When the Supreme Court hears arguments Friday on whether protecting national security requires selling or shutting down TikTok, the justices will work in the shadow of three First Amendment precedents, all influenced by the climate of their time and how much they trusted judges. the government.
During the Cold War and in the Vietnam era, the court refused to give credence to government claims that national security required limiting what newspapers could publish and what Americans could read. More recently, however, the court deferred to Congress' ruling that the fight against terrorism justified making some types of speech a crime.
The court will most likely act quickly as TikTok faces a Jan. 19 deadline under a law enacted in April by bipartisan majorities. The bill's sponsors said the app's parent company, ByteDance, is controlled by China and could be used to collect Americans' private data and spread covert disinformation.
The court's decision will determine the fate of a powerful and ubiquitous cultural phenomenon that uses a sophisticated algorithm to feed a personalized array of short videos to its 170 million users in the United States. For many of them, and especially the youngest, TikTok has become a leading source of information and entertainment.
As in previous cases pitting national security against free speech, the central question for the justices is whether the government's judgments about the threat TikTok is said to pose are enough to overcome the nation's commitment to free speech. .
Senator Mitch McConnell, Republican of Kentucky, told the judges that he “is unsurpassed in his appreciation and protection of the First Amendment right to free speech.” But he urged them to respect the law.
“The right to free speech enshrined in the First Amendment does not apply to a corporate agent of the Chinese Communist Party,” McConnell wrote.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said that stance reflected a fundamental misunderstanding.
“It's not the government's job to tell us what ideas are worth listening to,” he said. “It is not the government's role to clear the marketplace of ideas or information it disagrees with.”
The last major Supreme Court decision in a clash between national security and free speech was in 2010, in Holder v. Humanitarian Law Project. This was a law that made it a crime to provide even benign assistance in the form of speech to groups said to be involved in terrorism.
One plaintiff, for example, said he wanted to help the Kurdistan Workers' Party find peaceful ways to protect the rights of Kurds in Turkey and bring their grievances to the attention of international bodies.
When the case was discussed, Elena Kagan, then the U.S. attorney general, said courts should defer to the government's assessments of national security threats.
“This court has long recognized the ability of Congress and the executive branch to regulate relations between Americans and foreign governments or organizations,” he said. (He joined the court six months later.)
The court ruled in favor of the government by 6 votes to 3, accepting its experience even after ruling that the law was subject to strict scrutiny, the most demanding form of judicial review.
“The government, when seeking to prevent imminent harm in the context of international affairs and national security, is not required to conclusively link all the pieces of the puzzle before giving weight to its empirical conclusions,” the chief justice said. , John G. Roberts Jr. Wrote for the majority.
in your Supreme Court panties In defending the law banning TikTok, the Biden administration repeatedly cited the 2010 decision.
“Congress and the executive branch determined that ByteDance's ownership and control of TikTok poses an unacceptable threat to national security because that relationship could allow a foreign adversary government to gather intelligence and manipulate content received by American users of TikTok”, Elizabeth B. Prelogar, The United States Attorney General wrote: “even if those damages had not yet materialized.”
Many federal laws, he added, limit foreign ownership of companies in sensitive fields, including broadcasting, banking, nuclear facilities, undersea cables, air carriers, dams and reservoirs.
While 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 considered “communist political propaganda” to say so in writing.
That decision, Lamont v. Postmaster GeneralIt had several distinctive characteristics. It was unanimous. It was the first time the court had declared a federal law unconstitutional under the free speech clauses of the First Amendment.
It was the first Supreme Court opinion to include the phrase “the marketplace of ideas.” And it was the first decision of the Supreme Court that recognizes a constitutional right to receive information.
That last idea figures in the case of TikTok. “When controversies have arisen” a summary for app users He said, “the court has protected Americans' right to hear foreign-influenced ideas, allowing Congress, at most, to require labeling of the origin of ideas.”
Indeed, a supporting report of the Knight First Amendment Institute, the law banning TikTok is much more aggressive than the one limiting access to communist propaganda. “While the law in Lamont hindered Americans' access to specific speech from abroad,” the brief said, “the law prohibits it entirely.”
Zephyr Teachout, a law professor at Fordham, said that was the wrong analysis. “Imposing restrictions on foreign ownership of communications platforms is several steps away from concerns about free speech,” he wrote in a brief support to the government“because the regulations deal exclusively with the property of companies, not their conduct, technology or content.”
Six years after the mailed propaganda case, the Supreme Court again rejected the invocation of national security to justify limiting speech, ruling that the Nixon administration could not prevent The New York Times and The Washington Post Publication of the Pentagon documents.A secret history of the Vietnam War. The court did so despite government warnings that publication would endanger intelligence officials and peace talks.
“The word 'security' is a broad and vague generality whose contours should not be invoked to repeal the fundamental law embodied in the First Amendment,” Justice Hugo Black wrote in a concurring opinion.
The American Civil Liberties Union told the judges that the law banning TikTok “is even broader” than the previous restraint sought by the government in the Pentagon Papers case.
“The government has not limited itself to banning certain communications or speakers on TikTok based on their content; has banned an entire platform,” the letter said. “It's as if, in the Pentagon Papers, the lower court had completely shut down the New York Times.”
The Knight Institute's Jaffer said key precedents point in different directions.
“People say, well, the court routinely refers national security cases to the government, and obviously there's some truth to that,” he said. “But in the realm of First Amendment rights, the record is much more complicated.”
