I can't stand this Supreme Court. They manage to get silly things wrong, even in otherwise innocuous decisions. Right or wrong, this TikTok case will not change the law. It was unanimous, so it's not just the right-wingers this time. And maybe the problem is that it was issued on such an expedited basis, but anyway, here's a passage:
Petitioners argue that the Act is content based on its face because it excludes from the definition of “covered company” any company that operates an application “whoseprimary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.”§2(g)(2)(B); see Brief for Petitioners in No. 24–656, pp. 26–27 (Brief for TikTok); Brief for Petitioners in No. 24–657,p. 26 (Brief for Creator Petitioners). We need not decide whether that exclusion is content based. The question before the Court is whether the Act violates the First Amendment as applied to petitioners.
This is nonsense. Every as-applied challenge necessarily includes a facial challenge, because if the law is unconstitutional on its face, it can't be applied against anyone. The as-applied challenge typically focuses on factors specific to plaintiffs, because the plaintiffs there are not trying to prove that it is invalid in all applications. But if it is, the as-applied challenge has to succeed.
So to determine whether the law is content-neutral, we have to look at the face of the statute. And if there is an exclusion there, the law is content based based on reams of recent Supreme Court decisions. Moreover, even as-applied challengers get to argue that the law is under-inclusive, because under-inclusivity is relevant for assessing the strength of the state interest. If the state says, "we're making X illegal because it does bad stuff, unless it's X in the form of A, B, C, D, E or F in which case it's fine," then the presence of those exclusions casts doubt on whether X is actually that harmful and/or whether the legislators' intent was really to address that bad stuff. This isn't always a good argument, but it's always available.
The idea that you can judge a statute as being underinclusive or content-based **as applied to** the plaintiffs is just lunacy. It makes no sense. First, if the law is being enforced against a plaintiff, which is the only reason the plaintiff would be in court, then it's not under-inclusive relative to that plaintiff and that passage above would obliterate under-inclusiveness review. And the same is more or less true for a content-neutral or content-based determination, though it's not quite as clear-cut. For present purposes, it suffices to say that tiktok is in court because it doesn't meet one of the exclusions. So it is content-based as applied to tiktok.
The rest of the paragraph tries to clean up this mess, and I suppose it makes the claim above look less obviously foolish. But it doesn't answer these objections.
Compared to what the Supreme Court has been doing, this is tiddlywinks -- but it's frustrating because the Supreme Court is supposed to be better than this. Supreme Court opinions should include zero statements that a guy like me can read and think, "that's obviously false." Sigh.
www.nytimes.com
