TikTok Case Before Supreme Court Pits National Security Against Free Speech

When the Supreme Court hears arguments Friday about whether national security protections require selling or shutting down TikTok, the justices will be working in the shadow of three First Amendment precedents, all of which depend on the climate of their times and how much the justices trusted the government.

During the Cold War and Vietnam era, the court refused to take into account government claims that national security required restrictions on what newspapers could publish and what Americans could read. More recently, however, the court heeded Congress’s determination that the fight against terrorism justifies criminalizing certain types of speech.

The court is likely to act quickly because the TikTok case is scheduled to be heard on Jan. 19 under a law passed in April by a bipartisan majority. The legislation’s sponsors said the app’s parent company, ByteDance, is controlled by China and could be used to collect Americans’ personal data and spread hidden disinformation.

The court’s decision will determine the fate a powerful and widespread cultural phenomenon which uses a complex algorithm to deliver a personalized selection of short videos to its 170 million US users. For many of them, especially young people, TikTok has become a leading source of information and entertainment.

As in previous cases pitting national security against free speech, the key question for judges is whether the government’s decisions about the threat TikTok allegedly poses are sufficient to overcome the nation’s commitment to free speech.

Senator Mitch McConnell, Republican of Kentucky, told the judges that he is “unparalleled in his appreciation and defense of the First Amendment right to free speech.” But he urged them to obey the law.

“The First Amendment right to free speech does not extend to a corporate agent of the Chinese Communist Party,” Mr. McConnell wrote.

Jamil Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said the position reflects a fundamental misunderstanding.

“The role of government is not to tell us what ideas are worth listening to,” he said. “The role of government is not to purge the market of ideas or information with which the government does not agree.”

The last major Supreme Court decision in the conflict between national security and free speech came in 2010. Holder against the Humanitarian Law Project. At issue was a law that would make it a crime to provide even mild assistance in the form of speech to groups said to be engaged in terrorism.

One plaintiffFor example, he said he wanted to help the Kurdistan Workers’ Party find peaceful ways to defend the rights of Kurds in Turkey and bring their grievances to the attention of international organizations.

When the case was heardElena Kagan, then U.S. attorney general, said courts should listen to government assessments of threats to national security.

“The ability of Congress and the executive branch to regulate relations between Americans and foreign governments or foreign entities has long been recognized by this court,” she said. (She joined the court six months later.)

Court ran the government By a vote of 6 to 3, acknowledging its expertise even after ruling that the law was subject to strict review, the most demanding form of judicial review.

“A government seeking to prevent imminent harm in the context of international relations and national security does not need to definitively connect all the pieces of the puzzle before we give weight to its empirical findings,” Chief Justice John J. Roberts Jr. said. written for the majority.

In his Supreme Court underpants In defending the TikTok ban, the Biden administration has repeatedly cited the 2010 decision.

“Congress and the Executive Branch have determined that ByteDance’s ownership and control of TikTok poses an unacceptable national security threat because the relationship could allow a hostile foreign government to gather intelligence and manipulate content generated by U.S. TikTok users,” Elizabeth B. Prelogar, U.S. Attorney General wrote, “even if that harm has not yet materialized.”

Many federal laws, she added, limit foreign ownership of companies in sensitive areas, including broadcasting, banking, nuclear facilities, undersea cables, airlines, dams and reservoirs.

Although the court led by Chief Justice Roberts was willing to defer to the government, previous courts had been more skeptical. In 1965, during the Cold War, the court struck down a law requiring people who wanted to receive foreign mail, which the government said was “Communist political propaganda,” to declare it in writing.

This is the solution Lamont v. Postmaster Generalhad a number of distinctive features. It was unanimous. This was the first time a court ruled a federal law unconstitutional under the First Amendment’s freedom of expression provisions.

This was the first Supreme Court decision to use the phrase “marketplace of ideas.” And it was the first Supreme Court decision to recognize a constitutional right to information.

This last idea figures in the case of TikTok. “When disagreements arose” brief for application users said, “The Court protected the right of Americans to hear foreign-inspired ideas by allowing Congress, at most, to require an indication of the origin of those ideas.”

Really, auxiliary task The law banning TikTok is far more aggressive than the law restricting access to communist propaganda, according to the Knight First Amendment Institute. “While the law in Lamont burdens Americans’ access to certain speech from abroad,” the memo said, “this law prohibits it entirely.”

Zephyr Teachout, a law professor at Fordham, said that’s the wrong analysis. “Imposing restrictions on foreign ownership of communications platforms is a few steps away from problems with freedom of speech,” she wrote in summary of government support“because the rules are entirely about the ownership of firms, and not about the behavior, technology or content of the firms.”

Six years after the mailed propaganda case, the Supreme Court again rejected the use of national security as a justification for restricting free speech, ruling that the Nixon administration could not stop the New York Times and Washington Post. publication of the Pentagon PapersThe Secret History of the Vietnam War. The court did so despite government warnings that publication would jeopardize intelligence agents and peace negotiations.

“The word ‘security’ is a broad, vague generalization, the contours of which should not be used to override the fundamental law embodied in the First Amendment,” Justice Hugo Black wrote in his concurring opinion.

American Civil Liberties Union told the judges that the legislation to ban TikTok is “even more sweeping” than previous restrictions sought by the government in the Pentagon Papers case.

“The government didn’t just ban certain posts or speakers on TikTok based on their content; he banned the entire platform,” the message said. “It’s as if the Pentagon Papers had a lower court shutting down The New York Times entirely.”

The Knight Institute’s Mr. Jaffer said key precedents point in different directions.

“People say, well, the court usually defers to the government in national security cases, and there’s obviously some truth to that,” he said. “But in the area of ​​First Amendment rights, the situation is much more complicated.”