TikTok’s C.E.O. has denied that ByteDance is controlled by China, and claimed that the company, in which the Chinese government holds a stake, is private. The United States disagrees. In its brief before the Supreme Court, the U.S. government notes that China prohibits the export of TikTok’s algorithm, and it argues that “because of the authoritarian structures and laws of the P.R.C. regime, Chinese companies lack meaningful independence from the P.R.C.’s agenda and objectives.
Most people I know have strong feelings about TikTok. They love it or they hate it. TikTok is mainly a video-sharing application, and users can find themselves losing hours of their day scrolling through dance videos, practical jokes, political rants and clips from movies and television shows.
In that sense, TikTok isn’t all that different from Instagram or YouTube. Both platforms now feature short, TikTok-style videos. Instagram calls them “Reels,” while YouTube calls them “Shorts.” But what sets TikTok apart is its proprietary algorithm. It’s so effective that it can feel as if it’s reading your mind.
I’ve heard it described as “spooky” in its ability to anticipate your interests and desires. Like most social media platforms, it vacuums up your personal data and tracks the videos you watch to try to anticipate exactly what you like to see. TikTok just does it better. It’s more immersive and intimate than its competitors.
Many parents I know hate TikTok for exactly that reason. They watch it consume hours of their kids’ lives, often with the most inane content. It’s often so inane that it can almost seem malicious — as if it’s deliberately dumbing down American discourse. The Chinese version of TikTok, by contrast, has more educational content, along with time limits for minors. The American version is swimming in dreck.
But “swimming in dreck” isn’t a constitutional reason for banning a social media platform. The First Amendment doesn’t protect just academic or political debate, it also protects all the silly dances, all the absurd jokes and all the ridiculous memes you see online.
The First Amendment does not, however, protect the free expression of the Chinese government. It does not protect the commercial activities of the Chinese government. And that brings us to the question that’s at the heart of the case before the Supreme Court: Is Congress’s TikTok ban truly about content? Or is it about control?
If it’s aimed at changing the content currently on the platform, then it’s almost certainly unconstitutional. After all, there is an American TikTok subsidiary that enjoys constitutional protection, and the American creators on the app are exercising their own constitutional rights. Stopping their speech because the federal government dislikes their content would be a clear violation of the First Amendment.
There are people I respect greatly, including my good friends and former colleagues at the Foundation for Individual Rights and Expression (I was president of FIRE from 2004 to 2005), who see the case as primarily about content.
In an amicus brief they filed along with the Institute for Justice and the Reason Foundation, they stated their case clearly: “The nationwide ban on TikTok is the first time in history our government has proposed — or a court approved — prohibiting an entire medium of communications.”
The law, FIRE argues, “imposes a prior restraint, and restricts speech based on both its content and viewpoint” and is thus either unconstitutional per se or should be subject to the “highest level of First Amendment scrutiny.”
I disagree. This case isn’t about what’s on the platform, but rather who runs the application, and the People’s Republic of China has no constitutional right to control any avenue of communications within the United States.
Think of it this way: Under the law, TikTok could remain exactly the same as it is today — with the same algorithm, the same content and the same creators — so long as it sells the company to a corporation not controlled by a foreign adversary.
Adversarial foreign control matters for all the reasons I described in my opening scenario, and it’s easy to come up with other hypothetical problems. The U.S. and China are locked in a global economic and military competition, and there are ample reasons for China to want to exercise influence over American discourse.
Americans have the constitutional right to control the expression of the companies they create. They can choose to use their own companies to promote Chinese communist messages. An American can choose to vocally support China in a shooting war between the two countries (so long as advocacy doesn’t cross into material support).
But those are American rights, not Chinese rights, and the American content creators who use TikTok have ample opportunities to create identical content on any number of competing platforms. Indeed, they often do — it’s typical to see TikTok creators posting identical videos on Instagram and YouTube.
In addition, social media companies come and go. America has survived the demise of Myspace, Friendster and Vine, and it can certainly survive without TikTok.
In December, the U.S. Court of Appeals for the District of Columbia agreed with my assessment. The potential TikTok ban, it ruled, does not violate the First Amendment.
As the court explained, the law has two primary national security justifications: “(1) to counter the P.R.C.’s efforts to collect great quantities of data about tens of millions of Americans, and (2) to limit the P.R.C.’s ability to manipulate content covertly on the TikTok platform.”
The first justification does not implicate the content of speech at all. The second justification does implicate content, but the core issue is still control. As the court explained, “Specifically, the government invokes the risk that the P.R.C. might shape the content that American users receive, interfere with our political discourse and promote content based upon its alignment with the P.R.C.’s interests.” (...)
In that sense, TikTok isn’t all that different from Instagram or YouTube. Both platforms now feature short, TikTok-style videos. Instagram calls them “Reels,” while YouTube calls them “Shorts.” But what sets TikTok apart is its proprietary algorithm. It’s so effective that it can feel as if it’s reading your mind.
I’ve heard it described as “spooky” in its ability to anticipate your interests and desires. Like most social media platforms, it vacuums up your personal data and tracks the videos you watch to try to anticipate exactly what you like to see. TikTok just does it better. It’s more immersive and intimate than its competitors.
Many parents I know hate TikTok for exactly that reason. They watch it consume hours of their kids’ lives, often with the most inane content. It’s often so inane that it can almost seem malicious — as if it’s deliberately dumbing down American discourse. The Chinese version of TikTok, by contrast, has more educational content, along with time limits for minors. The American version is swimming in dreck.
But “swimming in dreck” isn’t a constitutional reason for banning a social media platform. The First Amendment doesn’t protect just academic or political debate, it also protects all the silly dances, all the absurd jokes and all the ridiculous memes you see online.
The First Amendment does not, however, protect the free expression of the Chinese government. It does not protect the commercial activities of the Chinese government. And that brings us to the question that’s at the heart of the case before the Supreme Court: Is Congress’s TikTok ban truly about content? Or is it about control?
If it’s aimed at changing the content currently on the platform, then it’s almost certainly unconstitutional. After all, there is an American TikTok subsidiary that enjoys constitutional protection, and the American creators on the app are exercising their own constitutional rights. Stopping their speech because the federal government dislikes their content would be a clear violation of the First Amendment.
There are people I respect greatly, including my good friends and former colleagues at the Foundation for Individual Rights and Expression (I was president of FIRE from 2004 to 2005), who see the case as primarily about content.
In an amicus brief they filed along with the Institute for Justice and the Reason Foundation, they stated their case clearly: “The nationwide ban on TikTok is the first time in history our government has proposed — or a court approved — prohibiting an entire medium of communications.”
The law, FIRE argues, “imposes a prior restraint, and restricts speech based on both its content and viewpoint” and is thus either unconstitutional per se or should be subject to the “highest level of First Amendment scrutiny.”
I disagree. This case isn’t about what’s on the platform, but rather who runs the application, and the People’s Republic of China has no constitutional right to control any avenue of communications within the United States.
Think of it this way: Under the law, TikTok could remain exactly the same as it is today — with the same algorithm, the same content and the same creators — so long as it sells the company to a corporation not controlled by a foreign adversary.
Adversarial foreign control matters for all the reasons I described in my opening scenario, and it’s easy to come up with other hypothetical problems. The U.S. and China are locked in a global economic and military competition, and there are ample reasons for China to want to exercise influence over American discourse.
Americans have the constitutional right to control the expression of the companies they create. They can choose to use their own companies to promote Chinese communist messages. An American can choose to vocally support China in a shooting war between the two countries (so long as advocacy doesn’t cross into material support).
But those are American rights, not Chinese rights, and the American content creators who use TikTok have ample opportunities to create identical content on any number of competing platforms. Indeed, they often do — it’s typical to see TikTok creators posting identical videos on Instagram and YouTube.
In addition, social media companies come and go. America has survived the demise of Myspace, Friendster and Vine, and it can certainly survive without TikTok.
In December, the U.S. Court of Appeals for the District of Columbia agreed with my assessment. The potential TikTok ban, it ruled, does not violate the First Amendment.
As the court explained, the law has two primary national security justifications: “(1) to counter the P.R.C.’s efforts to collect great quantities of data about tens of millions of Americans, and (2) to limit the P.R.C.’s ability to manipulate content covertly on the TikTok platform.”
The first justification does not implicate the content of speech at all. The second justification does implicate content, but the core issue is still control. As the court explained, “Specifically, the government invokes the risk that the P.R.C. might shape the content that American users receive, interfere with our political discourse and promote content based upon its alignment with the P.R.C.’s interests.” (...)
“Indeed,” Ginsburg wrote, “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 P.R.C. propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”
The danger of TikTok used to be a rare point of agreement between Donald Trump and Joe Biden. Trump’s administration attempted to ban TikTok during his first term. Biden signed the law that could actually make it happen.
But Trump has since changed his tune. During the campaign, he asked voters to vote for him to save TikTok, and on Dec. 27, he filed one of the most unusual legal briefs I’ve ever read. Essentially, he’s using the fact of his election victory and his social media experience to argue that he is uniquely and solely qualified to resolve the tension between American national security and the free speech rights of TikTok users.
The rhetoric of the brief is absurd. At one point it declares, “President Trump is one of the most powerful, prolific and influential users of social media in history.” Another section states, “President Trump alone possesses the consummate deal-making expertise, the electoral mandate and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government.”
This isn’t a legal argument. It’s a love letter to Dear Leader Trump. It also flunks basic civics. Trump’s electoral win does not grant him special privileges to set aside a law that’s scheduled to go into effect before he takes office. Nor does his victory grant him special judicial deference to his constitutional judgment.
It’s unclear exactly why Trump changed his mind about TikTok. One of its major investors is a significant Trump donor, and Trump has almost 15 million followers on the platform. But regardless of the reasons, Trump’s policy preferences are irrelevant to the constitutional analysis.
The Supreme Court should give Trump a civics lesson. He does not have special authority to set aside laws that he dislikes. It should also draw a bright line between American speech, which is protected by the Constitution, and Chinese control of an American media outlet, which is not.
In many ways, this is the first Supreme Court case of a new cold war, this time with China, and it presents us with a constitutional I.Q. test. We can and should zealously defend the free speech rights of Americans, including their rights to dance, sing and meme away. But we cannot make it this easy for a hostile foreign power to collect our data and manipulate our public debate.
by David French, NY Times| Read more:
Image: Illustration by George Douglas; source photographs by Alfred Gescheidt and ullstein bild/Getty Images
