TikTok Opinion Places Free Speech in the Back Seat and Sets Dangerous Precedent
Under the Court's rationale, the government can impose a sweeping restriction on a speech platform by merely citing national security and privacy concerns.
In upholding the law that requires ByteDance to divest TikTok or shut it down in the United States, the Supreme Court set a dangerous First Amendment precedent that will allow legislators and executive officials in the future to limit speech based on vague national security and privacy concerns.
The Court emphasized the purported “narrowness of our holding,” which approved the Protecting Americans from Foreign Adversary Controlled Applications Act. The unsigned opinion argues that the entire ballgame came down to data protection and national security:
“Data collection and analysis is a common practice in this digital age. But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns.”
“National security.” The Court used the phrase more than a dozen times in fewer than 20 pages. But the Court – like the Justice Department that argued in support of the law – had trouble articulating more than a possibility of China accessing and misusing the TikTok data. The Court wrote:
“Even if China has not yet leveraged its relationship with ByteDance Ltd. to access U.S. TikTok users’ data, petitioners offer no basis for concluding that the Government’s determination that China might do so is not at least a reasonable inference based on substantial evidence.”
“Might” is doing a lot of work in that sentence, and reliance on what “might” happen is a far cry from the Court’s previous considerations of the First Amendment and national security.
The Court failed to acknowledge New York Times v. United States, a 1971 opinion in which the Court rejected the Justice Department’s national security-related request to block newspapers’ publication of the Pentagon Papers. In a concurrence, Justice Hugo Black wrote:
“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”
Today’s Court did not heed Justice Black’s caution.
This is not to minimize the rational concerns about China potentially using TikTok to violate millions of Americans’ privacy. The danger in the opinion is allowing the mere potential for such harms to override the free speech interests of 170 million American users of TikTok.
To avoid running into a First Amendment roadblock, the Court engaged in twists and turns to justify applying a lower standard of scrutiny that is reserved for “content-neutral” speech restrictions. The Court reached this conclusion even though the law targets TikTok by name (as did the bill’s supporters in Congress), and the law has exclusions for certain types of platforms, like product and travel review sites.
The Court sidestepped these content-based designations by reasoning that the law has a “content-neutral justification: preventing China from collecting vast amounts of sensitive data from 170 million U.S. TikTok users,” and that it “neither references the content of speech on TikTok nor reflects disagreement with the message such speech conveys.” This rationale ignores the fact that the restrictions affect certain platforms more than others. And the reasoning also allows the government in the future to avoid strict scrutiny by claiming that a speech restriction is motivated by concerns over privacy rather than over speech.
In applying this lower level of First Amendment scrutiny, the Court continued to look only at the data privacy justifications, minimizing the fact that many of the law’s supporters repeatedly stated that they were concerned about China’s potential influence of the TikTok algorithm. The Court acknowledged that the Government asserted “an interest in preventing a foreign adversary from having control over the recommendation algorithm that runs a widely used U.S. communications platform, and from being able to wield that control to alter the content on the platform in an undetectable manner.”
Surely that is a content-based restriction? Not at all, the Court reasoned. Despite the abundant evidence of the speech-regulating motivations, the Court swiftly found that the “record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.”
It is unclear what TikTok’s fate will be in the United States. But the impact of this short opinion threatens to be far more enduring than any single app. Under this opinion’s rationale, the government can impose a sweeping restriction on a speech platform by merely citing national security and privacy concerns. Such an approach may be commonplace in other countries, but the United States has long prioritized First Amendment rights over privacy and national security.
Such free speech values were epitomized in Justice Louis Brandeis’s 1927 concurrence in Whitney v. California (stressing the importance of “freedom to think as you will and to speak as you think”) and Justice Oliver Wendell Holmes’s 1919 dissent in Abrams v. United States (“the principle of the right to free speech is always the same.”)
In his brief concurrence in the judgment today, Justice Neil Gorsuch cited both opinions and wrote, “[a]s persuaded as I am of the wisdom of Justice Brandeis in Whitney and Justice Holmes in Abrams, their cases are not ours.” Indeed, both Brandeis and Holmes would acknowledge as much. But they also would expect that today’s Court would apply the principles that they articulated in those opinions. That, unfortunately, did not happen.
Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the author of the new book Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.
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