Podcasts about Attainder

TikTok Inc. v. Merrick Garland, argued before Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas H. Ginsburg in the U.S. Court of Appeals for the District of Columbia Circuit on September 16, 2024. Argued by Andrew J. Pincus (TikTok petitioners),  Jeffrey L. Fisher (TikTok creator petitioners), and Daniel Tenny (on behalf of Merrick Garland). Background on the case, excerpted from the Brief of the TikTok Petitioners (citations omitted): TikTok is an innovative online platform used by 170 million Americans. These Americans form part of a unique global community with more than 1 billion users worldwide, with whom they create, share, and view videos—“speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” All that will end on January 19, 2025, when the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) will ban TikTok throughout the country. The Act is unprecedented. Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act…. Congress provided no justification for banning TikTok by fiat, while creating substantive and procedural protections, as well as unexplained exclusions, for all other companies alleged to pose the same risks. Without findings, the Court is left with statements of individual Members and a single committee report. Many of those Members criticized cherry-picked content on TikTok, merely reinforcing the Act's unconstitutionality. The report invoked national security, pointing to the speculative possibility that TikTok could be misused in the future. But a claim of national security does not override the Constitution…. The First Amendment requires this Court to examine such an extraordinary speech restriction with the utmost care and most exacting scrutiny…. Issues Presented, also from the Brief of Petitioners: Whether the Act violates the First Amendment. Whether the Act violates equal protection. Whether the Act is a Bill of Attainder. Whether the Act effects an unconstitutional taking. Resources: Public Redacted Brief for Respondent CourtListener case docket for TikTok Inc. v. Merrick Garland Background on United States v. O'Brien The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you're enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute's mission or inquire about legal assistance, please visit our website: www.ifs.org

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Can Congress require China-based ByteDance to divest itself of TikTok as a condition for TikTok continuing to be easily accessible in the US? Alan Rozenshtein, Jane Bambauer, and Eugene Volokh discuss whether the law is consistent with the First Amendment – and with the much more rarely talked about Bill of Attainder Clause. To view the full transcript of this episode, read below: Free Speech Unmuted Eugene Volokh: Hello, welcome to Free Speech Unmuted from the Hoover Institution. I'm your co host Eugene Volokh, now basically emeritus from UCLA Law School and a senior fellow at the Hoover Institution. Jane Bambauer: I'm Jane Bamberger, the Breckner Eminent Scholar and Professor of Law at University of Florida. And today we have with us Alan Rosenstein. So Alan, tell us, tell us about yourself and correct my pronunciation of your name if I just butchered it. Alan Rozenshtein: Sure. it's Rosenstein, but I, don't, I don't, wait, Eugene Volokh: wait, a minute. You, spell it Alan Rozenshtein: Rosenstein. I can't, I, I cannot, I am not responsible for my parents immigration choices. Eugene Volokh: Exactly. So Alan and I. are both of Russian Jewish extraction. I was actually born in Kiev and it came here when I was, seven. Alan's parents are from, from Russia. I don't know the former Soviet union, but he was born very [00:01:00] shortly after they came. So there is always this question of how you, how you transliterate the relic names into something that Americans can pronounce. And I, I'm not sure either of our parents did a great job with that. mu much as we love them on this particular point, they may have aired. Alan Rozenshtein: it's funny because both of our names have these silent Hs and I like to joke that there's a STL somewhere that's missing an H. There you go. Found its way into my name. It's s. Eugene Volokh: But I'm sorry to have interrupted, Alan, tell us about yourself. Alan Rozenshtein: Sure. I'm an associate professor of law at the University of Minnesota where I've taught now for seven years. And I am also a senior editor at Lawfare where I do a lot of my writing on the sorts of topics that we're going to talk about today. and before that, I was a, attorney at the Department of Justice in the law and policy section of the National Security Division. Jane Bambauer: Yeah, so we're here today to talk about the tick tock ban or so called tick tock [00:02:00] ban it will see what, whether it actually, you know what its future actually has in store. But can you tell us a little bit about the law that was passed by Congress and signed by President Biden and then. We'll figure out what the free speech issues are. Alan Rozenshtein: Sure. So the law and, this is actually one of these, cases where Congress did not use a backer name for some reason, it's the protect Americans from foreign adversary controlled applications act. So it's perfect. Jane Bambauer: Yeah. Which is, Alan Rozenshtein: which is not great. which is not great. So we're just going to tell, I'm going to call it the tick talk law. so this was a law that was introduced in the house as part of the, bipartisan select committee on China, sailed through the house, a few months ago, surprising a lot of people how quickly it went through. It seemed to stall in the Senate for a while, but then for a number of reasons, including some changes made to the [00:03:00] law and then the broader, foreign aid package that went through. To assistance to Ukraine, Israel in particular, this was, signed or enacted by Congress and signed the law by the president. I think late last month, and the law, is sometimes called a, it's called by its supporters as a divestment law, it's called by its opponents as a ban law. Basically what it does is it requires bite dance. The Chinese company that owns approximately 20 percent of TikTok to, divest itself of TikTok. And if it doesn't do so within a little less than a year. TikTok is banned now. What band means is a little complicated. really what it is that, the law actually applies to, app stores and in particular, internet providers. They're not allowed to, Host tiktok services, so it doesn't actually make for consumers using tiktok illegal or anything. But given that the vast, majority of people just want to use a, [00:04:00] social media platform without too much, fuss, once the app stores stop carrying updated versions of tiktok. And once it gets, hard to use tiktok through the website, through your internet service provider, the assumption is that tiktok will be for the vast majority of people effectively banned. Jane Bambauer: Yeah. Okay. so you've written on Lawfare about the First Amendment implications and I understand you're going to have another post coming out soon. We'll link to both of those. But what do you make of this? how would you apply First Amendment jurisprudence to this particular law? Alan Rozenshtein: Yeah, no, it's an interesting question. And to be honest, I, it's funny. I, I, have never thought of myself as a first amendment scholar, though, in the last year or two, just given how much time I spend thinking about all things internet related, I feel like I've become one. But really, I think of you two as far more expert in this than I am. So I have my own ideas, but I'm actually very curious This is what you two with kind of a much longer history of thinking about the First Amendment think, so [00:05:00] I think of myself as in the minority of scholars, not a tiny minority, but I think a minority of scholars who think that although the First Amendment arguments that TikTok and TikTok users will be making, against this law, although the arguments are strong, that ultimately the government actually has a pretty good Case and I think more likely than not that the first amendment that the government will ultimately prevail You know at the end of the day and here I'll cheat a little bit in answering your question Jane because When one traditionally starts a first minute analysis the most important thing to do once one has decided that The first time it actually applies so that this is First Amendment protected activity. And I think here there's general agreement that the first time it definitely is implicated is one has to figure out what the appropriate quote unquote tier of scrutiny is. is this a prior restraint, which is the highest level of review? Is it [00:06:00] a viewpoint based? Law. Is it a content based law? Is it a content neutral law? In which case, it's not strict scrutiny, but intermediate scrutiny. And then all these gradations in between, and again, it's something that you two who are real first known scholars know one can spend infinite brain cycles thinking about this. And I think one thing that's interesting about this law is that I think they're actually plausible arguments for all of those positions. I think you can argue that it's a prior restraint, that it's viewpoint based, that it's content based, that it's content neutral. I think part of that is because this is a, I think a pretty novel fact pattern, at least in First Amendment jurisprudence. I think it's also the fact that the tiers of scrutiny analysis has never been, I think, particularly clear. And when I said I'm gonna cheat in your answer a little bit, what I meant is that I think at the end of the day it doesn't matter all that much. Which is to say, at the end of the day, the vast majority of First Amendment cases come down to some sort of balancing of the various interests at stake. And this is particularly true at the Supreme [00:07:00] Court, where, you really, I'll be a little bit of a legal realist here. It's really all about can you count to five justices that will agree that your side's values are more important than the other side's values. and that although the tiers of scrutiny do real work in that they, function as kind of presumptions, if the court concludes that such and such is a prior restraint, then presumptively the government's going to have a big problem, though sometimes prior restraints are fine. Similarly, if the court concludes that this is merely a neutral time, place, and manner restriction, presumptively the government's probably going to be okay, though those are also struck down all the time. At the end of the day, a lot relies again, especially in really high profile, sui generous cases like this on the specific facts. in my writing on this, I have tried not to, and again, I'm happy to get pushback, from, you too. I have tried not to spend too many cycles worrying about exactly what level of scrutiny should apply here. And instead, just [00:08:00] try to outline what are the values on each side? What are the values The First Amendment interests of TikTok, and I think more importantly, the 150 million American users of TikTok on the one hand. Versus on the other hand, what are the government's interests here in potentially banning TikTok, or at least really risking a ban of TikTok? and there are two in particular. One is a data privacy concern, because in the course of personalizing the TikTok algorithm for users, TikTok collects an enormous amount of information on what it is that you are watching and clicking and liking and disliking. and TikTok and therefore ByteDance and therefore the Chinese Communist Party could potentially use that information to America's detriment. So that's the data privacy concern. And the other concern is a foreign manipulation concern. That, because TikTok is You know, entirely run by the algorithm is totally inscrutable. if [00:09:00] a foreign entity can influence that algorithm, they can influence the information ecosystem of 150 million Americans and not just 150 million Americans, but because of TikTok, because TikTok is so popular among young people. And for those young people, TikTok is not just a source of fun cat videos, but it's actually the main source of news that they get. one can imagine, just generally, or especially in a conflict, let's say over Taiwan, that TikTok could suddenly become a, profound, Vector of foreign influence and foreign manipulation. And so I think ultimately comes down to balancing those two. Jane Bambauer: Yeah. Okay. So before we go into the values and the sort of government interest, I do want to pause and Talk through the coverage or maybe levels of scrutiny issue because I'm actually not sure and I really regret to say this because as a policy matter. I have some major issues with the tick tock [00:10:00] band, but I'm not sure that actually the First Amendment would even apply. I'm curious to hear Eugene's thoughts as well. But here's, my thinking. I guess there are two reasons to doubt that we have to do a First Amendment analysis. One is that maybe you could conceive of this as really a trade restriction, that has obvious, free, speech, results, and, maybe even speech related, content based related, even viewpoint based related maybe motivations, but that ultimately still it's a Restriction on managing, trade and so the way, much, much the way that we, don't allow certain other types of, products or services, to, pass through the borders. Another reason though that I have some skepticism is because the Supreme Court in cases that are somewhat old, but, they've suggested that [00:11:00] even when the government's goal basically is to restrict information that comes from outside the borders in. They have wide latitude and, these cases don't seem to really apply a constitutional analysis. So the two cases I have in mind, first, the earliest was Zemel versus Rusk, which is a little different because this is the case that involves, a set of plaintiffs who wanted to travel to, to, Cuba in the sixties. And they alleged, and no one disagreed, that they wanted to go there in order to gather information and an understanding of what's happening in Cuba. And, the Supreme Court went out of its way, not only to say that the government has full authority to decide who can leave the country, but, but also the Supreme Court said that the right to speak and publish does not carry with it unrestrained right to gather information. A lot has happened since that case. And I think the Supreme Court has over time [00:12:00] recognized the right to gather information. but. the board, if you combine that logic with the logic of the whole state control of the borders. you can see where I'm going here. And then the second case, was, Kleindienst versus Mandel. Yeah. yeah. So this one I think is even closer analogy. that one, I know. Yeah. Yeah. And so this one involved, this is a little later in the seventies. It's still a long, long ago though. And it involved, an invitation offered by Stanford University to a Belgian revolutionary Marxist as he himself portrayed. Yeah. Yeah. his own work, who, applied for a visa to come to campus and give a speech and the, customs office said no. And although there were a couple of dissenting, justices, the Supreme Court decided there is, basically that the government has full control over, over these decisions, irrespective of the reasons, the [00:13:00] speech related reasons that they may be made. Eugene, do you, what, do you make of. Just this application question, the coverage question. Eugene Volokh: so I'd love to hear what Alan has to say about those cases. But I'd also add a third one, which is Lamont v. Postmaster General, which specifically involved the travel not of people, but of information. And that was actually, it was 1965, the first Federal statute ever struck down by the Supreme Court on First Amendment grounds. Of course, the Supreme Court has the power to strike down Lamont. It's true. It has the power to strike down federal statutes and often exercises it. In fact, The whole point of the First Amendment originally was to constrain Congress, that's it starts with Congress shall make no law, but it took a long time before the court actually said this federal statute, not a state statute, not a federal executive action, but this federal statute is unconstitutional, happened in 1965. The statute, [00:14:00] basically required Americans who wanted to receive foreign communist propaganda to go to the post office. maybe not the post office, but in any case, go to the government and say, I am willing to receive it by the mail. And it made it illegal to send and deliver it to them, unless they have actually specifically, specifically requested. and the Supreme Court did not decide the question whether foreign. Foreigners, and especially foreign governments, have any First Amendment rights. It didn't focus on the rights of the senders, but it did talk about the rights of the recipients and, concluded that this law was unconstitutional because it interfered with the rights of Americans to receive this information. And so it did not view, federal governments had undoubted power to control what comes into the country, [00:15:00] as A total as being unlimited or put, more positively concluded that even Congress's broad power to, control what goes into the country is limited by the first two. So those are the three cases that strike me as most, most relevant. Although Alan, I totally agree with you that in many ways, this is sui generis and part of the problem is the Supreme Court has never really confronted a question quite like this one. even Lamont, which I do think is. Some respects close. This is a mailings of foreign propaganda to Americans. How many Americans would likely, even if they didn't have to put their name down on a list, would have been particularly interested in reading that? Very few. Tick tock very many. so, it's an interesting, I'm not saying any of these cases are strictly binding here, but I'd love to hear what you think about how these cases play out. Alan Rozenshtein: Yeah. so a lot there. So let me say a couple of things. So first, and [00:16:00] this is not dispositive, but it's something all the, all of the courts to have all of the courts who have heard cases like the one that is about to be heard in the DC circuit, because this is not the first attempt to ban tick tock. There was, I think Montana. some Midwestern state. I think it was Montana tried to remove Wyoming, tried to ban it. And then, of course, in the Trump administration, Trump through executive order, tried to ban it in litigation there. everyone seemed to concede. And certainly the courts assumed that there was a first amendment issue here again. That doesn't mean that there necessarily is. But I think that's one data point. The second point I would say is, just to get back to Lamont, because I think Lamont is a very important issue. Case I reread it this morning because I needed to for this law for peace that I'm writing and what you described Eugene as the holding of Lamont, which is that Americans have a right to receive foreign propaganda, which is how Lamont is generally understood. I'm actually not sure. That's what Lamont says. That's what Justice Brennan's concurrent says in Lamont. But Justice Douglas is very short and in [00:17:00] true Justice Douglas fashion, extremely under argued and under theorized opinion really actually focuses on, the, the chilling effect of having to go to the government and say, Yes, I would like to receive the peaking review. And that was coincidentally, the, propaganda at issue. So it's another Chinese propaganda case. but we should get back to Lamont. I think Lamont is an interesting case. Jane Bambauer: Yeah, that, and that, yeah, that, that makes sense. And Brennan is consistent because he also dissented in that client and in the, case involving the Belgian. Yeah. Alan Rozenshtein: Yeah, I think, Kleindienst is very interesting, and again, it's, hard to know what exactly to make of that, what I, whatever Kleindienst stands for, the reason I don't think that it would really apply here is, it'd be one thing if the government From a blank slate said, or, let me give you a more specific example. It's one thing if a [00:18:00] Chinese company wanted to buy a us platform and the government, and here would be SIFI as the committee on foreign investment in the United States said, no, you can't do this. And in fact, CFIUS has done this, when a Chinese company tried to buy Grindr, which is a dating service, very popular with gay and lesbian Americans. CFIUS said, no, you can't do this because we don't want the Chinese government to have access to the HIV status of Americans. Cause that's something that Grindr allowed people to put in. that I think is different than you have an existing platform where 150 million users are every day doing things that have profound first amendment implications. And we are now going to ban this platform. I think that's quite different then. There's something outside the United States. And then the question is, can it come into the United States? Something you already have in the United States. Now, to, to your point, Jane, I think the fact that the government generally has broad national security, foreign relations, economic trade, however you want to think of it, powers, is a really important part of the First [00:19:00] Amendment analysis. But I think that, the kind of brute fact that you have 150 million Americans using TikTok every day is going to make it very difficult, I think, for any court, even if they ultimately uphold the law, which I think they will, to say there's no First Amendment issue here. Jane Bambauer: Yeah, I hope you're right, but it is one of those things that where, there's probably all sorts of ways in which our national security or customs and border enforcement, keep us from knowing what we'd actually like to know and we're just And so the being, joining you on the realist side a little bit I, you're probably right but if we knew more about what we're missing from certain policies, maybe that same logic should apply to cases that the Supreme Court, The thought where you're, unrelated to the first moment. So Eugene Volokh: I do want to, I do want to also stand by a little bit my characterization of a Lamonti Postmaster General. I think even in Justice, Douglas's [00:20:00] majority opinion for the court, he talks about how the requirement that the addressee must request in writing that it be delivered Is, quote, an unconstitutional abridgment of the addressee's First Amendment rights. Close quote. Sounds like in context, what he's saying is That the addressee has a First Amendment right to receive information and, that, by saying in order to get the information, you've got to do something that will put you on a list of people who are interested in foreign communists, but again, that which is a list most people might not have wanted to be on. the, the concern there is that, it burdens your ability to receive that information. It imposes a barrier to your First Amendment rights as a listener. But in any case, whether it's Justice Douglas or Justice Brennan's quite influential concurrence that you're [00:21:00] quite right, has gotten a lot of traction since then. I do think in many ways, Structurally it is quite similar because here the concern is also that TikTok users have an interest in using this app and receiving the information on it, although many of them are also TikTok content creators, so they have an interest in being able to use it to distribute their speech. So I'm totally with you that there's a Pretty substantial burden on people's ability to speak and to listen for sure. But also again just returning to your sui generis point You might say that what was true of this relatively minor form a potential form of foreign influence in the form of mailings of the peking review or similar publications from overseas may not be really relevant to a situation where we've got something that's being used by so many, Americans and so many young Americans. Alan Rozenshtein: [00:22:00] Yeah. And I, think it's part, partially what you just said, right? It's a scale issue, but I think it's partially also a transparency issue. So I think one thing that's important about this, ban is that it does not prevent Chinese propaganda. I can go today and I link from this from lawfare. So I the peaking review is interesting. It is, China's only English language state on newspaper. and it you can click on. It's called the Beijing review today. It still operates. it says exactly what you would think it would say. and you can access it and you can access it today. You can access it after the law goes into effect. Similarly, if you want to go and, you want to hear what, The China Ministry of Foreign Affairs wants to say you can go and hop on Twitter and read their Twitter account and you'll be able to do after this bill goes into effect as well. So it's not a ban on Chinese propaganda per se, or I think even at all. It's a ban on Chinese control over an information environment. Now why is that different? [00:23:00] if you dig into the justifications, so let's, say that we interpret Lamont Through the Brennan concurrence, right? and, we just say, okay, Lamont stands for some general proposition that Americans have a right to foreign propaganda. Why? I think the, best argument is there's like a marketplace of ideas. argument that foreign propaganda is information like anything else and it should be part of the flow and One person's propaganda is another person's truth And even if it's bad it helps sharpen our understanding all the standard marketplace of ideas arguments that i'm totally happy with but one difference I think between foreign propaganda and foreign control over a platform is foreign propaganda is usually at least Pretty clearly foreign propaganda when you're reading, or at least it's foreign when you're reading the Beijing review, you're reading the Beijing review. You know what you're reading. and I think that helps contextualize what you're reading. You can agree with it, disagree with it when you're on tick tock. The whole point is that this algorithm is totally unscrutable. You have [00:24:00] no idea why you are seeing what you are seeing and the potential for subconscious manipulation, that I don't think, furthers the marketplace of ideas. in the same way that being able to read the Peking Review does. I think that's another really big difference. Now, we could spend all day talking about it, but maybe even, subconscious propaganda still has information and stuff like that. But I think at the very least from a doctrinal matter, it's pretty clear that this distinguishes Lamont and, I emphasize this because I've heard a lot of critics of this law cite Lamont as if it straightforwardly disposes of this case because Lamont stands for some super broad proposition about foreign propaganda. And, what I would say is I don't think the case does. And I also don't think that. The historical context does either. Matt Iglesias, the, well known blogger, had a nice piece a couple months ago, why he is, was for the ban. And he's not a lawyer, so his is more of a policy analysis, but he made a very nice analogy. And he said, look, imagine during the height of the Cold [00:25:00] War, the Soviet Union wanted to go and buy CBS. Would we have allowed that? And the answer is no, we would not have allowed that. And it is, I think, inconceivable that the Supreme Court would have had problems with that. it, it strikes me as very unlikely. Again, this is not a legal point. This is a historical sociological point that even the court that I think unanimously, struck down that law in Lamont in 1965 would have, three years after the Cuban Missile Crisis, been okay with the Soviet Union buying CBS. Because I think there is really a distinction and it's not just one of degree. it's one of kind. Eugene Volokh: so first of all, I'm sorry, you're quite right that, the, court, the court, was unanimous in the case. I was mistaken, talking about dissent. I'm sorry. I should have said that the government's position, in Lamont postmaster general, but the second thing I wanted to say, is that, you, raise this question of buying, broadcasters and indeed, [00:26:00] there are to this day. Limits, substantial limits on foreign ownership of, of, broadcasters, presumptive limits. they could be, as I understand it, waived by the FCC, but there are such limits. what do you think of that as a precedent, do you think? the Supreme Court, to my knowledge, has never really squarely confronted them. But the broad assumption is that they are, they're valid. Is it something that's just a broadcasting only rule? Because there are a lot of. Supreme Court cases that say, broadcasting is special, or is it something that you think stands for a broader proposition and the other thing? actually, I have a follow up question for you, but I wanted to see what you thought about that. Alan Rozenshtein: Yeah, I think it's both. So, I do think the broadcast precedents are really important, in terms of, this long history of, foreign ownership rules. And, here I, I will. Suggest, the folks are interested. Ganesh Sitaraman, [00:27:00] who's a law professor at Vanderbilt, wrote a wonderful article in the Stanford Law Review last year, two years ago, I think called Foreign Ownership of Platforms. We can put it in the show notes. That really goes through this history, not just communications platforms, but generally of foreign ownership, restrictions. I think that precedent is, important. I think you're also right, Eugene, to be fair, that, A response could be, yeah, but those were in the broadcast context, and the court has often distinguished restrictions that are okay under the First Amendment for broadcast, or what are something called limited spectrum situations, and that would not be in the context of an unlimited spectrum. But I have a response to that, which is that, it is true that the internet is not limited in the way that broadcast is, right? If I want to broadcast on a radio frequency, no one else can broadcast on that radio frequency, and therefore you need to have government intervention. Otherwise, none of it works. That's not true for the internet. But the internet is limited in a different way, and that is with attention. [00:28:00] it used to be that the bottleneck for communications was the internet. Broadcast or spectrum now it's the attention of the audience and because you still have a bottleneck, right? You can still get monopolistic effects where it used to be that there were a few small a few very large Broadcasters and they carved the broadcast Spectrum that was the bottleneck now. There are a few large platforms. They're not carving up spectrum. They're carving up attention and I think that actually, if you think deeply about, what justified intervention in the broadcast industry, it was general scarcity, but it doesn't just be scarcity Of, of, spectrum. It can be whatever scarcity of the bottleneck there is. And so Jane Bambauer: I think I just go ahead, finish it. Yeah, it will. Alan Rozenshtein: So and, and and I think this is, this is, a different project and maybe this is a project I should write. [00:29:00] And then you Jane can tell me why, I'm wrong. I actually think that, where you have, limited attention, that is just as good of a reason as limited broadcast for the government to, regulate, if it regulates well. Now, ISIL has to regulate well. Jane Bambauer: Yeah, that's not my objection, though. I think the problem is the scarcity that the spectrum scarcity has to do with the means of production. The attention scarcity is more like saying there are only there's at any given point a set number of dollars in the world and consumers don't have unlimited dollars to spend on different types of content. It doesn't actually prevent a competitor from coming in and creating content or curating content, which I think. I think the limited set of platforms that are doing well, because they're actually in fierce competition with each other in a curation market, not in, a traditional content market. But, [00:30:00] nevertheless, there are lots of ways to get copious amounts of information. The trouble is figuring out how to pitch the right information to the right person so that it's worth their time. And there, I just don't see I don't see a monopoly style problem there. And I guess that leads me to the skepticism about, about the, policy behind the tick tock ban that, I, get that there's a lot of really bad content on tick tock and that the Chinese government may have a motivation that's different from the capitalistic one, and that is, that, that, does. seek to cause, disarray and, and, polarization among Americans. But I don't see a big difference between the effects of TikTok and the effects of every other social media company because, first of all, I think there's reason to think that even if you have completely malignant intent. There's [00:31:00] only so much that you can do to manipulate a person into thinking or pursuing some information that they don't already want to pursue. and then also that even through just the normal capitalistic, motivations, most of these platforms are incentivized to find information and curate information. that leads to polarization, that leads to anger and to resentment and to, all, of the things that the Chinese government may benefit from, but doesn't really cause in a, fundamental sense. Alan Rozenshtein: So I, I, so there are a couple, of points there, right? So, one, And let's just say generally, the field of, I don't even know what you'd call it, social media communication psychology, is still quite young. it is advancing very quickly or changing very quickly because The actual infrastructure is changing very [00:32:00] quickly. and if you're looking for a clear social science answer, like you can find, there are lots of papers that will say all sorts of things, right? So policymakers and judges are definitely going to be, legislating and deciding under real uncertainty, which raises interesting meta questions about, okay, then, should we err on this side or that side? then there's a more specific question about, what do we know about specifically China and specifically ByteDance and specifically TikTok? And we can get into the evidence that we have and how speculative or not speculative it is. and then third, we can get into this question of what is the specific threat here? Because I agree with you if the concern is it's in China's interest to addict all our kids to stupid cat videos, or it's in China's interest to feed, TikTok users inflammatory polarizing content because, that's what gets the most clicks. Then I agree with you that would not be a great argument because it's not clear that Twitter or Instagram or Meta operate any differently than, [00:33:00] than, than that, right? I think the unique danger is that, The Chinese government has shown, a couple of things. One, a willingness to, in a very heavy handed way, try to alter how it is perceived around the world with respect to any number of issues. the Hong Kong democracy protests, the issues with the Uyghurs, certainly relations with Taiwan. and in addition, And in a way that just goes beyond your general polarization or feeding people, content that gets them angry. and in addition that, the Chinese government, is also willing to use its, private companies, in a way that very much goes against those private companies own market and capitalist interests. If the Chinese government perceived that it is in their interest, right? And I, think the government's real concern is. In a [00:34:00] shooting war with Taiwan, right? what will the Chinese government, force TikTok to show to 150 million users, right? Now you may say, at the end of the day, people make up their own minds and so forth, right? And, it's a risk. But the question is, is are the courts going to require? And here we have to we have to separate the legal question from the policy questions, because courts have a very specific role. and although we all understand that they make policy, they don't really want to be in a position of second guessing the national security and foreign policy judgments of the political branches. do courts want to tell the government? No, Go get into a war with China. China over Taiwan. Let's see what's on TikTok. And if TikTok spends six months feeding the young people of America, pro China content and gets them all to protest and stuff like that, then we can talk again. That's a bit of a caricature of the view. But I think that's the thing that keeps the government [00:35:00] up at night. and speaking only for myself, right? That's good enough for me. this is a your mileage may vary situation. I totally accept that. Jane Bambauer: Yeah. I see the same logic in the communist era. but Eugene, what do you think? Eugene Volokh: so I want to ask a couple of follow up questions or maybe three questions. one first amendment question and two turns out they're more than first amendment issues in the case. Alan Rozenshtein: Yeah. Yeah. Eugene Volokh: So the first is we haven't focused on the fact that this law doesn't ban TikTok as such, but requires. It essentially to be divested from Chinese influenced ownership. So I'm inclined to think that doesn't eliminate the First Amendment issue. But at the same time, it sounds like maybe it Would affect it? maybe not. I'd love to hear your thinking. And then I wanted to follow up, with a couple of more questions. One about the [00:36:00] bill of attainder question, and the other about this weird procedural posture of the case. But first, tell me what you think about this, how this, divestiture option affects the first amendment analysis. Alan Rozenshtein: Yeah. again, I take a middle position between some of the defenders of the bill who just say this is just divestiture and some of the critics who say this is an outright ban. It's not. It's you have to divest or you get a ban. I do think, I don't think that eliminates the First Amendment issue because there's a real risk of a ban that has to be taken into account. and the government can't just say, it's China's fault if it's banned and therefore we don't have to defend this law in First Amendment grounds. That's not how this works. On the same, on the other hand, I do think that the divestiture option helps in, two ways. One is that a lot of First Amendment analysis is about overbreath, right? a lot of constitutional analysis is about, did the government's action go further than necessary? And by definition, a law that allows for divestment instead of a ban. is more narrowly tailored, again by [00:37:00] definition, than a law that just does a ban. So it's almost like a good faith showing on the part of the government that we're actually trying to solve a problem here. We're really trying to solve, have different options here. The second reason, and this is maybe a little cute, but I do think it's plays importantly, at least politically, maybe also legally. If the investment fails, it's probably be going to be because China refuses to allow ByteDance to sell the algorithm to TikTok. And in fact, in the complaint that TikTok filed with the D. C. Circuit, they have essentially said that. They said divestment is not an option because China will not allow it. But if China won't allow it, shows a little bit, exactly what the government is worried about. That China cares a lot about this, and it's going to use its weight to, It's going to use its weight around here, which is exactly the point. I want to be fair. Anupam Chander, who's a sparring partner of mine on this and is great. and is at Georgetown, has argued that actually there are plenty of good reasons for countries not to want to allow the [00:38:00] export of sensitive technologies that have nothing to do with manipulation. and that's a fair point, but I think it it's almost like performatively shows. It's very clever. It shows to the courts in part, the very problem that the government is citing, which is China's influence and ability to throw its weight around. so that's the divestment thing. Should we talk about bill of attainder? Eugene Volokh: before we get to bill of attainder, I wanted to ask you about the, procedural issues. So a lot of what we're talking about here turns on facts. just how much influence does the Chinese government have? over bike debts. just, just how much of a burden will this impose on American creators and others? just how much, just what evidence is there of real national security threat? and in a typical situation, what would happen there would be is that there would be a challenge brought in federal district court, which is a trial court, the [00:39:00] judge might have a hearing where the judge would consider both written submissions, written, declarations of experts and others and, and other witnesses, and, at the same time, would also potentially have, have an oral hearing. and then it would go up on appeal where the appellate courts and perhaps eventually the Supreme Court would consider, how the legal rules apply to that. here, Congress provided that the challenge would be brought in the DC Circuit Court of Appeals, which is an appellate court, which does not regularly, and I'm not sure, If it ever, maybe it does have some mechanisms for this, but at least does not regularly hear evidence. The job of an appellate court is not to hear evidence. It's to review an evidentiary record built either by the, trial courts or by, administrative agencies. So tell us how any of these factual questions are going to be resolved, [00:40:00] in, a case like this. Alan Rozenshtein: Yeah, I will say this is a among the nerderati. This is a real topic of excitement. and we'll have to see. So so a couple of points. so first is, unfortunately, the bill does not have legislative findings attached to it, which is usually actually really important part of these kinds of bills. And it's surprising that it doesn't given that there's been reporting that Congress collaborated very closely with DOJ to really bulletproof this bill. It's not clear why they didn't On the other hand, the co sponsors of the bill, Representatives Gallagher and Krishnamurti, introduced a resolution, which is basically a very long list of legislative findings, and a lot of that resolution ended up in the House Committee Report. that accompanied the bill, and that has a lot of information about classified briefings that Congress received about the threat. Why alternatives that tick tock offered were not sufficient. I think that, though that resolution, this committee reports will play a really important role, [00:41:00] and may go some way to establishing the factual and evidentiary record. But Eugene, you're totally right. It doesn't go all the way, and it's certainly much less than what happened in district court. So what's going to happen? Appellate, you're right, appellate courts, they're appellate courts. They don't usually hear trials or take evidence, but they can, and not just the D. C. Circuit, but the Supreme Court can. So the Constitution provides original jurisdiction for the Supreme Court and all sorts of things. And I, there is at least one time that I know of that the Supreme Court tried to hold a trial and it went extremely poorly. I, have to, I, Once I read a very funny Law Review article about this. I got to dig it out. It's, it was a real comedy of errors, and so from then on, they decided, that what they would do is, in case of original jurisdiction, where like states sue each other, which happens from time to time, they would get a, I think it's called special master, basically an outside lawyer who would go do the fact finding for them. I'm sure the DC circuit could do the same thing. I haven't read the, I'm not a litigator. I haven't read the federal rules of civil procedure in a long time, repellent procedure. [00:42:00] I'm sure there's some mechanism for that. I think what's more interesting is the role of potentially classified information, because a lot of this is classified. the appellate courts can hear classified information. the DC circuit certainly can. It did so routinely in the 2010s during, the many Guantanamo habeas cases, that it heard. and actually just last year, the ninth circuit in another national security case, Twitter versus Garland, had to hear a lot of national classified information to decide whether or not Twitter's challenge against certain gag orders was constitutional and literally in the opinion, the Ninth Circuit says we are not at liberty to discuss the classified information that we have reviewed, but we reviewed it as part of our analysis and trust us. It's fine. I made up that last part. so it may very well be, that there is some classified information that is submitted to the court in camera. Maybe there's a protective order. I have no idea how it's going to work, but it may very well be that the D, the D. C. Circuit says, we look at the classified information, trust us.[00:43:00] Eugene Volokh: Got it. so that's very helpful to know. So let's just close by, stealing something from, we have a sister podcast, the Bill of attainder, unmuted podcast, we probably should have had this other, no, there is no real, for the real Alan Rozenshtein: Nerderati, Eugene Volokh: because it's a pretty rare issue to arise, but there is this issue of whether this law violates the bill of attainder clause and to quote the Supreme Court in actually a case involving President Nixon, is that, Bill of Attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial tribe. The classic example historically was Parliament backed law. Back in jolly old England would say we think this person is, is a traitor often or has done something [00:44:00] very bad. but maybe he's allied with the king, so we can't trust that he will be normally prosecuted. We're just going to say he is a traitor and needs to be beheaded. And that's that. so I think historically bills of attainder have been mostly for capital, punishment. There also used to be bills of pains and penalties, vague recollection, but the U. S. Constitution Were you Alan Rozenshtein: old enough to remember when Parliament used to do bills of attainder? Yeah, there you go. All that Eugene Volokh: gray hair. so the, so the U. S. Constitution has long forbidden bills of attainder. But the question is, what is a bill of attainder? Whenever we see a law that mentions someone by name, and maybe, interesting question, what about mentioning a business by name, then, people start talking about, maybe that's a bill of attainder, but not all such laws are indeed [00:45:00] unconstitutional. So, again, This is, on the one hand, not a free speech issue, on the other hand, very much an issue in this case, and I suspect many people who may have heard about the case, even if they're not lawyers, would say, wait a minute, this law, it's just the government, the Congress trying to ban a particular business, is that what they're supposed to do? Aren't they supposed to pass general laws that say, here are the criteria that, if met, cause you to be restricted in various ways. So what do you think about this bill of attainder, question, even if just tentative? Alan Rozenshtein: Yeah, I think it's interesting. so a couple of thoughts on the bill of attainder question. So first, there is an open question whether or not the bill of attainder applies to corporations. The Supreme Court has never, Definitively answer that question. I think one lower one appellate court, I forget which one has held that it does apply to corporations. I don't know if there's a circuit split on that or just other circuits haven't gotten to it. But that's [00:46:00] one interesting question. and, especially with the originalist turn that the Supreme Court's had, I think there's going to be a lot of, Justice Alito or, pouring over, 18th century parliamentary records to know was this ever applied to corporations. the second question is, the Bill of Attainder, it's not just about specifically singling someone out. It's specifically singling someone out for punishment and punishment is a technical term of art here. Unfortunately, again, the Supreme Court has never said exactly what a punishment is. There's a historical test and a functional test. so one might argue that this isn't a punishment. Nothing is being stolen. nothing is being taken away from tick tock. No one's being put in jail. This is a proscriptive regulation that tick tock can no longer afford itself of certain, corporate benefits. now, as with many things, There's a certain angels on the head of a pin kind of quality to, is that [00:47:00] a punishment or a regulation? But honestly, this stuff comes up all the time. there are similar logical puzzles in Fifth Amendment takings cases. Is it taking or regulation or whatnot? so that's another question that the courts will have to, decide whether this is a punishment or just a forward looking, prospective. regulation. And the third question is, and this is a part of the law we haven't actually talked about, but it's actually very important. The TikTok ban or divestment and ban is only one part of the law. The law also sets up a broader scheme by which the president can identify other TikTok like companies, which is to say social media platforms that are controlled by Russia, China, North Korea and Iran. and, and trigger a similar divestment type process. And so this raises the question of whether or not the government will be able to use that part of the law to soften the fact that the law also targets tick [00:48:00] tock. that may not be relevant to the bill of attainder issue, but tick tock has also made, other arguments that sound similar swiftly run equal protection that they're getting being singled out. and so the government may point to say, no, this is a general law. We're just starting with tick tock. I don't know if that gets there. I suspect that, and again, I'm not an expert in this, but I have done some preliminary research that the courts will ultimately move. This is just not a punishment. It's not a punishment in the way that the bill of attainder, contemplates that this is a, forward looking, regulation. Eugene Volokh: Got it. Thanks very much. very interesting. Jane, any closing questions or remarks? Jane Bambauer: Yeah, I think one thing that all three of us. expressed at one point is that one thing that makes this topic hard is that it's a, there are national security questions and facts that none of us have access to. And so it's hard to know as [00:49:00] a matter of policy, especially what should happen here. And, Alan Rozenshtein: and we haven't even talked about the international dimensions, potential repercussions. This is a big deal. Eugene Volokh: Big deal, indeed. Alan, thank you so much for joining us. It has been tremendously enlightening for me and I, sure for, our viewers and listeners as well. Jane, always a great pleasure to be on with you. And folks, we'll see you in a couple of weeks with our next episode.

Article 1 - Section 9 - Clause 3! Bill of Attainder! CONSTITUTIONAL DEEP DIVE PODCAST MASHUP Please consider leaving us a review on Apple and giving us a share to your friends! This podcast is powered by ZenCast.fm

Article 1 - Section 9 - Clause 3! Bill of Attainder Thanks to our sponsor - Eric Buchanan and Associates: www.buchanandisability.com Conversations centered around the American Experiment and our Constitution and Bill of Rights! Our goal is to provide different perspectives - give historical context - model how to talk with those whom we may disagree with - tie foundational principals to today's headlines - PLUS, have some fun along the way. Please leave us a review and share with your friends! (A PODCAST PROVIDED AND OWNED BY DURING THE BREAK PODCASTS) Brought to you by Eric Buchanan and Associates: www.buchanandisability.com This podcast is hosted by ZenCast.fm

Darrell Castle talks about the new way of looking at things or the new general consensus that emanates from a disrespect for the constitutional framework of law and justice. Transcription / Notes THE NEW CONSENSUS Hello, this is Darrell Castle with today's Castle Report. This is Friday, the 29th day of March in the year of our Lord 2024. I will be talking about the new way of looking at things or the new general consensus based on how the system programs us toward a general agreement on a preconceived set of outcomes for a particular series of events. I will argue that the new consensus emanates from a disrespect for the constitutional framework of law and justice now being taught in America's law schools. This is not just Friday but Good Friday, three days before Easter Sunday. Good Friday commemorates the day more than two thousand years ago that Jesus rode into Jerusalem on a borrowed donkey to great fanfare. He was the king, but he did not look like what the system thought a king should look like. He did not ride in on a great warhorse, he wore no battle armor, and he carried no sword and so the system and the people rejected him and called for the Roman, Pontius Pilate to order him crucified. The consensus went from hosanna to the son of David to cries of crucify him in a matter of hours. Please don't think that I am comparing anyone alive today with Jesus because that is not my intent. I am just trying to show how the consensus can change quickly and how that can sometimes subvert the entire system of law and justice. Consensus today goes something like this; there's widespread agreement that something must be done; there is a growing consensus in the country; the general consensus is this; the study shows a strong consensus so let's take a vote. Trouble arises with the idea of a consensus when we forget that America is a country based on law and the rights of the individual. Each individual American is protected by law and assured that his rights cannot be taken from him without a fair and proper hearing called due process of law. The hearing must not be an already decided sham of the law based on what the consensus has already decided. The system must not, whether by consensus, or by the dictates of one individual, declare a person or group as tainted or already guilty. The act of labeling someone as tainted was common in the English Crown days and was occasionally used against the American colonists so they specifically prohibited it in the U.S. Constitution. That prohibition is in Article one Section 9, paragraph 3: “No Bill of Attainder or ex post facto law shall be passed.” The term ex post facto means a law that was not in effect when the accused supposedly violated it but was passed later. These two things specifically prohibited by the supreme law of the land are being used against one person and those who support that person today right here in America. Yes, Donald Trump, it seems, is not liked by those in charge and has been declared “tainted” by them. The idea of due process and presumed innocent are now just quaint memories from our history, interesting but no longer there to protect individuals who are tainted. I will also tell you that the obligation to provide due process of law cannot be met when the accused has been declared guilty by the system before the process starts. I have been a lawyer for more than 40 years having gone to law school in the mid 1970's so I admit to having a love for the rule of law and its protection of the individual American. Here in America some overzealous prosecutor or judge is not allowed to override the rule of law because they think someone or some group of some ones is tainted and outside the protection of law. I scratch my head and I wonder how the system could have changed so much in the 45 years that I have been a lawyer so I read, I investigate, I try to discern what happened and I reach conclusions. In my day we were taught and we believed that as lawyers we were...

Whether you love or loathe him, Donald Trump is being treated unfairly by a two-tired justice system designed and used by Democrats to destroy a political opponent.  Americans have an innate sense of fairness and the treatment of Donald Trump should offend that sense of fairness.  Regardless of whether you like him or not.The Constitution bars bills of attainder.  But this attack is a bill of attainder and is an unconstitutional attack on one, singled-out individual.

On Tuesday's Mark Levin Show, the idea that there isn't a special council specifically investigating Joe Biden, the Biden crime family, and their financial dealings is appalling. The corruption goes well beyond Joe and Hunter, as Jim Biden also benefitted using Joe Biden's influence in a company called Americore. The blatant appearance of a conflict of interest is more than good enough to invoke a criminal investigation, but there is none. The civil fraud case against Donald Trump in New York is a travesty of the rule of law and an unjust political act by the Democrat party. If the New York State appellate courts do not reverse this judgment, the U.S. Supreme Court must grant cert on this case and reverse the decision. Letitia James and Judge Arthur Engpron have essentially turned a vaguely worded New York State law into a modern-day Bill of Attainder targeted at Trump both for political gain and because they despise his political views. Meanwhile, Nikki Haley is using this case against Donald Trump to attack him because Haley is the sieve through which Democrats and establishment Republicans are pouring their money. Later, two-thirds of the members of the United Nations are genocidal dictators, Marxists, or fascists, and the U.N. is the most concentrated group of America and Israel haters. Joe Biden and Antony Blinken have created a situation where the other U.N. nations are piling on against Israel. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Tu Culpa is a Latin phrase meaning "your fault." In part 2 of the podcast on the (Maryland) Attorney General's Report on Child Sexual Abuse in the Archdiocese of Baltimore, Serge and Clarke and special guest FJ Collins, discuss whether the AG's report is fair, the impact of expanded statutes of limitation, and whether the Attorney General of Maryland, as part of the Executive Branch of government, has done what is constitutionally prohibited by the Legislative Branch of government: issued a Bill of Attainder.  

We begin today's episode by pondering some interesting parallels between last week's letter from Dame Caroline Dinenage requesting on-line platforms to consider demonetising Russell Brand and the long but  fascinating history of Acts of Attainder. Dame Caroline's letter was discussed at length by Ben on GB News last week. We move on to an important victory for the FSU and one of our members. Colonel (retired) Dr Kelvin Wright has been cleared after he was investigated for sharing a Facebook post stating that ‘men cannot be women'. Following this positive outcome, Dr Wright commented that, while he has been vindicated, “the Army has a systemic problem where gender critical opinions are concerned. I want to ensure that nobody can be put through the type of process I've just endured”; the Army is much the poorer for the loss of a man like him. Following the publication last week of a staff letter that warns of a ‘woke takeover' across the civil service, we are rather left wondering, in the words of Ted Heath, “Who Governs Britain?”. After a brief interlude to discuss the new Online Safety Bill (thank you to all our members who have worked with us to strike out its most egregious elements) we finish the episode on a positive note: the apology statement written by Rethinking Education in the aftermath of its cancellation of director of Don't Divide Us, Dr Alka Sehgal Cuthbert.

Meaning of the term Bill of Attainder

Donald Trump Upcoming Arrest? HEADLINE: Arresting Trump: An End-Of-America Watch Party by Eddie Scarry  AUDIO/VIDEO: Washington DC - bike racks being deployed around the Capitol complex. Bills of Attainder Why is this in the US Constitution? Sect 9 of Article 1 His property could be ceased and he/she could face imprisonment or execution. Adam Schiff finally said “I got the phone call and Trump was going down.”  He convinced Nancy Pelosi that this call was legit. He completely lied about what the call was if you remember. September 2019 Nancy Pelosi - she held press conferences telling reporters “we know that he will not be in that office on January 20, 2021.” QUESTION: How could she have known that then? He survived 2 impeachment attempts, he survived the January 6th committee too. QUESTION: Why do these attempts always fail? This is something I love about Trump. He has bested all his peers that he graduated w/ in business.  Even if Democrats really were concerned about our convoluted election regulations, no serious person thinks New York's district attorney has a case against Trump. HEADLINE: “America's Got Trump”: Get Ready for a Truly Made-for-TV Prosecution by Jonathan Turley 

This is a very important piece of information about our legal system! What is happening unlawfully daily across our nation. --- Support this podcast: https://podcasters.spotify.com/pod/show/the-justice-revolution/support

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG twit.cachefly.com

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG twit.cachefly.com

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG twit.cachefly.com

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG twit.cachefly.com

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG twit.cachefly.com

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG cachefly.com

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG cachefly.com

Google IO, Hawley's copyright bill, Texas social media law, Keyboardio Atreus Hosts: Leo Laporte, Jeff Jarvis, and Ant Pruitt Guest: Mike Masnick For full show notes, visit https://twit.tv/shows/this-week-in-google/episodes/663 Sponsors: eightsleep.com/twig Codecademy.com promo code TWIG twit.cachefly.com

Clause 3: Federal trials. Clause 3 of Section 2 provides that Federal crimes, except impeachment cases, must be tried before a jury, unless the defendant waives their right. Also, the trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress. The United States Senate has the sole power to try impeachment cases. Two of the Constitutional Amendments that comprise the Bill of Rights contain related provisions. The Sixth Amendment enumerates the rights of individuals when facing criminal prosecution and the Seventh Amendment establishes an individual's right to a jury trial in certain civil cases. It also inhibits courts from overturning a jury's findings of fact. The Supreme Court has extended the protections of these amendments to individuals facing trial in state courts through the Due Process Clause of the Fourteenth Amendment. Section 3: Treason. Section 3 defines treason and limits its punishment. Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. The Constitution defines treason as specific acts, namely "levying War against , or in adhering to their Enemies, giving them Aid and Comfort." A contrast is therefore maintained with the English law, whereby crimes including conspiring to kill the King or "violating" the Queen, were punishable as treason. In Ex Parte Bollman, (1807), the Supreme Court ruled that "there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war." Under English law effective during the ratification of the U.S. Constitution, there were several species of treason. Of these, the Constitution adopted only two: levying war and adhering to enemies. Omitted were species of treason involving, encompassing, or imagining the death of the king, certain types of counterfeiting, and finally fornication with women in the royal family of the sort which could call into question the parentage of royal successors. James Wilson wrote the original draft of this section, and he was involved as a defense attorney for some accused of treason against the Patriot cause. The two forms of treason adopted were both derived from the English Treason Act 1351. Joseph Story wrote in his Commentaries on the Constitution of the United States of the authors of the Constitution that: they have adopted the very words of the Statute of Treason of Edward the Third; and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law, which has prevailed for ages. --- This episode is sponsored by · Anchor: The easiest way to make a podcast. https://anchor.fm/app

In this episode, Jason explains a few of the "terms of art" that are used in the Constitution in Article I, Section 9: Writ of Habeas Corpus, Bill of Attainder, & ex post facto laws. These terms are all authorities that are specifically denied to Congress with extremely limited exceptions. Tune in to find out why these are part of what Jason calls the Bill of Rights 1.0.

A tribute to the great one in the best way I know how. --- This episode is sponsored by · Anchor: The easiest way to make a podcast. https://anchor.fm/app

Most history lovers know that Jane Boleyn (née Parker), Lady Rochford, was the wife of George Boleyn, Lord Rochford, the sister-in-law of Queen Anne Boleyn and that she was executed with Catherine Howard in February 1542, but in this talk, historian and author Claire Ridgway shares 12 lesser-known facts about Jane...   You can see this podcast as a video at the following link: https://youtu.be/ZCHUZJ90_RE   Jane Boleyn - Did she help bring down Anne Boleyn? - https://youtu.be/aL2QqvKNTLA January 21 - The Act of Attainder against Catherine Howard and Jane Boleyn - https://youtu.be/jxxcTAxn0_k February 9 - Jane Boleyn, Lady Rochford, is taken to the Tower - https://youtu.be/53HVn-dfMyk 13 February - The Executions of Catherine Howard and Jane Boleyn, Lady Rochford - https://youtu.be/4nGL47QKe4k Catherine Howard's execution - What happened? - https://youtu.be/jZsmPArUBTg The George Boleyn Interviews Part 3: Was George Forced into Marrying Jane Parker? - https://youtu.be/A-CGVk70WVM   Book recommendations:   Jane Boleyn: The True Story of the Infamous Lady Rochford by Julia Fox George Boleyn: Tudor Poet, Courtier and Diplomat by Clare Cherry and Claire Ridgway  Jane Parker: The Downfall Of Two Tudor Queens? by Charlie Fenton -- Claire Ridgway Historian and author, founder of the Anne Boleyn Files and Tudor Society www.theanneboleynfiles.com www.tudorsociety.com https://twitter.com/AnneBoleynFiles http://www.facebook.com/theanneboleynfiles https://www.instagram.com/anneboleynfiles/ https://twitter.com/thetudorsociety https://www.facebook.com/tudorsociety/ https://www.instagram.com/tudor.society/

Sins of the Fathers explores why The Founders stopped Corruption of Blood that punished heirs for the crimes of a parent where land and property. could be taken from families. Bill of Attainder, Article 1, Section 9, Clause 3 US Constitution. Punishment of Treason Article 3, Section 3, Clause 2. Individual blame verse group blame and how this manifests itself in white privilege and slave reparations.

Thomas Wentworth faces his trial for treason. Listen to Revolution 1: https://pod.link/1547107431 Listen to Historical Blindness: https://pod.link/1163575703 Check out the podcast website: https://www.paxbritannica.info Facebook: https://www.facebook.com/PodBritannica/ Twitter: https://twitter.com/BritannicaPax Patreon: https://Patreon.com/PaxBritannica Donate: https://www.paypal.com/donate?token=o8YvWF6xKTcsS1U7xAzp2EqmYBGR5vQJwvIwI4VqZk4jXzM7iczctH2l9Yo9u0RcApBuid5Ojv9Qsemh For this episode, I found the following publications particularly useful: Russell, C The Causes of the English Civil War Kishlansky, M, Monarchy Transformed Macinnes, Allan, The British Revolution, 1629-1660 Harris, T. Rebellion  Keynon, Ohlmeyer, The Civil Wars Smith, David, The Stuart Parliaments, 1603-1689 Learner, Craig S., 'Impeachment, Attainder, and a true Constitutional Crisis: Lessons from the Strafford Trial', The University of Chicago Law Review The Earl of Strafford's Final Speeches: https://play.google.com/books/reader?id=Ie87AQAAMAAJ&pg=GBS.PP1 Learn more about your ad choices. Visit podcastchoices.com/adchoices

Article 3Section 1The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.Section 2The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.Section 3Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

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CISA reports a ransomware infestation in a US natural gas compression facility--it arrived by spearphishing and there are, CISA thinks, larger lessons to be learned. A new threat actor, possibly linked to China’s government, is running an espionage campaign against gambling and betting operations in Southeast Asia. More notes on firmware signatures. Huawei loses one in US Federal Court, and the defense asks for a mistrial in the Vault 7 case. Caleb Barlow from CynergisTek on Wigle and the impact your SSID name can have on your privacy, guest is Anita D’Amico from CodeDX on which developers and teams are more likely to write vulnerable software. For links to all of today's stories check our our CyberWire daily news brief: https://thecyberwire.com/issues/issues2020/February/CyberWire_2020_02_19.html Support our show

I read from attaché to attainder. The word of the episode is "attackman". dictionarypod@gmail.com https://www.facebook.com/thedictionarypod/ https://twitter.com/dictionarypod https://www.instagram.com/dictionarypod/ https://www.patreon.com/spejampar 917-727-5757

On this day in Tudor history, 10th December 1541, Thomas Culpeper, a gentleman of the privy chamber, and Francis Dereham, a member of the queen’s household, were executed at Tyburn. They had been found guilty of high treason for intending to do ill with Queen Catherine Howard, i..e intending to commit adultery with her, and had been sentenced to be hanged, drawn and quartered. Dereham suffered the full traitors' death, while Culpeper was beheaded. Find out more about what happened from a primary source account shared by Claire Ridgway, founder of the Tudor Society. You can see this podcast as a video at the following link:https://youtu.be/zmWYSqtrVT0 You can find out more in the following videos:December 1 - Thomas Culpeper and Francis Dereham found guilty - https://youtu.be/3vf3zSxkDf0February 13 - The Executions of Catherine Howard and Jane Boleyn, Lady Rochford - https://youtu.be/4nGL47QKe4kJanuary 21 - The Act of Attainder against Catherine Howard and Jane Boleyn - https://youtu.be/jxxcTAxn0_kNovember 11 - Queen Catherine Howard is moved to Syon House - https://youtu.be/y9k104vsC6INovember 7 - Queen Catherine Howard confesses - https://youtu.be/cJcDEoccZfoNovember 6 - Henry VIII abandons Catherine Howard - https://youtu.be/eeQx3R6f0DoNovember 2 - The Beginning of the End for Catherine Howard - https://youtu.be/vZe2DtALUsc You can find Claire at:https://www.theanneboleynfiles.com https://www.tudorsociety.comhttps://www.facebook.com/theanneboleynfiles/https://www.facebook.com/tudorsociety/https://twitter.com/AnneBoleynFiles https://twitter.com/thetudorsociety https://www.instagram.com/tudor.society/ https://www.instagram.com/anneboleynfiles/

In 1974, Richard Nixon resigned from the Presidency, the only person to ever do so. The primary evidence against him was a set of tapes that he had made in the Oval Office, which purported to contain direct evidence of the Watergate Conspiracy, or at least a lot of buzzing that replaced sections that might have proved the Watergate Conspiracy if they hadn't been so obviously erased. After he resigned President Ford pardoned Mr. Nixon on September 8, 1974. Prior to that day, Presidential papers were not considered “public documents.” They were private papers which belonged to the President. In fact, until Franklin Roosevelt donated his papers to the National Archives through his Presidential Library and Museum in 1939, they had never been available to the public except in the form of books and articles written by researchers who had been granted access. Until December 19, 1974. On that day, President Ford signed a bill passed by Congress, The Presidential Recordings and Materials Act.” This law, which by definition applied ONLY to the records and Materials of Richard Nixon, made it clear that these were now the property of the United States, to be overseen by the National Archivist, who was charged with determining which records and documents the United States would keep – for potential use in judicial proceedings – and which would be returned as the property of Richard Nixon. Naturally, the former President sued, claiming that this law was clearly unconstitutional as it violated the ban on Bills of Attainder. It would take until 1998 to fully resolves Nixon's role in this. Today, the Federal Courts are preparing to take up two cases that both Defenses are arguing are Bills of Attainder. Will history repeat or will the Courts find that no bills of attainder shall be passed?

On this week's episode of Versus Trump, Charlie, Easha, and Jason discuss a new lawsuit by Huawei against various Trump Administration officials, plus they delve into international extradition law and look at the case of the company's detained CFO. The trio first discuss the new Huawei case, which claims that a federal law that prohibits federal agencies from using Huawei equipment, or even from giving federal contracts to any entity that buys from Huawei, is an unconstitutional Bill of Attainder. This leads them to explain what a Bill of Attainder is, discuss whether this could be one, and wonder whether Bills of Attainder could apply to corporations in the first place. They then turn to the geopolitically related case of the extradition of Ms. Meng, the company's CFO, and then briefly discuss the Manafort sentencing.You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here. NotesLawfare is an excellent resource for all things related to Huawei's dispute with the U.S. (and many more topics). The complaint in the Huawei case is here. An excellent explainer about the Meng extradition is here. See acast.com/privacy for privacy and opt-out information.

MARCH 6, 2019 BY TOM FOX In today’s edition of Daily Compliance News: ·      Huawei sues US claiming Bill of Attainder. (Zero Hedge)·      The clown show ends. (New York Times)·      Rule 29 ruling rides into the sunset. (New York Times)·       Just in time to watch March Madness, Carlos Ghosen to be released on bail. (Wall Street Journal) Learn more about your ad choices. Visit megaphone.fm/adchoices

MARCH 6, 2019 BY TOM FOX In today’s edition of Daily Compliance News: ·      Huawei sues US claiming Bill of Attainder. (Zero Hedge)·      The clown show ends. (New York Times)·      Rule 29 ruling rides into the sunset. (New York Times)·       Just in time to watch March Madness, Carlos Ghosen to be released on bail. (Wall Street Journal) Learn more about your ad choices. Visit megaphone.fm/adchoices

In our 204th episode of The Cyberlaw Podcast, Brian Egan, and Jamil Jaffer discuss: the Mueller indictments – Reviewing the basics, and what is and isn’t; election security – The “state of the states” isn’t great; are hanging chads the answer?; Kaspersky sues the United States over ban on Kaspersky software; Washington law firms beef up their Bill of Attainder practice groups; data security and breach notification; in the fact of more news on malicious cyber activity; the United Kingdom and the United States attribute the NotPetya attack to Russia; a White House report released Friday estimated that malicious cyber activity cost the US economy between $57 billion and $109 billion in 2016; is Congress more likely to pass new federal regulation, modeled in part on the European Union’s General Data Protection Regulation (GDPR)? Or are the “laboratories of democracy” doing their job?; a few takes from a House of Representatives hearing on data breach and data notification last week; meanwhile, the first cybersecurity “certifications” were due to be submitted to New York state regulators last week by covered financial institutions. The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Here is the Complete Series for State Constitution Basics in easy to understand talk with ESTRA Seattle. Know what it means when people begin talking about Constitution Topics which includes:    Political Power   Supreme Law of the Land      Personal Rights  Right of Petition and Assemblage      Freedom of Speech     Oaths  Invasion of Private Affairs or Home Prohibited      Irrevocable Privilege, Franchise, or Immunity Prohibited  Rights of Accused Person     Administration of Justice     Religious Freedom Special Privileges and Immunities Prohibited      Habeas Corpus  Excessive Bail, Fines, and Punishment      Convictions, Effect of  Eminent Domain     Imprisonment for Debt      Military Power  Freedom of Elections     Bail when Authorized      Trial by Jury Rights of the Accused    Bill of Attainder      Right To Bear Arms Prosecution by Information    Grand Jury      Treason Hereditary Privileges Abolished      Constitution Mandatory      Rights Reserved  Standing Army      Fundamental Principles     Recall of Elective Officers  Same     Victims of Crimes - Rights  

What do drunk driving, getting fired for speaking your mind and terrorism have in common?  In addition to being things that scare middle-class white people, each of these topics are the subject of this week's episode, which takes a look at the oral arguments in Beylund v. North Dakota on the 4th amendment, the free-speech decision in Heffernan v. City of Patterson, and the Bank Markazi v. Peterson decision regarding the use of Iranian funds to pay off a civil judgment.

Part Two of the "Nazim is on Vacation" episodes continues with a conversation about history with Justin, one of the longest-listening fans of the Citizen's Guide podcast.  Brett and Justin discuss a little American history, and include specific references to Bills of Attainder in the Bank Markazi v. Peterson case, the colonization of Puerto Rico in the Puerto Rico v. Sanchez Vital case, and how the Supreme Court views 19th Century Congressional grants of Native American land in the case of Nebraska v. Parker.  Special thanks to DJ Ray for the Serial-esque background music.

In 2012, Congress passed the Iran Threat Reduction and Syria Human Rights Act, which allowed the Plaintiffs in Bank Markazi v. Peterson to obtain Iranian funds held in New York to satisfy a judgment rendered in U.S. Courts.  This action created a host of issues which are dealt with in this week's episode, including why judgments are the most important part of every civil case, the Court's view on Separation of Powers issues, whether this is a Bill of Attainder and what is a Bill of Attainder. 

Lesson 09: Legislative Authorities - Prohibitions to the Federal Government Last week we discussed federal land ownership, the necessary and proper clause, and the beginning of Article I, Section 9 (with an emphasis on immigration).  Today, we will discuss prohibitions to the federal government regarding issues like Habeas Corpus, Bills of Attainder, and Ex Post Facto Law. Join Douglas V. Gibbs of Political Pistachio as he journeys through the United States Constitution. We study the concepts, principles, and direct text of the U.S. Constitution from the original point of view of the Founding Fathers. New episodes each Sunday Morning at 9:00 am Pacific Time. Go to Constitution Study Radio for all podcasts of past episodes. Doug's book, 25 Myths of the United States Constitution is available on Amazon, and CreateSpace.

Mission Gamma: Twilight. When Deep Space Nine premiered, the stated goal of the Starfleet presence on the station and the purpose Sisko's mission was to prepare Bajor for Federation membership. As the series went on, this came close to happening once; but a warning from the Emissary put the issue on the backburner. Then the Dominion War happened. With all of that now in the past—and with other loose ends from "What You Leave Behind" either wrapped up or at least addressed—Mission Gamma sets Bajor back on a course for Federation membership and provides DS9 with a new TOS-like initiative to seek out new life and strange new worlds. In the episode of Literary Treks hosts Matthew Rushing and Christopher Jones are joined by Dan Gunther to continue our look at the DS9 relaunch series and kick off discussion of the four-part Mission Gamma. We discuss the character stories involving Bashir and Ezri, Vaughn and Prynn, how Kira is dealing with the Attainder, and what the future holds for Bajor and the United Federation of Planets. In our news segment we get an update on Keith R.A. DeCandido's The Klingon Art of War, a New Frontier for Peter David, Dayton Ward's new TNG book Armageddon's Arrow, and we review the second issue of IDW's I, Enterprise comic.

Something strange and rather ominous is happening in Australia. The Gillard government plans to do something no democratic government should. It's trying to work out how to gag the media. They are especially targeting one newspaper-The Australian. Now for most of history, a national daily newspaper was a pipe dream for such a large country. But back in ‘64, Rupert Murdoch decided to start a national newspaper - even before the technology was ready. He kept the newspaper going at a loss for decades. The Australian took on causes even before they were fashionable. Such as aboriginal disadvantage. They ran with others, like the republic, which turned out to be a dead loss. Most importantly The Australian has given both sides a go. And thrashed each side when they believed they deserved it. But the Gillard government can't take it. Just as they can't take the daily exposure of their failings by talkback radio - especially by 2GB’s Alan Jones and Ray Hadley. This is dangerous stuff. The government is now working out ways to control the media, to make it more compliant. They talking about a star chamber- called a media council -to do the controlling. Then there's to be a a special law to deal with Gina Rinehart. We haven't had special laws against individuals since the bills of attainder. They were used to declare someone guilty of a crime, often treason. Without a trial. And then they were executed. They were declared unconstitutional in the US. This bill of attainder against Gina Rinehart is to stop her acquiring Fairfax. The camouflage is to be a so-called public interest test. It will be a political interest test. Is this acquisition in the political interests of the Gillard government? And now we have the extraordinary news that Fairfax’s chief executive,Greg Hywood, has refused to sign a letter of protest from media organisations to the government. He told The Australian “We're not about to sign a form letter penned by News Limited to deal with the problem it created for the media industry in this country.” The problem The Australian created for the media? What does he mean? The media doing theirs job – exposing government failings and not just publishing government press releases -creates a problem? Isn’t this the clearest reason for Fairfax to grab the help that Gina Rinehart is offering. Fairfax is in a mess because the ownership that is the board long ago abandoned its responsibility. It handed over control of its once proud journals of record - the Herald and The Age - to left-wing journalist collectives. And in their now dire financial position Fairfax is panicking. Fairfax is desperately screaming out for leadership. Leadership of the sort that Murdoch offers News Limited. Isn’t it time to give Gina Rinehart a go?

Last Sunday we were discussing Article I, Section Nine, and left off discussing Bills of Attainder. Today, we will review that discussion, and then proceed through Ex-Post Facto Law, and wrap up Article I. Through the Constitution with Douglas V. Gibbs.

Section 1 The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. Section 2 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3 Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.