When the Supreme Court considers arguments on Friday on whether protecting national security requires selling or shutting down TikTok, the justices will be working in the shadow of three First Amendment precedents, all influenced by the climate of their times and how much the justices they trusted the government.
During the Cold War and 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 has deferred to Congress’ judgment that the fight against terrorism justifies making certain types of speech a crime.
The court will most likely act quickly, as TikTok faces a January 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 use it to collect Americans’ private data and spread covert disinformation.
The court’s decision will determine the fate of a powerful and pervasive 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, and especially for younger ones, TikTok has become a major 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 poses are sufficient to overcome the nation’s commitment to free speech.
Senator Mitch McConnell, Republican of Kentucky, told the judges that he is “second to none 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 under 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 this position reflects a fundamental misunderstanding.
“It’s not the government’s job to tell us which ideas are worth listening to,” he said. “It is not the government’s job to cleanse the market of ideas or information it doesn’t agree with.”
The last major Supreme Court decision in a clash between national security and free speech came in 2010, in Holder v. Humanitarian Law Project. This was a law that made it a crime to provide assistance, even benign, in the form of speeches 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 to bring their claims to the attention of international bodies.
When the case was argued, Elena Kagan, then the U.S. attorney general, said that courts should defer to government 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,” he said. (He joined the court six months later.)
The court ruled for the government by a vote of 6 to 3, accepting its jurisdiction 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 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 Supreme Court briefs defending the law banning TikTok, the Biden administration 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 such a relationship could allow a foreign adversary government to gather intelligence and manipulate content received by American users of TikTok,” Elizabeth B. Prelogar, the U.S. attorney general wrote, “even if such harms have not yet materialized.”
Many federal laws, he added, limit foreign ownership of companies in sensitive sectors, including broadcasting, banking, nuclear facilities, undersea cables, airlines, 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 deemed to be “Communist political propaganda” to declare so in writing.
That decision, Lamont v. Postmaster General, had several distinctive characteristics. The decision was unanimous. It was the first time the court found a federal law unconstitutional under the free expression clauses of the First Amendment.
It was the first Supreme Court opinion to contain the phrase “the marketplace of ideas.” And it was the first Supreme Court decision to recognize the constitutional right to receive information.
This last idea figures in the TikTok case. “When disputes have arisen,” reads a note to app users, “the court has protected Americans’ right to hear foreign-influenced ideas, at most allowing Congress to require labeling of the origin of ideas”.
In fact, according to an advocacy note from the Knight First Amendment Institute, the law banning TikTok is much more aggressive than the law restricting access to communist propaganda. “While Lamont’s law burdened Americans’ access to specific speech from abroad,” the memo reads, “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 a step away from free speech concerns,” he wrote in a memo supporting the government, “because the regulations are entirely about ownership of companies, not conduct, technology or the contents of companies. “
Six years after the mailed propaganda case, the Supreme Court again rejected national security claims to justify restricted speech, ruling that the Nixon administration could not prevent the New York Times and Washington Post from publishing the Pentagon Papers, a secret history of the Vietnam War. The court did so despite government warnings that publication would endanger intelligence agents and peace talks.
“The word ‘security’ is a broad and vague concept whose contours should not be invoked to abrogate the fundamental law contained 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 more radical” than the previous restriction requested by the government in the Pentagon Papers case.
“The government didn’t just ban particular communications or speakers on TikTok based on their content; banned an entire platform,” the brief reads. “It’s as if, in the Pentagon Papers, the lower court completely shut down the New York Times.”
Jaffer of the Knight Institute said key precedents point in different directions.
“People say that, well, the court routinely defers to the government in national security cases, and obviously there’s some truth to that,” he said. “But in the context of First Amendment rights, the situation is much more complicated.”