Federal courts are reframing how to think about the First Amendment in the age of social media.
Many people will read Federal appeals court opinion last week that can ban TikTok It’s a loss. For the first editAnd in some ways it would, if TikTok disappeared from the United States. An estimated 170 million Americans will lose access to platforms that are central to their daily lives and creative expression. And the court’s continued deference to Congress and the administration’s national security claims continues. A form of court that weakens First Amendment protections. Whenever the government raises national security concerns
But opinions don’t have to be viewed through this lens alone. significantly The court rejected the normal national security framework relative to the First Amendment and instead characterized TikTok as a First Amendment villain. This approach could have long-term implications for the government’s ability to regulate the internet.
In the past, when the court considered various cases related to national security and freedom of speech The court treats these cases as a zero-sum game: protecting national security at the expense of First Amendment rights. or preserve First Amendment freedoms. This is despite the security risks. legal observer (myself Included) The case is expected to follow this familiar pattern. The court will weigh TikTok’s free speech claims against the government’s national security concerns about data privacy and disinformation.
But in the court’s decision The court did something unexpected. In addition to giving credit to the government’s national security arguments, The document also highlights a key tension within arguments supporting free expression: the right to access and speak on the platform of one’s choice. vs. the right to have a platform free from foreign manipulation and control. The court explained:
In this case, a foreign government threatened to distort freedom of speech in a key communication medium. By using an integrated commercial strategy (People’s Republic of China) has positioned itself to distort public discourse on TikTok to serve its own purposes. The PRC’s ability to do so conflicts with the fundamentals of freedom of speech. Here Congress, as the Executive proposes It serves to end the PRC’s ability to regulate TikTok when it is understood that way. The Act thus proves the value hidden under the First Amendment.
this Reasons against distortion For government control of speech used to be central to the First Amendment. This is especially true in campaign finance cases. Until the Supreme Court rejected it when it lifted limits on corporate campaign donations in Citizen United v. Fake– Most recently during the last semester. Moody V. NetChoiceThe court criticized state laws that limit moderation of social media content, citing (In)famous role models of the 1970s that the government cannot “Restrict the speech of certain elements of our society in order to enhance the relatable voices of others.”
But the reasons for resisting distortion still exist in national security cases. For example, only a year later Citizens UnitedThe Supreme Court confirmed a The decision of then-DC Circuit Court Judge Brett Kavanaugh. that foreigners do not have a First Amendment right to support U.S. elections;
Anti-distortion arguments were also shared by D.C. Circuit Chief Justice Sri Srinivasan, who focused on the long history of laws limiting foreign ownership in key sectors of the U.S. economy, including radio. television and cell phone networks. These restrictions are motivated by the same legitimate concern as the TikTok law: the potential for distorting America’s information environment. Here the focus is on covert Because, as Srinivasan points out, “counter speech” – responding to offensive speech with more words – “is elusive in response to the covert manipulation of social media platforms. (and presumably not detected)”
TikTok has a few good options. The law prohibits app stores and cloud providers from hosting TikTok and its apps unless its Chinese parent company, ByteDance, goes out of business. This is unlikely. Donald Trump campaigned against the law. (Despite trying to ban TikTok during his first administration.) But he did. Backed away from his promise to save TikTok.– Although he wants to help companies that are having difficulty in the second phase. His options are limited.This is because the main players are private companies such as Apple and Oracle, which face penalties for providing services to TikTok.
This leaves the Supreme Court, which TikTok It plans to appeal the D.C. Circuit’s decision.– Although the judge is not required to hear the case. But they are likely to listen to this. This is because there are high legal and political risks. They may pause the law while they ponder it, giving TikTok leniency until the court decides this summer, but TikTok may not find the court any more receptive to its issues than the cross-ideological committee of its users. Judgment on the D.C. Circuit
So this summer, TikTok as we know it may no longer be America’s leading short-form video platform. The long-term effects of the litigation remain unclear. If the Supreme Court accepts the D.C. Circuit’s reasoning that banning TikTok would certainly satisfy and advance First Amendment principles, Especially if this reasoning is extended beyond the national security context.–It could open the door to more assertive government regulations that would take away some speech rights to protect the First Amendment more broadly. While this vindicates the long-standing goal of liberals and progressives to remedy the shortcomings of an unregulated free speech environment, in some ways, it really matters who in government wields that power. And with the incoming Trump administration The consequences may be unstable.
