This week, the Supreme Court must decide whether to delay the ban of TikTok in the United States, which is scheduled to take effect on January 19. Signed into law last March, the Protecting Americans from Foreign Adversary Controlled Applications Act was designed to compel owner ByteDance to sell TikTok to a U.S. or other entity with no ties to the Chinese government. But rather than seek a buyer over the last ten months, TikTok has fought the mandate, arguing principally that the “sell or be banned” law violates the First Amendment.
On January 10, the Supreme Court heard oral arguments, and based on comments by various legal observers, it’s a toss-up as to whether the Court will hold that the TikTok law violates the speech right. The Court could also postpone the January 19 deadline on the basis that it declines to issue an important constitutional decision on such a tight timeline. Personally, I am not persuaded that the law implicates the First Amendment because the forced sale targets TikTok as a product and foreign-based operation without regard to the content on the platform. In fact, blurring this distinction is why I believe we have thus far failed to hold social platforms accountable for the content they host, promote, monetize, and manipulate.
Briefs filed on behalf of TikTok include most of the parties with whom I typically disagree on speech and the internet, including the Electronic Frontier Foundation, American Civil Liberties Union, Public Knowledge, Fight for the Future, Cato Institute, and Copia Institute. One argument presented is that even forcing a change in ownership targets the content of the speech on the platform. A similar view was expressed by Dr. Mary Anne Franks during an interview on WPUR. I generally agree on most matters with Dr. Franks, but here, I disagree with the premise that compelling the sale of TikTok is tantamount to targeting the content of the platform or acting as a prior restraint on speech. Further, I worry that if either theory holds, this would only exacerbate the free-speech shell game played by every major social media site determined to avoid either government or self-regulation.
For context, foreign parties are historically prohibited from owning TV or radio networks on the basis that it is a threat to national security to place the tools of mass communication within the reach of foreign powers who might wish to meddle in U.S. policy. If that rationale applies to a mode of communication that merely broadcasts a limited volume of content in a limited manner, the same logic must apply with greater force to social media, which acquires information about its users and can micro-target those users with propaganda from any source in the world. As the brief filed by Professor Zephyr Teachout states:
While 30 years ago it was functionally impossible for foreign governments to engage in local races for Congress, or to track the vulnerabilities of local officials millions of miles away without considerable cost, social media now makes it nearly frictionless for a foreign adversary to engage in hyperlocal politics directly.
The prohibition on foreign parties owning, for instance, American radio stations was never held to be a prior restraint on the speech that would have been communicated by owners who do not have First Amendment rights under U.S. law. This same analysis cannot reasonably be amended on the basis that social platforms (unlike traditional radio or TV stations) reach audiences anywhere in the world, or the fact that TikTok is already used by 170 million Americans exercising their speech rights. So long as the Court finds that the target of the ban/sale law is the design, operation, and foreign influence over the site, it should not be persuaded that the question is a First Amendment issue at all.
As a very simple example, if a publisher distributed children’s books made from toxic materials, any government action to sanction the publisher could not reasonably be held to target the content of the books. And no rational consumer would think otherwise. Likewise, those aspects of TikTok that are toxic to American consumers and/or American interests are considerations separable from the speech rights of either the TikTok entity or its American users.
Finding for TikTok Would Exacerbate Our Social Media Problems
The speech rights of platform users have been cited ad nauseum by Silicon Valley as a rationale to reject government oversight of social media, and this despite the hypocrisy that a user’s speech can be willfully trampled by the platform itself. While Section 230 holds that social platforms are not publishers, they nevertheless act as super-publishers, who manipulate, stifle, amplify, charge fees for, and even ban the speech of users—often without any discernable rationale, and always without transparency or mechanism for appeal that would not astound Kafka himself. (Just last week, a colleague was sent to the Facebook penalty box, and near as we can tell, this was triggered by his posting comments critical of Facebook after the announcement that they would end fact-checking.)
Congress recognizes and yet fails to address the myriad intentional and unintentional hazards caused by social media’s unprecedented capacity to alter world events through data-driven targeting of false and hazardous material. They have yet to hold platforms, including TikTok, accountable for obvious harms like mass copyright infringement, drug-related scams or child suicides caused by algorithms. In this light, the argument that some new owner of TikTok might manipulate speech in a different manner than the current owner (as Musk did after buying Twitter) cannot be a basis for finding that the forced sale is a prior restraint on the speech that might have been expressed by maintaining the status quo. It is an untenable proposition.
The Trump Brief
As if to highlight how preposterous the world is thanks to social media, the TikTok matter is extra sticky at a moment when the American President-reelect demonstrates a hostility to American interests as if he were a foreign adversary. This existential challenge to the Republic is not germane to the First Amendment question before the Court, but the morass is difficult to confront when Trump himself has weaponized the same modes of propaganda that animate the rationale for the ban/sale law in the first place.
Trump is among the amici who filed a brief on behalf of neither party, but which nevertheless supports TikTok by arguing that the Court should postpone the January 19 deadline. The stated reason is classic Trump—namely that he, and he alone, can solve the problem through the art of the deal. Pregnant with self-aggrandized rhetoric, the brief states, “…President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns….”
So, on the basis that Trump is the master negotiator, he argues that the Supreme Court should decline to wade into the “‘unprecedented’ and ‘very significant constitutional questions’” presented by TikTok, at least until he has a chance to work his dealmaking mojo. Surely, the Court cannot fathom what Trump might really intend, let alone resolve the hypocrisy that a con man who owes everything to social media can “save” TikTok while protecting national security. But the Court can, and in my view should, find that the law forcing the TikTok sale does not violate the First Amendment.
