{"id":859,"date":"2025-01-06T10:30:00","date_gmt":"2025-01-06T11:30:00","guid":{"rendered":"http:\/\/asian-idol.com\/?p=859"},"modified":"2025-02-20T15:01:49","modified_gmt":"2025-02-20T15:01:49","slug":"tiktok-should-lose-its-big-supreme-court-case","status":"publish","type":"post","link":"http:\/\/asian-idol.com\/index.php\/2025\/01\/06\/tiktok-should-lose-its-big-supreme-court-case\/","title":{"rendered":"TikTok should lose its big Supreme Court case"},"content":{"rendered":"
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Imagine that the government tried to force Jeff Bezos, the Amazon billionaire and owner of the Washington Post, to sell that newspaper due to concerns that Bezos might order his paper to publish subversive content. No competent judge would uphold such a law, which obviously violates the First Amendment\u2019s free speech protections.<\/p>\n

The Supreme Court has said time and time again, over many different contexts and in cases involving myriad forms of media, that the government may not dictate what is or is not published by media companies<\/a>, or how those companies make editorial decisions.<\/p>\n

And yet, the facts before the Supreme Court in TikTok v. Garland<\/em><\/a>, a case the Supreme Court will hear on Friday, are strikingly similar to this Bezos hypothetical \u2014 which likely explains why Bezos plays a prominent role in TikTok\u2019s brief<\/a> to the justices in that case. TikTok<\/em> concerns a federal law that effectively requires ByteDance, the Beijing-based company that controls the social media app TikTok, to sell the company to someone less vulnerable to direction from the Chinese government.<\/p>\n

The law\u2019s proponents fear that China will use the vast array of data collected by TikTok, a platform with approximately 170 million monthly users in the United States<\/a>, to spy on Americans, or that the Chinese government will manipulate which content appears on TikTok in order to shape US opinions.<\/p>\n

The question in TikTok<\/em>, in other words, is whether the ordinary First Amendment rule prohibiting the government from deciding who owns media companies must bow to a greater national security interest in preventing America\u2019s most powerful foreign adversary from controlling a major media platform. Congress even named the law targeting TikTok the \u201cProtecting Americans from Foreign Adversary Controlled Applications Act<\/a>.\u201d<\/p>\n

As it turns out, the First Amendment arguments for allowing the government to ban foreign adversaries from owning TikTok are stronger than they may initially seem. As Chief Judge Sri Srinivasan, one of three appeals court judges who upheld the federal law, explained in a concurring opinion, the federal government has a long history of trying to lock foreign nations out of US communications<\/a>.<\/p>\n

To give just a couple of examples from Srinivasan\u2019s opinion, the Radio Act of 1912 only permitted US citizens or companies to obtain a radio operator\u2019s license. That law was repealed in 1927, but, according to Srinivasan, the replacement law prohibited \u201clicensing of any [radio] company if it had a foreign officer or director or if one-fifth of its capital stock was in foreign hands<\/a>.\u201d<\/p>\n

Indeed, current US law prohibits \u201cany foreign government or the representative thereof<\/a>\u201d from receiving a radio station license, and it broadly bars noncitizens and companies with significant foreign ownership from controlling radio broadcasts.<\/p>\n

The TikTok <\/em>case, in other words, puts two longstanding legal principles on a collision course. On the one hand, the government is generally forbidden from deciding who controls political communications in the United States, and for very good reasons. On the other hand, the federal government has long prevented foreign governments \u2014 or even companies that are partially owned by foreign nationals \u2014 from controlling important segments of the United States\u2019 communications infrastructure.<\/p>\n

Or, as the Justice Department puts it in its brief defending the federal law, \u201cthe First Amendment would not have required our Nation to tolerate Soviet ownership and control of American radio stations<\/a> (or other channels of communication and critical infrastructure) during the Cold War, and it likewise does not require us to tolerate ownership and control of TikTok by a foreign adversary today.\u201d<\/p>\n

TikTok <\/em>is probably going to lose<\/h2>\n

The law targeting TikTok passed with broad bipartisan support in both houses of Congress<\/a>. Both President Joe Biden and President-elect Donald Trump (during his first term in office) supported policies seeking to divorce TikTok from ByteDance, at least within the United States \u2014 although Trump did file a brief asking the Supreme Court to delay implementation<\/a> <\/strong>of the federal ban until after he takes office on January 20, claiming that he will \u201cnegotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.\u201d<\/p>\n

Unless the Court acts quickly, the ban will take effect on January 19. When it does, internet hosting services and tech companies like Apple and Google \u2014 which make TikTok available for download on iPhone and Android phones \u2014 will no longer be allowed to provide their services to TikTok<\/a>. TikTok can potentially escape this ban if it is sold to a company that, in the law\u2019s words, is not \u201ccontrolled by a foreign adversary,\u201d but no sale appears likely to happen soon.<\/p>\n

Realistically, it is unlikely that the Supreme Court will rule in TikTok\u2019s favor. Srinivasan is an Obama appointee who is widely considered a strong candidate for the Supreme Court<\/a> in a Democratic administration. The other two lower court judges who heard TikTok<\/em> are Douglas Ginsburg and Neomi Rao. The first is a long-serving Republican who President Ronald Reagan briefly tried to promote to the Supreme Court<\/a>; the second is a Trump appointee mostly known for writing dubiously reasoned opinions<\/a> protecting Trump and his allies.<\/p>\n

So, with this bipartisan mix of judges all agreeing that the government may ban TikTok so long as it is owned by a China-based company, it\u2019s hard to imagine five justices reaching a contrary conclusion. All of the justices sometimes disagree with Srinivasan, Ginsburg, or Rao on a range of political issues that come before the courts. But none of the justices consistently disagree with Srinivasan, Ginsburg, and<\/em> Rao on any significant political issue.<\/p>\n

Of course, even if we assume that TikTok is going to lose this case, it matters a great deal how<\/em> TikTok loses. The government effectively asks the Supreme Court to rule that well-established First Amendment principles do not apply to China-based companies like ByteDance, even when those companies do significant business in the United States. And it\u2019s not hard to see how such a carveout to the First Amendment could be abused if the Court\u2019s decision is poorly drafted. <\/p>\n

Imagine, for example, if the government could order Bezos (or the owners of any other media outlet) to sell his media holdings to a Trump-friendly company, simply by levying false accusations that Bezos has too many ties to China.<\/p>\n

But, while the Supreme Court could do great harm to Americans\u2019 free speech rights if it permits the government to decide media ownership based on dubious ties to a foreign nation, a carefully crafted decision permitting the US government to bar foreign ownership of major media platforms would not alter the existing balance of power between private citizens and their government.<\/p>\n

What is the First Amendment supposed to accomplish?<\/strong><\/h2>\n

It\u2019s easy to get bogged down in the weeds of First Amendment doctrine while thinking about the TikTok<\/em> case. TikTok argues that this case should be viewed no differently<\/a> than if the government had targeted Bezos\u2019s ownership of the Washington Post <\/em>due to a dispute over domestic politics, and thus that the federal law should receive the most skeptical level of constitutional scrutiny. Srinivasan has argued that the government\u2019s long history of barring foreign control of US communications infrastructure calls for a less skeptical approach<\/a> (known as \u201cintermediate scrutiny\u201d). The Justice Department, in a brief submitted last month, argues that the federal law \u201cdoes not implicate the First Amendment\u201d at all<\/a>, claiming that a foreign company like ByteDance has \u201cno First Amendment rights\u201d to begin with.<\/p>\n

Rather than dive too deep into these weeds, however, it\u2019s probably best to view the TikTok <\/em>case through the lens of first principles. One of the primary purposes of the First Amendment is to prevent the government, with its vast array of law enforcement officers who could arrest or kill anyone who antagonizes political leaders<\/a>, from using its power to control public opinion. <\/p>\n

In this sense, the government is unlike any private company or individual, no matter how powerful that private entity may be, because only the government has a monopoly on the legitimate use of force. As the Court recently reaffirmed in Moody v. Netchoice<\/em><\/a> (2024), \u201con the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.\u201d<\/p>\n

Netchoice<\/em> squarely presented the question of who should prevail when elected officials believe that a powerful media company is using its influence over public discourse unwisely. That case repudiated a Texas law that would have seized control of content moderation at social media platforms like YouTube or Twitter, due to concerns that, in Texas Gov. Greg Abbott\u2019s words, those platforms were attempting to \u201csilence conservative viewpoints and ideas<\/a>.\u201d<\/p>\n

Whatever you think of Abbott\u2019s specific concerns, a reasonable lawmaker quite easily could conclude that media executives like Mark Zuckerberg or Elon Musk wield too much control over political discourse in the United States. Nor is it hard to understand why such a lawmaker might want to reduce their influence. <\/p>\n

Nevertheless, Netchoice<\/em> reaffirmed the longstanding First Amendment rule that, no matter how much anyone might be offended by a media company\u2019s decisions, the solution cannot come from the government. Elected officials have too much of a conflict of interest when they attempt to shape political discourse. And the government\u2019s ability to arrest or kill dissidents makes it different in kind from even the wealthiest corporations.<\/p>\n

But TikTok<\/em> involves an entirely different question than Netchoice<\/em>. The Court\u2019s First Amendment cases largely rest on the proposition that our government must not be allowed certain powers because governments are inherently capable of overpowering private companies and citizens unless the government is legally restrained. But what happens when the US government wants to check the authority of another country\u2019s government \u2014 a foreign adversary with its own array of law enforcement and military personnel at its command?<\/p>\n

Lest there be any doubt, the First Amendment does not give the government unlimited power to suppress ideas that originate overseas. In Lamont v. Postmaster General<\/em><\/a> (1965), for example, the Supreme Court struck down a law restricting mail deemed to be \u201ccommunist political propaganda\u201d that originated from a foreign country. <\/p>\n

But it\u2019s one thing for the Soviet Union to mail copies of The Communist Manifesto<\/em> to individual Americans in the 1960s. It\u2019s another thing altogether for a foreign adversary to potentially be able to control a massive communications platform with 170 million American users, nearly all of whom will be completely oblivious to whether the Chinese government is collecting their data or manipulating which content they see.<\/p>\n

The latter situation, as Srinivasan argues, is far closer to the more-than-a-century-old ban on foreign control of US radio stations than it is to the law struck down in Lamont<\/em>. And these sorts of bans on foreign control of US communications infrastructure have not historically been understood to violate the First Amendment. Nor, as the Radio Act of 1912 demonstrates, are they anything new.<\/p>\n

All of which is a long way of saying that a well-drafted, narrowly tailored Supreme Court opinion permitting the government to ban foreign ownership of major US communications platforms \u2014 and nothing else \u2014 would not be a constitutional earthquake. Indeed, such an opinion would merely maintain the status quo.<\/p>\n

Correction, January 8<\/strong>, 4:15 pm ET<\/strong>: This story misstated the day of the TikTok hearing before the Supreme Court. It is Friday, January 10.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Imagine that the government tried to force Jeff Bezos, the Amazon billionaire and owner of the Washington Post, to sell that newspaper due to concerns that Bezos might order his paper to publish subversive content. No competent judge would uphold such a law, which obviously violates the First Amendment\u2019s free speech protections. The Supreme Court […]<\/p>\n","protected":false},"author":1,"featured_media":863,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-859","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-social-media"],"_links":{"self":[{"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/posts\/859","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/comments?post=859"}],"version-history":[{"count":2,"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/posts\/859\/revisions"}],"predecessor-version":[{"id":864,"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/posts\/859\/revisions\/864"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/media\/863"}],"wp:attachment":[{"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/media?parent=859"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/categories?post=859"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/asian-idol.com\/index.php\/wp-json\/wp\/v2\/tags?post=859"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}