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PaperclipPerfector  6mo ago (text post)   32495 thread views

Culture War Roundup for the week of July 7, 2025

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Constitutional law professor/commentator Steve Vladeck updated us on the "dispensation" of the "TikTok Ban," in light of new FOIA releases, this morning:

I wrote back in January about how the TikTok executive order President Trump signed on his first day of office committed whoever the Attorney General would be to take that first position about the meaning of the statute (which should’ve been reason enough for any principled lawyer to refuse nomination to the office, and for the Senate to refuse to confirm any nominee). But it’s the second claim—that the President, through the Attorney General, has a dispensing power—that is even more extreme; that is not even required by the executive order; and that, if it becomes a precedent, would turn the separation of powers (if not the rule of law itself) entirely on its head.

...

Late last week, in response to FOIA requests, 21 of those letters were made public. The letters are worth reading in their entirety (in some cases, multiple letters to the same company sent at different times were included). But to summarize the highlights, across those letters, the Attorney General of the United States memorialized some variation of the following three conclusions:

  • Companies that continue to support the TikTok app are not, in fact, violating the TikTok statute;
  • The TikTok statute is “properly read” to not “infringe upon . . . core Presidential national security and foreign affairs powers”; and
  • The Department of Justice is “irrevocably relinquishing any claims the United States might have had” against the recipients of the letters for both previous and ongoing violations of the act.

Each of these three arguments is ludicrous. The first argument is inconsistent with the literal text of the statute—which is not exactly ambiguous about what it prohibits. Unless TikTok’s Chinese owners divested by January 19 (and they didn’t), U.S. companies are barred from:

Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

Of course, “providing services” to distribute, maintain, or update the TikTok app is … literally what these companies are doing. Thus, there is no plausible argument that these companies are not violating the TikTok statute; they are continuing to do exactly what it bars.

See, also, Alan Rozenshtein in Lawfare.

Should the Senate have refused to confirm any nominee who committed to using "dispensation?" What is the appropriate response to this kind of corruption?

I will register the unpopular minority opinion that I dislike the TikTok ban.

Fundamentally, it goes against the ideal of a marketplace of ideas. Bad argument gets counterargument. Does not get bullet. and all that.

Worried about TikTok promoting harmful behavior? Set up a general framework which video platforms liable (e.g. once they have been notified). Worrying about kids getting addicted to short videos? Ban short video platforms generally.

Plenty of countries ban or restrict foreign-produced or foreign-owned media. The Chinese can not read the Guardian. Russia severely regulates any NGOs which come within a mile of foreign funds. No Netflix for North Korea. And so forth.

In my mind, restricting foreign media is a sign of weakness. If North Korea gave its subjects access to Hollywood TV and CNN, their own propaganda would indeed look stale by comparison, so they ban foreign media not mainly because it has the better arguments (though of course it has), but because they could not match its visual appeal.

The US is both a champion of the marketplace of ideas and a dominant global cultural force (two facts which might be related, somehow). Netflix exists in 190 countries. Hollywood productions probably reach the majority of the world population, spreading Western ideas around the globe.

If that country says "actually, the most popular mobile app being foreign-owned is a, flips through excuse calendar NATIONAL SECURITY RISK, so sell it to a US company or we will ban it" is absolutely pathetic.

Don't get me wrong, I do not like short video apps particularly, but I also do not think they are intrinsically more harmful than Skinner box games. TikTok was clearly targeted because it allowed China (through recommendation algorithms) to decide what political speech Generation TikTok would be exposed to. Telling a generation "you are not allowed to use your favorite app because Red China might expose you to wrongthink" is pretty fucked up. If TikTok is a direct unfiltered channel into the viewers mind unlike all the media formats which we encountered before, then it should either be banned or be placed under the control of the US ministry of rightthink, not just sold to some random US firm which might not be that much more trustworthy.

And yes, I also hate the precedent this sets for free exchange of information, because the West just lost the moral high ground. Any tinpot dictator can say "Sure, I ban X/Bluesky/Meta/Google, but you see, I consider a dominant foreign media app a NATIONAL SECURITY RISK, just like the Americans do."

I'm less worried about TikTok as a security risk from a perspective of promoting anti-American sentiment via the algorithm, and more from a perspective of finding a Senator's daughter's account, geolocating her location and making educated guesses as to the Senator's location, contacts, etc.

I personally hate the Tiktok/Vine style short video-algo-doomscroll shit with a passion and would rather the whole concept and its copycats get the axe, complete with youtube shorts and facebook's whatever the fuck they have going on. But I'm not sure it's doable with the legal framework we have right now.

Worried about TikTok promoting harmful behavior? Set up a general framework which video platforms liable (e.g. once they have been notified).

No, this is worse that a ban on TikTok. This gives all platforms incentive to stifle speech, raises barriers to entry to new platforms (because of the liability risk) and enriches insurance companies who will become the mostly-hidden arbiters of speech.

This is pretty much the same thing as DACA, no? In which case the appropriate response is: Elect a new president who campaigns on enforcing the law and tries to do so, only to be tied up in court for their entire term.

Yeah, from the legal realist perspective this whole debate is pretty settled. It'd be nice if "X shall Y" meant something. It doesn't. Even if you want to cordon off immigration law as enforcement discretion -- pretty hard to do honestly, given the only enforcement in this law is the fed AG going after companies -- we have other examples. King v. Burwell is best-known for its denouement, but earlier parts of the case dismissed challenges to the continuous delays in the employer mandate as unredressable, and it wasn't even a surprise then. That, likewise, included a disclaimer that the government would surrender any possibility of future lawsuit on the matters in the covered time period.

Without explicit mechanism for private modes of action available to actual people (and that's not a guarantee!), or a one-off 'special solicitude' from SCOTUS, "shall" means less than a Zoomer saying "literally". Yes, businesses acting in violation of the law could theoretically get punished under a different administration, despite this 'dispensation' -- it wouldn't even trigger the various rules against ex post facto laws for a bunch of reasons, though there would possibly be some due process concerns -- but anyone paying the slightest bit of attention knows that it's either not going to happen, or will only happen if a Dem President wants to (threaten to) completely crush some disfavored business.

Which would be fine if Vladeck were some naive rando who still thought the text of the law mattered, or predicating his analysis as clearly on the "ought" side of the is-ought dividing line. But no. The House of Representatives couldn't challenge these rules even if it specifically involved the government's taxation power; claiming that a random competitor might succeed in a challenge of an enforcement discretion letter raises serious questions about anyone with nontrivial knowledge of relevant caselaw's competence or honesty. And Vladeck works as a professor of law, at a school that charges thousands of dollars a credit-hour to listen to him!

Remember the poster who always posts on here saying we need an immigration law that says "you have to deport illegals this time for real pretty please" and then the Democrat president will do it.

This is just another example of the president's ability to pretty much poof away any law.

I can't speak to the legal issues, but at this stage I have no problems with someone banning TikTok because of the actual real-world harm it is doing.

Seemingly some idiot "influencers" on the app got people to drink borax as a health cure.

Need I say this is not a good idea at all?

Now, the fools may be confusing borax and boron, not helped by the fact that a salt of borax, sodium borate, is sometimes touted as "it contains boron, your body needs boron, this is fine!"

It is not fine.

Now, your opinion may differ on whether it it a public duty to protect fools from their folly, but I think that we should have some discipline over a platform encouraging the public to poison themselves, and if it takes banning TikTok to make them kick the "influencers" off the platform, well gosh we'll just have to suffer on without a stupid social media platform (until a competitor leaps in to fill the gap).

Seemingly some idiot "influencers" on the app got people to drink borax as a health cure.

Should we ban 4chan too than? They used to do this shit all the time.

Also, why do you think dangerous trolling is a Tiktok specific problem? It strikes me as a "humans on the internet" problem.

Oh, were I Dictator of Earth, I'd happily go "ban 'em all, the stupidity level is too high".

Based

4chan is already controlled by the American Intelligence Community, that's the only meaningful difference.

Dumb influencers aren't unique to TikTok. Years ago people were eating Tide Pods and posting the videos to YouTube or Facebook, and influencers have been shot while messing with strangers for "prank" videos. All of these platforms moderate content like this, but it's a cat and mouse game with users who want to evade the filters. YouTube Shorts and Instagram Reels are copycat services offering the same short clip style of content, with the same issues.

It's a bit hard to take the TikTok moral panic seriously when the main driving force for the ban was US tech companies mad that they were being disrupted (or looking to buy the distressed asset for a discount), and it only took off thanks to AIPAC and the ADL getting upset that TikTok refused to aggressively moderate pro-Palestine content. The content can be dumb, but I don't think a sufficient case has been made for banning the service on national security grounds.

Maybe it’s a relatively small issue, but I have been immensely disappointed in the Trump II admin’s handling of the TikTok ban (which is to say, stonewalling it seemingly at all costs).

For one, the bill has remarkably plain text which they are openly violating. I’m open to hearing examples if people here think I’m wrong about this, but I think this is qualitatively different from most of the “Imperial Presidency” actions taken by Bush and Obama (and Trump I, and Biden). To my knowledge those situations generally relied on Congress abdicating its authority to the President or to the executive branch. For example all of the 21st century’s military escapades and undeclared wars, often described as being in defiance of Congressional authority, are actually operating with explicit approval in the form of the post-9/11 AUMF. Congress could repeal it at any time and reclaim its war-making authority, it simply chooses not to. Much the same for all the myriad powers now granted to federal agencies. In this case the executive is quite nakedly saying “this law has been passed, but we don’t like it, so we won’t enforce it.” This is not a power the branch is supposed to have.

Second is the way in which this came about. Trump had campaigned as a China hawk and, iirc, publicly supported the bill until an 11th-hour turnaround which was conveniently timed after an influx of campaign funds tied to Chinese business interests. This is, at best, not a good look.

And finally I just disagree with the substance. TikTok should be banned in the US, or at least sold to US owners. All the innate problems with algorithmic social media feeds, which are frankly bad enough on their own, are massively amplified when the company which owns and operates the algorithm is beholden to an explicitly hostile foreign power. There’s already pretty incontrovertible evidence that TikTok is tuned to mildly promote divisive content and to mildly suppress content critical of China (e.g. higher rates of Palestinian-related content but lower rates of Uyghur-related content versus similar social media apps, among others). The algorithm could trivially be tuned further in the event that Chinese-US relations deteriorate further, or just if the company’s state handlers want to. I don’t see a reason why we should need to accept that risk.

higher rates of Palestinian-related content but lower rates of Uyghur-related content versus similar social media apps, among others

Is there evidence that this is not because US-based social media actively suppresses pro-Palestinian content? As for the Uyghur content, that topic has always been minuscule (and felt thoroughly astroturfed during its moment in the limelight) so who knows what is going on there. Maybe the approximately two people still making Uyghur content avoid TikTok because it is Chinese all by themselves.

Is there evidence that this is not because US-based social media actively suppresses pro-Palestinian content?

Admittedly I don’t think anyone has done that study, but honestly I find it very hard to believe. Certainly if they are they’re doing a pretty terrible job: pro-Palestine content dominates pro-Israel content on all US social media, as far as I know.

Anyway, I was doing some quick searching and I believe this is the original study I was remembering: https://networkcontagion.us/wp-content/uploads/NCRI-Report_-The-CCPs-Digital-Charm-Offensive.pdf

I think there was at least one other study done as well, but I couldn’t find it in my cursory Google search. I have an admittedly somewhat vague memory of more graphs comparing the different social media sites in terms of non-China-related political content as well that I didn’t see in this particular Rutgers study, which is entirely China-focused. I also recall reading about this topic in both the mainstream news (likely NYT but I don’t remember) and a fairly detailed substack post, possibly by Jonathan Haidt? If you want I can try harder to find it again later (I’m procrastinating at work at the moment by writing this post so my time is limited) or you can look for yourself. In my opinion the study is convincing in its main point that the TikTok algorithm emphasizes pro-Chinese and de-emphasizes anti-Chinese political content. It is not a blunt promotion/suppression, just a light-touch thumb-on-the-scale approach, but I think it shows willingness to interfere in Chinese-owned US-facing media even in the relatively peaceable geopolitical environment of today.

Honestly, though, the concern of whether the CCP is currently manipulating the algorithm is, in my view, very much secondary to the plain fact that they are capable of mandating such manipulation through their leverage over the company. I don’t think that some sort of naive free market principles (which, as far as I can see, are really the only counterargument to the ban/forced sale) justify exposing our media environment to that kind of risk.

Given the contents of Twitter, it seems clear that if US social media is suppressing Palestinian content they’re doing it poorly.

Possible this is intended as a kind of coercion theater? The US used to go through this annual vote on whether China keeps Most-Favoured-Nation trading status, from about 1980 to 2000. Of course the leverage wasn't very useful but it did give politicians ways to grandstand 'I'm hawkish on China' and maybe gave vague warnings on human rights marginally more gravitas. There's a longstanding tradition of the executive branch sabotaging legislative attempts to create leverage and coerce China. Bush went 'yeah tiananmen is bad but we're not going to stop trading with China' back in' 89.

This is an interesting political theory case study. What happens when congress passes a law, but then everyone realizes that the law is bad before it even comes into effect? One might think that the obvious answer is that congress would repeal the law, but that would be profoundly embarrassing for the congresspeople who just voted for the law last year. Much easier for them to simply look the other way as the law is openly flaunted.

I don't think the law is bad. As Zvi said:

TikTok is not purely an op. TikTok is a legitimate highly predatory business, and also TikTok is an op.

There have been surveys showing that most TikTok users would prefer that TikTok not exist (they're still there because everyone is there and that imposes social costs on anyone who's not), never mind the non-users. It's got massively-negative externalities - and at least part of those externalities are malicious attempts by the PRC to destroy the USA.

It is one of the roles of government to destroy things with massively-negative externalities. This is one of the primary clauses of the social contract - "we'll deal with the villains in an orderly fashion, so don't murder them in the streets". Yes, not all TikTok bans would be net-positive; Zvi was an opponent of the RESTRICT Act, for instance. But this one looks good; the scum just managed to bribe their way out.

Has people "realised that the TikTok ban is bad"? Are there identifiable Congresscritters who have flipped that would mean that the ban would no longer have a majority? I haven't noticed anyone changing their mind on this point who hadn't just agreed a lucrative business transaction with a TikTok investor. I haven't seen anything happen that would change a sensible, normal person's mind about TikTok since the ban was passed.

Occam's razor says that Trump flipped for personal reasons (probably his relationship with TikTok investor Jeff Yass), and that the reason why Congress doesn't care is that a supermajority of Congressional Republicans defer to Trump about essentially everything.

Vladeck elaborates on the difference between lack of enforcement and dispensation and why dispensation is a major problem.

His distinction:

But the power to decline to enforce a statute just isn’t the same thing as the dispensing power; the former does nothing to alter the potential liability that those who violate the statute might face; the latter at least purports to render them formally immune.

Seems both threadbare and tremendously wrong, though. The various and length delays to the ACA's individual and employer mandate were not only retrospective, nor accompanied by anyone panicking that they could face future liability had the government changed its mind afterward. The DACA authorizations left specific people immune to civil litigation even well after a different President was elected specifically on the matter of changing the rule, and courts stayed those changes!

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