When the Supreme Court hears arguments Friday on whether TikTok needs to be sold or shut down to protect national security, the justices will be operating in the shadow of three First Amendment precedents: , these will all be influenced by the climate of the time and how much trust the judge has. government.
During the Cold War and Vietnam era, courts refused to give credence to government arguments that national security required restrictions on what newspapers could publish and what Americans could read. But just recently, the court put on hold a Congressional ruling that the war on terrorism justifies criminalizing some types of speech.
The court will most likely act quickly, as TikTok faces a January 19 deadline under a law enacted in April by a bipartisan majority. Supporters of the law said the app's parent company, ByteDance, is controlled by China and could be used to collect personal data of U.S. citizens and spread secret disinformation.
The court's decision will determine the fate of a powerful and pervasive cultural phenomenon that uses sophisticated algorithms to deliver a series of short, personalized videos to 170 million users in the United States. . For many of them, especially young people, TikTok has become their primary source of information and entertainment.
As with previous cases pitting national security against free speech, the central question for the justices is whether the government's determination of the threat TikTok poses defeats the state's commitment to free speech. The question is whether it is sufficient.
Sen. Mitch McConnell, Republican of Kentucky, told the justices that he is “second to none in valuing and defending the First Amendment right to free speech.” However, he urged them to abide by the law.
“The right to free speech enshrined in the First Amendment does not apply to corporate agents of the Chinese Communist Party,” McConnell wrote.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said that stance reflects a fundamental misunderstanding.
“It's not the government's role to tell us which ideas are worth listening to,” he said. “It is not the role of the government to purge the market of ideas and information with which it disagrees.”
The Supreme Court's last major decision in the conflict between national security and free speech was Holder v. Humanitarian Law Project in 2010. It concerned a law that criminalizes even well-intentioned assistance in the form of speech to groups said to be involved in terrorism.
For example, one of the plaintiffs said he wanted to help the Kurdistan Workers' Party find a peaceful way to protect the rights of Turkey's Kurds and bring their cause to the attention of international organizations.
During arguments in the case, then-U.S. Attorney General Elena Kagan said the court should follow the government's assessment of the national security threat.
“The ability of Congress and the executive branch to regulate the relationships of Americans with foreign governments or organizations has long been recognized by this court,” she said. (She appeared in court six months later.)
The court accepted the court's expertise and ruled in the government's favor by a 6-3 vote, even after ruling that the law was subject to strict scrutiny, the strictest judicial review.
Chief Justice John G. Roberts, Jr. said, “When the government seeks to prevent imminent harm from an international situation or national security perspective, it must consider all pieces of the puzzle before giving weight to empirical conclusions.'' There is no need for a final connection.” I wrote it for the majority.
In its Supreme Court brief defending the law banning TikTok, the Biden administration repeatedly cited the 2010 ruling.
“Congress and the Executive Branch have determined that ByteDance’s ownership and control of TikTok poses an unacceptable threat to national security. “It could allow information gathering and manipulation,” said Elizabeth B. Preloger. The U.S. attorney general wrote, “even if such harm has not yet materialized.”
He added that many federal laws restrict foreign ownership of companies in sensitive sectors such as broadcasting, banking, nuclear facilities, undersea cables, airlines, dams and reservoirs.
The court, led by Chief Justice Roberts, has indicated it will defer to the government's decision, but previous courts have been more skeptical. In 1965, during the Cold War, a court struck down a law that required people to write to receive foreign mail that the government claimed was “communist political propaganda.”
The Lamont v. Postmaster General decision had several distinguishing features. It was unanimous. It was the first time a court ruled a federal law unconstitutional based on the First Amendment's free speech clause.
This was the first Supreme Court opinion to address the term “marketplace of ideas.” This was the first Supreme Court decision to recognize the constitutional right to information.
The last idea applies to TikTok. “In the event of a dispute, courts protect the right of Americans to hear foreign-influenced ideas, and Congress has only gone so far as to require labeling of ideas' sources,” the app's user briefing states. It says “No.”
In fact, a supporting brief from the Knight First Amendment Institute states that laws banning TikTok are far more aggressive than laws restricting access to communist propaganda. “While Lamont's law burdened Americans with access to certain speech from abroad, this law completely prohibits it,” the brief said.
Zephyr Teachout, a law professor at Fordham University, said that's a flawed analysis. “Imposing foreign ownership restrictions on communications platforms takes several steps removed from free speech concerns,” she wrote in a brief supporting the government. “Regulation is entirely about the ownership of companies, not their conduct, technology or content.”
Six years after the mail-in propaganda case, the Supreme Court again refused to invoke national security to justify speech restrictions, and the Nixon administration released the Pentagon Papers, a secret history by the New York Times and Washington Post. The court ruled that the publication could not be prevented. Vietnam War. The court made its decision in the face of government warnings that publication would jeopardize intelligence services and peace negotiations.
“The term 'security' is a broad and vague generality, and its contours should not be invoked to invalidate the fundamental law embodied in the First Amendment,” Justice Hugo Black agreed. I stated it in my opinion.
The American Civil Liberties Union told the judge that the law banning TikTok is “more expansive” than the prior restrictions sought by the government in the Pentagon documents case.
“The government did not simply ban certain communications or speakers on TikTok based on content; it banned the entire platform,” the brief said. “It's like the lower courts shutting down the New York Times completely in the Pentagon Papers case.”
Jaffer of the Knight Institute said key precedents point in a different direction.
“People say that courts always defer to the government in national security cases, and there is clearly some truth to this,” he said. “But in the area of First Amendment rights, the record is much more complex.”
