantly, it is not clear to me that it’s unconstitutional to make a law that a foreign company can’t operate a certain type of business in America.
I would argue this is a bad example because it will lead into a conversation about monopolies, which is off-topic.
Restrictions are fine, but they need to apply broadly -- this law was specifically targeted at a single US entity, owned by a foreign entity. To me, who has only coarsely read up on this due to his account being cut off because I originally signed up with a US phone number when I lived in the US; it seems as though a bunch of rich people got mad that someone else in another country was getting rich.
Keep in mind that I am just now even caring about this situation, so I'm coming in with fresh eyes and limited history. In any case...
> it is not clear to me that it’s unconstitutional to make a law that a foreign company can’t operate a certain type of business in America.
Of course they can. My only issue is that they are targeting a specific entity and punishing them for being owned by someone in another country, which seems unconstitutional. If they targeted all companies, big or small, it would be different. I may not like it, but it wouldn't be questionable.
> It’s interesting that they didn’t press the constitutionality of this. They fought over “free speech” where it’s more clear that this might be a bill of attainder or violation of the 14th amendment.
Please explain in layman's terms why do you believe the 14th amendment applies to the federal government rejecting a corporation owned and controlled by a totalitarian regime from operating within the US.
> No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I believe this applies to the USA as a whole as well, not just to states (Bolling v. Sharpe (1954) according to ChatGPT). One could argue the law is unconstitutional because it applies a punishment without due process.
> I believe this applies to the USA as a whole as well, not just to states (Bolling v. Sharpe (1954) according to ChatGPT). One could argue the law is unconstitutional because it applies a punishment without due process.
The 14th amendment applies to US citizens and persons. The law requires ByteDance to sell it's TikTok position. Who do you think is the US citizen or person in this case? China's CCP?
Pretty sure it was a US company... probably owned by Chinese, but I haven't been following it super closely and can't see how that matters any bit. It's sad how much the US has changed in the last decade since I became an expat almost a decade ago.
The company being targeted is ByteDance, not TikTok. The US government wants ByteDance to sell it's controlling position on TikTok to someone else, or else TikTok can no longer operate in the US. ByteDance is a Chinese company that is a de-facto shell corporation of China's CCP. For the 14th amendment to apply, you would need to argue that either a Chinese corporation or China's CCP would be US citizens.
Edit: text of the bill: https://www.congress.gov/118/bills/hr7521/BILLS-118hr7521rfs..., which references a different part of the statute for the list of countries here: https://www.law.cornell.edu/uscode/text/10/4872