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One expert said legislators' admissions "that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend," said one First Amendment expert.
A top First Amendment expert on Tuesday said TikTok has a strong case against the U.S. government as the social media platform filed a federal lawsuit against a potential ban—particularly since proponents of the law have admitted it is aimed at blocking Americans' access to news out of Gaza.
The platform filed the lawsuit against U.S. Attorney General Merrick Garland in the U.S. Court of Appeals for the District of Columbia Circuit nearly two weeks after President Joe Biden signed the Protecting Americans From Foreign Adversaries Act into law as part of a larger foreign aid package.
Under the law, TikTok parent company ByteDance, a Chinese firm, has 270 days to sell the platform, allowing it to continue operating in the U.S. If it does not sell TikTok, the app will no longer be available on U.S. networks and app stores.
As Common Dreams reported Monday, Republican lawmakers including U.S. Rep. Mike Lawler (R-N.Y.) and Sen. Mitt Romney (R-Utah) have linked TikTok to the burgeoning anti-war protest movement spreading across the U.S., with the latter saying in an interview with Secretary of State Antony Blinken last Friday that "there was such overwhelming support" in Congress to shut down TikTok because of the frequent posting of Palestine-related content on the app.
"Restricting citizens' access to media from abroad is a practice that has long been associated with repressive regimes, so it's sad and alarming to see our own government going down this road," said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, on Tuesday. "TikTok's challenge to the ban is important, and we expect it to succeed. The First Amendment means the government can't restrict Americans' access to ideas, information, or media from abroad without a very good reason for it—and no such reason exists here."
"The fact that some legislators have acknowledged that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend," Jaffer added.
The law's sponsors claim it "is not a ban because it offers ByteDance a choice: divest TikTok's U.S. business or be shut down," reads the lawsuit. "But in reality, there is no choice. The 'qualified divestiture' demanded by the act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally."
Even if selling the app within the time frame was feasible, added TikTok and ByteDance, the law "would still be an extraordinary and unconstitutional assertion of power," ultimately allowing Congress to "circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down."
"And for TikTok, any such divestiture would disconnect Americans from the rest of the global community on a platform devoted to shared content—an outcome fundamentally at odds with the Constitution's commitment to both free speech and individual liberty," the plaintiffs continued.
At The Philadelphia Inquirer on Tuesday, columnist Will Bunch noted that about a third of Americans between the ages of 18-29 get their news from TikTok, according to a recent Pew survey—as Romney openly stated he fears last week.
As Bunch wrote:
During the war in Gaza, most mainstream Western journalists have been blocked from entering the war zone. The best source of real-time information is often the phone video of airstrikes and their aftermath either shot by Palestinian journalists—more than 90 of whom have been killed—or civilian bystanders. Look, there's disinformation about every issue on social media—it's a serious problem. I'm a clueless boomer myself about TikTok, but I do spend way too much time on X/Twitter and I can tell you exactly what is radicalizing young people about Gaza.
The reason so many under-30 folks have adopted the Palestinian cause isn't disinformation, from Hamas or China or anyone else. They've been radicalized by the truth—daily videos of young children, some of them bloodied, some of them already dead, covered in dust and targeted by 2,000-pound dumb bombs made right here in America.
"If the real motivation for zapping TikTok from your phone is to silence legitimate political speech, just because a lot of members of Congress don't like it," wrote Bunch, "then this bill is the worst attack on the First Amendment since the government was sending World War I critics like Eugene V. Debs and Kate Richards O'Hare to prison, more than 100 years ago."
A conversation between Secretary of State Antony Blinken and the Republican senator offered an "incredible historical document" showing how the U.S. views its role in the Middle East.
A discussion between U.S. Secretary of State Antony Blinken and Sen. Mitt Romney over the weekend included what one critic called an "incredible mask-off moment," with the two officials speaking openly about the U.S. government's long-term attempts to provide public relations work for Israel in defense of its policies in the occupied Palestinian territories—and its push to ban TikTok in order to shut down Americans' access to unfiltered news about the Israeli assault on Gaza.
At the Sedona Forum in Sedona, Arizona on Friday, the Utah Republican asked Blinken at the McCain Institute event's keynote conversation why Israel's "PR been so awful" as it's bombarded Gaza since October in retaliation for a Hamas-led attack, killing at least 34,735 Palestinians—the majority women and children—and pushing parts of the enclave into a famine that is expected to spread due to Israel's blockade.
"The world is screaming about Israel, why aren't they screaming about Hamas?" asked Romney. "'Accept a cease-fire, bring home the hostages.' Instead it's the other way around, I mean, typically the Israelis are good at PR. What's happened here? How have they, and we, been so ineffective at communicating the realities there?"
Blinken replied that Americans, two-thirds of whom want the Biden administration to push for a permanent cease-fire and 57% of whom disapprove of President Joe Biden's approach to the war, are "on an intravenous feed of information with new impulses, inputs every millisecond."
"And of course the way this has played out on social media has dominated the narrative," said the secretary of state. "We can't discount that, but I think it also has a very, very challenging effect on the narrative."
Romney suggested that banning TikTok would quiet the growing outrage over Israeli atrocities in the United States.
"Some wonder why there was such overwhelming support for us to shut down, potentially, TikTok or other entities of that nature," said Romney. "If you look at the postings on TikTok and the number of mentions of Palestinians relative to other social media sites, it's overwhelmingly so among TikTok broadcasts."
The interview took place amid a growing anti-war movement on college campuses across the U.S. and around the world, with American police forces responding aggressively to protests at which students have demanded higher education institutions divest from companies that contract with Israel and that the U.S. stop funding the Israel Defense Forces.
Right-wing lawmakers and commentators have suggested students have been indoctrinated by content shared on social media platforms including TikTok and Instagram, and wouldn't be protesting otherwise.
Rep. Mike Lawler (R-N.Y.), who co-sponsored a recent bill to ban TikTok—included in a foreign aid package that Biden signed late last month—said last week that "there has been a coordinated effort off these college campuses, and that you have outside paid agitators and activists."
"It also highlights exactly why we included the TikTok bill in the foreign supplemental aid package because you're seeing how these kids are being manipulated by certain groups or entities or countries to foment hate on their behalf and really create a hostile environment here in the U.S.," said Lawler.
Social media has provided the public with an unvarnished look at the scale of Israel's attack, with users learning the stories of Gaza residents including six-year-old Hind Rajab, 10-year-old Yazan Kafarneh, and victims who have been found in mass graves and seeing the destruction of hospitals, universities, and other civilian infrastructure.
U.S. college students, however, are far from the only people who have expressed strong opposition to Israel's slaughter of Palestinian civilians and large-scale destruction of Gaza as it claims to be targeting Hamas.
Human rights groups across the globe have demanded an end to the Biden administration's support for Israel's military and called on the U.S. president to use his leverage to end the war. Josep Borrell, the European Union's high representative for foreign affairs and security policy, in February lambasted Biden and other Western leaders for claiming concern about the safety of Palestinians while continuing to arm Israel, and leaders in Spain and Ireland have led calls for an arms embargo on the country. The United Nations' top expert on human rights in the occupied Palestinian territories said in March that there are "reasonable grounds" to conclude Israel has committed genocidal acts, two months after the International Court of Justice made a similar statement in an interim ruling.
Romney and Blinken didn't mention in their talk whether they believe social media and bad "PR" have pushed international leaders and experts to make similar demands to those of college students.
The conversation, said Intercept journalist Ryan Grim, was an "incredible historical document" showing how the U.S. government views its role in the Middle East—as a government that should "mediate" between Israel and the public to keep people from having "a direct look at what's happening."
"Romney's comments betray a general bipartisan disinterest in engaging Israel's conduct in Gaza on its own terms, preferring instead to complain about protesters, interrogate university presidents, and, apparently, muse about social media's role in boosting pro-Palestinian activism," wrote Ben Metzner at The New Republic. "As Israel moves closer to a catastrophic invasion of Rafah, having already banned Al Jazeera in the country, Romney and Blinken would be wise to consider whether TikTok is the real problem."
Enterpreneur James Rosen-Birch added that "Mitt Romney flat-out asking Antony Blinken, in public, why the United States is not doing a better job manufacturing consent, is wild."
"Their decision to move forward with a dark-money, Trump donor-funded third-party fantasy bid is shameful and puts millions of Americans at risk," said one opponent.
With Democratic U.S. President Joe Biden expected to face former GOP President Donald Trump in the November election, No Labels on Friday confirmed it is pushing ahead with plans for a third-party "unity" ticket that critics fear could help the Republican return to the White House.
"The consequences of the next presidential election could not be more serious or more existential, and, despite this, No Labels has put their dangerous, reckless thought experiment ahead of the rights and freedoms of millions of Americans and the future of our democracy," declared MoveOn Political Action executive director Rahna Epting. "Their decision to move forward with a dark-money, Trump donor-funded third-party fantasy bid is shameful and puts millions of Americans at risk."
"Their own founder said they are 'not in it to win it,' and several current and past supporters of No Labels have implored them to stand down. And yet, they have decided to pump millions of dollars of dark money into a run that would swing the election to Donald Trump," she warned. "Any candidates who join the No Labels presidential ticket will be complicit in making it easier for Donald Trump and MAGA extremists to win a second term in the White House."
"Any candidates who join the No Labels presidential ticket will be complicit in making it easier for Donald Trump and MAGA extremists to win a second term."
Epting's comments came after No Labels national convention chair Mike Rawlings said in a statement that "earlier today, I led a discussion with the 800 No Labels delegates from all 50 states. These citizen leaders have spent months discussing with one another the kind of leadership they want to see in the White House in 2024. These are some of the most civic-minded, thoughtful, and patriotic Americans I have ever met. They take their responsibility seriously."
"Even though we met virtually, their emotion and desire to bring this divided nation back together came right through the screen. I wasn't sure exactly where No Labels delegates would land today but they sent an unequivocal message: Keep going," he added. "They voted near unanimously to continue our 2024 project and to move immediately to identify candidates to serve on the unity presidential ticket. Every one of our delegates had their own explanation for wanting to move ahead."
No Labels is a dark money group with secret far-right donors.
It’s not trying to find the so-called “middle ground.”
It’s trying to put Donald Trump back in the White House.
Be warned. pic.twitter.com/5cJgBTFGNj https://t.co/PCluXaWhBQ
— Robert Reich (@RBReich) March 8, 2024
While Rawlings provided some examples of delegates' statements from the call, so did journalists who obtained recordings of it. The New Republic's Greg Sargent—who got the audio from Matt Bennett, co-founder of the Democratic-centrist group Third Way—reported on concerns about a No Labels candidate being a spoiler for Trump:
For instance, a No Labels leader in Idaho said that while members are all for a run, they believe the ticket should "only" be offered to a candidate who has a "reasonable path to succeed and not be a spoiler." A leader in Iowa said the candidate must be "strong" and have "the ability to win."
Many others echoed these sentiments. At one point a party member from New Hampshire said: "We are in it to win it. But we also don't want to look like liars when we're telling people that we're not going to be a spoiler."
However, participants in the call expressed support for pursuing a unity ticket, according to Politico's Shia Kapos and Daniel Lippman, who also obtained a recording and reported that "delegates compared what No Labels was doing to Abraham Lincoln delivering the Gettysburg Address and the Founding Fathers during the American Revolution."
Third Way's Bennett said in a statement Friday: "What part of 'no' is so hard to understand? Time and again, voters, candidates, and election experts have told No Labels that a third-party presidential ticket can't win and would help Trump."
Just in case you forgot: No Labels is not what they say they are. They\u2019re a political party masquerading as a non-profit to promote the interests of their wealthy donors.\n\nDark money has no place in politics. We\u2019re helping to lead the fight to hold No Labels accountable by filing\u2026— (@)
As Andrew Perez and Nikki McCann Ramírez detailed Friday for Rolling Stone:
Over the past year, the dark-money group has been leading a reported $70 million campaign to secure ballot access nationwide for a potential 2024 "unity" ticket. No Labels has refused to disclose who's funding this effort, claiming that this is to protect its donors from "agitators and partisan operatives." Thanks to a quirk in America's broken system of campaign finance laws, the group will never be required to disclose who funded its ballot access effort—and would only have to start reporting donors if it were to formally back candidates.
So far, No Labels has secured ballot access in 16 states, and is trying to do so in 17 other states. The group has given no concrete hints as to which two divide-spanning politicians might run on its unity ticket, or to what party they might belong.
Outgoing U.S. Sen. Joe Manchin (D-W.Va.)—a right-winger who weighed a run for president—suggested last week that a No Labels ticket would be a spoiler, saying that "right now, if you can't get on 50 states and you're going to basically hit in some of the battleground states that could be very detrimental to what the outcome would be."
During Biden's State of the Union speech on Thursday night, Trump said that it was "interesting" that Manchin and retiring Sen. Mitt Romney (R-Utah)—the 2012 GOP nominee—were sitting together, "and nobody wants to talk to them."
"I think they'd make a great No Labels team!" added Trump—whose only remaining primary challenger, former U.N. Ambassador Nikki Haley, dropped out earlier this week. She has also publicly opposed running with No Labels.
Sen. Kyrsten Sinema of Arizona, an Independent who ditched the Democratic Party shortly after the 2022 election, revealed this week that she is not seeking another term in November but she is also "not running for president."
Another potential No Labels candidate, former Republican Maryland Gov. Larry Hogan, recently resigned from the group's board in frustration and has decided to run for Senate. He remains opposed to both major candidates, saying Thursday that "I'm like 70% of the rest of people in America who do not want Joe Biden or Donald Trump to be president."
While No Labels searches for candidates, the group's critics continue to warn of the consequences of its potential ticket.
"There is no path to victory for No Labels. They will only ensure a second Trump presidency that serves the interests of their billionaire and corporate special interest backers," End Citizens United president Tiffany Muller said Friday. "It's why they've fought every effort to play by the rules and disclose their donors."