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I've now read Judge Nichols' opinion explaining the basis for his preliminary injunction last night against the TikTok Executive Order. Some comments. 1/ https://twitter.com/kurtopsahl/status/1310616862867087360
First, Judge Nichols has seen the government's secret evidence against TikTok--but he concludes this: "the specific evidence of the threat posed by Plaintiffs, as well as whether the prohibitions are the only effective way to address that threat, remains less substantial" 2/
Second, Judge Nichols' IEEPA interpretation is powerfully argued and persuasive. This case suggests that any IEEPA-based ban of TikTok will be permanently enjoined, if appellate courts agree (assuming appeal actually taken). 3/
I think the First Amendment issues are the most powerful in the case, but Judge Nichols' understandably focused on the statutory authority question first. He thought that the other arguments posed "serious questions." That should be yet another warning to the Government. 4/
Again, this District Judge has seen the secret evidence that the U.S. Government can muster against TikTok. And he is not deferring, but rather suggesting repeatedly that TikTok has strong arguments. 5/
We should not be cowed by assertions of national security--and defend free expression in the face of a capricious and manipulative President. 6/
The Government alleges that TikTok gathers the following information--but all of this seems rather banal and standard (but let me know if I missed something). Certainly fair to examine whether this information is being abused, of course. 7/
Compare what the IEEPA Executive Order states: 8/
Thanks to two wonderful judges, Judge Laurel Beeler, appointed by President Obama, and Judge Carl Nichols, appointed by President Trump, for standing up for the rule of law even in the face of national security claims. 9/end
