When the Supreme Court hears arguments Friday about whether protecting national security requires selling or shutting down TikTok, the justices will be operating in the shadow of three First Amendment precedents, all influenced by the climate of their time and by how much the judges trusted. the government.
During the Cold War and Vietnam era, the court refused to credit the government’s claims that national security required limiting what newspapers could publish and what Americans could read. More recently, however, the court deferred to Congress’ decision that the fight against terrorism justified criminalizing certain types of speech.
The court will likely act quickly, as TikTok faces a January 19 deadline under a law passed in April by bipartisan majorities. The law’s sponsors said the app’s parent company, ByteDance, is controlled by China and could use it to harvest Americans’ private data and spread covert disinformation.
The court’s decision will determine the fate of a powerful and pervasive cultural phenomenon that uses a sophisticated algorithm to feed a personalized series of short videos to its 170 million users in the United States. For many of them, and especially the younger ones, TikTok has become a top source of information and entertainment.
As in previous cases pitting national security against free speech, the key question for the justices is whether the government’s judgments about the threat TikTok is said to pose are enough to override the nation’s commitment to free speech.
Sen. Mitch McConnell, Republican of Kentucky, told the justices that he is “second to none in valuing and protecting the First Amendment right to free speech.” But he urged them to abide by the law.
“The right to free speech enshrined in the First Amendment does not apply to a corporate agent of the Chinese Communist Party,” wrote Mr. McConnell.
Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said this attitude reflects a fundamental misunderstanding.
“It’s not the government’s role to tell us what ideas are worth hearing,” he said. “It is not the government’s role to purge the market of ideas or information that the government disagrees with.”
The last major Supreme Court decision in a conflict between national security and free speech was in 2010, in Holder v. Humanitarian Law Project. It involved a law that made it a crime to provide even well-intentioned assistance in the form of speech to groups said to be involved in terrorism.
One plaintiff, for example, said he wanted to help the Kurdistan Workers’ Party find peaceful ways to protect the rights of Kurds in Turkey and bring their claims to the attention of international organizations.
When the case was argued, Elena Kagan, then the US attorney general, said that courts should uphold the administration’s assessments of national security threats.
“The ability of Congress and the executive branch to regulate relations between Americans and foreign governments or foreign organizations has long been recognized by this court,” he said. (He entered court six months later.)
The court ruled in favor of the government by a vote of 6 to 3, accepting its expertise even after ruling that the law was subject to strict scrutiny, the most demanding form of judicial review.
“The government, when seeking to prevent imminent harm in the context of international affairs and national security, is not required to definitively connect all the pieces of the puzzle before we give weight to its empirical conclusions,” Chief Justice John G. Roberts Jr. said. wrote for the majority.
In Supreme Court cases defending the law banning TikTok, 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 that relationship could allow a foreign adversary government to collect information and manipulate the content they receive American TikTok Users,” Elizabeth B. Prelogar. The US attorney general, he wrote, “even if those damages had not yet been incurred.”
Many federal laws, he added, limit foreign ownership of companies in sensitive sectors, including broadcasting, banking, nuclear facilities, submarine cables, air carriers, dams and reservoirs.
While the court led by Chief Justice Roberts was willing to defer to the government, previous courts were more skeptical. In 1965, during the Cold War, the court struck down a law that required people who wanted to receive foreign mail that the government said was “communist political propaganda” to say so in writing.
This decision, Lamont v. General Post Office, had several distinguishing features. It was unanimous. It was the first time the court had ever ruled a federal law unconstitutional under the First Amendment’s free speech clauses.
It was the first Supreme Court opinion to contain the phrase “the marketplace of ideas.” And it was the first Supreme Court decision to recognize a constitutional right to receive information.
This last idea is seen in the TikTok case. “When controversies have arisen,” a brief for app users said, “the court has protected the right of Americans to hear foreign-influenced ideas, at most allowing Congress to require that the ideas’ origins be labeled.”
Indeed, according to a supporting briefing from the Knight First Amendment Institute, the law banning TikTok is far more aggressive than the one restricting access to communist propaganda. “While the law in Lamont burdened Americans’ access to certain foreign speech,” the brief said, “the act prohibits it entirely.”
Zephyr Teachout, a law professor at Fordham, said that was the wrong analysis. “Imposing restrictions on foreign ownership of communications platforms is several steps away from free speech concerns,” he wrote in a brief supporting the government, “because the regulations are entirely about corporate ownership, not conduct, technology or the content of the companies. “
Six years after the postal propaganda case, the Supreme Court again rejected the national security claim to justify restricting speech, ruling that the Nixon administration could not prevent the New York Times and the Washington Post from publishing the Pentagon Papers , a secret history of the Vietnam War. The court did so in the face of government warnings that publication would endanger intelligence agents and peace talks.
“The word ‘security’ is a broad, vague generality whose contours we should not invoke to strike down the fundamental law embodied in the First Amendment,” Justice Hugo Black wrote in a concurring opinion.
The American Civil Liberties Union told the judges that the law banning TikTok “is even more sweeping” than the previous restriction sought by the government in the Pentagon Papers case.
“The government has not simply banned specific communications or speakers on TikTok based on their content. has banned an entire platform,” the brief said. “It’s as if, in the Pentagon Papers, the lower court had completely shut down the New York Times.”
Mr. The Knight Institute’s Jaffer said key precedents point in different directions.
“People say, well, the court routinely defers to the government in national security cases, and obviously there’s some truth to that,” he said. “But in the realm of First Amendment rights, the history is much more complicated.”
