It seems unfathomable that we’re even here. The First Amendment is one of our clearer constitutional provisions. “Make no law,” it says, “abridging the freedom of speech.” And yet, with the “Protecting Americans from Foreign Adversary Controlled Applications Act,” Congress has done exactly that, effectively banning a platform helping millions of Americans speak. It tells the platform that it does not get to avail itself of the editorial rights even the Supreme Court has acknowledged in platforms have, and it tells the users that their speech, and their ability to connect with audiences and community, is subordinate to the government’s desire to do away with it.
It should not be hard to recognize this TikTok-banning law as facially invalid as any unconstitutional law could be, and yet, because the government yelled, “National security!” loudly enough, it caused the DC Circuit to take leave of its senses, as well as its ability to read the Constitution or prior First Amendment precedent, and give the law its blessing. Which not only threatens to harm both TikTok and its users’ speech interests, but also how we handle any future incursions by the state against speech, given how the DC Circuit turned what should have been an exacting test—strict scrutiny—into something that even the most censorial government action could easily clear.
And which threatens to do all this damage in only about two weeks, because baked into the law is a January 19 deadline by which TikTok needs to divest itself—or, put into more practical terms (which the government keeps discounting): disappear. (“It’s not a ban!” the government keeps arguing. “It’s just mandatory divestment!” as if there is any meaningful difference on any practical level. Or anything not itself constitutionally suspect about the government ordering a fire sale of a communications platform for preferred investors to swoop in and buy control of.)
An appeal of the DC Circuit decision was inevitable. What wasn’t inevitable was that, despite the likelihood of extreme and imminent harm, neither it nor the Supreme Court were willing to enjoin the law so that the challenge could be continued on a more typical timeline, with adequate time for briefs to be written and filed, by parties and amici, before the Supreme Court would hear argument and then eventually issue a decision.
Instead, the Supreme Court gave everyone a week to produce both principle briefs by the parties and any amicus briefs (all due the same day so no one could respond to anyone, as is usually the case). And so, even though it meant dropping everything and giving up plans for the holidays, we wrote an amicus brief, because we couldn’t just stand by while the Supreme Court potentially shreds the First Amendment over the winter break without anyone having any chance to do anything about it.
We wrote because the DC Circuit’s decision basically changed all the rules about how the First Amendment was understood to work. And it did it without care to the impact on Americans. Even if the tacit endorsement by the court was correct, that the rules should be different for non-Americans, it raised the question of how non-American they needed to be for different rules to apply. And if different rules do need to apply, then what happens to the First Amendment protections of Americans caught in the cross-fire when those protections are denied to others?
While it would appear, given the way the Supreme Court granted review, that it plans review the constitutionality of the law with fresh eyes, we explained in our brief how the errors the DC Circuit made in its analysis should guide the Court in its thinking, so that it doesn’t repeat the same mistakes and undermine the strong First Amendment protections we all depend on, whether we’re platform operators, platform users, or anyone just counting on having their rights of free expression protected in any context, online or off. This constitutional challenge, as we made clear in our brief, is not just about TikTok, or its users, or even just any Internet platform. Nor is it even just about a possible occasion when the government might want to claim that national security interests can supersede the Constitution. It’s about ANY occasion when what the government wants to do impacts free expression and whether, from now on, it will suddenly be allowed to. As we told the Court, it’s really important that it get the analysis right in this case, regardless of how the Court may feel about TikTok or the government’s national security claims, for any challenges against these other unconstitutional efforts to not be hobbled right out of the gate with the weakened First Amendment protections we’d be left with if the DC Circuit’s reasoning is allowed to stand.
And we know those attempts by the government to interfere with speech are coming—we’ve seen them already, both with cases that have already made it to the Supreme Court and ones that are still brewing in other courts, and we know more are coming. In fact, the Court is even hearing oral argument this month in a similar sort of challenge, Free Speech Coalition v. Paxton, which is ostensibly about whether the Constitution allows for age-gating online expression but at its core is about the broader ability of the government to control what speech Americans can be exposed to, which is one of the things the government even admits the TikTok ban is about. The First Amendment is supposed to stand against such meddling with speech content by the government, and it would be an extremely unwelcome change if the DC Circuit were right and the government now could meddle when it wants, just because it thought of a reason to, even if that reason were a good one, like national security. National security may be a compelling reason prompting the government to act in some way but it still can’t be a “get out of First Amendment scrutiny free” card enabling it to act against speech interests however it wants, at least not without opening the door to all sorts of censorial acts by the government for pretextual reasons.
Nor can a compelling reason enable the government to act in a way that causes more harm to speech than is necessary, which may also be an issue as the government does more on the data protection front, which the government claims is another reason for this law. While this government purpose isn’t necessarily unconstitutional on its face, and we are likely to see more law get passed to address data policy, we still can’t have just any data protection law on the books if that law, like this one, causes undue harm to speech. The rule to date has also been that, even when the government has a compelling reason to act, how it acts needs to be narrowly tailored in order to avoid collateral harm to protected rights, including the right of free expression. Otherwise the government could address the data collection practices of social media simply by banning all social media, at which point there would be no more data protection problem, but now also no more speech. Which can’t be how any of this works.
And prior to the DC Circuit’s decision, it wasn’t. Hopefully after the Supreme Court hears oral argument on Friday in this rushed case, and reads all the briefs, including ours, it won’t be again.
