Eighteen Page DC Opinion Enjoining Trump’s TikTok Lunacy… Is Now Public.

[House-keeping note: I am using a new (not directly related to the opinion) graphic. . . because the Republican Senate Election PAC is selling tees. . . which denigrate the Notorious RGB icons, by simply stealing them, and using them for ACB. I won’t have it. So — as this is all likely to end up in the Supremes in any event, we will use my “correction” of theirs, as our graphic today.]

Do go read it all — but here is a bit.

. . . .Section 1702(b)(3)’s express limitation applies to “commercial” informational materials. If prohibitions on business-to-business transactions could not constitute the regulation of “informational materials,” then there would have been no reason for Congress to include the word “commercial” when defining the scope of § 1702(b)(3)’s limitation. United States v. Menasche, 348 U.S. 528, 538–39 (1955) (directing courts “to give effect, if possible, to every clause and word of a statue”).

To be sure, TikTok (like a news wire, which is expressly identified in IEEPA’s carveout) is primarily a conduit of “informational materials.” In that sense, it is (among other things) a “medium of transmission,” and IEEPA provides that this carveout applies “regardless of format or medium of transmission.” 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the transmitting medium is inextricably bound up with and exists primarily to share protected informational materials. . . .

There is something to [the government’s counter-] argument, especially as foreign adversaries’ use of information and data (and the United States’ efforts to respond to and combat those efforts) becomes ever more important. But it does not find support in the text of the statute. In fact, subsection (b)(3) forecloses even the indirect regulation of news wires, another parallel kind of information medium that foreign adversaries could exploit to promote misinformation. To be sure, TikTok’s users share more than just news, but that fact makes it more likely that the prohibitions here fit within the plain meaning of subsection (b)(3).

Like the informational-materials limitation, § 1702(b)(1) states that IEEPA’s grant of authority does not include the “authority to regulate or prohibit, directly or indirectly. . . any. . . personal communication, which does not involve a transfer of anything of value.” 50 U.S.C. 1702(b)(1). It is undisputed that the Secretary’s prohibitions will have the effect of preventing Americans from sharing personal communications on TikTok. Reply, ECF No. 26, 12. As Plaintiffs put it, the prohibitions “will destroy this online community, first by requiring the removal of TikTok from. . . U.S. app stores, and, when the remaining Prohibitions come into effect on November 12, 2020, shutting down TikTok entirely. . . .”

For the foregoing reasons, Plaintiffs’ Motion for a Preliminary Injunction is granted as to paragraph 1 of the Commerce Identification. . . .

It is delicious that textualists (like Scalia before her, and ACB perhaps, herself — to come) are absolutely foreclosed from arguing about a speculative intent of Congress, as we see above — from Judge Nichols — where the plain language of a statute prohibits something Trump wants to do. Delicious. And that means we need not even reach the clear first amendment violations, to strike his nonsense. [I will, perhaps immodestly, note that the able judge above repeated, nearly verbatim, my analysis — from the first week of August 2020.] Onward, grinning.


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