When the Supreme Court hears arguments Friday on whether national security protections require TikTok to be sold or shut down, the justices will be working in the shadow of three First Amendment precedents, all influenced by the climate of their time and by the extent to which the judges trusted. the government.
During the Cold War and Vietnam era, the court refused to recognize the government's claims that national security required limiting what newspapers could publish and what Americans could read. More recently, however, the court has accepted Congress's view that the fight against terrorism justifies making certain types of speech a crime.
The court will most likely act quickly as TikTok faces a Jan. 19 deadline under a law passed by bipartisan majorities in April. The bill's sponsors said the app's parent company, ByteDance, is controlled by China and could use it to collect private U.S. data and spread classified disinformation.
The court's ruling will determine the fate of a powerful and ubiquitous cultural phenomenon that uses a sophisticated algorithm to deliver a personalized series of short videos to its 170 million users in the United States. For many of them, especially the young, TikTok has become a leading source of information and entertainment.
As in previous cases pitting national security against freedom of expression, the key question for the judges is whether the government's assessments of the threat TikTok would pose are enough to overcome the country's commitment to freedom of expression .
Senator Mitch McConnell, Republican of Kentucky, told the justices that he is “matched in his appreciation and protection of the First Amendment right to free speech.” But he urged them to enforce the law.
“The right to free speech enshrined in the First Amendment does not apply to a corporate agent of the Chinese Communist Party,” Mr. McConnell wrote.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said this position reflected a fundamental misunderstanding.
“It is not the role of government to tell us which ideas are worth listening to,” he said. “It is not the role of the government to purge the market of ideas or information that the government does not agree with.”
The Supreme Court's last major decision in a clash between national security and freedom of expression was in 2010, in the case of Holder v. Humanitarian Law Project. This was a law that made it a criminal offense to provide even benign assistance in the form of speeches to groups allegedly engaged in terrorism.
For example, one prosecutor 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 bodies.
When the case was argued, Elena Kagan, then US solicitor general, said the courts should defer to the government's assessments of threats to national security.
“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,” she said. (Six months later she joined the court.)
The court ruled in favor of the government by a vote of six to three, accepting its expertise even after ruling that the law was subject to strict scrutiny, the most demanding form of judicial review.
“In seeking to prevent imminent harm in the context of international affairs and national security, the government is not required to definitively connect all the pieces of the puzzle before giving weight to its empirical conclusions,” said Chief Justice John G. Roberts Jr. wrote for the majority.
In its Supreme Court statements 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 threat to national security because that relationship could enable a hostile foreign government to collect information about and manipulate the content received by the US users of TikTok,” Elizabeth B. Prelogar, The US Attorney General wrote: “even if that harm had not yet occurred.”
Many federal laws, she added, restrict foreign ownership of companies in sensitive areas, including broadcasting, banking, nuclear facilities, submarine cables, airlines, dams and reservoirs.
Although 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.
That decision, Lamont v. Postmaster General, had several distinguishing features. It was unanimous. It was the first time the court had ever found a federal law unconstitutional under the free speech clauses of the First Amendment.
It was the first Supreme Court decision to mention the phrase “the marketplace of ideas.” And it was the first Supreme Court decision to recognize a constitutional right to information.
The latter idea appears in the TikTok case. “When controversies have arisen,” according to an brief for users of the app, “the court has protected Americans' right to listen to foreign-influenced ideas, allowing Congress to, at most, require that the ideas' origins be labeled .”
According to a supporting letter from the Knight First Amendment Institute, the law banning TikTok is far more aggressive than the law restricting access to communist propaganda. “While the Lamont law limited Americans' access to specific speeches from abroad,” the letter said, “the law prohibits this entirely.”
Zephyr Teachout, a law professor at Fordham, said this was the wrong analysis. “Imposing foreign ownership restrictions on communications platforms is several steps away from freedom of expression concerns,” she wrote in a brief speech in support of the government, “because the regulations are entirely about the companies' ownership, and not on the behavior, technology or content of the companies. ”
Six years after the mail-in propaganda case, the Supreme Court again rejected national security appeals to justify restricting speech, ruling that the Nixon administration could not stop The New York Times and The Washington Post from Pentagon Papers to be published, a secret history of the Vietnam War. The court did this despite government warnings that publication would jeopardize intelligence agents and peace talks.
“The word 'safety' is a broad, vague generality whose contours should not be invoked to abolish the fundamental law embodied in the First Amendment,” Justice Hugo Black wrote in a concurring opinion.
The American Civil Liberties Union told the justices that the law banning TikTok is “even more sweeping” than the previous restraint the administration sought in the Pentagon Papers case.
“The government has not only banned certain communications or speakers on TikTok based on their content; it has banned an entire platform,” the letter said. “It's as if, according to the Pentagon Papers, the lower court completely shut down The New York Times.”
Mr. Jaffer of the Knight Institute said the major precedents point in different directions.
“People say, the court routinely refers to the government in national security cases, and there is clearly some truth in that,” he said. “But when it comes to First Amendment rights, the matter is a lot more complicated.”
