Public safety or free speech? What’s at stake in the TikTok case.
Congress doesn’t agree on much these days. One thing it does, however, is that one of the most popular social media apps in the United States is a serious threat to national security.
On Friday, the Supreme Court will begin to weigh in. In a case that has reached them at breakneck speed, the justices will hear oral arguments concerning a federal law that puts a modern twist on a classic challenge: balancing protecting the public with protecting civil liberties.
Why We Wrote This
Does freedom of speech cover entire media platforms? Critics of a U.S. law that could ban TikTok argue that it ignores a key tenet of the country’s free speech tradition: trust in the American people.
The federal government passed a law that could result in TikTok – a short-video social media platform with 1 billion users around the world – being banned in the country. U.S. authorities claim that the app is beholden to the Chinese Communist Party and thus a potential vector for foreign interference.
The owner of TikTok disputes these claims. Furthermore, the company is arguing that the law violates the First Amendment.
The high court has paid increasing attention to how laws and the U.S. Constitution apply in the internet age. But this case, TikTok v. Garland, represents the most high-profile case to date. How the justices will resolve the case is unclear, but the implications could be profound.
Congress doesn’t agree on much these days. One thing it does, however, is that one of the most popular social media apps in the United States is a serious threat to national security.
On Friday, the Supreme Court will begin to weigh in. In a case that has reached them at breakneck speed, the justices will hear oral arguments concerning a federal law that puts a modern twist on a classic challenge: balancing protecting the public with protecting civil liberties.
In 2024, the federal government passed a law that could result in TikTok – a short-video social media platform with 1 billion users around the world – being banned in the U.S. TikTok is owned by a company headquartered in Beijing, and U.S. authorities claim that the app is beholden to the Chinese Communist Party and is thus a potential vector for foreign interference.
Why We Wrote This
Does freedom of speech cover entire media platforms? Critics of a U.S. law that could ban TikTok argue that it ignores a key tenet of the country’s free speech tradition: trust in the American people.
ByteDance, the owner of TikTok, disputes all these claims. Furthermore, the company is arguing that the law – titled the Protecting Americans from Foreign Adversary Controlled Applications Act – violates the First Amendment.
The high court has paid increasing attention to how laws and the U.S. Constitution apply in the internet age. But this case, TikTok v. Garland, represents the most high-profile of those cases to date, experts say. How the justices will resolve the case is unclear, but the implications could be profound.
“It’s a very significant case historically in terms of our First Amendment jurisprudence,” says Alex Alben, a lecturer at the University of California, Los Angeles School of Law.
“The government is not seeking to ban a particular story, but to ban an entire platform,” he adds. “That is a very significant departure from American law.”
How did we get here?
Very quickly.
ByteDance worked for years to allay the government’s concerns and ensure TikTok in the U.S. is protected from Chinese interference, a multibillion-dollar effort called Project Texas. However, Congress decided in April that the app needed to be banned.
In December, the Supreme Court agreed to hear the lawsuit brought by ByteDance and a group of TikTok users. The court also put the case on an expedited timeline, hearing arguments just three weeks after taking it.
The fast track is due to certain provisions in the law. The law held that TikTok could continue to operate in the U.S. so long as ByteDance sold its American operations to a buyer approved by the government. The law set a clock of 270 days for that sale to happen. The company has yet to find a buyer, and the Jan. 19 deadline is looming.
Per another provision, the lawsuit proceeded straight to the federal appeals court in Washington, D.C., which last month sided with the government. A three-judge panel held that the government’s national security interest was compelling enough to justify the law. ByteDance appealed to the high court.
What are the parties arguing now?
The case before the Supreme Court focuses squarely on that First Amendment question. The answer to that question will likely depend on the “tier of scrutiny” the justices use to assess the TikTok law.
Statutes that could restrict free speech are generally supposed to receive strict scrutiny, meaning the law must be “narrowly tailored” and motivated by a “compelling” government interest. In U.S. history, only three laws restricting speech have survived strict scrutiny at the high court. The D.C. Circuit, however, applied intermediate scrutiny to the TikTok law, meaning the law only had to further an “important” government interest.
The level of scrutiny is especially relevant here. ByteDance, and some legal experts, argue the government’s national security concerns about TikTok are questionable at best.
The U.S. government claims that the Chinese government could use the app to spread misinformation that potentially destabilizes the country. Beijing also, Washington alleges, could use the app to access the personal data of millions of Americans. China has committed several major hacks of U.S. entities recently, but the U.S. also concedes that there is no evidence the Chinese government has done that with TikTok – yet.
“The specter of threats from China cannot obscure the threat that the [law] itself … pose[s] to all Americans,” wrote ByteDance in its brief to the court.
The law “does not come close to the only three laws this Court has held satisfy” strict scrutiny, the company added. “Congress’s unprecedented attempt to single out [TikTok] is profoundly unconstitutional.”
The government counters that the evidence Congress reviewed in crafting the TikTok statute proved the government’s “compelling” interest. But it also argues – and the D.C. Circuit agreed – that the law doesn’t need to survive strict scrutiny because it doesn’t restrict free speech at all.
Nathan Howard/Reuters/File
A foreign-owned company doesn’t have First Amendment rights, the government claims. Similarly, banning TikTok would not ban TikTok users from exercising free speech anywhere else online.
“Congress did not impose any restriction on speech, much less one based on viewpoint or content,” the government wrote in its brief.
The law, it added, “fits comfortably within a long tradition of regulation of foreign ownership of domestic channels of communication and other critical infrastructure.”
What are the potential implications here?
There is one clear potential implication: If the Supreme Court upholds the TikTok law, then the platform will become inaccessible to Americans. ByteDance could find a buyer in the coming days, but it’s unclear if the company wants to sell, according to recent reports.
This would be historic. The U.S. government has never banned an entire medium of communication, according to Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. And in a world where globalization has helped foreign ownership of businesses, including news organizations, proliferate, experts say that upholding the TikTok law would set a troubling precedent.
Major media entities like Fox News and The New York Times have foreign owners. Just last week, President Joe Biden blocked a company from Japan, a longtime ally, from buying U.S. Steel because it would “impair” national security.
“The impacts of this case are more likely to be felt as we see [more] regulations restricting trade [and] structuring commerce in the interest of national security,” says Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey School of Law.
Some experts contend that upholding the TikTok law would have relatively minor implications (beyond the ejection of TikTok from U.S. cellphones).
There are other social media platforms, and the specificities of the TikTok case could allow the court to “make this a specific-to-China kind of issue,” says Jane Bambauer, a professor at the University of Florida Levin College of Law. That would preserve the rest of the court’s First Amendment jurisprudence.
But critics of the law argue that the law ignores a key tenet of the United States’ free speech tradition: trust in the American people.
China may use TikTok to spread misinformation and further divide the country. But many studies show that social media algorithms rarely change users’ views or beliefs. Instead, algorithms tend to reinforce existing beliefs by funneling users to content they already agree with.
Rather than banning the app, skeptics say that courts should – and typically do – err in favor of trusting them to think independently and critically.
“When we’re not sure, we allow people who are voluntarily receiving information to keep receiving information, even when it’s from a hostile government,” says Professor Bambauer. “That’s the gamble the open society takes.”
