The free speech implications of the upcoming TikTok ban in the United States are staggering and unprecedented. On Friday, the U.S. Court of Appeals for the District of Columbia Circuit upheld a federal law requiring TikTok to stop operating here on Jan. 19 if its owner, ByteDance, does not sell it to a non-Chinese company. The 150 million Americans who use TikTok to share and receive information would no longer be able to do so.
In upholding the law, the D.C. Circuit Court of Appeals downplayed the First Amendment impact of banning TikTok, while uncritically accepting the federal government's claim that this app threatens national security.
This is the first time in history that the government has banned a media outlet. This is not simply a matter of banning a single newspaper or editorial, which in itself would be deeply troubling under the First Amendment, but rather a ban on a platform where billions of videos are uploaded each year. As Chief Circuit Court Judge Sri Srinivasan said in a concurring opinion, banning TikTik will cause large numbers of people in this country to “lose access to an outlet for expression, a source of community, and even a medium.” of income. “
The decision highlighted that TikTok is controlled by a “foreign adversary,” the People's Republic of China, and that those outside the United States do not have First Amendment rights. But this ignores the rights of millions of TikTok users in this country to post on the site and receive information. Furthermore, the Supreme Court has long made clear that a speaker's identity should not matter under the First Amendment. This was the basis for the Citizens United court to hold that corporations have the right to spend unlimited amounts on election campaigns. The central premise of the First Amendment is that more speech is inherently better, regardless of the source.
The appeals court acknowledged the implications of the TikTok ban for free speech, but concluded that the ban was justified by national security considerations. In doing so, the court professed the need to provide great “deference” to the government and its “evaluation of the facts” related to TikTok.
The circuit court identified two national security concerns. First, that China would use TikTok to “collect data from and about people in the United States.” There is no doubt that China does this, but the question the court does not answer is how this data can be used to harm national security. The court notes that China can mine data for “commercial” benefits, but this seems quite different from showing that China can gain a national security advantage by knowing what Americans upload and watch on TikTok.
The second reasoning given by the court is even more problematic: China will “covertly manipulate TikTok content” to “undermine democracy” and “extend the influence of the People's Republic of China abroad.” The court said China “threatens to distort freedom of expression in a major media outlet.”
Under this reasoning, the United States could ban a foreign newspaper or book published in another country from being available in this country because it is considered to undermine democracy. In fact, this justification would allow the federal government to ban any book published by the Chinese government because it could be considered an effort to “extend the influence of the People's Republic of China” in the United States. The government should never have the power to censor speech because it does not like the message expressed.
There are still several paths to save TikTok in the United States. There will surely be an appeal to the Supreme Court. The justices could grant the review on an expedited basis and decide the case by Jan. 19, or they could temporarily block the law from taking effect until they hear and resolve the matter before the end of the court's term at the end of June. The case demands the attention of the Supreme Court because of the unique and important issues raised. Of course, it's unclear whether the justices will consider the law differently than federal appeals court judges do. There is a long history of judicial deference to the government when it raises national security as a justification for its action.
Another possibility is that President-elect Donald Trump will try to save TikTok once he takes office, the day after the TikTok ban goes into effect. Trump has explicitly said he wants to do this, but it is unclear how he could achieve this. You can't repeal the law banning TikTok; that would require an act of Congress. It could order the Justice Department not to enforce the law. But it's doubtful that's enough of a guarantee for companies like Apple and Google to continue making the TikTok app available knowing the potential liability that comes with doing so. If there is a sale or restructuring of ownership of TikTok, Trump, under the law, can deem it no longer under foreign control and allow it to continue operating. If a deal is in the works, the president can grant a one-time 90-day extension before the ban takes effect.
It seems highly unlikely that the Chinese government will agree to sell or restructure TikTok. And its cost is astronomical: around 200 billion dollars.
The TikTok case is difficult and involves issues never before faced by the courts. However, when the implications for speech are so enormous and the justifications for the restrictions so speculative, the only conclusion is that the DC Circuit struck the wrong balance. The Supreme Court should correct it.
Opinion contributor Erwin Chemerinsky is dean of the UC Berkeley School of Law.
