from the reimagining-the-first-amendment dept

To anyone who listened to the oral arguments in the DC Circuit regarding the TikTok ban bill, it perhaps wasn’t a huge surprise that the DC Circuit today ruled to uphold the ban, but the resulting opinion is incredibly troubling. In a stunning and dangerous decision, the court argued that banning TikTok somehow vindicates and protects the First Amendment, even while admitting the law clearly impacts speech. The ruling sets a terrifying precedent that the government can censor online platforms in the name of vague, unsubstantiated “national security” concerns.

The law requires ByteDance to divest of TikTok in the US by January 19th, or it then requires various intermediaries (such as the Google and Apple mobile app stores) to block access to its app. ByteDance challenged the law as unconstitutional, and many First Amendment experts agreed.

Unfortunately, the Court did not.

In a tortured and alarming opinion, the court ruled that while banning TikTok clearly impacts speech, the law somehow passes strict scrutiny, the highest level of First Amendment review. The court’s reasoning that blocking potential Chinese government influence over TikTok’s content moderation enhances free speech is deeply flawed. Banning an entire platform, and the speech of millions of Americans on it, does far more damage to the First Amendment than the speculative concern that China might try to influence content moderation decisions.

Indeed, the ruling’s dangerous language could be used to justify all sorts of future government censorship and control over online speech.

There were some questions about which standards of review should apply, and the Court admits that this is a novel case on that point, but then says it doesn’t matter, because the law would pass any level of scrutiny. However, the court’s analysis of the strict scrutiny factors is highly questionable. The key elements of strict scrutiny are that the law serves a “compelling government interest” and that the regulations are “narrowly tailored” and are the “least restrictive means.”

The panel says that it’s a compelling government interest to ban TikTok… because the government keeps saying the Chinese government is, like, super scary. There is a fair bit of hand-waving, in which they note that the government presented no actual evidence of China doing anything nefarious with TikTok, but because government officials said “but they could!” that was enough. This sets an extremely low and dangerous bar. Mere speculation about what a foreign government might hypothetically do in the future should not be enough to override the First Amendment rights of millions of Americans.

In many ways, this is a continuation of the way the courts often view Fourth Amendment cases, where if the government just yells “national security” loud enough, courts will ignore the plain text of the Fourth Amendment.

The resulting judgment of the Congress and the Executive regarding the national security threat posed by the TikTok platform “is entitled to significant weight, and we have persuasive evidence [in the public record] before us to sustain it.” Humanitarian Law Project, 561 U.S. at 36. The petitioners raise several objections to each national security justification, which we take up next, but the bottom line is that they fail to overcome the Government’s considered judgment and the deference we owe that judgment

The court is essentially arguing that we must defer to the government’s national security judgments, even when they lack evidence and trample on constitutional rights. This level of deference is alarming and contrary to the role of the judiciary in checking government overreach.

It also insists that the government’s very speculative arguments aren’t actually speculative, because… the government insists the threat is real.

We also reject TikTok’s argument that the Government’s data-related concerns are speculative. The Government “need not wait for a risk to materialize” before acting; its national security decisions often must be “based on informed judgment.” China Telecom (Ams.) Corp., 57 F.4th at 266. Here the Government has drawn reasonable inferences based upon the evidence it has

The government should need more than just “informed judgment” to ban an entire communications platform. To satisfy strict scrutiny, actual evidence of harm, not just hypothetical risks, should be required.

Then we get to the worst and scariest part of the decision. In talking about the issue of “content manipulation” (i.e., would the Chinese government force TikTok to moderate in a particular manner), the court’s decision argues that blocking China from doing so somehow enhances the First Amendment.

In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice, 144 S. Ct. at 2407 (explaining that a state government “may not interfere with private actors’ speech” because the First Amendment prevents “the government from tilting public debate in a preferred direction” (cleaned up)). Here the Congress, as the Executive proposed, acted to end the PRC’s ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.

The court’s reasoning here is Orwellian. It claims that banning TikTok, and the speech of millions of Americans on the platform, somehow enhances free speech. This is a complete inversion of First Amendment values. The First Amendment protects against government censorship and control of private speech, it doesn’t justify such censorship in the name of preventing foreign influence. The court is essentially arguing that violating the First Amendment is necessary to save it, which is absurd.

This ruling opens the door to broad government censorship and control of online speech, all in the name of nebulous “national security” concerns. It’s a blueprint for the government to ban any website or app it doesn’t like.

If this precedent stands, we can expect to see this twisted logic used over and over to “vindicate the values that undergird the First Amendment” by censoring and banning all sorts of online speech and platforms.

The ruling also rejects the idea that this was a Bill of Attainder, by saying that while it does “target” TikTok directly, its remedy is not a “punishment” and therefore that prohibition doesn’t apply. But banning TikTok from operating in the US unless it is sold certainly seems like a punishment. The court’s analysis on this point is not persuasive.

The court also claims that this bill is, in fact, the least restrictive means of achieving this outcome, rejecting ByteDance’s long-negotiated alternative of having all the data stored in the US on Oracle hardware, and giving Oracle the ability to audit the code. This plan was originally cooked up deliberately under the first Trump administration to support Trump donor Larry Ellison.

In short, the petitioners suggest an array of options none of which comes close to serving either, much less both, the Government’s goals as effectively as does divestiture. Each consequently fails to qualify as a less restrictive alternative for purposes of the First Amendment

There was also a concurring opinion that was, in some ways, even more troubling, suggesting that the court could have just said the law needs to survive intermediate scrutiny (a lower standard) rather than strict scrutiny.

This whole thing is effectively chipping away at the historical high bar for regulating internet speech, and that should concern us all.

Of course, the bigger question is what happens next. Trump (who started the whole idea of banning TikTok in his last administration, after users of the platform pranked him) has flipped his position on this issue once he got a huge donation from one of the biggest investors in ByteDance. He has said he’ll stop the ban and will “save” TikTok.

The timing here is interesting. The ban is set to go into effect on January 19th, and Trump takes office on January 20th. Does TikTok go dark for a day and then Trump gets the DOJ to issue a reprieve saying it won’t enforce the law a day later, and then take credit for “saving” TikTok? Does he try to extract some other promises first?

Of course, the more likely scenario for now is just that TikTok appeals to the Supreme Court and specifically asks for a stay blocking the law from going into effect on the 19th, at least until after SCOTUS rules on the issue. Of course, the Supreme Court ruling on this issue could also be quite a mess, and by then who knows what kind of nonsense demands the Trump administration will have to curry favor with TikTok.

In short, this is a bad ruling with bad language that directly undermines the First Amendment, even as it tries to pretend it’s upholding it. It’s doing that against the backdrop of a new administration whose response is likely to be arbitrary and transactional. Not a great day for the traditional First Amendment.

Filed Under: 1st amendment, censorship, china, dc circuit, donald trump, national security, strict scrutiny, supreme court

Companies: bytedance, tiktok