New Hampshire
Congress silenced free speech in TikTok law, platform tells federal court • New Hampshire Bulletin
TikTok and its parent company argued Thursday in a federal court in the District of Columbia that the recently enacted law forcing a nationwide ban or sale of the popular platform violates the First Amendment.
TikTok Inc., which operates the video-sharing service in the United States, and its parent company, ByteDance Ltd., which was founded by a Chinese national, filed a brief in the U.S. Court of Appeals for the D.C. Circuit calling the law President Joe Biden signed in April an unprecedented restriction on the constitutional right to free speech.
“Never before has Congress expressly singled out and shut down a specific speech forum,” the brief reads. “Never before has Congress silenced so much speech in a single act.”
Upholding such an “extraordinary speech restriction” would require the court to undertake “exacting scrutiny” of Congress’ action, but Congress provided only a hypothetical national security argument to advance the bill, the companies said.
“Congress gave this Court almost nothing to review,” the brief continues. “Congress enacted no findings, so there is no way to know why majorities of the House and Senate decided to ban TikTok.”
Many individual lawmakers who supported the law raised national security concerns, saying ByteDance’s relationship with the Chinese government meant the country’s Communist Party leaders could demand access to TikTok users’ private data.
They also said the platform, which the company says has 170 million users in the U.S., could be used to spread propaganda.
But under U.S. Supreme Court precedent, labeling speech as foreign propaganda does not allow the government to overlook First Amendment protections, TikTok said in its brief.
Speculation about how the app “might” or “could” be used, rather than any concrete examples of misconduct, do not clear the high bar required to restrict speech, the companies added.
“A claim of national security does not override the Constitution,” the companies wrote Thursday.
A spokesperson for the Justice Department, which is defending the law, highlighted the intelligence community’s national security concerns with TikTok and said the law was consistent with the First Amendment.
“This legislation addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations,” the spokesperson wrote in a statement to States Newsroom. “We look forward to defending the legislation in court.
“Alongside others in our intelligence community and in Congress, the Justice Department has consistently warned about the threat of autocratic nations that can weaponize technology – such as the apps and software that run on our phones – to use against us. This threat is compounded when those autocratic nations require companies under their control to turn over sensitive data to the government in secret.”
Response to lawmakers
The brief said Congress had not included any official findings of harm from TikTok, but several individual members raised specific concerns about the kind of speech found on the platform.
The companies said Thursday those specific complaints bolstered the argument that TikTok is being denied free speech protections.
The brief cited several lawmaker statements:
- U.S. Sen. Mitt Romney, a Utah Republican, U.S. Rep. Raja Krishnamoorthi, an Illinois Democrat who is ranking member on the House Select Committee on China, and former Rep. Mike Gallagher, a Wisconsin Republican who chaired the panel, said the platform’s algorithm fed an overwhelming share of pro-Palestinian content over videos that favor Israel.
- Sen. Tom Cotton, a Republican from Arkansas, said the platform “exposes children to harmful content.”
- Sen. John Fetterman, a Democrat from Pennsylvania, said the law would “make TikTok safer for our children and national security.”
- Nebraska Republican Sen. Pete Ricketts noted the popularity of the hashtag #StandwithKashmir, which protests a policy of India, a geopolitical rival of China.
“Legislators’ perception of the content reflected on TikTok was misinformed,” the companies said. “But well-founded or not, governmental policing of content differences is antithetical to the First Amendment.”
Oral arguments in September
Both chambers of Congress passed the law with bipartisan votes as part of a package that included aid to Israel and Ukraine. Biden signed the measure April 24.
TikTok pledged to sue and filed its legal challenge last month.
Tuesday’s brief expands on the company’s arguments. The government’s response is due July 26 and oral arguments are scheduled for Sept. 16.
Divestment unworkable, TikTok says
TikTok and ByteDance said Thursday the provision in the bill to avoid a ban by divesting the service to a company without ties to China is unworkable, especially within the nine-month timeline required by the law.
Such a move would be technically complex, requiring years of engineering work, the companies said. It would also isolate the U.S. user base from the rest of the world, limiting revenue from advertisements.
And even if it were feasible from a technical or business standpoint, selling the platform would likely be rejected by the Chinese government, which has the authority to block exportation of technology developed in the country, the companies said.
The federal government has activated the New Hampshire National Guard’s 157th Air Refueling Wing in connection with the war with Iran.
“I’ve had a briefing myself, a classified briefing, but it’s really important on the messaging on this that we really coordinate with the Pentagon,” Gov. Kelly Ayotte told reporters during a press briefing following Wednesday’s Executive Council meeting.
Ayotte said she was unable to share additional details about the nature of the New Hampshire National Guard’s activity related to the conflict, including how many guard members have been activated or what role they are playing.
“We’re going to respect what messaging comes out of the Pentagon just to make sure that our men and women in uniform are fully protected and that we aren’t providing any information that could be used in a way that would be harmful to them,” Ayotte said.
In a statement Thursday, Ayotte said the unit had been deployed in late February to the U.S. Central Command area of responsibility in support of the operation.
Earlier this week, Pentagon officials confirmed that members of the Vermont National Guard were involved in attacks against Iran over the weekend, though our news partners at Vermont Public were not able to confirm additional details on the nature of the operation.
During the briefing with local reporters, Ayotte also stressed her support for servicemembers and those close to them.
“I have such respect for our men and women in uniform,” Ayotte said. “As you know, I come from a military family, and they have our full support, and we appreciate them and their families, and obviously anyone who is serving right now, and my thoughts and prayers go out to those who have lost someone that they love.”
By PAULA TRACY, InDepthNH.org
CONCORD – While Republican Gov. Kelly Ayotte has said she opposes increasing highway toll rates across the state, the Senate voted Thursday to increase rates for out-of-state license plate holders.
It now goes to the House for consideration.
This would be a $1 increase for those who have out of state plates going through the tolls at Hooksett, Hampton and Bedford for out-of-state plates, a 75 cent hike for those taking Hampton’s Exit 2 and on the Spaulding turnpike at Rochester, and a 50 cent hike for those taking the exit off I-93 to Hooksett.
An analysis in the bill shows that this would increase toll revenue by $53.3 million in fiscal year 2027 and go up each year to generate $81.4 million a year in 2036.
Senate Bill 627 passed on a voice vote with two Republicans, Senators Regina Birdsell of Hampstead and William Gannon of Sandown opposing.
Senator Mark E. McConkey, R-Freedom, moved to take the bill off the table and offered an amendment.
He said the last time there was a systemwide increase to the turnpike toll was 19 years ago.
“I am sure we could all agree the cost of operations…has continued to escalate when revenue is not rising with it,” and he noted that with an enterprise fund, the state can only spend what it takes in.
The state has just completed a 10-year highway plan and there was a $400 million shortfall in projects that could not be paid for under the current income.
McConkey said the measure would not increase tolls for New Hampshire drivers with a state license plate.
“Why don’t we ask our neighbors,” to pay a toll increase. “We are getting the best of all worlds,” by passing the bill, he said, including “protecting our residents” and having resources for improvements to the turnpike system.
Sen. Gannon, R-Sandown, asked McConkey if there are any studies on impacts near the border on businesses.
If implemented, McConkey said the state will be the 27th lowest in per mile cost still. McConkey said the bill would also increase from seven to 14 days the amount of time for those with NH license plates to pay for a toll adding there are other states that also have different rates for out-of-state users.
The Hampton toll cost would go from $2 to $3, while Hooksett and Bedford would rise from $1 to $2 for out-of-state plates.
New Hampshire currently has the lowest rate per mile among states with tolls roads.
The governor said she does not support a toll increase.
“We are not going to put a burden on drivers for a toll increase,” Ayotte said. “Families are struggling.”
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