The D.C. Circuit held that Congress’ TikTok ban survived a variety of Constitutional challenges, including a First Amendment challenge, even if strict scrutiny applies. The decision will be appealed to the U.S. Supreme Court, with uncertain prospects, so this is probably not the final word on the matter–or possibly even an important one.
Still, it’s a troubling ruling as a standalone microcosm of how judges’ attitudes towards censorship and free speech are flexible. And my students still are in denial that TikTok would actually be banned…despite the multi-year efforts of two presidents and Congress to do exactly that, plus now the endorsement of a unanimous DC Circuit appellate panel. Millions of Americans are in for quite a shock if the ban sticks.
Note: I don’t use TikTok and maybe you don’t either, but TikTok is obviously an important speech and press venue that deserves vigorous First Amendment protection.
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The majority acknowledges upfront that the divest-or-ban requirement is censorship:
The Government concedes, as it must after NetChoice, that the curation of content on TikTok is a form of speech….By prohibiting third parties from hosting TikTok until the platform executes this divestiture, the Act singles out TikTok, which engages in expressive activity, for disfavored treatment.
The question is then whether the censorship can be excused due to concerns that the Chinese government (PRC) might effectuate a covert influence operation by manipulating the algorithms against America’s interests. As the court indicates, this concern remains conjectural today:
the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States
(Note 1: the court then shifts the burden back on TikTok: “TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC.”)
(Note 2: The government also justifies the TikTok ban based on alleged concerns of PRC data mining about US citizens, but the court sidesteps whether that justification would have been enough by itself to uphold the ban given Congress’ obvious speech-restrictive motivations).
What should we make about this purported national security threat? On the one hand, it sounds scary. We know that foreign governments have tried to manipulate our elections and will continue to do so. Plus, the court says the government did its homework on this topic:
The multi-year efforts of both political branches to investigate the national security risks posed by the TikTok platform, and to consider potential remedies proposed by TikTok, weigh heavily in favor of the Act. The Government has offered persuasive evidence demonstrating that the Act is narrowly tailored to protect national security….The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents. It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the PRC
On the other hand…
1) influence operations don’t depend solely on ownership of social media. Indeed, the Romanian government is in turmoil after a suspected Russian influence operation on TikTok appeared to disrupt their elections. So removing PRC ownership of TikTok doesn’t eliminate the risk of PRC covert influence operations on TikTok or elsewhere. This is a serious means-fit problem for the law.
2) “covert influence operations” by powerful entities are an intrinsic part of our democracy, even if we would prefer a different system. The risks come from both foreign and domestic actors. For example, Elon Musk just spent a quarter-billion influencing the US presidential election without disclosing the details to voters before the election. As another example, many media moguls have taken sides on elections in non-transparent ways–again, Musk being a prime example, as he may have rejiggered X’s algorithms to boost his partisan objectives without disclosing the details.
The majority says “covert manipulation of content is not a type of harm that can be remedied by disclosure. The idea that the Government can simply use speech of its own to counter the risk of content manipulation by the PRC is likewise naïve,” and I guess that’s true?. But government censorship isn’t remedied by disclosure either, so now what?
3) Even if we credit the national security risk of PRC’s speculative interventions against the many other risks, we should be careful about knowingly sacrificing our free speech today to protect against this possible future risk.
When it comes to striking this balancing act, the level of scrutiny matters. The majority tests the TikTok ban using strict scrutiny (the concurrence would only apply intermediate scrutiny). Yet, surprisingly, the majority says the ban survives strict scrutiny based on the conjectural concerns. This doesn’t sound right–when a law survive strict scrutiny, it’s likely the court didn’t actually apply the scrutiny as vigorously as it should.
We can see the majority’s relaxed approach in its credulous acceptance of the government’s national security concerns:
the Government exercised its considered judgment and concluded that mitigation efforts short of divestiture were insufficient, as a TikTok declarant puts it, to mitigate “risks to acceptable levels.” At bottom, the Government lacks confidence that it has sufficient visibility and resources to monitor TikTok’s promised measures, nor does it have “the requisite trust” that “ByteDance and TTUSDS would comply in good faith.” The court can neither fault nor second guess the Government on these crucial points…
The Government “need not wait for a risk to materialize” before acting; its national security decisions often must be “based on informed judgment.” Here the Government has drawn reasonable inferences based upon the evidence it has
The court can’t second-guess possibly pretextual arguments? The government has “drawn reasonable inferences” about conjectural risks? Those words don’t sound like the rigorous judicial review we expect from strict scrutiny.
The court also credulously accepts the pretext that Congress’ goal isn’t censorship:
The narrow focus of the Act on ownership by a foreign adversary and the divestiture exemption provide convincing evidence that ending foreign adversary control, not content censorship, was the Government’s objective.
When a court is applying strict scrutiny, I don’t think it’s fair to say the law was “narrowly focused” to address only ownership when (1) the law bans speech, and (2) the means-fit analysis is filled with so many problems. Plus, free speech interests routinely can and should override national security concerns (see the uncited Pentagon Papers ruling).
4) Maybe it’s not directly relevant to the legal analysis, but don’t forget that the US engages in covert influence operations against foreign governments ALL. THE. TIME. And arguably the US government routinely engages in influence operations–maybe covert, maybe not–against the American people too. While I disfavor all government influence operations to manipulate public perception, it’s what governments do.
5) if we are worried about Chinese authoritarianism, the correct response isn’t to expand our own authoritarianism. The solution is to embrace our core values more dearly.
I feel the Supreme Court recently made this clear in the Moody opinion:
this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others
In other words, if the government’s concern is social media editorial “bias” (in favor of the PRC), then hardcoded government restrictions against such bias is the wrong solution. But that’s exactly what the TikTok ban is.
The majority has a jaw-dropping response to this line of thinking, turning the legal propositions on their head:
the Government does not suppress content or require a certain mix of content. Indeed, content on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much PRC propaganda (or any other content) as they desire on TikTok or any other platform of their choosing. What the Act targets is the PRC’s ability to manipulate that content covertly. Understood in that way, the Government’s justification is wholly consonant with the First Amendment….
In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice, 144 S. Ct. at 2407 (explaining that a state government “may not interfere with private actors’ speech” because the First Amendment prevents “the government from tilting public debate in a preferred direction” (cleaned up)). Here the Congress, as the Executive proposed, acted to end the PRC’s ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment…
Rather than attempting itself to influence the content that appears on a substantial medium of communication, the Government has acted solely to prevent a foreign adversary from doing so.
Say what? When the NetChoice majority expressed concerns about government interference with free speech, they were referring to government entities subject to the First Amendment, i.e., US government entities. Somehow this majority twists this around to mean that we can advance the Constitution by forcing entities not regulated by the Constitution (non-US government actors) to comply with the Constitution. But that’s exactly what Florida and Texas tried to do–to force non-government actors to comply with the Constitution–and that’s exactly what the Supreme Court says is not “consonant” with the Constitution. In other words, the majority here seems to be saying that the way to “vindicate” First Amendment values is to control who speaks and how. Nope.
The concurrence also took a run at Moody:
the Act is not grounded in any congressional aim to correct a perceived viewpoint imbalance on the TikTok platform by achieving a different ideological mix….Congress’s objective was to protect our national security from the clandestine influence operations of a designated foreign adversary, regardless of the possible implications for the mix of views that may appear on the platform.
In other words, the concurrence is arguing that it does not correct the “ideological mix” of speech when the government bans a speech venue as a prophylactic anticipatory remedy against disfavored political views of a purported foreign adversary. To me, this twists the analysis around to reach the opposite result.
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The court is also sanguine about the differences between a categorical ban and a divest-or-ban requirement, but…
First, a divest-or-ban requirement picks speech winners and losers. The identity of a speech venue’s owner absolutely shapes the editorial policies of the speech venue–indeed, that’s why Congress wants to change TikTok’s owner. If legislatures can pick who owns printing presses, they can absolutely control what the presses print.
(The concurrence points to restrictions of broadcast ownership by foreigners but ignores that the Supreme Court expressly said that broadcasting restrictions don’t apply to the Internet in Reno v. ACLU).
The majority is absolutely fine with legislatures picking individual speech winners and losers by name so long as it’s dressed in the national security cloth: “Congress was not required to include a generally applicable framework at all; it could have focused only on TikTok.”
Second, the opinions indicate that TikTok can resume after the ban goes into effect by divesting, but disregard the pernicious consequences of the intermediate banned period on speech, where authors will go elsewhere and otherwise have their speech blocked. The free speech disruptions of the banned period deserved more recognition.
Third, the majority repeatedly indicates that the ban won’t necessarily change the content available on TikTok, given that the PRC hasn’t yet engaged in its conjectural influence operation. But which way does this cut? As mentioned above, changing the ownership will change the editorial policies and practices, so inevitably the content would change from the forced divestment. More importantly, doesn’t this raise serious questions about the ban’s efficacy if it doesn’t actually change the content? In other words, if the content stays the same, then means-fit analysis seems potentially undermined.
(Yes, I would also argue the contrary position–that if the speech were to change, that would be reason to strike down the ban. From my perspective, legislatively picking and choosing owners of speech venues is always constitutionally problematic, regardless of the effects on editorial content).
Finally, a reminder that changing TikTok’s ownership doesn’t materially reduce the risk of covert influence operations on TikTok from the PRC or anyone else. Another reason to question the ban’s means-fit analysis.
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A couple small points of note.
The court rejects an equal protection challenge despite the law calling out TikTok by name:
Merely singling a company out, however, does not amount to an equal protection violation if doing so furthers an appropriate governmental interest…This differential treatment furthers the Government’s national security interest in countering the immediate threat posed by the PRC’s control of TikTok.
The bill of attainder challenge also fails because the forced sale is still technically a sale, not a confiscation of property, even if made under duress I guess.
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Implications
Will Trump Intervene to Save TikTok?
During his 1.0 Presidency, Trump attempted to ban TikTok via executive order. However, when Congress passed the TikTok ban this summer, Trump ineffectually tried to rally his partisans to vote against it; and he has since reiterated that he would work to reverse the ban.
It’s hard to understand Trump’s flipflop here (but that’s true for all things Trump). Should we look at his words or his actions? Trump generates so much noise that I focus exclusively on his actions. We can revisit when he actually does something about the ban.
In his last flip-flop, Trump claimed that a TikTok ban would help Facebook (which is true–see below). But Zuckerberg has been working hard to curry favor with Trump. Could Zuck’s overt influence operation pay dividends for Facebook?
As President, Trump could order the DOJ to not enforce the law. (Presidents aren’t supposed to order the DOJ to do anything, but the next AG will surely do Trump’s bidding, no questions asked). Given Trump’s mercurial nature, I’m not sure a DOJ purported non-enforcement policy would give much comfort to TikTok or the app stores. After all, if Trump flips again, he could use the penalties for non-compliance as leverage for nefarious ends.
Otherwise, if the Supreme Court doesn’t reverse this ruling, it will take an act of Congress to overturn the ban. Even with the Republicans in trifecta position in the federal government, I don’t see how Trump could muscle through a repeal of the ban given the widespread Sinophobia in Congress (much of it fanned by Trump). Also, it would be weird for Trump or Congress to do China any favors at the same time Trump is promising to tariff the hell out of China.
TikTok’s Willingness to Coopt into Censorship
TikTok offered to enter into a “national security agreement” that would have given the US government substantial oversight into and control over TikTok–essentially, a “consensual” form of censorship. Whether or not this arrangement should have been satisfactory to TikTok or the government misses the point. It shows that TikTok isn’t opposed to government censorship; it only opposes this type of government censorship.
More broadly, large Internet services are increasingly willing to acquiesce to government interventions into their editorial operations so long as they can continue to profit (especially if the regulations have the added benefit of raising the barriers on their rivals). That’s not how “free speech” works.
The major Internet services’ acquiescence to government regulation is a radical change in approach from traditional print publishers, who historically took absolutist positions on the censorship question knowing that even small incursions into the editorial process opened the door to widespread regulation. So long as the Internet services treat censorship restrictions as a cost of doing business rather than an existential threat, the services have already lost the game.
The App Stores’ Silence
Once again, the app stores sat on the sidelines and let others carry their water in a major lawsuit addressing the app stores’ editorial freedom to carry the publications they choose. The app stores are exemplars of compliant speech venues–they’ll do whatever the government wants, just so long as they get clear instructions.
Want More Examples of Problematic Social Media Ownership by Government Actors?
Trump is about to simultaneously be President of the United States and a major shareholder in a social media enterprise (Truth Social). What restrictions, if any, show apply to his ownership? Same for Musk to the extent he becomes a state actor through his DOGE activities. Once they take on government roles, both situations provide much clearer and less hypothetical examples of government interference in social media editorial operations than PRC’s involvement in TikTok’s editorial operations.
Facebook’s Successful Anti-TikTok Influence Campaign
Facebook spent millions on a not-so-covert influence operation to poison DC’s attitudes towards TikTok. To me, this seemed too clever by half. Regulatory crackdowns on TikTok could boost Facebook’s competitive position, especially among the younger set who think Facebook and Instagram are for old people. However, Facebook can’t control the regulatory firehose, so it’s just as likely to soak Facebook and all of social media and not just TikTok. For now, however, Facebook appears to be winning this game of 4D chess, getting all of the benefits of its regulatory gambit without the blowback.
Could Legislatures Control Ownership of Other Media?
Congress can control foreign ownership of broadcasters due to their unique technological and regulatory attributes, but that logic shouldn’t extend outside broadcasting. Here, the majority seems to suggest that if the purported concern is covert influence operations, legislatures could control the foreign ownership of any media enterprise, including traditional print media. If so, this new vector for censorship could trigger a widespread restructuring of media ownership in the US–and a government-compelled looting if the forced sales and reduced buyer pools push prices down.
Buckle Up for Other Censorship Bummers
Regardless of what position the Trump 2.0 administration ultimately takes on the TikTok ban, the future of free speech online looks bleak. The Trump administration and its appointees have promised a wide range of new speech-busting censorship regulations that are designed to reduce government accountability and subtract power from American citizens. Challenges to these censorship restrictions are going to flood the courts, putting even more stress on the judiciary to defend our civil liberties when the administrative and legislative branches try to take them away. Will the courts be up to the task? This panel wasn’t (the law surviving strict scrutiny based on conjectural national security concerns–seriously?), and that bodes poorly for the future.
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Case Citation: TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. Dec. 6, 2024)
Some Related Posts on Efforts to Ban TikTok
* Court Revives Indiana AG’s False Advertising Case Against TikTok–State v. TikTok
* Anti-TikTok Political Stunts Fail in Montana and Indiana Courts
* Court Again Enjoins Anti-TikTok Executive Order–TikTok v. US
* Another Court Rejects Trump’s Censorial Anti-TikTok EO–Marland v. Trump
* Court Enjoins Trump Administration’s Attempt to Kick TikTok Out of App Stores–TikTok v. Trump
* WeChat Executive Order Enjoined Because (Of Course) It’s Unconstitutional–WeChat Users v. Trump