from the useful-idiot dept

A lot of people dunked on the amicus brief Donald Trump filed at the Supreme Court in the constitutional challenge of the law effectively banning TikTok. And there is plenty that is dunkable about it, especially in his tone of entitlement. Trump is no sincere defender of the First Amendment and its critical protections for speech rights. Nor is he really interested in any principled defense of TikTok. As it is, he filed in support of neither party because what he’s really playing for is time.

His concern here is that when it comes to TikTok he wants to get to decide what happens to it, and he’s mad that this law, if allowed to go into effect, won’t let him.

When it comes to what happens to TikTok he wants to be the hero, but the thing is, when it comes to what happens to TikTok right now he might be. Because, in an amicus brief that is sadly likely to be the high water mark of for any support he’s ever likely to give to the protective qualities of the First Amendment, by weighing in as he has he might have actually made a difference in putting the brakes on this unconstitutional ship that was sailing.

Before getting into how, the first thing to address is that it is ok if he turns out to be helpful here. It doesn’t redeem everything irredeemable about him and the governance he threatens. But while his sense of entitlement is a problem, as are the corrupt motivations that tend to animate him, the more immediate problem we are facing, right now, before he is even inaugurated, is whether the Constitution has suddenly changed in such a way that the government (including, eventually, his administration) is allowed to meddle with free expression.

Our single focus right now is to stop this law, and, in doing so, reinforce the Constitutional principles that prevent the government from acting against speech interests—as this law has and other state action in the future might seek to, including at his bidding. So if his personal petulance here can help us survive this Constitutional emergency, and ensure we are left with the tools to deal with him, then it is something to welcome.

And it’s possible that it might help make that difference, because in his brief his entitlement came wrapped in a few basic arguments, and what is interesting is how they, however inadvertently, and likely unintentionally, helped buttress some of the actually principled arguments we made in the Copia Institute’s brief we discussed yesterday.

One of his main arguments (headed as “Three Features of the Act, Considered in Combination, Raise Concerns of Possible Legislative Encroachment on Executive Authority Under Article II”) complains about how Congress was trampling on the prerogative of the Executive. In and of itself it’s not an impressive argument, especially given how this law only got passed with the blessing of the current Executive. On the other hand, the DC Circuit’s decision upholding the law credited the apparent unanimity between the previous Trump Administration and the current Biden Administration in their seemingly shared animus towards TikTok. If Trump is now saying that he and Biden are not in fact united in their view that TikTok needs to be banned then this information undermines the court’s reasoning.

Another argument he made later in his brief, that “The Case Presents Novel, Difficult, and Significant First Amendment Questions,” gets at this point better and echoes something we pointed out in ours. One of the reasons that the First Amendment gets the government out of the speech-controlling business is because agreement on what is the good speech, and what is the bad speech, is so unlikely. And that agreement is unlikely not just among different people, or between the government and the people, but even within “the government” itself. Even just the federal government is made up of three branches, plus “the government” also includes 50 state governments, and all their branches, plus countless local jurisdictions. Getting the government out of the speech controlling business minimizes the chance for any internal tug-of-war among the myriad officials and jurisdictions comprising “the government.”

Furthermore, in a democracy, governments also change. In our brief we noted:

[The DC Circuit] regarded the position of the government, that TikTok warranted this obliterating divestment sanction, as immutably authoritative, even though government can often change its mind, particularly as control of it changes hands. Subsequent administrations might well prefer to protect platforms like TikTok, perhaps because of how it enhances the expressive ability of young people, or supports the creative economy. But while those future governments could repeal the law, or recharacterize China more favorably, once the current government is allowed to destroy TikTok there is no un-ringing of that bell by any future government. In effect, deference to the current one is indifference to any future one, a judicial preference for the speech values this one likes over the ones a future one may favor.

So it was helpful to have Trump arrive to prove our point with his brief, where he made a similar argument about how letting the current government meddle in speech sticks a future one (including his future one) with the results of its choices.

Of course, that’s politics: sitting officials do what they have the power to do, and future officials inherit what came before. Sometimes that inherited policy is not reversible, but one reason the Constitution puts limits on what any current government can do is because it can wield so much power in ways that can cause irreversible harm. Which is what we see here, a current government making a decision affecting speech that will be irreversible, because if allowed to go into effect the law will destroy TikTok, and before Trump could ever have any chance to try to save it.

While for him the ability to do so appears to be a matter of self-interest, and his reasons for not wanting the policy decision of what to do about TikTok to be snatched from him are hardly likely to be noble, underneath his Trumpy motivations is still a fair point: when the government gets involved with speech-related policies, they don’t just control speech for the people but also for the government, including the government the people would choose to represent it next.

Trump also had one other significant argument that made an important point we also tried to drive home. For us it was, “The artificial urgency permeating this law and its review invites other unconstitutional government actions,” while for him it was, “The Case’s Current Schedule Requires the Court To Address Unprecedented, Very Significant Constitutional Questions on a Highly Expedited Basis.” But both briefs were about the alarming speed in which this entire situation is unfolding, with the imminent date of TikTok’s demanded divestment and likely demise rapidly approaching, which so far no court has been willing to stay or enjoin.

Of course, for him he wants the matter to be paused long enough for him to come into power and decide himself how to deal with TikTok, whereas we worry the rush to endorse an unconstitutional law could turn out to be a roadmap for future unconstitutional laws. In our brief we wrote:

The Court of Appeals did not just find that the Act satisfied strict scrutiny; in denying the injunction it accepted that the urgency Congress baked into the Act was warranted. But whether the protections of the First Amendment can give way so quickly is the actual emergency before the Court right now, not just in terms of the ruinous sanction looming over an Internet platform used by countless Americans, but in terms of what it portends for any future speech interest government would attack. If this Act is not enjoined—let alone if it is upheld— it will serve as a roadmap for other unconstitutional legislation by demonstrating how it can escape review. Far from alleviating harm to Americans, it would create a new vector for it. […] [Footnote: If Congress can effectively cause a constitutional injury simply by writing a law that inflicts it quickly, there is no limit to the harm to speech it could cause.]

But even in his brief he fairly points out that there are “very significant questions” at stake, which we need the “breathing space” to deal with, with a more traditional briefing schedule.

There is ample justification for the Court to stay the January 19 deadline—by which divestment for ByteDance must occur, or else TikTok will face an effective shut-down in the United States—while it considers the merits of the case. First, this Court has aptly cautioned against deciding “unprecedented” and “very significant constitutional questions” on a “highly expedited basis.” Trump v. United States, 603 U.S. 593, 616 (2024). Due to the Act’s deadline for divestment and the timing of the D.C. Circuit’s decision, this Court now faces the prospect of deciding extremely difficult questions on exactly such a “highly expedited basis.” Staying this deadline would provide breathing space for the Court to consider the questions on a more measured schedule, and it would provide President Trump’s incoming Administration an opportunity to pursue a negotiated resolution of the conflict.

We also made a similar point:

Without [an injunction] review is needlessly rushed. As it is, parties and amici, and even this Court itself, is left to rush all briefing and oral argument preparation over the winter holidays. The short and inconvenient timeline will inevitably affect the briefs and who is able to participate in briefing. For an issue of this import, where the decision will affect the Internet, and all online expression, as well as offline expression if strict scrutiny remains weakened, it is especially important that all who will be affected be able to weigh in to assist this Court in making the most prudent ruling possible, aided by the most insight. Without an injunction to slow down the timeline and enable that participation, this Court risks making what portends to be a monumental decision without the care such a decision requires.

As it is, despite the major constitutional issues at stake here, this massive fire drill, where everyone had to drop everything and brief in a week over the holidays in order to get a rushed oral argument in two weeks because neither the DC Circuit nor Supreme Court were willing to issue an injunction, has meant that voices are missing here who should have been heard. While amicus briefs did manage to come in, it is far fewer than one would expect given the seriousness of the matter. In fact, it is notable that the Copia Institute and Trump himself were also the only amici participating who operate their own platforms. From his brief:

Further, President Trump is the founder of another resoundingly successful social-media platform, Truth Social. This gives him an in-depth perspective on the extraordinary government power attempted to be exercised in this case—the power of the federal government to effectively shut down a social-media platform favored by tens of millions of Americans, based in large part on concerns about disfavored content on that platform.

Other platform voices were conspicuously absent, as were press or organizations defending offline speech more generally, even though their perspective matters because if the TikTok ban stands the diminished scrutiny that would allow for it will allow all sorts of attacks on them too.

Meanwhile, we also both took issue with the 270-day clock counting down to TikTok’s imminent mandatory divestment. Although while our concern was a manifest injustice that the statutory deadline posed for the public:

It also wrote into the statute a date of enforceability, but this was not a date of enactment. It was not even a date after which a cause of action against TikTok could be brought. It was a date when a presumptive penalty— divestment—could be imposed, with no further opportunity for due process. And although the 270 days between bill passage and enforcement could have been shorter, it still created a very short timeline for constitutional review to be sought. [Footnote: That it was not shorter would seem to undermine the claimed exigence, but the more significant risk is that in the future Congress may write a statute with a period only a fraction as long before the penalty kicks in.]

For him the concern was how this imminent deadline somehow amounted to an injustice to him:

The 270-day deadline imposed by the Act expires on January 19, 2025—one day before President Trump will assume Office as the 47th President of the United States. This unfortunate timing interferes with President Trump’s ability to manage the United States’ foreign policy and to pursue a resolution to both protect national security and save a social-media platform that provides a popular vehicle for 170 million Americans to exercise their core First Amendment rights. The Act imposes the timing constraint, moreover, without specifying any compelling government interest in that particular deadline. In fact, the Act itself contemplates a 90-day extension to the deadline under certain specified circumstances.

Still, he’s right, even if for the wrong reason. And in his brief he even managed to make two other shockingly enlightened points as well. One, that if this sort of government control of platforms is allowed in the United States of America, it will bless other governments elsewhere in the world from doing the same, including to American platforms.

[T]he First Amendment implications of the federal government’s effective shuttering of a social media platform used by 170 million Americans are sweeping and troubling. There are valid concerns that the Act may set a dangerous global precedent by exercising the extraordinary power to shut down an entire social-media platform based, in large part, on concerns about disfavored speech on that platform. Perhaps not coincidentally, soon after the Act was passed, another major Western democracy—Brazil— shut down another entire social-media platform, X (formerly known as Twitter), for more than a month, apparently based on that government’s desire to suppress disfavored political speech.

And he also quite fairly pointed out how the DC Circuit’s decision hardly took the interests of TikTok’s users into account, even though they represented the speech interests of Americans:

Moreover, despite the Act’s enormous impact on the speech of 170 million TikTok users, the D.C. Circuit’s opinion grants only cursory consideration to the free-speech interests of Americans, while granting decisive weight and near-plenary deference to the views of national security officials.

Of course, he is largely concerned about their rights only via the warped way he understood them as they were raised by the Murthy v. Missouri litigation, but the point is nevertheless a valid one on its face.
And at the end of the day it doesn’t really matter why he filed, or whether he really understands, let alone cares, why a law banning TikTok would be constitutionally abhorrent. If his pushback in any way helps the Supreme Court recognize the constitutional injury that would result if the government could be free to enforce a law like the TikTok ban, unfettered by the Constitution’s prohibitions, and say no to it, then it’s a good thing, no matter how petulant and entitled it is in intention or tone.

Because if this law is constitutionally tolerable, it won’t just be the Congress who could get away with these censorial tactics but any number of state and local jurisdictions, who also could pass whatever unconstitutional garbage they wanted and get away with it if constitutional prohibitions were as so flimsy.

And even Trump himself. So it’s a good thing that with his brief now he’s going to so much effort to make sure that in the future he won’t be able to get away with it either.

Filed Under: 1st amendment, donald trump, free speech, supreme court, tiktok ban

Companies: bytedance, tiktok