Comment Re:Plainly Unconstitutional (Score 1) 145
This goes right to the heart of the First Amendment, the government cannot put itself into the role of censoring the editorial decisions of a publisher. TikTok is a private entity here and a publisher (the press) and it has a clear constitutional right to publish whatever material it chooses so long as that material is not within a few narrowly defined categories such as defamation, csam, or calls to violence.
That remains to be seen. At heart is the question of the "algorithm" by which the publisher decides what to publish. This is similar to subliminal messaging in the sense that viewers aren't aware of the speech they've just heard (going from what you said, that the speech is editorial decision about what to show). But it's different in that with subliminal messaging an objective third party can see what the speech was, but with the "algorithm" no one can see what it was.
Subliminal messaging was ruled NOT to be protected by First Amendment in a Judas Priest case in 1988, but that overruled in 1990. The overruling however (1) sanctioned CBS for failing to disclose the masters, which is closely analogous to ByteDance failing to disclose its algorithms, (2) the overruling was because they didn't prove the subliminal was intentional and didn't prove the subliminal messages were the case of harm, both points on which I think there's clear paths to distinguish TikTok from CBS.
So: I agree it does go to the heart of the First Amendment, but the answer is by no means clear cut.