Imagine if the government tried to force Amazon billionaire and Washington Post owner Jeff Bezos to sell the newspaper that Bezos could order his paper to publish subversive content. No competent judge would uphold such a law, which clearly violates the First Amendment’s free speech protection.
The Supreme Court has repeatedly held, in a variety of contexts and in cases involving myriad forms of media, that the government cannot determine what is or is not published by media organizations, or how those organizations make editorial decisions.
And yet, the facts before the Supreme Court TikTok v. GarlandA case that the Supreme Court will hear next Friday is strikingly similar to Bezos’s hypothesis — which perhaps explains why. Bezos played a prominent role in TikTok’s brief To the judges in that case. tiktok A federal law is concerned that effectively requires ByteDance, the Beijing-based company that controls social media app TikTok, to sell the company to someone less vulnerable to Chinese government directives.
Proponents of the law fear that China will use the vast array of data collected by TikTok, a platform. About 170 million monthly users in the USThe Chinese government will regulate what content appears on TikTok to spy on Americans, or to shape US opinion.
question in tiktokIn other words, whether general First Amendment rules prohibiting government from determining ownership of media companies must yield to larger national security interests to prevent America’s most powerful foreign adversary from controlling a major media platform. Congress has even named legislation targeting TikTok “Protecting Americans from Foreign Adversarial Controlled Applications Act“
As it turns out, the First Amendment arguments for allowing the government to ban foreign entities from owning TikTok are stronger than they might initially seem. As Chief Justice 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 Lock foreign countries out of US contact.
To give just a few examples from Srinivasan’s opinion, the Radio Act of 1912 allowed only US citizens or companies to obtain radio operator licenses. That Act was repealed in 1927, but, according to Srinivasan, the replacement Act “prohibited the grant of any licence”. [radio] Company If it has a foreign officer or director or if one-fifth of its capital is in foreign hands“
Indeed, current US law prohibits “Any foreign government or its representative” from obtaining a radio station license, and it broadly prevents non-citizens and companies with significant foreign ownership from controlling radio broadcasting.
D tiktok The case, in other words, puts two long-standing legal principles on a collision course. On the one hand, the government is generally prohibited from determining who controls political communications in the United States, and for very good reason. On the other hand, the federal government has long prevented foreign governments — or even companies that are partially owned by foreign nationals — from controlling critical parts of the U.S. communications infrastructure.
Or, as the Justice Department put it in its brief defending the federal law, “the First Amendment would not have required our nation to Enduring Soviet ownership and control of American radio stations (or other channels of communication and critical infrastructure) during the Cold War, and similarly we do not need to tolerate the ownership and control of TikTok by foreign adversaries today.”
tiktok Probably going to lose
Legislation targeting TikTok passed with broad bipartisan support in both houses of Congress. Both President Joe Biden and President-elect Donald Trump (while in office) supported policies to divorce TikTok from ByteDance, at least within the United States — though Trump filed a brief. Request to Supreme Court to delay implementation He imposed a federal ban until after he takes office on January 20, claiming he will “negotiate a resolution to preserve the platform while addressing national security concerns expressed by the government.”
Unless the court acts quickly, the ban will take effect on January 19. When this happens, internet hosting services and technology companies like Apple and Google – which make TikTok available for download on iPhone and Android phones – will no longer be allowed to provide their TikTok services. TikTok could potentially avoid the ban if it were sold to a company that, in the words of the law, is “not controlled by a foreign counterparty,” but no sale seems likely to happen anytime soon.
Realistically, the Supreme Court is unlikely to rule in favor of TikTok. Srinivasan is a widely regarded Obama appointee A strong candidate for the Supreme Court In a democratic administration. The hearing was conducted by two other judges of the lower court tiktok Douglas Ginsburg and Naomi Rao. The first is President Ronald Reagan, a longtime Republican Tried to be briefly elevated to the Supreme Court; The second is a Trump appointee known mostly for writing dubious opinion pieces defending Trump and his allies.
So, with this bipartisan mix of judges all agreeing that the government can ban TikTok as long as it’s owned by a China-based company, it’s hard to imagine five judges reaching a contrary conclusion. Sometimes not all justices agree with Srinivasan, Ginsburg or Rao on various political issues before the Court. But none of the justices consistently disagreed with Srinivasan, Ginsburg, And Rao on any important political issue.
Of course, even if we assume that TikTok is going to lose this case, this is a big deal how TikTok loses. The government effectively asked 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’s not hard to see how such a carveout of the First Amendment can be abused if the Court’s decision is poorly drafted.
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 falsely alleging that Bezos has too many ties to China.
But, while the Supreme Court could do major damage to Americans’ right to free speech if it allowed the government to make media ownership decisions based on questionable ties to a foreign nation, a carefully crafted decision allowed the US government to ban foreign ownership of major media platforms. It will not change the existing balance of power between private citizens and their governments.
What is the First Amendment supposed to accomplish?
It’s easy to get caught up in the weeds of First Amendment doctrine when thinking about it tiktok The lawsuit TikTok argues should be the case Not seen differently If the government targets Bezos’ ownership of the Washington Post Because of conflicts over domestic politics, and thus that federal law should receive the most skeptical level of constitutional scrutiny. Srinivasan argues that the government has a long history of preventing foreign control of US communications infrastructure Call for a less skeptical approach (known as “Intermediate Scrutiny”). The Justice Department, in a brief submitted last month, argues that federal law “does not implicate the First Amendment” at allClaims that a foreign company like ByteDance has “no First Amendment rights” to begin with.
Rather than dive too deep into these weeds, however, it’s probably best to watch tiktok The 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 can arrest or kill anyone who opposes political leaders, from using its power to control public opinion.
In this sense, the government is unlike any private company or individual, no matter how powerful that private entity, because only the government has a monopoly on the legitimate use of force. As recently reaffirmed by the Court Moody v. netchoice (2024), “On the spectrum of dangers to free expression, there is something greater than allowing the government to manipulate the speech of private actors to achieve its own rhetoric.”
netchoice The question of who should prevail is clearly presented when elected officials believe that a powerful media company is unconscionably using its influence over public discourse. The case rejected a Texas law that would have taken control of content moderation on social media platforms like YouTube or Twitter, out of concern that, in the words of Texas Governor Greg Abbott, those platforms were trying to “silence conservative views and ideas.”
Whatever you think of Abbott’s specific concerns, a reasonable legislator could easily conclude that media executives like Mark Zuckerberg or Elon Musk have too much control over the political discourse in the United States. It is not difficult to understand why such a legislator would want to reduce their influence.
nevertheless, netchoice Reaffirms the long-standing First Amendment rule that no matter how outraged by a media company’s decision, redress cannot come from the government. Elected officials have many conflicts of interest when they try to shape political discourse. And the government’s ability to arrest or kill dissidents sets it apart from even wealthy corporations.
but tiktok This involves an entirely different question netchoice. The Court’s First Amendment cases rest largely 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’s government — a foreign adversary that has its own law enforcement and military personnel at its command?
Lest there be any doubt, the First Amendment does not give the government unlimited power to suppress ideas originating from abroad. in Lamont v. Postmaster General (1965), for example, the Supreme Court struck down a law restricting mail deemed to be “communist political propaganda” originating in a foreign country.
But mailing copies to the Soviet Union is one thing Communist Manifesto to individual Americans in the 1960s. It’s quite another for a foreign adversary to be able to control a massive communications platform with 170 million American users, almost all of whom will be completely oblivious to whether the Chinese government is collecting their data or manipulating what content they view.
The latter situation, as Srinivasan argues, is much closer to the more than century-old ban on foreign control of US radio stations that dates back to the 1971 law. Lamont. And such restrictions on foreign control of US communications infrastructure have historically not been understood to violate the First Amendment. Or, as the Radio Act of 1912 shows, are they anything new.
All of this is a long way of saying that a well-drafted, narrowly tailored Supreme Court opinion that allows the government to ban foreign ownership of major U.S. communications platforms — and nothing else — would not be a constitutional earthquake. In fact, such views will only maintain the status quo.
