Supreme Court justice's order is part of probe into January 8 riots that saw Bolsonaro supporters storm gov't buildings.

“An enormous threat.” “An unacceptable national security risk.” “A spy balloon in your phone.” These are descriptions—from members of Congress and American regulators—not of a hidden piece of malware or a computer virus, but of the Chinese social-media app TikTok. Most U.S. citizens know TikTok as the place where they can watch people do stupid dances or post clips of themselves cooking. But many government officials view the app as a Trojan horse, a device that will enable the Chinese Communist Party to insinuate itself into American life and subvert national security. And that has led civil servants and elected representatives to call on the U.S. government to cut off Americans’ access to TikTok, the app’s enormous popularity with them notwithstanding.

The efforts to ban TikTok go back to the summer of 2020, when President Donald Trump, citing his powers under the International Emergency Economic Powers Act, issued an executive order prohibiting any American from participating in any transaction with the app. That order was struck down in the courts. But the impulse behind it hasn’t gone away. In January, Republican Senator Josh Hawley introduced a bill to ban TikTok from the U.S., and last month, Democrat Mark Warner and Republican John Thune introduced another Senate bill, the RESTRICT Act, which would empower the president to impose tight restrictions on “technology from foreign adversaries”—very much including TikTok.

What has the video-sharing platform done to merit this treatment? Well, the concern is not so much what it’s done as what it might do—or, perhaps more accurately, what the Chinese government might make it do. The company’s critics accuse it of collecting hoards of private information about its users, including data not only from within the app but from other apps as well. This information might, in theory, involve compromising material that could be used to blackmail U.S. citizens. The critics also point to the possibility of the Chinese government’s using the site as a propaganda outlet, swaying opinions by feeding American viewers certain clips.

In fact, little if any evidence suggests that TikTok’s data-collection practices are meaningfully different from—or any more invasive than—those of other social-media companies. To the extent that those practices are problematic invasions of privacy, the logical remedy would surely be to impose industry-wide standards. But for TikTok’s critics, those similarities pale next to the key difference between TikTok and its competitors: It’s a Chinese company—which means it could be legally required to hand over data to the Chinese government. TikTok insists that it has moved all of its American-user data to U.S. servers, but no one seems to believe that this would really make a difference if Beijing applied serious pressure to TikTok’s parent company. And so national security, we’re told, demands that TikTok be shut down in the U.S.

If TikTok were just a technology company, banning U.S. customers from doing business with it would be well within the government’s powers, as well as in line with similar actions the government has taken in the past. But TikTok isn’t just, or even primarily, a technology company. It’s a media platform, so banning it would be far more consequential. Cutting off Americans’ access to one of their favorite sources of information and entertainment would be legally and constitutionally dubious. Worse still, it would be wrong on the merits.

Any TikTok ban would have to contend with the Berman amendments, a series of changes to the International Emergency Economic Powers Act that prohibit the president from using sanctions to restrict the exchange of “information or informational materials,” including via electronic media. And then there are First Amendment considerations. As a foreign-owned company, TikTok itself does not itself enjoy that constitutional protection, but the U.S. Supreme Court has long held that the First Amendment protects the right of Americans to “receive and consider” information and ideas, no matter their source. In 1965, for instance, the Court struck down a federal law that imposed controls on “Communist political propaganda” that was “printed or otherwise prepared in a foreign country,” declaring unconstitutional the government’s attempt to “control the flow of ideas to the public.”

On top of this, a TikTok ban would be more problematic than limiting the flow of communist propaganda from abroad, because most of the content Americans consume on TikTok is generated by, yes, other Americans. Even if you think it should be permissible for the government to prevent Americans from reading, say, The Pyongyang Times, domestic measures blocking access to Bernie Sanders clips or a video of a guy skateboarding to Fleetwood Mac would be a remarkably far-reaching intrusion into Americans’ lives. Although content creators could migrate to other platforms, and users would find ways to circumvent the ban, such government action would radically curtail Americans’ right to receive and consider information and ideas.

Congress has the power, of course, to adjust the Berman amendments to allow itself to shut TikTok down within the United States. And the Supreme Court could decide that a TikTok ban is justified on national-security grounds. The real issue, though, is not whether the government can shut down TikTok; it’s whether it should. The national-security concerns may be legitimate, but even given the government’s compelling interest in limiting the Chinese government’s access to Americans’ data, any regulations it puts in place should be narrowly tailored to achieve that goal alone. Preventing Americans from using TikTok entirely is the opposite of that—and doing so would put the government in the position of deciding what content Americans are allowed access to and what they’re not.

I grant that the Chinese government puts itself in exactly that position all the time. YouTube, Twitter, and Facebook are all banned inside the country. Internet search terms are censored. Text messages are monitored. Even TikTok doesn’t operate inside China. But what Beijing does is hardly an argument in favor of our banning TikTok, because emulating authoritarian censorship plays to China’s strengths, not our own.

Passing comprehensive user-privacy legislation on all social-media companies operating in the U.S. would be a good idea. Shutting down one of Americans’ favorite apps is not. We don’t need to become more like China. And we don’t need to become less like America.

Medication abortions provided by virtual-only providers accounted for an increasing share of total abortions in the United States, since the Supreme Court eliminated the constitutional right to abortion in June 2022, according to a new report by the Society of Family Planning, a nonprofit focused on abortion and contraception.

The manufacturer of a key medication abortion drug asked the Supreme Court on Friday to intervene in an emergency dispute over a Texas judge's medication abortion drug ruling, requesting that the court step in now rather than wait for an appeal of the ruling to formally play out.

Last Friday, Judge Matthew Kacsmaryk ordered an end to the sale of mifepristone, a drug approved by the FDA 23 years ago that’s used to induce abortions, anywhere in the United States. He’s just a single judge in a small courthouse in Amarillo, Texas. Does he really have the power to dictate national policy about drug safety? If so, should he have that power?

The answer to the first question is complicated—more on that in a moment—but the answer to the second is easy. Of course he shouldn’t.

[Mary Ziegler: The Texas abortion-pill ruling signals pro-lifers’ next push]

When I ask new law students what courts are for, I’m likely to hear that they’re for “holding government accountable” or “protecting our constitutional rights.” That’s a common lay understanding: We’ve grown accustomed to judges taking center stage in national debates over abortion, health care, immigration, and other headline-grabbing issues.

But the traditional role of the courts is not to superintend what the government does. It’s to resolve disputes between the parties who appear before them. By offering a neutral, state-sanctioned forum, courts reduce the risk that angry people will take matters into their own hands. That’s a crucial but limited role. Judges aren’t supposed to adjudicate abstract political disputes or to rule on the rights of parties who aren’t involved in a given case.

Over time, however, some federal judges have become comfortable with a more sweeping vision of their role. Especially in the past decade, as the partisan divide has hardened, judges on both sides have grown more willing to wade into divisive policy disputes and to extend their rulings not just to the parties before them, but across the whole country.

The resulting “nationwide injunctions” are pernicious, as the Notre Dame law professor Sam Bray and I argued five years ago in this magazine. For starters, they purport to settle a legal question for the entire country, even if cases presenting the same question are pending before other judges who might have disagreed. That cuts off the ability of smart judges to contribute to an ongoing legal debate.

Nationwide injunctions also create procedural train wrecks. The government usually has no choice but to race to an appeals court or, failing that, the U.S. Supreme Court, to get the injunction lifted. These rushed appeals don’t have the benefit of full, careful briefing and argument. That’s exactly what happened in the mifepristone case: The government scurried to the Fifth Circuit Court of Appeals to ask it to pause the lower court’s decision, which the court did in part late Wednesday evening.

Finally, and of perhaps greatest concern, nationwide injunctions supercharge the incentives for ideologically motivated plaintiffs to hunt for like-minded judges to hear their cases, knowing they can win big if they can just find the right judge. That’s why the plaintiffs in the mifepristone case filed suit in Amarillo. They knew their case would be assigned to Judge Kacsmaryk, who in his short time on the bench had shown himself to be a reliable partisan warrior. It’s also why many of the highest-profile challenges to Trump-administration policies were filed in California, with its relatively high concentration of liberal judges.

The ideological pattern of nationwide injunctions is as predictable as it is striking. During the Biden administration, nationwide injunctions have been issued against its mask mandate on public transportation, its vaccine mandate for health-care workers, its extension of stimulus relief to Black farmers, its effort to set a price on the social cost of carbon, and its termination of former President Donald Trump’s “remain in Mexico” policy. Every one of these injunctions came from a judge appointed by a Republican president.

Likewise, nationwide injunctions were issued against the Trump administration for its travel bans, its public-charge rule, its exemptions from the contraception mandate, its changes to asylum policy, its abortion-related rules under Title X, and its elimination of the Deferred Action for Childhood Arrivals program. Every one of these injunctions came from a judge appointed by a Democratic president.

This is a dismaying picture, and is all but guaranteed to breed cynicism about the courts. Still, nationwide injunctions have their defenders. Arguments in their favor were especially appealing to liberal lawyers during the Trump administration. But now that the shoe is on the other foot, patience may be wearing thin. If you look closely, a bipartisan consensus may slowly be emerging that nationwide injunctions are inappropriate.

Judge Kacsmaryk clearly didn’t get the memo. Now, in fairness, he didn’t say he was entering a nationwide injunction. Instead, he said he was wiping the FDA’s approval of mifepristone from the books under the Administrative Procedure Act (APA), a bedrock 1946 statute allowing for court review of actions taken by federal agencies. No FDA approval, no mifepristone. (Actually, the judge said something stranger than that: He said he was postponing the effective date of mifepristone’s approval, even though the approval took effect 23 years ago. That’s bananas—the whole opinion, to be honest, is bananas—but for our purposes, it’s a distinction without a difference.)

[Patrick T. Brown: I’m pro-life. I worry that the abortion-pill ruling could backfire.]

Invoking the APA allowed the judge to rest his decision not on his discretionary power to issue injunctions, but on a supposedly clear legal command from Congress. That’s a growing trend in the lower courts. As nationwide injunctions get a bad odor, “universal vacatur” under the APA is taking its place. The APA says that courts shall “set aside” an agency’s unlawful action. The action is just gone, so it’s okay to prevent the government from relying on it. Hence, a nationwide injunction.

Just two weeks ago, for example, a different Texas judge used the APA to enter a “universal remedy” against agency rules requiring health insurers to cover certain preventive services free of charge under the Affordable Care Act. According to the judge, he had no choice in the matter.

Is that really what the “set aside” language means? Turns out that’s a lively topic of debate. Some judges on the D.C. Circuit, the influential appeals court in Washington, D.C., have concluded, without much analysis, that nationwide injunctions should typically accompany orders to “set aside” an agency action. At oral argument in a case last month, Chief Justice John Roberts suggested that he agreed: “With those of us who were on the D.C. Circuit, you know, five times before breakfast, that’s what you do in an APA case.” (Jonathan Adler at Case Western Law School has a good explanation for why the D.C. Circuit came to think this way.)

A narrower interpretation is available, however, and it’s a sounder one. According to the 1947 Attorney General’s Manual on the APA, the law was just “a general restatement of the principles of judicial review embodied in many statutes and judicial decisions.” One of those principles is that injunctions should be as narrow as possible while still providing complete relief to the injured party. Against that backdrop, it’d be odd to read words (i.e., set aside) that don’t mention injunctions as authorizing injunctions that are broader than necessary.

Recent work by John Harrison, a University of Virginia law professor, reinforces the point. When the APA was adopted, Harrison argues, Congress commonly used the words set aside to tell courts to ignore an unlawful action—to treat it as a nullity—in the case at hand. But that’s it. The APA didn’t confer the power to go further and enjoin or annul the action.

Say an employer, for example, files a lawsuit over an agency decision requiring businesses to cover certain preventive care for their workers, like in the other Texas case I mentioned. Under this narrower interpretation of the APA, the judge would ignore the agency decision—would set it aside—once it was found to be unlawful. Presto: The employer would no longer be subject to the obligation.

The underlying agency decision, however, would remain intact. No one except that employer’s workers would lose coverage. The agency that lost in court would then have to decide what to do in future cases. Maybe it would throw in the towel and let all employers off the hook. Maybe it would double down and fight in other courts. But that’s up to the agency, not the courts.

This debate over the APA hasn’t been conclusively resolved, and it may not be anytime soon. But the legal complexity shouldn’t be allowed to obscure a very simple point: It’s wildly improper in a democracy for a single judge to determine the rights of Americans everywhere. As I was reading Judge Kacsmaryk’s opinion, I couldn’t stop thinking of the satirist Alexandra Petri’s take on whether he might take the drug off the shelves:

Yes! This is a real possibility, because our legal system is working just the way it ought to work! In an ideal society, your rights and ability to access medicine and direct the course of your own life are guaranteed and unalterable—unless a Trump-appointed judge named Matt decides to say, “Nah.”

It doesn’t have to be like this. Judges such as Matt have assumed powers they were never given and that they ought not to have. The Supreme Court shouldn’t allow this, and should take its chance, whether in the mifepristone case or in another instance soon, to end nationwide injunctions.

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.

The $1.6 billion Fox News defamation trial is about to begin. More than Rupert Murdoch’s pocketbook is at stake—practically the entire media industry is watching with schadenfreude, and maybe even a little dread.

First, here are three new stories from The Atlantic:

The Supreme Court is likely to reject the independent state legislature theory Nutrition science’s most preposterous result: Could ice cream possibly be good for you? The not-so-secret key to emotional balance A Look Down the Fox Hole

The word of the week is malice. Did Fox News act with “actual malice” in broadcasting a litany of lies about Dominion Voting Systems’ machines in the days and weeks after the 2020 presidential election? On Monday, a jury in Wilmington, Delaware, will hear opening arguments in the landmark case.

Very few defamation suits go to trial. The evidence against Fox is overwhelming. Some of the network’s biggest names, including Tucker Carlson, had their private text messages surface in the discovery process. “The software shit is absurd,” Carlson wrote to his producer. Even Murdoch, in his deposition, personally cast doubt on former President Donald Trump’s claims about a “stolen election.” He also acknowledged that several of his hosts “endorsed” the Dominion conspiracy theory. Nevertheless, the Fox brass kept allowing lunacy about Dominion to transpire on its airwaves. (No, Dominion does not have secret ties to the family of former Venezuelan President Hugo Chávez, for instance.) Last year, Dominion CEO John Poulos told 60 Minutes that he and his employees have faced threats and harassment as a result of the lies.

The unfortunate reality is that news organizations get stories wrong all the time. The sheer thought of landing their work on the Corrections page can keep journalists up at night. David Simon captured this perpetual anxiety during Season 5 of The Wire, in an episode fittingly titled “Unconfirmed Reports.” In a particularly memorable scene, Gus Haynes, the grizzled city editor of The Baltimore Sun, springs out of bed and calls the paper’s night desk, asking a fellow editor to make sure he didn’t accidentally transpose two details in the course of futzing with a story. (He didn’t.) Such a mistake would have been just that, a mistake—which is qualitatively different from acting with malice, or with heightened disregard for the truth, the burden of proof in a defamation suit like Dominion’s.

Last year, Sarah Palin’s defamation suit against The New York Times was dismissed because of Palin’s basic failure to prove her case. Palin had sued the paper over an editorial that contained inaccuracies, but Judge Jed Rakoff ruled that Palin hadn’t provided adequate evidence to meet the legal standard required of a public figure suing for libel. The Times did not live up to its high standards, but neither did it act with actual malice.

While it’s tempting to grab some popcorn and root against Fox next week, the fact that the network known for propaganda is furiously (if unsuccessfully) invoking the First Amendment in its own defense complicates things. In our present era of dystopian book banning and library defunding, journalists and citizens alike should be wary of any legal precedent that could potentially narrow existing First Amendment freedoms.

No, Fox does not have a “right” to peddle lies about a technology company from Toronto. But high-profile cases such as this one can have a perilous downstream effect. Future lawyers can cite even part of a ruling to bend a judge or jury toward their side in a contentious case. We should all be hoping for truth and justice to prevail, while simultaneously praying that we don’t keep seeing more First Amendment(ish) cases going to trial in the years to come. The best press is an empowered press, so long as it’s not reckless.

To keep matters interesting: The case may still settle before Monday morning. Fox has already suffered some behind-the-scenes exposure (how’s that for a mixed metaphor?) and may want to avoid any additional texts or emails becoming public. Murdoch, Carlson, and other household Fox names could also be forced to testify.

If the trial does last its expected four weeks, I’ll be curious to see the extent to which the people who drew jury duty understand the nuances in question. Eight years ago, Marvin Gaye’s estate successfully sued Robin Thicke and Pharrell Williams, claiming that Thicke and Williams’s mega-hit “Blurred Lines” plagiarized Gaye’s “Got to Give It Up.” Each set of song lyrics is different, but they are sonically similar in terms of “groove” or “feel.” In a surprise to music-industry experts, Gaye’s estate won the verdict, but the jury did not find the offense to be “willful.” Those stakes were no doubt lower than the ones in the Dominion case, but the jury will have to parse similar details—namely the difference between an incorrect statement and a malicious lie.

Meanwhile, the next presidential election is just getting rolling, with Trump and Joe Biden poised for a rematch. After a reported “soft ban,” Fox is giving Trump plenty of airtime again. This week, he sat down for an interview with Carlson to discuss his first indictment. Carlson let the former president ramble at length, and even praised his statements as “moderate, sensible, and wise.” Yet, as we learned in the plethora of Dominion evidence, Carlson once texted of Trump, “I hate him passionately.”

Related:

Brian Stelter: I never truly understood Fox News until now. Why Fox News lied to its viewers Today’s News Federal investigators arrested an Air National Guardsman in their inquiry of leaked classified intelligence documents. A federal appeals court ruled late yesterday that the abortion pill mifepristone could remain available, but left restrictions in place that prevent the drug’s access by mail, partly overruling a Texas judge’s decision last week that declared the Food and Drug Administration’s original approval of the drug, in 2000, invalid. Former President Donald Trump was deposed in New York City as part of the $250 million civil lawsuit filed by the state’s attorney general, Letitia James, which alleges widespread fraud by Trump and his company. Dispatches Work in Progress: Derek Thompson delves into the rise of public crusaders who are private reactionaries.

Explore all of our newsletters here.

Evening Read Illustration by Joanne Imperio / The Atlantic. Source: Getty

Money May Buy Happiness. But Not as Much as You Think.

By Michael Mechanic

For more than half a century, researchers at UCLA have conducted a massive annual survey of incoming college students titled “The American Freshman: National Norms.” One part of the survey asks students to rank 20 life goals on a scale from “not important” to “essential.” Most are lofty aspirations such as becoming a community leader, contributing to scientific progress, creating artistic works, and launching a suc­cessful business. Surveyed in 1969, freshmen entering four-year colleges were most interested in “developing a meaningful philosophy of life” (85 percent considered it “essential” or “very important”); “raising a family” (73 percent); and “helping others who are in difficulty” (69 percent). Ten years later, freshmen opted for “being an authority in my field” (74 percent), followed by “helping others” and “raising a family.”

But something shifted amid the Reagan Revolution, which deregulated Wall Street, revamped the tax code, and set the nation hurtling toward levels of wealth and income inequality unseen since before the Great Depression. By 1989, a new priority had taken over the survey’s top position, and has appeared there on and off ever since: money. Indeed, the No. 1 goal of the Class of 2023, deemed “essential” or “very important” by more than four in five students, was “being very well off financially.”

Read the full article.

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Read. In The Real Work, the writer Adam Gopnik extols the virtues of striving for mastery in place of superficial achievements.

Watch. Showing Up, the new film (now in theaters) by the director Kelly Reichardt, understands what a creative life actually looks like.

Play our daily crossword.

P.S.

It’s hard not to watch all of this Fox News drama unfold against the backdrop of the final season of Succession without noticing a few parallels. The briefly unified sibling trio of Kendall, Shiv, and Roman are still duking it out in the remaining episodes to be their father’s successor. My extremely idiotic and unfounded prediction is that Cousin Greg will get full control of the company. In the immortal words of Greg, “If it is to be said, so it be, so it is.”

— John

Kelli María Korducki and Isabel Fattal contributed to this newsletter.