IS THE EMERGENCY TIKTOK PETITION WEAK?

The latest Based Politics petition for an emergency injunction of the Tiktok ban, seems to miss the mark by being deficient in the most important area: “viewpoint”. This latest petition overemphasizes the liberty interest of making money, which Congress interferes with 24/7 (even while irreparable harm from individual local acts not created by Congress is enjoined).

The petition plays into the idea that TikTok is a communications medium that can be regulated like a radio station (common carrier?), which can be restricted from foreign ownership. The idea that Based Politics is speaking in collaboration with the Chinese government is silly. What they needed to say is, it is legal to collaborate to promote a viewpoint shared with the Chinese government. But that is not what this law prohibits or what Based Politics is doing.

Based Politics pointed out the government did not even argue the ban is similar to foreign ownership of radio stations. But I can guess their own lawyer invited this part of the opinion, by arguing the ban restricts a medium (intermediate scrutiny), rather than arguing it suppresses a viewpoint (strict scrutiny). I am not saying the viewpoint argument would work, but it at least deserved a larger role next to making money which is not in the First Amendment.

A text search of the petition does not turn up the word “viewpoint”, though the word “content-based” is used similarly several times. But unfortunately, they raise it so far as the ban discriminates against the viewpoint of the Chinese government, which I believe Congress is allowed to do. They should have instead done the opposite, saying that the banning of a Chinese viewpoint is hypothetical, but the loss of a dissident US viewpoint is immediate, and invokes “strict scrutiny”.

I understand it to be Hannah’s view, that banning TikTok discriminates based on speech viewpoint. Because TikTok is the only means for unpopular people to speak alongside and competitively with incumbents, who can call press conferences and buy advertising. So the immediate harm is an immediate suppression of dissident American viewpoints.

Not being a lawyer, I cannot claim that judges would listen to my arguments, or are unsympathetic to the political cost of widespread financial harms. But it seems in copy-pasting the various cases for irreparable financial harm and random off-target First Amendment cases, the petition missed the essence of the actual harm Based Politics perceives, which is a loss of free-flowing dissident viewpoints.

You have to say the TikTok ban discriminates against your viewpoint (in favor of Anthony Fauci’s viewpoint or whatever). Or at least argue that it does, in favor of strict scrutiny and temporary injunction to prevent this harm.