A Bad Week For Freedom
Between the egregious Supreme Court decision on the 14th Amendment and the TikTok fiasco, freedom is having a bad week in America
A week ago today, the Supreme Court issued its opinion in Trump v. Anderson, which was the ballot disqualification case from Colorado regarding the fake tanned angry man in the photo above. Depending on one’s interpretation, it was a 9-0 decision (Trump, right-wing media) or a 5-4 decision (hopeful podcasters, mainstream media). Regardless, the holding (binding part of the decision) is awful. It’s not that I thought Colorado would win, or even should win (there is an argument to be made that individual states disqualifying presidential candidates would backfire spectacularly on a fragile democracy). It’s what the Roberts Five wrote in their holding:
The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.” Cong. Globe, 39th Cong., 1st Sess., at 2768.
Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legislation less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] . . . hundreds of men [were] holding office” in violation of its terms. Cong. Globe, 41st Cong., 1st Sess., at 626. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualification, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” Ibid. The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power conferred by §5 of the [Fourteenth] Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 385 (1982); see 16 Stat. 143–144.
For those who don’t understand legalese, the Court is claiming that Section 3 cannot be enforced without Congress passing a bill as authorized by Section 5. That would, of course, make total sense…if Section 3 hadn’t been written in a way that very clearly infers no such bill is needed. Section 3’s text is as follows:
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Now, that would infer, pretty damn strongly, that the condition applies automatically once someone has been part of an insurrection! It doesn’t say you need a two-thirds vote to apply that disability. It says you need it to remove it. If it doesn’t state specific ways that such a penalty has to be applied, there’s a reason for that: the authors of the Amendment understood that it would be acutely clear if someone was part of an insurrection. The Supreme Court, demonstrating clearly that it either doesn’t understand what words mean, or just becomes functionally illiterate when it comes to the law and the Constitution opposing their political preferences, says that Section 5 is required to make Section 3 work. The same Section 5 that only says this:
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Shall has multiple meanings in English, as do many other words. This is why context matters. The context here is clear, though: Congress has the power to create additional laws to enforce the 14th Amendment. The Court, quite conveniently here, interprets shall to mean that Congress must pass a law to enforce it. The same assholes, meanwhile, took the opposite position a decade ago in Shelby County v. Holder, when they invalidated a Section 5 law known as the Voting Rights Act!
The Supreme Court has become an activist institution, wholly tilted to the far right, willing to twist language, law, precedent, and the Constitution itself into knots to justify rulings that benefit a very specific subset of people: the rich, the powerful, and right-wing evangelicals. The rest of us, well, our rights are subject to their vibes. That’s not a free society. It’s a theological reign of terror.
Meanwhile, on Capitol Hill, never mind the very long list of important matters requiring action, we’ve got an app to ban!
But she [Nancy Pelosi] added: "We want TikTok to exist; we’re not here to ban it. I’ve said we want to make it Tik-Tok-Toe. We want to make it something that is not a fearful social media platform but one that is very positive. And in order to do that, we have to see the divesting of it from the Chinese government having custodial possession of the data. ... Who controls the algorithm controls all of it."
They’re so terrified of Chinese propaganda on TikTok! Propaganda like….Taylor Swift mashups? Dance videos? Or is it because young progressive organizing groups know how to use it against the status quo? (Update: Ken Klippenstein at the Intercept reports that our national security apparatus cannot prove any of these wildly overhyped claims. It’s always speculative!)
If they were worried about the Chinese government having control of our data, perhaps there should’ve been better safeguards at the Office of Personnel Management in 2015, when the Chinese hacked in and got the social security numbers, addresses, family information, backgrounds, etc of myself and colleagues who were working in defense research. If they were so worried about data privacy and security, why is nothing done to stop the glut of cheap knockoff products on Amazon, all traceable to China, that make it impossible to purchase reputable electronics on there anymore? It’s been well-documented that a lot of Bluetooth items, USB drives, and external hard drives sold on Amazon have been filled with malware and spyware designed to either steal or destroy data. It’s electronic arson, and Congress hasn’t done anything about it. There’s a ton of copyrighted goods also being knocked off and sold on Amazon, and nothing is done about that either.
I had thought this was solely about the organizing aspect, that the powerful are afraid of how good TikTok is at organizing efforts, and then I saw a video on TikTok that linked a WSJ article I read to something more nefarious. Using the video, this put this section in a whole new light.
Still, TikTok’s opponents hadn’t relented. Jacob Helberg, a member of a congressional research and advisory panel called the U.S.-China Economic and Security Review Commission, has been working on building a bipartisan, bicoastal alliance of China hawks, united in part by their desire to ban TikTok. Over the past year, he says, he has met with more than 100 members of Congress, and brought up TikTok with all of them.
Some lawmakers built momentum for the bill by holding hearings to introduce their colleagues to arguments against TikTok, Helberg said. He also co-hosted a hearing that focused in part on TikTok.
It was slow going until Oct. 7. The attack that day in Israel by Hamas and the ensuing conflict in Gaza became a turning point in the push against TikTok, Helberg said. People who historically hadn’t taken a position on TikTok became concerned with how Israel was portrayed in the videos and what they saw as an increase in antisemitic content posted to the app.
Anthony Goldbloom, a San Francisco-based data scientist and tech executive, started analyzing data TikTok published in its dashboard for ad buyers showing the number of times users watched videos with certain hashtags. He found far more views for videos with pro-Palestinian hashtags than those with pro-Israel hashtags. While the ratio fluctuated, he found that at times it ran 69 to 1 in favor of videos with pro-Palestinian hashtags.
[italics all mine]
As the video shows, Helberg is a senior adviser at Palantir Technologies. Palantir is one of those places notorious for aiding in government repression. They built the software that allowed the National Security Agency here in America and GCHQ (General Communications Headquarters) in the United Kingdom spy on everything we do across the Internet. Just a dizzying maze of data hoovered up and put into easy to read spreadsheets and infographics on anyone they want to track.
And what is Palantir currently working on? Why, a contract with Israel’s Defense Ministry! Supposedly, the IDF’s Shin Bet (defense intel agency) declined to use Palantir’s services, but a contract with the ministry leaves open many possibilities, especially with the current government’s history of ignoring Shin Bet and enacting its own intel/military operations. Palantir’s CEO says he’s losing employees because of his outspoken support for Israel, but it’s equally as likely that they don’t want to be working on systems that are aiding a genocide in Gaza.
In short, it appears that Helberg is using his dual status as government official and senior adviser to an Israeli defense-contracted company to manipulate Congress into banning the only social media app where information can be shared freely about the assault on the Palestinian people. It’s no coincidence that the first public offer for TikTok has come from former Trump cabinet member Steve Mnuchin, who has spent the past year shilling for investment in Israel. The moment TikTok is acquired by a docile American owner, its utility for sharing information and for organizing will magically be curtailed by these algorithms, if not outright banned.
A free society is only possible if information can be freely shared. The moment we let the government decide is the moment we stop being free, and right now, no matter how they’re choosing to frame it, Congress and the President are saying that they’re okay with foreign interference in our free speech, so long as it’s the right kind of interference. Chinese interference (of which nobody has been able to actually point to an example of in the United States!) is bad, but Israeli interference is good. This is constitutionally unsound. This isn’t Twitter banning Nazis before Elon bought it. This is the government telling a company who is and who isn’t permitted to own a phone app in America, and who is and who isn’t allowed to disseminate information. The difference between “I have a right to be on a [insert app here]!” and “No one can use [insert app here] because the government has banned it.” The first is a private business enforcing their code of conduct. The second is the government declaring a platform impermissable because it doesn’t like the speech on the platform. The first is legal. The second one certainly is not, but with this bunch of morons on the Supreme Court, I don’t hold much hope for our rights and TikTok’s future.