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PaperclipPerfector  7d ago (text post)   28602 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."

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.

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