Judges in TikTok Case Seem Ready to Discount First Amendment

Ari Paul

A US circuit court panel appears ready to uphold a federal law that would effectively ban the popular social media network TikTok because it's owned by the Chinese company ByteDance. The legal attacks on the video platform—which FAIR (8/5/20, 5/25/23, 11/13/23, 3/14/24) has written about before—are entering a new phase, in which judicial interpreters of the Constitution are acting as Cold War partisans, threatening to throw out civil liberties in favor of national security alarmism.

Earlier this year, despite widespread protest (Guardian, 3/7/24), President Joe Biden signed legislation forcing TikTok’s owner “to sell it or face a nationwide prohibition in the United States” (NBC, 4/24/24). Advocates for the ban charge that data collection—which is a function of most social media networks—poses a national security threat because of the platform’s Chinese ownership (Axios, 3/15/24).

Given that TikTok is a global platform, with 2 billion users worldwide, demands that ByteDance sell it off are in effect another name for a ban; an analogy would be Beijing allowing Facebook to operate in China only if Meta sold the platform to a non-US company.

'Foreign adversary controlled'

The Wall Street Journal (9/18/24) stood up for the government's right to ban speech it doesn't like, i.e. that of "foreign adversaries."

Now TikTok is fighting for its right to remain unbanned in the US court system, taking its case straight to the District of Columbia Circuit Court of Appeals. All three of the judges, two of whom were Republican appointees, questioned TikTok’s plea that free speech was at stake. The discussion suggested that the ban will survive the appeal, and ultimately be decided by the right-wing-stacked Supreme Court.

The Wall Street Journal, in an editorial (9/18/24) praising the TikTok ban and the judges who appear ready to validate it, said:

But Congress didn’t restrict speakers on TikTok. What’s really at issue is Chinese control of the app, and TikTok is owned by ByteDance, a Chinese company. TikTok is welcome to keep operating and its users to keep posting. The law merely says TikTok cannot do so while remaining what Congress calls a “foreign adversary controlled application.”

The DC Circuit’s panel grasped this distinction. Judge Douglas Ginsburg wanted to know “why this is any different, from a constitutional point of view, than the statute precluding foreign ownership of a broadcasting license?” Good question.

Ginsburg's question isn’t as “good” as the Journal thinks it is. Broadcast licenses are finite, as there are only so many FM radio slots in a given geographical location, which requires government management of that limited space. That just isn’t the case with global internet-based media, which have heretofore been accorded the same strong First Amendment protections that pertain to print publications, not the lesser shield granted to broadcast media.

The editorial went on to quote TikTok’s lawyer saying “‘lots of US speakers,’ including Politico, are owned by foreign entities” prompting Rao to reply, “But not foreign adversaries.” Sri Srinivasan, a third judge on the panel—appointed by Barack Obama, and well-known for his bipartisan appeal (NPR, 5/23/13)—also followed the logic of the “China exception” to free speech, asking whether a Chinese-owned entity should be banned if the US were to go to war with China (Reuters, 9/17/24).

'Skeptical' of free-speech argument

"When you have speech in the United States, our history and tradition is we do not suppress that speech because we don’t like those ideas," a lawyer for TikTok argued (Roll Call, 9/16/24).

Few other outlets outright agreed with the judges, but many reported that the judges were “skeptical” or showed “skepticism” of the free-speech argument (NBC, 9/16/24; Washington Post, 9/16/24; Roll Call, 9/16/24), while Politico (9/16/24) and the New York Post (9/16/24) said the judges “grilled” the app’s lawyer.

The leaders of the ominously titled House Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party filed an amicus brief (8/2/24) with the appeals court, saying the law does “not regulate speech or require any social media company to stop operating in the United States,” because it is “focused entirely on the regulation of foreign adversary control.”

This, right here, is key. China is officially designated as an “adversary,” along with Iran and Cuba, despite the fact that China and the US have formal diplomatic relations and do billions of dollars in trade. The suggestion is that US citizens can and should be denied access to news and views that are tied to so-called adversary countries.

Iran’s Press TV is no objective media outlet by any measure, but would be important viewing for anyone who wants to further understand the Middle East, the same way one might explore Israel’s Haaretz or Qatar-based Al Jazeera. Its website is currently operational, but in 2021 the US government seized “33 Iranian government-affiliated media websites,” including that of Press TV (Al Jazeera, 6/23/21).

FAIR (8/5/20) has raised the concern that if TikTok is banned because of its Chinese affiliation, then Chinese newspapers and broadcasters, which many people rely on to inform themselves of the Chinese government perspective, could also be censored. These outlets have been feeling federal heat ever since the US State Department, in a move reminiscent of the Cold War against the Soviet Union, forced Chinese state media outlets to register as foreign agents (ABC, 2/18/20; FAIR.org, 2/28/22).

Unpopular censorship

Support for banning TikTok has fallen from 50% in March 2023 to 32% in July/August 2024 (Pew, 9/5/24).

Unsurprisingly, the potential ban of the fourth-most popular social media platform in the US is unpopular with the public. Pew Research (9/5/24) reported: “The share of Americans who support the US government banning TikTok now stands at 32%. That’s down from 38% in fall 2023 and 50% in March 2023.”

That’s not surprising given that users say a ban “would hurt countless people and businesses that rely on TikTok for a significant portion of their income,” according to AP (3/16/24). “TikTok has become an unrivaled platform for dialogue and community.”

Many Americans are turning to the network for news (Bloomberg, 9/17/24). And TikTok has also been cited for being an important communications tool for labor unions (Vice, 5/7/21; Wired, 4/20/22; Fortune, 9/1/22) and other progressive causes (Politico, 3/27/22; Nation, 1/25/23).  It is easy for some people to disregard the platform as a space for silly videos and memes made purely for entertainment, but clearly it has much more social utility than the scoffers realize.

TikTok (3/21/23) claims 150 million users in the United States; its users are disproportionately young, female, Black and Latine (Pew, 1/31/24). Pulling the plug on such an operation would be as disruptive as suspending postal operations—which, of course, is also on the conservative agenda (New Yorker, 5/2/20).

'Demanding legal scrutiny'

“Millions of Americans use TikTok every day to share and receive ideas, information, opinions and entertainment from other users around the world, and that’s squarely within the protections of the First Amendment,” noted EFF (6/27/24).

The Electronic Frontier Foundation said in a press release (6/27/24) that its amicus brief, which was joined by other media freedom groups, addressed the First Amendment concerns of the law:

​​The amicus brief says the Court must review the Protecting Americans from Foreign Adversary Controlled Applications Act—passed by Congress and signed by President Biden in April—with the most demanding legal scrutiny, because it imposes a prior restraint that would make it impossible for users to speak, access information and associate through TikTok. It also directly restricts protected speech and association, and deliberately singles out a particular medium for a blanket prohibition. This demanding First Amendment test must be used even when the government asserts national security concerns.

The argument in favor of this law boils down to McCarthyite anti-China xenophobia: America’s most sacred liberty must be abandoned out of fear of the Red Menace. The paranoia manifests in other ways, too: State governments, mostly those controlled by Republicans, are enacting laws against land ownership by Chinese citizens (Politico, 4/3/24).

The House of Representatives has passed legislation that would authorize “more than $1.6 billion for the State Department and USAID over the next five years," part of which would “subsidize media and civil society sources around the world that counter Chinese ‘malign influence’ globally,” reported Responsible Statecraft (9/11/24). The outlet added, “It’s possible that the program could in some cases be used to subsidize covert anti-Chinese messaging,” reminiscent of “the way Russia is accused of covertly funding anti-Ukrainian messaging by US media influencers.”

Spies don't need TikTok

TikTok is directly owned by TikTok Inc., a US-based company that is ultimately owned by ByteDance, a company incorporated by Chinese investors in the Cayman Islands. As Chicago Policy Review (7/26/24) noted, "If the CCP wanted TikTok to steal Americans’ data, it would not have chosen this corporate structure that is designed to insulate TikTok from Chinese influence."

Even Washington Post columnist George Will (5/15/24), one of the loudest conservative voices in US media, framed the “national security” issue with TikTok as a weak and vague excuse to subvert free speech. “Respect for the First Amendment has collapsed, and government has a propensity for claiming that every novel exercise of power legitimates the next extension of its pretensions,” he said. “TikTok will not be the last target of government’s desire to control the internet and the rest of society’s information and opinion ecosystem.”

And the “national security” concerns of the US government (Bloomberg, 7/27/24) don't hold water. The Citizen Lab, published by the University of Toronto’s Munk School of Global Affairs and Public Policy, issued a report (3/22/21) on both TikTok and another ByteDance app, Douyin. The report found that both apps “do not appear to exhibit overtly malicious behavior similar to those exhibited by malware.” Researchers did not “observe either app collecting contact lists, recording and sending photos, audio, videos or geolocation coordinates without user permission.”

More recently, the Chicago Policy Review (7/26/24), published by the University of Chicago’s Harris School of Public Policy, found that the corporate structure of ByteDance does not indicate that China’s Communist Party has firm control on day-to-day operations as the US government contends. Further, it argued that party or government control of TikTok would have little value for Beijing:

First, China has little incentive to spy on ordinary Americans, since most data has no national security relevance. Second, the Chinese Communist Party does not need to subjugate TikTok to spy on the social media of powerful Americans. Chinese state intelligence can obtain valuable information by monitoring users’ behavior and posts on TikTok and other social media applications. Banning TikTok would not solve the problem of foreign intelligence agencies gathering social media data.

At the same time, Republicans pretend to care about free speech in social media when it comes to claims that Facebook is icing out conservative voices (New York Post, 9/16/24), decrying fact-checking and content moderation by a private entity as censorship. Those sanctimonious appeals to constitutional liberty ring hollow when all the branches of government are working to destroy an entire network.