TikTok in Supreme Court

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Free speech and national security can often conflict. During the Civil War, Abraham Lincoln prohibited newspapers from publishing pro-Union material. During subsequent wars, the federal government suppressed criticism. After the 9/11 attacks, Congress also made it a crime to provide human rights advice to extremist groups.

In each case, government officials argued that they needed to restrict speech to protect Americans. And in each case, supporters of free speech argued that the government had gone too far and undermined the country’s values.

The same is true of the latest clash between speech and security – involving TikTok, a social media platform owned by a Chinese company.

In response to concerns that China could use the platform to spy on Americans and spread propaganda, Congress passed a law last year requiring TikTok’s parent company to sell it to a non-Chinese owner. TikTok and parent company ByteDance then filed a lawsuit to block the law. This morning the Supreme Court will hear arguments in this case.

In today’s newsletter, I’ll present each side’s best arguments. Whatever your own views, I encourage you to recognize that there is no perfect solution, just as there were no perfect solutions to earlier conflicts between national security and freedom of speech. Prioritizing one probably means compromising the other.

The argument for leaving TikTok alone starts with its popularity. About 170 million Americans use the app, equivalent to half the country’s population. They entertain themselves, communicate with friends, follow the news, go shopping and conduct business.

Critics of the law say shutting down TikTok — as the government would do if ByteDance refused to sell it — would be an unprecedented infringement on Americans’ speech: Never before has the government so broadly targeted communications and commerce. Have not finalized the platform to be used.

Critics also argue that Congress has failed to show that China uses TikTok to trick Americans; Instead, the law is based on concerns that China might one day do so. The effect of the law “is to substitute certain manipulation by our own government for feared manipulation by China,” two First Amendment experts, Jamil Jaffer and Genevieve Laqueer, wrote in a Times Opinion essay.

Now Donald Trump also seems to be in favor of TikTok. In a brief last month, he and his lawyers argued that the Supreme Court should let him resolve the issue once he becomes president. (The deadline for ByteDance to sell TikTok is January 19.) Trump originally supported a forced sale, but changed his position last year, apparently after talking to a Republican Party donor who Is a TikTok investor.

Arguments in favor of the law revolve around the Chinese government’s recent actions and future ambitions. China considers companies as extensions of the state. If officers disobey orders, they can be fired or sent to jail. China has also made extensive efforts to spy on the United States and influence American politics.

Independent research has shown that already, videos on certain topics, including Taiwan and Tibet, may be difficult to find on TikTok. The same is true of pro-Ukraine and pro-Israel videos. (China has increasingly allied with Russia and Iran.) These patterns suggest that TikTok suppresses content the Chinese Communist Party doesn’t like.

Perhaps the simplest argument for the law is that the US would not have allowed the Soviet Union to own NBC, Life magazine, or a company that collected Americans’ personal information. Legal scholar Zephyr Teachout said, “Limits on foreign ownership have been a part of federal communications policy for more than a century.” wrote in The Atlantic,

Supporters say this history helps explain why Congress passed the law overwhelmingly with bipartisan support, and why liberal and conservative appeals court judges voted last month to uphold the law.

Today’s oral arguments will provide a clear understanding of how the justices may rule. My colleague Adam Liptak, a lawyer by training who covers the Supreme Court, says recent history shows it may be hard to make a case for TikTok. Adams said, “The Court will be reluctant to reconsider Congress’s decisions about national security even in the context of a First Amendment challenge.”

He pointed to a 2010 case that involved another clash between national security and freedom of expression. In that decision, the court upheld a provision of the 2001 Patriot Act that also banned nonviolent aid to terrorist groups.

Today’s three justices (John Roberts, Samuel Alito, and Clarence Thomas) were in the majority, and only one (Sonia Sotomayor) dissented. The fourth member of the current court (Elena Kagan) was Solicitor General in 2010 and defended the law during oral arguments.

But Adams said the court could also draw on past precedents from the Cold War and Vietnam eras, in which the court rejected government arguments that limits on speech were justified because of a threat to national security. Was.

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