The court of appeals thought about it and decided it wasn't. Start on page 59 of their ruling [0].
They tried to appeal this to the supreme court, the supreme court declined to hear that part of the case. See bottom of page 34 on their petition for a writ of certiorari [1].
Ah, interesting! I just read the arguments from the supreme court case and not the whole history of the thing.
Reading the appeals court case, it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it?
> it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it?
Not how I would phrase it.
A bill of attainder is two things, it targets a specific person, and it punishes them.
They decide the bill definitely targets TikTok, which is possibly close enough to a "specific person", but it doesn't punish them. Thus it doesn't satisfy the second prong and they don't have to even finish deciding the first prong and left the "possibly" in there.
National security really comes in when trying to decide it was a punishment. It's not a traditional punishment, but one of the other ways they could decide it was a punishment would be if it didn't further any purposes but punishment, and in this case the purpose it happens to further was national security. As far as I can tell this analysis would be the exact same if congress passed the bill instead because they decided TikTok was harming schools ability to keep order. It just has to be any non-punitive purpose.
As a layman who has held to deal with the law on more than one occasion in the US, I would say forcing you to divest or shutdown is a punishment; ie, something a court usually tells you to do when you commit fraud, not a congressman. I'm 99% sure it wouldn't be hard to find at least one congressman on TV saying this law specifically exists to target TikTok and shut it down.
Yeah, so I'm just paraphrasing the appeals court ruling above.
There's no dispute that this bill exists specifically to target TikTok, and that it will likely result in at least a temporary shut down, permanent if they choose not to divest.
Apparently there are a bunch of prior rulings on the meaning of "bill of attainder" though which say that that isn't within the typical meaning of punishment as used to define it. To quote just a bit of the courts recitation of previous cases
> See BellSouth I, 144 F.3d at 65
(explaining that although “structural separation is hardly
costless, neither does it remotely approach the disabilities that
have traditionally marked forbidden attainders”); see also
Kaspersky Lab, Inc., 909 F.3d at 462–63 (comparing a law
requiring the Government to remove from its systems a Russia-based company’s software to the business regulations in the
BellSouth cases)
I'm not really knowledgeable about bills of attainder, but I think it might be useful to understand the distinction they're making to be one between "punishing" (the bill is, it hurts) and "punishment" (it's not because that's not the purpose, it's a side effect). There also appears to be a higher standard to qualify as punishing a corporate entity than an individual, which strikes me as a bit strange, but if I'm reading this right is settled law.
Of course if the app have done anything seriously illegal, it would not have been necessary to bring this law to ban it, because existing laws would have sufficed to do it.
Perhaps because US government wanted to do it despite TikTok not breaking any serious provisions of law this law has been made.
It feels like a sleight of hand from government to ban something that has broke no (serious) law (yet).
Did the SCOTUS go into the necessity of having this law to achieve what government wanted, if existing laws would have sufficed, provided that government met the standards of evidence/proof that those laws demanded.
If not, it is as if government wanted a 'short-cut' to a TikTok ban and SCOTUS approved it, rather than asking government to go the long way to it.
What this line argued in the Supreme Court in the oral arguments or in the opinion or in the lower court?
Obviously TT could not have brought this up, but the court could have brought it up while examining the government.
Both the Supreme Court and the appeals court went into quite a bit of detail as to the necessity of achieving what the government wanted, because it was relevant to justifying the impact on speech with regards to the first amendment.
Only the appeals court (and presumably the district court below them) heard arguments about it being a bill of attainder. The supreme court chose not to. With regards to being a bill of attainder the appeals court appears to be of the opinion that it is enough that it isn't a traditional punishment, and that the justification for it was something other than punishment, without analyzing whether the government had a legitimate interest in achieving their non-punishment purpose. Of course they had already found that they did have a legitimate interest because of the first amendment analysis, but I don't believe their opinion with regards to it not being a bill of attainder relied on that.
Did the supreme court examine government as to, if this was the only path available to achieve what it wanted?
Was it established that existing provisions of law is not sufficient to deal with the issue(perhaps not so easily as by fiat as in the new law, but requiring stricter standards of trial and evidence), necessitating this new law?
The court of appeals thought about it and decided it wasn't. Start on page 59 of their ruling [0].
They tried to appeal this to the supreme court, the supreme court declined to hear that part of the case. See bottom of page 34 on their petition for a writ of certiorari [1].
[0] https://storage.courtlistener.com/recap/gov.uscourts.cadc.40...
[1] http://www.supremecourt.gov/DocketPDF/24/24A587/335257/20241...