Celebrate Earth Day with the BLM and Friends of the Desert Mountains at the Santa Rosa and San Jacinto Mountains National Monument Visitor Center for a special clean-up event!

 

WHEN: Saturday, April 19, 8 – 11 am (Please check-in at 7:45 a.m.)

WHERE: Santa Rosa and San Jacinto Mountains National Monument Visitor Center, 51-500 Hwy 74, Palm Desert, CA 92260 (View map for the Visitor Center at UTM Coordinates: 33.67149, -116.40839)

WHAT: Volunteers will help trim overgrown vegetation, remove invasive weeds, and water newly planted native species around the Visitor Center Campus. Plan to get dirty and come prepared with a hat, gloves, long-sleeve shirt, closed-toe shoes, and at least two liters of water. Equipment and tools will be provided.

 

 

For more information contact Friends of the Desert Mountains at 760-568-9918.

The U.S. Supreme Court’s decision on Jan. 17 upholding the federal law banning TikTok continues a long history of judicial deference to claims of national security. The ruling upholds a federal statute that bans a medium of communication that is used by more than 170 million people in the United States. The speech of all who generate content for it and all who receive it is restricted by this law. It is difficult to think of any law in American history that restricted so much speech for so many people.

TikTok stopped operating in the United States for a brief time after the court’s decision. Upon taking office, President Donald Trump issued an executive order delaying the TikTok ban from going into effect for 75 days. It is questionable whether he has the authority to do this under the federal statute. But if no court enjoins his order, TikTok at least has a temporary reprieve. The ultimate fate of TikTok in this United States remains uncertain.

Factual background

On April 24, 2024, President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act into law. The act identifies the People’s Republic of China and three other countries as foreign adversaries of the United States and prohibits the distribution or maintenance of “foreign adversary controlled applications.” The law prohibited TikTok in the United States as of Jan. 19, unless its owner, ByteDance, had sold it by then.

Under the law, the president may grant a 90-day extension if there is significant progress being made toward a sale of TikTok. ByteDance has given no indication that it is interested in a sale, so it is difficult to see President Trump’s action fitting within this statutory authority.

On Dec. 6, 2024, the U.S. Court of Appeals for the District of Columbia Circuit upheld the federal law outlawing TikTok. The judges acknowledged the impact of the law on freedom of speech, but they accepted the government’s argument that national security concerns justified the ban.

First, the court said China, through TikTok, could gather information about those in the United States. Second, the court said China could attempt to use TikTok to influence attitudes, including about politics, in this country.

Supreme Court decision

The Supreme Court granted certiorari and scheduled oral argument for Jan. 10. A week later, the court unanimously affirmed the D.C. Circuit in a per curiam opinion.

At the outset, the court said there was the question of whether “heightened review” was appropriate when there was a regulation of nonexpressive activity (ownership of a platform) that disproportionately burdens those engaged in expressive activity (those who post on TikTok and receive information there). The court did not resolve that issue, instead declaring, “We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny.”

The court began by reciting the familiar principle that content-based regulations must meet strict scrutiny, while content neutral laws only need meet intermediate scrutiny. Under strict scrutiny, a law must be necessary to achieve a compelling purpose, while under intermediate scrutiny, a law only need be substantially related to an important purpose. A law is deemed content-based if either it restricts speech based on its topic or its viewpoint.

The court said that “As applied to petitioners, the challenged provisions are facially content neutral and are justified by a content-neutral rationale.” The court explained that the federal statute was content- neutral because it prohibited all speech over TikTok in the United States, whatever its topic and whatever its viewpoint.

The court identified the government’s purpose as preventing China, a foreign adversary, from gathering large amounts of information on Americans using the platform. And it expressly declared that this was a sufficiently important interest to meet intermediate scrutiny: “The act’s prohibitions and divestiture requirement are designed to prevent China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users. This objective qualifies as an important Government interest under intermediate scrutiny.”

The court said China could gather vast amounts of information about users of TikTok that could include enabling “China to track the locations of federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” The court stressed that the case arose in the context of “national security and foreign policy,” and therefore concluded that “we must accord substantial deference to the predictive judgments of Congress.”

Notably, the court did not echo the D.C. Circuit’s conclusion that the TikTok ban was justified because China might use it to influence attitudes in the United States. The premise of the First Amendment is that more speech is inherently better, regardless of its source. Restricting speech because it might change minds is antithetical to the First Amendment. Even during the height of the Cold War, the United States allowed the Russian newspaper Pravda to be sold in this country.

The challengers argued that the purpose of the federal law was to prevent TikTok to be used to convey particular views. The court acknowledged that no prior cases had determined “the appropriate level of First Amendment scrutiny for an act of Congress justified on both content-neutral and content-based grounds.”

The court said it did not need to decide that issue, but then effectively did by declaring: “The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.” This is an important clarification of First Amendment law: If a government action is justified by both content-based and content-neutral rationales, it will be treated as content-neutral so long as the court is convinced that the law would have been adopted anyway based on the content-neutral rationale.

Justice Sonia Sotomayor concurred in part and concurred in the judgment. She agreed with the decision but said the court should have held, not just assumed, that the ban on TikTok is expressive activity. She said, “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform.”

Justice Neil Gorsuch concurred in the judgment. He questioned whether the law was actually content-neutral but said it was constitutional under any level of scrutiny. He wrote: “I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the president as an adversary of our oation, from harvesting vast troves of personal information about tens of millions of Americans.”

Analysis

No one in the litigation disputes that TikTok can gain a great deal of information about users of its platform. Nor was it disputed that this information potentially could be obtained by China.

What is missing in the court’s analysis is a discussion of what information China can obtain and how that information can be used to damage national security. It is certainly true that every app allows those administering it to gather information about users. But knowing how many people are watching a dance video hardly seems a basis for endangering the country. Because the federal law is a very significant restriction on speech there must be a real, proven danger, not conjecture.

None of the briefs elaborates this, either. Nor is it the case that the court relied on secret information provided by the government to justify the law. Justice Gorsuch observed: “I am pleased that the court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel.”

The court should have explained in much greater detail what information China could gain from TikTok users and how China possessing this information could harm the United States.

Ultimately then, what explains the court’s conclusion is not a proven likely harm to national security from TikTok. Rather, it is the court giving deference to the government’s claim that TikTok is a threat to national security. There have been many cases throughout American history where the court has professed such deference. But the crucial question is whether such deference is appropriate when it involves a major restriction on the exercise of a fundamental right.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

CALIFORNIA – In order to protect the historic and cultural integrity of the Schwartz and Leff Administrative Site along the North Fork of the Salmon River, Secretary of the Interior Deb Haaland has withdrawn approximately 40 acres of National Forest System lands within the Klamath National Forest from location and entry under U.S. mining laws for 20 years. The withdrawal, initiated by the U.S. Department of Agriculture Forest Service, prevents new mining claims, but allows leasing under the mineral or geothermal leasing laws and disposal under the Materials Act of 1947.

The withdrawal will help preserve the unique historical and cultural significance of the site, which represents mining activities from the late 1800s to the Depression era. The largely unaltered site includes six buildings and two structures, five of which likely originate from the 1930s. Built by members of the U.S. Naval Construction Force, the site stands as a testament to the determination of the early mining community in Siskiyou County, California. The site is eligible for listing in the National Register of Historic Places as a historic district for its association with placer mining during the Great Depression.

The notice of withdrawal application published in the Federal Register July 27, 2017 (82 FR 34974-75). The notice gave affected users, parties of interest, and the public an opportunity to raise any concerns and to comment on the withdrawal application. The Forest Service consulted Federal, state, Tribal, and local agencies during the development of the environmental assessment. The project was first published to the schedule of proposed actions and the project website on October 1, 2017. All comments were reviewed, and summaries were published in the environmental assessment on the project website.

For further information about this withdrawal, please visit the project website, or contact Melissa Bleier at mbleier@blm.gov (until January 7, 2025), or Shannon Benavides, BLM Realty Specialist, at sbenavides@blm.gov (after January 7, 2025).

Ukiah, Calif.— The Bureau of Land Management California and the Mendocino National Forest announce the selection of Kay-Leigh Barnitz as the Berryessa Snow Mountain National Monument manager. Her career in public service and natural resources spans more than 10 years. She now embraces the challenge of overseeing the management of 330,780 acres of public lands in a region stretching from Napa County to the mountains of the Mendocino National Forest north of Clear Lake.  

“Kay-Leigh is an experienced, dedicated and collaborative leader,” stated BLM Central California District Manager Chris Heppe. “Her extensive knowledge of natural resource management and commitment to community partnerships will benefit the Monument’s scenic and biologically diverse landscapes.” 

“I am extremely pleased to welcome Kay-Leigh to the region,” says Acting Mendocino National Forest Supervisor David Fournier. “I share her excitement for the opportunities here and gratitude for the Monument and the collaboration among our agencies and partners.” 

Barnitz has a strong background in natural resource management at the Monument. Over the last eight years, as the wildlife biologist for the Ukiah Field Office, she was instrumental in restoring and protecting rare ecosystems in the region including those encompassed by the Monument.  

“The Berryessa Snow Mountain National Monument encompasses some of the most spectacular landscapes and diverse ecosystems in the country,” Barnitz said. “I am looking forward to continuing my work with the communities of northern California, our partners, and the visitors to ensure this special place is available for the use and enjoyment of current and future generations.”  

Kay-Leigh is a self-proclaimed, “Woman of the West.” Originally from New Mexico, she was raised in Oregon, and now enjoys life in California. Her permanent career was first spurred by the BLM’s Direct Hire Authority/Resource Assistant Internship program with the Las Cruces District Office in Las Cruces, New Mexico. She values the Western lifestyle and loves hiking, riding horses, running her dogs, hunting, and snowboarding on public lands. She holds a bachelor’s degree in wildlife science from New Mexico State University.

SUSANVILLE, Calif. – The Bureau of Land Management and Lassen Land and Trails Trust are inviting outdoor enthusiasts to help with Lassen County cleanup and improvement projects in recognition of National Public Lands Day and Susanville Hometown Pride on Saturday, Sept. 28.  Projects will take place from 9 a.m. to noon at the historic Susanville Railroad Depot and along the Bizz Johnson Trail.

Volunteers will meet at 9 a.m. at the Depot, 601 Richmond Road, and form into project teams to pick up litter and perform other light tasks.  Lunch will be provided for those who register.  Registration information is also available from the Lassen Land and Trails Trust at 530-257-3252.  The BLM will provide gloves, tools and water.   

National Public Lands Day is coordinated by the National Environmental Education Foundation.  Since 1994, NPLD has mobilized volunteers on the fourth Saturday in September to celebrate and care for something we all share, our nation’s public lands. 

In the past decade alone, over a million volunteers have donated almost five million hours of their time, worth an estimated $133 million, to improve public lands.  These efforts are crucial to preserving our natural resources for future generations to enjoy.